Alireza Rabiee v The Trustee for Doncaster European Unit Trust T/A Doncaster Volkswagen
[2020] FWCFB 1277
•10 MARCH 2020
| [2020] FWCFB 1277 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Alireza Rabiee
v
The Trustee for Doncaster European Unit Trust T/A Doncaster Volkswagen
(C2019/7897)
VICE PRESIDENT CATANZARITI | SYDNEY, 10 MARCH 2020 |
Appeal against decision [2019] FWC 8367 of Commissioner Cirkovic at Melbourne on 11 December 2019 in matter number U2019/11318 – extension of time – permission to appeal refused.
Introduction
[1] Mr Alireza Rabiee has applied for permission to appeal and appeals a decision 1 made by Commissioner Cirkovic on 11 December 2019 (the Decision) in which the Commissioner declined to grant his application for an extension of time to lodge a application for an unfair dismissal remedy against The Trustee for Doncaster European Unit Trust T/A Doncaster Volkswagen (the Respondent) under s 394 of the Fair Work Act 2009 (FW Act).
[2] Section 394(2) of the FW Act requires an unfair dismissal remedy application to be lodged within 21 days after the dismissal took effect or within such further period as the Commission allows under s 394(3). Section 394(3) provides:
(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) whether the person first became aware of the dismissal after it had taken effect; and
(c) any action taken by the person to dispute the dismissal; and
(d) prejudice to the employer (including prejudice caused by the delay); and
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.
[3] Mr Rabiee was employed by the Respondent as a Sales Consultant from 4 June 2018 until his dismissal on 27 March 2019. The Respondent contends that Mr Rabiee’s dismissal was a case of genuine redundancy. Mr Rabiee challenges this contention.
[4] Under s 394(2), it was necessary for Mr Rabiee to file his unfair dismissal application by midnight on 17 April 2019. However, Mr Rabiee did not do so until 9 October 2019, which meant his application was made 175 days out of time and it was necessary for him to seek an extension of time under s 394(3).
The Decision
[5] In the Decision, the Commissioner addressed each of the matters she was required to take into account under s 394(3). In relation to s 394(3)(a), the Commissioner’s conclusion was that she was not persuaded the Applicant had provided a credible reason for the delay and this weighed against granting an extension of time. In relation to s 394(3)(b), the Commissioner determined that as Mr Rabiee received notification that his dismissal would take effect on 27 March 2019 and accordingly had the full 21 days to lodge his application, this matter was a neutral consideration. As to s 394(3)(c), the Commissioner determined that because there was no evidence that Mr Rabiee took action to dispute his dismissal, other than in making an anonymous inquiry, this factor was a neutral consideration.
[6] In relation to s 394(3)(d), the Commissioner’s conclusion was as follows:
“I cannot identify any particular prejudice that would accrue to the company if an extension of time were to be granted. Some decisions of the Commission view the absence of prejudice to the employer as a factor weighing in favour of granting an extension of time. In my view, in this case at least, it is a neutral factor. However, if the absence of prejudice should properly be treated as telling in favour of an extension of time, I would attribute it little weight in the consideration of whether there are exceptional circumstances in the present case.” 2
[7] As to s 394(3)(e), the Commissioner noted that Mr Rabiee was challenging that his dismissal was a case of redundancy while the Respondent maintained that the case was one of genuine redundancy, before stating:
“A highly meritorious claim may persuade the Commission to accept an explanation for delay that would otherwise have been insufficient. However, the Commission cannot make any findings on contested matters without hearing evidence. Evidence on the merits is rarely called for the purposes of determining an extension of time application. As a result, the Commission should not embark on a detailed consideration of the substantive application. I have not done so.
Accordingly, I am not able to make a final assessment of the merits as there are factual disputes between the parties that have not been tested. I find this criterion to be neutral.” 3
[8] The Commissioner treated s 394(3)(f) as a neutral consideration and her overall conclusion was that she was not satisfied the requisite exceptional circumstances existed. The Commissioner considered there was no acceptable or reasonable explanation for Mr Rabiee’s delay in filing the application, none of the factors in s.394(3) weighed in favour of granting an extension and the circumstances were not exceptional, either individually or when considered together. The Commissioner therefore declined to grant an extension of time pursuant to s 394(3) and dismissed Mr Rabiee’s unfair dismissal application.
Grounds of Appeal
[9] The grounds of appeal in the notice of appeal outlined in the Form F7 – Notice of Appeal were articulated as follows:
1. The Commissioner ignored the special circumstances of the application.
2. The merit of the application was ignored/not assessed.
3. The reason for the delay in making the application was ignored by the Commissioner.
4. There was inconsistency in the application of the law by the Commissioner with respect to the delay.
[10] Mr Rabiee submitted through the notice of appeal that the grant of permission to appeal was in the public interest because:
1. The Respondent has dismissed “many other individuals using similar tactics and intimidating measures” such that the hearing of his case “will provide confidence to other workers in the industry of pursuing justice and making sure their rights can be protected by the law”; and
2. It would enable a binding legal decision to prevent any future conduct of unfair dismissal by the Respondent.
The Conduct of the Appeal
[11] On 17 January 2020, the matter was listed for hearing in respect of permission to appeal only and directions were issued requiring Mr Rabiee to file and serve his Appeal Book and an outline of submissions by 5.00pm on 17 February 2020. In particular, Mr Rabiee was directed to address the requirements of s. 400 of the FW Act by identifying:
a) why it is in the public interest for permission to appeal to be granted; and
b) if the appeal is on a question of fact, the significant error(s) of fact involved in the Decision.
[12] The directions made on 17 January 2020 also outlined that if the parties wished to apply for permission to be represented at the hearing of the matter by a lawyer or paid agent, they were to file and serve a document which identified both the lawyer or paid agent and the reasons why such permission should be granted by 5.00pm on 17 February 2020.
[13] Four weeks passed and when nothing was filed by the due date, Mr Rabiee was sent email correspondence on 19 February 2020 which noted the 17 January 2020 directions had not been complied with and requested advice as to when Mr Rabiee’s material might be filed.
[14] Mr Rabiee replied later that day, stating in an email:
“Based on the complex nature of the case, I do feel the need to get proper legal advice.
I am currently struggling financially, and I am requesting for the matter to adjourned.
Please kindly let me know of the timeframe, should my request be granted.”
[15] On 20 February 2020, email correspondence was sent to Mr Rabiee from the Chambers of Vice President Catanzariti stating:
“Your matter is presently listed to deal only with permission to appeal and it is only in the event that permission to appeal is granted that a hearing on the merits of the appeal would occur.
Please advise as a matter of urgency what steps you have taken to obtain legal advice and when you expect to receive such legal advice.
Until the Full Bench receives a response to this correspondence and is in a position to consider your response, the hearing on permission to appeal will not be vacated and will proceed on 2 March 2020 as scheduled.
Please note if no response is received to this correspondence or there is no appearance by you at the permission to appeal hearing as presently scheduled on 2 March 2020, your appeal may be dismissed.”
[16] Mr Rabiee replied on Friday 21 February 2020 at 4.54pm, with an email that stated:
“I have contacted Maurice Blackbourn Lawyers, Shine Lawyers and MacDonald Murholme lawyers and I have been told I need to pay legal fees ranging from $3000 to $5000 dollars.
In addition I have contacted Victoria Legal Aid and Justice Connect in order to get free legal representation and I was told I do not qualify for it.
I am currently having debts in excess of $5000 dollars to Origin Energy for Gas and Electricity Bills, $3000 to City of Knox and $1500 to SouthEast Water Company.
In the last 12 months, me and wife had 3 major medical surgeries between us and this has put a huge burden on your financial situation.
I am trying to save some money in order to pay legal costs for and perhaps find a cheaper Law firm to represent me for this case.
I don’t believe it is fair for me not to have legal representation where the other side is represented and has the financial means to run a full HR department in assigning them with this matter.
I do not authorise the respondent to access this email and it’s contents.”
[17] An email in response was sent from the Chambers of Vice President Catanzariti on Monday 24 February 2020, stating:
“The usual practice is that all material relied upon by a party is served upon another party in the absence of any order to the contrary. At this stage because you have not authorised the release of any material to the Respondent, the Vice President has not considered your request.
If you are seeking an adjournment, you will need to provide material that can be provided to the Respondent.
In the absence of the Commission receiving anything further, the matter will proceed to hearing on 2 March 2020 on Permission to Appeal only, as previously advised.
Also, as previously advised it is only if Permission to Appeal is granted that your appeal would proceed and that would occur at a subsequent time.
Further, the Commission has not at this stage granted legal representation to the Respondent for the Permission to Appeal hearing. The Commission needs to satisfy itself that it is appropriate to do so and permission for a lawyer to appear is not automatic. The Commission will at the Permission to Appeal hearing consider your views as to whether the Respondent should be permitted legal representation.”
[18] On 26 and 28 February 2020, Mr Rabiee sent email correspondence to the Commission complaining that he had not received any documents from the Respondent and that it was unfair that the Respondent had representation, when he did not. When Mr Rabiee was informed that the permission to appeal hearing would be proceeding as listed on 2 March 2020, he sent a further email to the Commission at 4.02pm on Friday 28 February 2020, the contents of which included:
“…Following our telephone conversation, my points of argument are as follow:
1. Since the other party is represented (regardless of the qualification) I should have the same rights to do so.
I had already mentioned this in my previous correspondences on 3 occasions.
I stated I will need to have the right to have a representation either as a lawyer or someone at the same level as Ms. Roache (e.g. Advocate, HR Specialist, Ex Unionist etc)
I understand the consent for the representation in this matter should be mutually exclusive and as the result, I do not consent for the other party to have a representation, where I am deprived of such right by the commission.
I previously asked the commission to adjourn the matter so I can have the same level of representation as the other party in this matter.
I have been told today that I can have a non lawyer legal representation ( Advocate, HR Specialist ) in this matter. I am asking the commission to give me adequate time to facilitate this, so that both side are at the same level and procedural fairness is met in this case.”
[19] This prompted Ms Claire Roache, HR Manager of the Respondent, to send email correspondence to the Commission in which the Respondent’s opposition to an adjournment was outlined and advice was provided that the Respondent had no submissions it wished to make in relation to the application for permission to appeal. Mr Rabiee responded to this with a further email to the Commission, in which he stated:
“I suggest Ms. Roache to read the emails properly before making fabricated comments.
I said I asked 5 different organisation for legal representation, not for consultation!!!!
I don’t even know what the hearing is about nor I have any idea as to what I need to do or what should I ask the commission or the party or indeed what should I respond to any questions.
It is evident Ms. Roache is an expert in this cases as her explanation indicates in the below email so I should benefit from the same level of expertise.
I totally object to Ms. Roache to have anything to do with this case whatsoever as she is not the director of the company, until the time that I obtain the same level (or higher) of expertises as Ms. Roache.”
[20] Mr Rabiee was advised in an email, sent from the Commission at 4.39pm on 28 February 2020, that he was required to make an application for an adjournment to the Full Bench on Monday 2 March 2020 and that in the event the adjournment was not granted, the matter would proceed. Mr Rabiee was also afforded the opportunity to attend the hearing via telephone.
[21] At the hearing in respect of permission to appeal on Monday 2 March 2020, Mr Rabiee continued to take issue with the Respondent being represented by two of its employees. He also sought an adjournment on the basis that he was unable to deal with the question of permission to appeal in the absence of getting legal representation or other representation. We considered this request but declined to grant Mr Rabiee an adjournment, indicating we would subsequently provide our reasons.
[22] We are not satisfied the circumstances warranted the granting of an adjournment. The directions dated 17 January 2020 outlined the obligations on the parties if they wished to be represented at the hearing by a lawyer or paid agent. We consider Mr Rabiee had adequate time in the 6 weeks that passed between the 17 January 2020 directions and the 2 March 2020 hearing date to source and obtain legal or other representation. The correspondence he sent to the Commission indicates that he made inquiries of 3 legal firms but chose, on the basis of cost, not to retain any of them. The correspondence also indicates that he was advised he was ineligible for either Legal Aid or free advice from Justice Connect. These matters were apparent as early as 21 February 2020. We consider Mr Rabiee had adequate opportunity to secure representation and advice ahead of the hearing.
[23] Further, we were not persuaded that an adjournment was warranted simply because Ms Roache and Mr Bryant were present on behalf of the Respondent. The Respondent was not precluded from having these employees present at the hearing and it did not require the Commission’s permission pursuant to s 596 in order for them to so represent it. In any event, we determined we did not need to hear from either Ms Roache or Mr Bryant on the question of permission to appeal.
Consideration
[24] An appeal under s.604 is by way of rehearing and the Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision maker. 4 There is no right to appeal and an appeal may only be made with the permission of the Commission.
[25] This appeal is one to which s 400 of the FW Act applies. Section 400 provides:
(1) Despite subsection 604(2), the FWC must not grant permission to appeal from a decision made by the FWC under this Part unless the FWC considers that it is in the public interest to do so.
(2) Despite subsection 604(1), an appeal from a decision made by the FWC in relation to a matter arising under this Part can only, to the extent that it is an appeal on a question of fact, be made on the ground that the decision involved a significant error of fact.
[26] In the Federal Court Full Court decision in Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [43], Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s 400 as “a stringent one”. The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.5 A Full Bench of the Commission, in GlaxoSmithKline Australia Pty Ltd v Makin, 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
[27] 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
[28] An application for permission to appeal is not a de facto or preliminary hearing of the appeal. In determining whether permission to appeal should be granted, it is unnecessary and inappropriate for the Full Bench to conduct a detailed examination of the grounds of appeal. 9 However it is necessary to engage with those grounds to consider whether they raise an arguable case of appealable error.
[29] It is well established that the test of “exceptional circumstances” in relation to applications for extensions of time to lodge unfair dismissal applications establishes a “high hurdle” for an applicant. A decision as to whether to extend time under s 394(3) involves the exercise of a broad discretion.10 Therefore it will be necessary, in an application for permission to appeal against a decision made under s 394(3), to demonstrate that there is an arguable case and that there was appealable error in the exercise of the discretion. This requires the identification of error of the type described in House v The King.11 Additionally, where an error of fact is alleged, s 400(2) requires that it must be a significant error of fact and the requirement in s400(1) that permission to appeal be in public interest remains.
[30] Mr Rabiee failed to comply with the direction to file and serve an outline of submissions addressing the requirement of permission to appeal and he declined to make any oral submissions before us at the hearing. Nonetheless, in reaching our decision in this matter we have taken into account the written material filed by Mr Rabiee at first instance and Mr Rabiee’s notice of appeal. Further, we have carefully reviewed the Decision.
[31] We are satisfied the Commissioner considered and attributed weight to each of the matters she was required by the FW Act to take into account and concluded that when they were considered together, there were not the requisite exceptional circumstances warranting the granting of a further period to make an application, pursuant to s.394 of the FW Act. We do not identify any error either in the Commissioner’s approach to the considerations in s.394(3) or in her conclusion that in this case, there was an absence of exceptional circumstances warranting an extension of the period in which the unfair dismissal application was made. We are not persuaded that Mr Rabiee has established any appealable error in the Decision. Furthermore, we wholly agree with the Decision.
[32] We do not consider that it would be in the public interest to grant permission to appeal in this matter because the grounds of appeal are not sufficiently arguable and we do not consider that the appeal raises any issue of importance or general application or that there is any disharmony in first instance decisions that requires resolution at the appellate level. Permission to appeal must therefore be refused in accordance with s 400(1) of the FW Act.
VICE PRESIDENT
Appearances:
A Rabiee on his own behalf.
C Roach and G Bryant for the Respondent.
Hearing details:
2020.
Melbourne:
March 2.
Printed by authority of the Commonwealth Government Printer
<PR717364>
1 [2019] FWC 8367.
2 Ibid at [30].
3 Ibid at [33]-[34].
4 This is so because on appeal the Commission has power to receive further evidence, pursuant to s.607(2); see Coal and Allied v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.
5 O’Sullivan v Farrer [1989], HCA 61, 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch [2011] HCA 4, 243 CLR 506, 85 ALJR 398 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54, 192 FCR 78, 207 IR 177 at [44]-[46].
6 [2010] FWAFB 5343, 197 IR 266 at [24] – [27].
7 Wan v AIRC [2001] FCA 1803, 116 FCR 481 at [30].
8 Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth[2010] FWAFB 10089, 202 IR 388 at [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54, 192 FCR 78, 207 IR 177; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office[2014] FWCFB 1663, 241 IR 177 at [28].
9 Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82].
10 Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21].
11 [1936] HCA 40, 55 CLR 499.
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