Albert Doe-Nunneh v Security International Services Pty Ltd
[2015] FWCFB 382
•2 FEBRUARY 2015
| [2015] FWCFB 382 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
Security International Services Pty Ltd
(C2014/1932)
VICE PRESIDENT HATCHER | SYDNEY, 2 FEBRUARY 2015 |
Appeal against decision [2014] FWC 5284 of Commissioner Simpson at Brisbane on 15 August 2014 in matter number U2014/4834.
[1] This decision reproduces in edited form the decision and reasons which were stated on transcript at the conclusion of the hearing conducted in relation to this matter on 14 January 2015.
[2] Mr Albert Doe-Nunneh has filed a notice of appeal under s.604 of the Fair Work Act 2009 (Act) in which he seeks permission to appeal and appeals a decision of Commissioner Simpson issued on 15 August 2014 1 (Decision).
[3] In the Decision, the Commissioner dismissed an application which Mr Doe-Nunneh had made for an unfair dismissal remedy in relation to his alleged dismissal from employment with Security International Services Pty Ltd (SIS). The Commissioner dismissed the application on jurisdictional grounds, finding that Mr Doe-Nunneh had not in fact ever been employed by SIS.
[4] 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 under appeal or within such further time allowed by the Commission on application by the appellant.
[5] Mr Doe-Nunneh’s appeal was filed on 17 October 2014, six weeks after the passing of the prescribed 21 day period. Accordingly it is necessary for Mr Doe-Nunneh to apply for an extension of time.
[6] Mr Doe-Nunneh has applied for such an extension in his notice of appeal. The grounds upon which he seeks such an extension are stated in his notice of appeal as follows:
“I had no knowledge whatsoever, that such an option existed; the Fair Work Commission did not inform me of this appeal option, even though I called back and expressed my reservation with the final decision. I even informed the Commission of my intention to proceed to the Fair Work Ombudsman and the Fair Trading and made a request for the transcript of the Fair Work Deputy Commissioner’s final decision. I had always thought that decision made at the Fair Work could only be challenged at the Fair Work Ombudsman, I did not know that Fair Work Commission had such an appeal option and that I was entitled to it.”
[7] The principles applicable to the consideration and determination of an application to extend time to lodge an appeal were summarised in the Full Bench decision in Jobs Australia v Eland 2 as 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.”
[8] We will consider these matters in turn.
[9] We do not consider that Mr Doe-Nunneh has a satisfactory reason for the delay. Mr Doe-Nunneh relied upon his ignorance of the appeal facility provided for by s.604 of the Act. That by itself cannot constitute a satisfactory reason. There is nothing before us to suggest that Mr Doe-Nunneh sought information or advice from any source about his appeal rights in any reasonable period after the Decision was issued. The Commission’s website provides ample information about appeals from Commission decisions, including information about the 21 day time limit for filing appeals, and Mr Doe-Nunneh has conceded that he was aware of the existence of the website at the time the Decision was issued.
[10] The length of the delay, being six weeks, we consider to be reasonably significant.
[11] On the prospects of success of the appeal, we are satisfied that the appeal has reasonable prospects of success, both as to the grant of permission to appeal in the public interest under s.400(1) and as to the appeal itself. The Commissioner had before him a motion to strike out the application for an unfair dismissal remedy. SIS bore the burden in relation to that of positively satisfying the Commission that it was not the real employer of Mr Doe-Nunneh.
[12] While the material before the Commissioner - principally the evidence of Mr Lind - may have demonstrated that there was a paper arrangement whereby the employment of security guards was nominally subcontracted by SIS to other entities, it is strongly arguable that it did not demonstrate that SIS was not, as a matter of practical reality, the actual employer. Evidence before the Commissioner of SIS’s direct supervision and management of Mr Doe-Nunneh’s work, its provision of uniforms and its facilitation of the provision of training, and the absence of evidence of any dealings between Mr Doe-Nunneh and the subcontractors, or even the identification of who those subcontractors were, may have supported the conclusion that in fact SIS was the real employer. 3
[13] As to the final matter, we do not consider that the delay caused any prejudice to SIS as the respondent to the appeal.
[14] Considering those matters together, we have determined that Mr Doe-Nunneh should be granted an extension of time to file his appeal. In coming to that conclusion, we have placed particular weight on the appeal’s prospects of success as earlier identified. We also consider that the practical difficulty of Mr Doe-Nunneh being able to identify his true employer in a purported subcontracting situation is an issue which attracts the public interest and may justify the grant of permission to appeal.
[15] It will therefore be necessary to reserve our decision on whether permission to appeal should be granted and the appeal upheld. We anticipate it will take some weeks for us to issue our decision in this respect.
[16] Since the parties are present in Court, it might be convenient, unless anyone objects, for a further conciliation of this matter to be conducted. Such a conciliation should endeavour to reach a realistic settlement of this matter, having regard to:
(1) the issues raised by the appeal;
(2) the outstanding significant issues, which have not yet been determined, as to whether Mr Doe-Nunneh served the minimum period of employment of six months, and whether in fact he was dismissed at all.
[17] Commissioner Booth will make herself available for this purpose at 2.00pm today.
[NOTE: the matter was subsequently settled and the appeal treated as discontinued.]
VICE PRESIDENT
Appearances:
A. Doe-Nunneh on his own behalf
G. Lind for Security International Services Pty Ltd.
Hearing details:
2015.
Brisbane:
14 January.
1 [2014] FWC 5284
2 [2014] FWCFB 4822
3 See Fair Work Ombudsman v Ramsey Food Processing Pty Ltd [2011] FCA 1176 at [92]-[94].
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