Ajay Singh v MSS Security Pty Ltd
[2015] FWCFB 393
•23 JANUARY 2015
| [2015] FWCFB 393 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
MSS Security Pty Ltd
(C2014/8222)
JUSTICE ROSS, PRESIDENT |
|
Appeal against decision [2014] FWC 8088 of Commissioner Cloghan at Perth on 13 November 2014 in U2014/11230 - denial of procedural fairness - permission to appeal granted - appeal upheld - decision and order quashed - matter remitted.
[1] Ajay Singh (the appellant) was dismissed from his employment with MSS Security Pty Ltd (the respondent) on 18 July 2014 and subsequently lodged an application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Cth) (the FW Act) on 25 July 2014.
[2] On 13 November 2014 Commissioner Cloghan issued a decision in relation to the appellant’s application. 1 In that decision, the Commissioner determined that the appellant’s application should be dismissed under s.399A(1) of the FW Act on the basis that appellant had unreasonably failed to comply with the Commission’s directions. The Commissioner issued a separate order the same day dismissing the application,2 although in that order the application is dismissed under s.587(3)(a). The appellant has appealed the Commissioner’s decision and that is the matter before us.
[3] Rule 56(2) of the Fair Work Commission Rules 2013 (Rules) relevantly provides that a notice of appeal under s.604 must be filed within 21 calendar days after the date of the decision the subject of the appeal or within such further time allowed by the Commission on application by the appellant. The appellant’s notice of appeal was filed on 15 December 2014, eleven days after the prescribed 21-day time period had expired. Accordingly it is necessary for the appellant to apply for an extension of time. Taking a generous approach on the basis that the appellant is not represented, we infer that he has made such an application in his notice of appeal.
[4] The usual principles applying to consideration of an application to extend time to lodge an appeal were summarised in the Full Bench decision in Jobs Australia v Eland 3as follows:
“[5]Time limits of the kind in Rule 56 should not simply be extended as a matter of course. There are sound administrative and industrial reasons for setting a limit to the time for bringing an appeal and it should only be extended where there are good reasons for doing so. The authorities indicate that the following matters are relevant to the exercise of the Tribunal’s discretion under Rule 56(2)(c):
● whether there is a satisfactory reason for the delay;
● the length of the delay;
● the nature of the grounds of appeal and the likelihood that one or more of those grounds being upheld if time was extended; and
● any prejudice to the respondent if time were extended.”
[5] The appellant has explained that on 16 November 2014 (which is within the 21-day timeframe) he attempted to lodge a notice of appeal utilising the Commission’s online application facility. He initially assumed that he had been successful in lodging his appeal. However, after some time had passed and he failed to hear anything concerning the progress of his appeal, the appellant attended the Perth premises of the Commission on 15 December 2014 to inquire as to the status of his appeal. He was then informed that no appeal had been received. He then lodged his notice of appeal that day.
[6] We consider that Mr Singh’s explanation for the delay is a satisfactory one. The length of the delay is not extensive. For reasons which will become clear later in this decision, we consider that the appeal has significant merit. We do not consider that an extension of time would cause any prejudice to the respondent. We grant Mr Singh the necessary extension of time to lodge his appeal.
[7] Mr Singh’s appeal was listed for hearing on 21 January 2015 in relation to the issue of permission to appeal only. However, having regard to the straightforward nature of the issues raised by the appeal and the parties’ submissions on those issues, we inquired of the parties whether they would consent to us determining the appeal to finality on the basis of the material presently before us in the event that we determined to grant permission to appeal. Both parties stated their consent to this, and accordingly we will take that course.
[8] In relation to permission to appeal, to the extent that the Commissioner’s decision was made under Part 3-2 – Unfair Dismissal – of the FW Act (either because the decision concerned an unfair dismissal remedy application or because it was made pursuant to s.399A, which falls within Part 3.2), s.400(1) provides that permission to appeal must not be granted unless the Commission considers that it is in the public interest to do so. Further, in such matters appeals on a question of fact may only be made on the ground that the decision involved a “significant error of fact” (s.400(2)). In Coal & Allied Mining Services Pty Ltd v Lawler and others, Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s.400 as “a stringent one”. 4 The Commission must not grant permission to appeal unless it considers that it is “in the public interest to do so”.
[9] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment 5. In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of the Commission identified some of the considerations that may attract the public interest:
“... the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters.” 6
[10] It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of appealable error. 7 However, the fact that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.8
[11] To the extent that the decision may not be one made under Part 3-2 (because the order relies on s.587(3)(a), which does not form part of Part 3-2), it remains necessary for the appellant to demonstrate either public interest grounds or some other appropriate discretionary basis to justify the grant of permission to appeal. Where the Commission is satisfied that it is in the public interest to grant permission to appeal, it must do so: s.604(2).
[12] As earlier stated, the Commissioner dismissed the appellant’s application because of his “unreasonable” non-compliance with directions. Those directions were made on 2 September 2014 and issued in writing, and relevantly required both parties to file and serve the documents they intended to rely upon by 1 October 2014, and the appellant to file and serve a Statement of facts, witness statements and other documentary material upon which he relied by 29 October 2014. The directions contained a note stating that “The Applicant and Employer must comply with these directions”, but did not warn that non-compliance by the applicant might lead to the application being dismissed without further notice.
[13] The respondent complied with the first direction we have identified, but the appellant complied with neither. When the respondent sent copies of the documents upon which it relied by email to the appellant on 1 October 2014, the appellant responded with an email which began: “Why are you sending those documents? Did the FWC asked you any documents?” [sic]. The respondent’s representative replied:
“As per my emails, the documents are being sent to you in accordance with the directions provided by the Commission. The directions were provided as an attachment to the Notice of Listing.
If you have any queries about the process it is probably more appropriate for you to direct these to the Commissioner’s Chambers/Associate, rather than to me.”
[14] The respondent did not send any correspondence to the appellant complaining about his subsequent failure to comply with the directions. There is no record of any correspondence or communication being sent by the Commission to the appellant reminding him of his obligations under the directions, raising with him his failure to comply with the directions, or suggesting that continued non-compliance might result in his application being dismissed.
[15] On 10 November 2014 the respondent filed and served an application seeking the dismissal of the appellant’s application on the basis of his non-compliance with the directions. The Commissioner issued his decision and order dismissing the appellant’s unfair dismissal remedy application three days later. It is apparent he did so without hearing from either party. The decision states that “No response to the application was received from the Applicant” and “The Applicant has not communicated with the Commission as to why he has been unable to comply with the Commission’s Directions in relation to his application”. However the Commission’s records do not disclose that the appellant was ever informed that he was required or had an opportunity to make a submission in response to the respondent’s strike-out application, let alone that he had less than three days in which to do so. As far as we can tell there was simply no communication from the Commission to the appellant about the matter at all.
[16] We consider that, in the circumstances, the appellant was denied procedural fairness. He was not given a fair opportunity to be heard in relation to the respondent’s strike-out application. Whether, if he had been heard, he would have been successful in persuading the Commissioner not to dismiss his application is beside the point; the critical issue is that he was denied the possibility of a successful outcome. 9 We note that the appellant has submitted in the appeal that he did not comply with the directions because he could not understand the terminology used in them. His email to the respondent of 1 October 2014, on its face, appears to be consistent with that explanation. That explanation, if accepted, would at least arguably be a reasonable basis for non-compliance with the directions.
[17] A further problem in the decision is the Commissioner’s finding that the appellant’s failure to comply with the directions was “unreasonable”. To the extent that the Commissioner utilised the power in s.399A(1)(b), it was necessary for him to make that finding because the power to dismiss an application in that provision can only be exercised in relation to an unreasonable failure to comply with directions. In the absence of any information as to why the appellant had not complied with the directions, and without having afforded the appellant a fair opportunity to provide an explanation for his non-compliance, there was simply no basis upon which it could have been found that his non-compliance was unreasonable and therefore no basis upon which the s.399A(1)(b) power could be exercised.
[18] These errors are jurisdictional in nature. They caused an injustice to the appellant. We are satisfied that it would be in the public interest to grant permission to appeal. We will therefore grant permission to appeal, uphold the appeal and quash the Commissioner’s decision and order. We consider that the appropriate course thereafter is to remit the matter to the Commissioner on the basis that he shall re-hear the respondent’s application filed on 10 November 2014 for the dismissal of the appellant’s unfair dismissal remedy application, and in doing so shall give the appellant an opportunity to be heard in relation to that application, in writing or at a hearing or both.
[19] We order as follows:
(1) Permission to appeal is granted.
(2) The appeal is upheld.
(3) The decision and order of Commissioner Cloghan of 13 November 2014 are quashed.
(4) The matter is remitted to Commissioner Cloghan.
(5) Commissioner Cloghan is directed to re-hear the respondent’s application lodged on 10 November 2014 for the dismissal of the appellant’s unfair dismissal remedy application, and in doing so shall give the appellant an opportunity to be heard in relation to that application, in writing or at a hearing or both.
PRESIDENT
Appearances:
The appellant: Mr A. Singh in person
The respondent: Ms S. Pedlow and Mr P. Price
Hearing details:
Sydney with video link to Perth
21 January 2015
1 [2014] FWC 8088
2 PR557736
3 [2014] FWCFB 4822
4 (2011) 192 FCR 78 at [43]
5 O’Sullivan v Farrer (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch (2011) 85 ALJR 398 at [69] per Gummow, Hayne, Heydon, Crennon, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54 at [44] -[46].
6 (2010) 197 IR 266 at [27]
7 Wan v AIRC [2001] FCA 1803 at [30]
8 GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343 at [26]-[27]; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth[2010] FWAFB 10089 at [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler; [2011] FCAFC 54; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663 at [28]
9 See Stead v State Government Insurance Commission (1986) 161 CLR 141 at 147
Printed by authority of the Commonwealth Government Printer
<Price code C, PR560119>
4
10
0