Andrew Neven v Aurizon Operations Limited t/a Aurizon
[2016] FWCFB 5497
•30 AUGUST 2016
| [2016] FWCFB 5497 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
Aurizon Operations Limited t/a Aurizon
(C2016/1360)
VICE PRESIDENT HATCHER | SYDNEY, 30 AUGUST 2016 |
Permission to appeal against decision [2016] FWC 3180 of Deputy President Lawrence at Sydney on 20 May 2016 in matter number C2016/2441.
Introduction
[1] This is an appeal, for which permission to appeal is required, against a decision and order of Deputy President Lawrence issued on 20 May 2016 1 (Decision) in which he declined, under s.366 of the Fair Work Act 2009 (FW Act), to extend time to the appellant, Mr Andrew Neven, to file a general protections dismissal application under s.365 of the FW Act.
[2] At the hearing of the appeal before us permission was granted, under s.596 of the FW Act, for Mr Neven to be represented by Ms D Whitehouse of counsel. The respondent was represented by its employee relations advisor, Mr A Walker.
[3] Mr Neven filed his general protections dismissal application in the Commission on 1 February 2016. In that application he identified the date of the dismissal the subject of the application as being 23 December 2015.
[4] Section 366(1) requires a general protections dismissal application to be made within 21 days after the dismissal took effect or within such further period as the Commission allows under s.366(2). The application was filed 18 days after the 21-day time period, and it was therefore necessary for Mr Neven to obtain an extension of time under s.366(2) in order to make his application.
Legislative provisions
[5] Section 366(2) sets out the circumstances in which the Commission may grant an extension of time as follows:
(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) any action taken by the person to dispute the dismissal; and
(c) prejudice to the employer (including prejudice caused by the delay); and
(d) the merits of the application; and
(e) fairness as between the person and other persons in a like position.
[6] The test of “exceptional circumstances” establishes a “high hurdle” for an applicant for an extension. 2 A decision as to whether to extend time under s.366(2) involves the exercise of a discretion.3
[7] An appeal under s.604 of the FW Act is an appeal by way of rehearing and the Fair Work Commission’s (Commission) 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. Section 604 provides:
(1) A person who is aggrieved by a decision:
(a) made by the FWC (other than a decision of a Full Bench or an Expert Panel); or
(b) made by the General Manager (including a delegate of the General Manager) under the Registered Organisations Act;
may appeal the decision, with the permission of the FWC.
(2) Without limiting when the FWC may grant permission, the FWC must grant permission if the FWC is satisfied that it is in the public interest to do so.
Note: Subsection (2) does not apply in relation to an application for an unfair dismissal (see section 400). (2) A person may appeal the decision by applying to the FWC.
[8] Subsection 604(2) requires the Commission to grant permission to appeal if 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. 5 The public interest is not satisfied simply by the identification of error6, or a preference for a different result.7 In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of Fair Work Australia identified some of the considerations that may attract the public interest:
“... the public interest might be attracted where a matter raises issue 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...” 8
[9] Other than the special case in s.604(2), the grounds for granting permission to appeal are not specified. Considerations which have traditionally been adopted in granting leave and which would therefore usually be treated as justifying the grant of permission to appeal include that the decision is attended with sufficient doubt to warrant its reconsideration and that substantial injustice may result if leave is refused. 9 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.10 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.11
The Decision
[10] In the Decision, the Deputy President described the sequence of events between the dismissal and the filing of Mr Neven’s s.365 application in the Commission. These may briefly be summarised as follows:
- On 23 December 2015 the applicant’s employment was terminated (consequently, he had until 13 January 2016 to file an application under s.365 that was within time);
- On 13 January 2016 the applicant filed an unfair dismissal application;
- On 22 January 2016 the applicant filed a Notice of Discontinuance in relation to the unfair dismissal application because the applicant earned more than the high income threshold; and
- On 1 February 2016 the applicant filed the present application.
[11] In the Decision, the Deputy President gave consideration to each of the matters he was required to take into account under s.366(2).
[12] In relation to s.366(2)(a), the reason for the delay, the Deputy President considered the various reasons for the delay advanced by Mr Neven, which can be summarised as follows:
- representative error; and
- the medical and psychological difficulties he was having at the time.
[13] Where there is a delay in the filing of an application it is necessary to consider whether there is a credible reason for the whole of the period that the application was delayed. 12 In the present matter there are two relevant periods:
- between 13 January 2016 (by which time the application should have been filed in order for it to be within time) and 22 January 2016 (when a Notice of Discontinuance was filed in relation to the unfair dismissal application) (First Period); and
- 22 January 2016 (when a Notice of Discontinuance was filed in relation to the unfair dismissal application) and 1 February 2016 (when the present application was filed) (Second Period).
[14] In relation to representative error reason, the Deputy President concluded that:
“[16] In my view, the representative error in this case is not sufficient to qualify for “exceptional circumstances”. Moreover, there is no explanation for the further delay in lodging the general protections application once the unfair dismissal application was discontinued.…”
[15] The First Period can be attributed to representative error. Mr Neven’s solicitor should have taken instructions about what he earned and determined that, because he earned over the high income threshold, he was barred from making an application for an unfair dismissal remedy.
[16] However, the Second Period (a further period of 10 days) cannot be attributed to representative error.
[17] In his general protections application the Second Period was explained as follows:
“The Representative had three conciliations and three lots of hearings for submissions last week with only 4 days to prepare given there was a public holiday and pupil free day in that week. Therefore the new cap application is being lodged on 31 January 2016.
Therefore we seek an extension to have this matter heard on the basis that the Applicant had nothing to do with the application being lodged out of time.”
[18] By the time of the hearing before the Deputy President the Second Period was being characterised by:
- the unfortunate state of the applicant’s mental health; and
- his capacity and lack of cognitive ability to provide meaningful instructions to a solicitor at this time due to severe anxiety.
[19] Mr Neven’s solicitor filed a witness statement about the post 22 January 2016 delay. She stated:
“7. Mrs Neven wished to speak to her husband about our conversation and said she would get back to me as soon as she could. I spoke with her again over the weekend regarding my advices to the Applicant and she stated that he was in no capacity to provide meaningful instructions as he had severe anxiety and depression and was medicated. She would do her best to assist me with the General Protections Application involving a Dismissal.
I explained that I would work on the applicant’s matter as soon as practicable as Monday, 25 January 2016 was a pupil free day and 26 January 2016 was the Australia Day Holiday. I am single mother and I had care of the children on those days. I also had 3 other Unfair Dismissal applications are required my attention and deadline for lodgement that week.
8. During that week the Applicant was heavily medicated and was sleeping a majority of the time, his wife struggled to take any meaningful instructions from him as he was in no capacity to do (sic).”
[20] Before us the Second Period was explained as one where there was a “difficulty in obtaining instructions by legal representative.” In the hearing before us it was submitted that school holidays affected the legal representative 13 and that “she is a single mother and her employees at the time were on annual leave and she had sole care of the clients that were instructing her at the time.”14
[21] In relation to the mental health reason, the Deputy President concluded that:
“[17] The Applicant also seeks to rely on the medical and psychological difficulties he was having at the time, but no medical reports rather evidence were provided at the hearing. A report from a psychologist was provided to my chambers after the hearing. However, it does not reveal that the applicant was so impaired that he could not have given instructions to progress the matter.”
[22] The Deputy President then went on to consider and made findings about the remaining matters specified in s.366(2) as follows:
● s.366(2)(b) - action taken by the person to dispute the dismissal:
“[19] There is no evidence of the Applicant taking specific action to challenge the dismissal prior to lodging the [s.365] application.”
● s.366(2)(c) - prejudice to the employer (including prejudice caused by the delay):
“[20] Given the overall facts, the Respondent would be prejudiced by the time and costs involved in further litigation.”
● s.366(2)(d) - merits of the application:
“[21] I am not convinced that the Applicant’s case demonstrates the breach of a workplace right. It is unfair dismissal case which cannot be pursued because of the high income restrictions imposed by the Act. The Respondent says that the Applicant’s conduct that had ample reason to dismiss him and this was the operative reason for the dismissal.
[22] I do not consider the merits of the application give way to the existence of exceptional circumstances.”
● s.366(2)(e) – fairness as between the person and other persons in a like position:
“[23] This factor was not addressed and has not been taken into account.”
[23] The approach taken by the Deputy President was orthodox. However, in relation to s.366(2)(b) it was not in dispute that the Deputy President was in error. It was common ground between the parties that the applicant had in fact taken action to dispute the dismissal by filing an application for an unfair dismissal remedy. This should have weighed in favour of granting the applicant an extension of time.
[24] The Deputy President’s overall conclusion was that on balance he was not persuaded that there were exceptional circumstances justifying an extension of time.
Public interest and grounds of appeal
[25] The Notice of Appeal claimed that it was in the public interest for the Commission to grant permission to appeal because of errors made by the Deputy President in relation to the facts and because a “substantial injustice may result if leave is refused”. Before us it was submitted that the following matters enlivened public interest:
- the applicant is an individual and the respondent is a large corporate publicly listed entity;
- there is no possible prejudice suffered by the respondent by virtue of the extension being granted:
- the applicant has been suffering from a mental health issue that has been exacerbated by:
● the applicant’s employment being terminated;
● serious allegations of sexual harassment made against him;
● the jeopardy of the above on the applicant’s marriage; and
● there is no history of inappropriate conduct in the workplace by Mr Neven and none is suggested to have occurred in the 10 years he has worked for Aurizon or its previous permutations. Conversely, Mr Neven has been commended for promoting diversity within the company.
[26] Mr Neven’s appeal raised a number of issues. The grounds of the appeal, which were amply supplemented by written and oral submissions, were that the Deputy President erred in relation to his findings about:
- the reason for the delay;
- the applicant took no action to dispute the dismissal;
- the prejudice to the employer; and
- the merits of the application.
Consideration
[27] While, as earlier stated, the Deputy President made an incorrect finding in relation to s.366(2)(b), we do not consider that this error was of sufficient significance in the decision-making process to justify the grant of permission to appeal in the public interest, for three reasons. First, having considered all the matters put by Mr Neven, and reading the decision as whole, he has not identified any other error in the decision which would meet any of the criteria for appealable error in a discretionary decision enunciated in House v The King. 15
[28] Second, we consider that the Deputy President’s assessment that Mr Neven’s general protections application had little substantive merit was both reasonably available and plainly correct. Even taking Mr Neven’s case at its highest the application has little merit. It is difficult to identify any workplace right established by the FW Act that is contended to be the substantive and operative reason for the termination of his employment. The submissions received by us in the appeal were unconvincing on this score. That is a matter which must necessarily be given significant weight on the question of permission to appeal, because it strongly suggests that the grant of permission to appeal would ultimately be of little utility.
[29] Third, the conclusion of the Deputy President that the circumstances attending a delay of 18 days in filing the application did not meet the stringent criterion of “exceptional circumstances” is not counter-intuitive and does not manifest any substantial injustice.
[30] We are not satisfied that any of the matters raised by Mr Neven justify the grant of permission to appeal in the public interest or otherwise. Mr Neven’s appeal does not raise any issue of law or policy which is novel and/or has broader implications. It is not inconsistent with any other relevant Commission decision. The determination of his extension of time application turned entirely on its particular facts.
Conclusion
[31] We are not satisfied that it is in the public interest to grant Mr Neven permission to appeal. Accordingly permission to appeal is refused.
VICE PRESIDENT
Appearances:
D. Whitehouse counsel and S. Lock solicitor for A. Neven.
A. Walker for Aurizon Operations Limited.
Hearing details:
2016.
Sydney:
9 August.
1 [2016] FWC 3180
2 Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21]
3 Halls v McCardle and Ors [2014] FCCA 316
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) 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, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [44]-[46]
6 GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343, 197 IR 266 at [24]-[27]
7 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, 197 IR 266 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; 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]
8 [2010] FWAFB 5343, 197 IR 266 at [24] – [27]
9 Also see CFMEU v AIRC (1998) 89 FCR 200 at 220; and Wan v AIRC (2001) 116 FCR 481 at [26]
10 Wan v AIRC (2001) 116 FCR 481 at [30]
11 Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth[2010] FWAFB 10089 at [28], 202 IR 288, affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office[2014] FWCFB 1663, 241 IR 177 at [28]
12 Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers [2010] FWAFB 7251, (2010) 197 IR 403 at [17]; Thiess Services Pty Ltd v Stephens[2014] FWCFB 2426 at [37]. That is not to say that a credible explanation for the whole of the delay is a necessary pre-condition for the grant of an extension of time, since the reason for the delay is but one of a number of matters which are required to be considered under s.366(2) in determining whether exceptional circumstances exist. These decisions concern s.394(3) but are equally applicable to s.366(2).
13 Transcript 9 August 2016 PNs 36-40
14 Transcript 9 August 2016 PN42
15 (1936) 55 CLR 499 at [504] – [505] per Dixon, Evatt and McTiernan JJ
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