Amalia Vickery v Affinity Education Group Ltd T/A Village Kids Bentley Centre A
[2015] FWCFB 3479
•27 MAY 2015
| [2015] FWCFB 3479 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
Affinity Education Group Ltd T/A Village Kids Bentley Centre A
(C2015/2397)
VICE PRESIDENT CATANZARITI | SYDNEY, 27 MAY 2015 |
Appeal against Order PR562112 of Senior Deputy President Drake at Sydney on 18 March 2015 in matter number U2015/3294 - Application lodged out of time - Permission to appeal - Whether grounds of appeal attract the public interest - Fair Work Act 2009 ss.394, 400, 604.
[1] This decision concerns an application for permission to appeal against an order of Senior Deputy President Drake issued on 18 March 2015. The order of the Senior Deputy President concerned an application for extension of time for lodgement of an application for unfair dismissal remedy made by Ms Amalia Vickery on 19 February 2015 under s.394 of the Fair Work Act 2009 (the Act).
[2] At the hearing of the appeal Ms A Vickery appeared on her own behalf and Ms L Carroll appeared on behalf of Affinity Education Group Ltd T/A Village Kids Bentley Centre A (Affinity Education Group).
[3] Ms Vickery’s employment was terminated with Affinity Education Group on 21 January 2015. Her application was lodged at the Fair Work Commission on 19 February 2015. Section 394(2) of the Act provides that such applications must be made within 21 days after the dismissal took effect or within such further period as the Commission allows under s.394(3). It follows that the appellant's unfair dismissal application was lodged eight days outside the statutory time limit.
[4] Ms Vickery provided the following reasons for delay in lodgement:
- she was delayed whilst waiting for the office of Affinity Education Group to find two incident reports, from which she intended to extract dates of injury to insert on her application, and
- she was consulting doctors about her injury and taking Panadol Forte for pain.
[5] If an unfair dismissal application is filed out of time, the Commission is able to extend the time for filing where satisfied that "exceptional circumstances" exist, having taken into account a number of factors listed in s.394(3) of the Act. The Senior Deputy President refused Ms Vickery’s application for an extension of time and issued an Order dismissing her application on 18 March 2015. Reasons for the decision were issued on 21 April 2015.
[6] Ms Vickery contends that permission to appeal should be granted because she wishes to continue to work with children once she recovers from her injuries, she has been unable to gain employment due to her injuries, the pain she suffers is increasing and her case is genuine. Ms Vickery submits that it is in the public interest to grant the appeal as the 21 day statutory time limit for lodging applications for unfair dismissal remedy is too short and assistance should be given to injured workers.
[7] An appeal in relation to an unfair dismissal matter is governed by the provisions of sections 604 and 400 of the Act. Section 604 of the Act deals with appeals generally. These requirements are modified with respect to unfair dismissal appeals by section 400 of the Act which provides:
“400 Appeal rights
(1) Despite subsection 604(2), FWA must not grant permission to appeal from a decision made by FWA under this Part unless FWA 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.”
[8] 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’ 1. The Commission must not grant permission to appeal unless it considers that it is ‘in the public interest to do so.’
[9] The test for determining the public interest has been described as follows: 2
“[26] Appeals have lain on the ground that it is in the public interest that leave should be granted in the predecessors to the Act for decades. It has not been considered useful or appropriate to define the concept in other than the most general terms and we do not intend to do so. The expression ‘in the public interest’, when used in a statute, classically imports a discretionary value judgment to be made to be made by reference to undefined factual matters, confined only by the objects of the legislation in question. [Comalco v O’Connor (1995) 131 AR 657 at p.681 per Wilcox CJ & Keely J, citing O’Sullivan v Farrer (1989) 168 CLR 210]
[27] Although 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, it seems to us that none of those elements is present in this case.”
[10] It is also important to note that the decision under appeal is of a discretionary nature. Usually, such a decision can only be successfully challenged on appeal if it is shown that the discretion was not exercised correctly. 3 It is not open to an appeal bench to substitute its view on the matters that fell for determination before the Commissioner in the absence of error of an appealable nature in the decision at first instance. As the High Court said in House v The King:4
“The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.”
[11] The Senior Deputy President correctly noted that exceptional circumstances were required. In her reasons she set out extracts from court authority dealing with the meaning of exceptional circumstances. Her Honour then considered each of the criteria in s.394(3) relevant to the determination of whether exceptional circumstances existed and concluded that Ms Vickery’s circumstances were not out of the ordinary course, unusual, special or uncommon.
[12] In our view Ms Vickery has not demonstrated that the approach of the Senior Deputy President was in error or that there is any aspect of this case which suggests that it is in the public interest to grant permission to appeal. In our view the decision represents, with respect, a routine exercise of the Commission’s discretion applied in an entirely appropriate manner. The conclusion reached was not unreasonable or plainly unjust. The application for permission to appeal is dismissed.
VICE PRESIDENT
Appearances:
Ms Vickery in person.
Ms Carroll on behalf of Affinity Education Group.
Hearing details:
2015.
Sydney
20 May.
1 (2011) 192 FCR 78 at paragraph 43.
2 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343.
3 House v The King (1936) 55 CLR 499 at [504]-[505] per Dixon, Evatt and McTiernan JJ.
4 Ibid.
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