Alex Sandy Brown v Busy Bees Australia Employer Pty Ltd
[2024] FWCFB 278
•5 JUNE 2024
| [2024] FWCFB 278 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Alex Sandy Brown
v
Busy Bees Australia Employer Pty Ltd
(C2024/2807)
| DEPUTY PRESIDENT MILLHOUSE | MELBOURNE, 5 JUNE 2024 |
Appeal against decision [2024] FWC 972 of Deputy President Dobson at Brisbane on 15 April 2024 in matter number C2024/457 – permission to appeal refused.
Alex Sandy Brown has lodged an appeal under s 604 of the Fair Work Act 2009 (Cth) (Act), for which permission to appeal is required, against a decision[1] of Deputy President Dobson issued on 15 April 2024. In the decision, the Deputy President declined to grant Mr Brown an extension of time to file a general protections application against the respondent, Busy Bees Australia Employer Pty Ltd and ordered that the application be dismissed.
The matter was listed for permission to appeal only. The parties consented to the application being determined without holding a hearing pursuant to s 607(1)(b) of the Act. We are satisfied that the question of permission to appeal can be adequately determined without the need for oral submissions. For the reasons that follow, permission to appeal is refused.
Decision under appeal
The respondent is an early childhood education and childcare centre. Mr Brown was employed by the respondent as a Lead Educator from 29 November 2023. Mr Brown made a general protections application under s 365 of the Act on 25 January 2024.
In the decision, the Deputy President first determined the effective date of dismissal, relevantly finding that the events of 13 December 2023 together with the content of the termination letter demonstrated that the dismissal took effect on 13 December 2023. The Deputy President was satisfied that Mr Brown’s general protections application had been made outside the 21-day statutory timeframe for lodgement, and was 22 days out of time.
The Deputy President turned to consider whether to allow a further period for the application to be made, having regard to the matters in s 366(2) of the Act, and made findings as follows:
(a)The reason for the delay was attributable to ignorance of the statutory timeframe for lodgement and a mistaken belief that the relevant modern award dispute resolution procedure was first required to be exhausted prior to lodging the application
(s 366(2)(a)).
(b)Mr Brown had taken action to dispute the dismissal by sending approximately 30 emails to various members of the respondent’s business about the circumstances of the dismissal (s 366(2)(b)).
(c)No submission or evidence was advanced demonstrating any prejudice to the respondent should time be extended, and this was therefore a neutral consideration (s 366(2)(c)).
(d)The Deputy President noted the well-established position set out in Nulty v Blue Star Group Pty Ltd[2] that it is not appropriate for the Commission to resolve contested issues of fact that are relevant to the merits of the substantive application, in the determination of an extension of time. The Deputy President found the merits of Mr Brown’s substantive case to be neutral (s 366(2)(d)).
(e)There were no matters advanced by the parties that were relevant to the consideration of fairness (s 366(2)(e)).
Having regard to these findings, the Deputy President proceeded to consider whether there were exceptional circumstances. Having found there were not, the Deputy President dismissed the application.
Grounds of appeal and public interest
The Form F7 Notice of Appeal identifies four grounds of appeal, which are explained in submissions attached to the appeal notice and addressed in our analysis below. These grounds are that the Deputy President (1) made errors of law, (2) made errors of fact, (3) was biased, and (4) did not adhere to relevant case law.
Mr Brown submits that it is in the public interest that the Commission takes a consistent approach to matters before it, including by adhering to case law and correcting errors in its decisions.
Principles – permission to appeal
There is no right to appeal, and an appeal may only be made with the permission of the Commission. Without limiting when the Commission might grant permission, s 604(2) of the Act provides that the Commission must grant permission if the Commission is satisfied that it is in the public interest to do so.
The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[3] The public interest is not satisfied simply by the identification of error or a preference for a different result.[4] Considerations that may attract the public interest include that the matter raises issues of importance and general application, that the decision manifests an injustice or that the result is counterintuitive.[5]
It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. However, that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.
An application for permission to appeal is not a preliminary hearing of the appeal. In determining whether to grant permission to appeal, it is unnecessary and inappropriate to conduct a detailed examination of the appeal grounds.[6] However, it is necessary to engage with the grounds to consider whether they raise an arguable case of appealable error.
Consideration
For the reasons that follow, we are not persuaded that the Notice of Appeal or Mr Brown’s submissions disclose any arguable appealable error. In the determination of whether to grant an extension of time, the Deputy President considered each of the factors required to be taken into account by s 366(2) of the Act and applied standard legal principles in the exercise of her discretion. The specific contention that the Deputy President “ignored” Nulty v Blue Star Group Pty Ltd[7]in her consideration is not sustainable having regard to the decision.
Mr Brown’s submissions appear to demonstrate a mistaken understanding of certain conclusions reached in the decision.
(a)Contrary to Mr Brown’s contention, the Deputy President did not make a finding in the respondent’s favour at [49] of the decision. Rather, the Deputy President recorded her view that Mr Brown’s performance-related submissions were not relevant to the consideration in s 366(2)(a) regarding the reason for the delay.
(b)Mr Brown contends that the finding at [51] of the decision ignores recent authority. However, the Deputy President concluded that the consideration in s 366(2)(b) of the Act (action taken to dispute the dismissal) weighed in Mr Brown’s favour and not in the respondent’s favour as Mr Brown appears to misapprehend.
(c)The Deputy President did not err at [58] of the decision by failing to take into account the action taken by Mr Brown to dispute the dismissal (s 366(2)(b)) when considering the fairness factor at s 366(2)(e) of the Act.
(d)The authorities to which Mr Brown refers do not demonstrate that the Deputy President misapplied the statutory test. Authorities involving alleged failures to consider whether there was a valid reason for the dismissal were not relevant in the consideration of whether to extend time pursuant to s 366(2) of the Act. Nor were they relevant to Mr Brown’s substantive application (which was made under the general protections provisions of the Act, and not the unfair dismissal provisions).
(e)The contention that the respondent failed to produce evidence or case authorities in relation to its substantive case, or to discharge the onus of proof in s 361 of the Act, does not disclose error in the decision. In any event, as the Deputy President explained at the commencement of the proceeding, Mr Brown’s general protections application was listed for an extension of time hearing as a preliminary matter. Mr Brown’s substantive general protections application was not the subject of the decision. No arguable error arises from this approach.
Mr Brown’s submissions variously contend that the Deputy President demonstrated bias towards him. We note there was no application at first instance for the Deputy President to recuse herself on the grounds of apprehended or actual bias, nor have we been taken to any evidence that the Deputy President demonstrated a lack of impartiality. Our consideration of the audio file produced by Mr Brown does not bear out such a contention, notwithstanding Mr Brown’s request during the hearing as to his options to appeal the decision once issued.
It follows that appeal grounds (1), (3) and (4) do not give rise to an arguable case of appealable error.
As to ground (2), we discern from Mr Brown’s submissions that the alleged error of fact concerns [29] of the decision. While Mr Brown accepts that his dismissal took effect on 13 December 2023 (as the Deputy President found), he disputes the respondent’s contention that the dismissal occurred at 11:15am. Mr Brown’s position was that his dismissal occurred late in the afternoon on 13 December 2023.
The contention that the Deputy President made an error of fact is unarguable. Paragraph [29] of the decision records the parties’ respective contentions. The Deputy President did not make any findings as to the time the dismissal was effected as the issue did not require determination in the decision.
Finally, to the extent it is challenged by Mr Brown’s submissions, no arguable appealable error arises from [46]-[47] of the decision. We agree with the Deputy President’s finding that Mr Brown held the mistaken view that he was obliged to follow the dispute resolution procedure in the Childrens Services Award 2010 before lodging his general protections application.
Conclusion and disposition
For the reasons given, we do not consider that an arguable case has been advanced that the decision was attended by appealable error. Nor are we satisfied, for the purposes of s 604(2) of the Act, that the appeal attracts the public interest. The appeal does not raise any genuine issue of law, principle or wider application.
Permission to appeal is refused.
DEPUTY PRESIDENT
[1] [2024] FWC 972
[2] [2011] FWAFB 975
[3] O’Sullivan v Farrer (1989) 168 CLR 210 at 216-217 per Mason CJ, Brennan, Dawson and Gaudron JJ: applied in Hogan v Hinch (2011) 243 CLR 506 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [44]-[46]
[4] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343; 197 IR 266 at [24]-[27]; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/ Warkworth[2010] FWAFB 10089 at [28], affirmed on judicial review; Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 178; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663; 241 IR 177 at [28]
[5] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343, 197 IR 266 at [24]-[27]
[6] Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]
[7] [2011] FWAFB 975
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