Ann Robertson v Peninsula Health t/a Frankston Hospital
[2015] FWCFB 5283
•15 SEPTEMBER 2015
| [2015] FWCFB 5283 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
Peninsula Health t/a Frankston Hospital
(C2015/4632)
VICE PRESIDENT HATCHER |
|
Permission to appeal sought against Decision [2015] FWC 3973 of Senior Deputy President Watson at Melbourne on 17 June 2015 in matter number U2015/1696.
Introduction
[1] Mrs Ann Robertson has applied for permission to appeal a decision issued by Senior Deputy President Watson on 17 June 2015 1 (Decision). The effect of the Decision was to refuse Mrs Robertson an extension of time to lodge an unfair dismissal remedy application under s.394 of the Fair Work Act 2009 (FW Act) and to dismiss the application that had been received by the Commission.
[2] Mrs Robertson filed her unfair dismissal remedy application on 14 April 2015. That application identified the date of the dismissal as being 23 March 2015. Mrs Robertson’s unfair dismissal remedy application was therefore filed one day beyond the 21-day time limit in s.394(2).
[3] Section 394(2) of the FW Act requires that an unfair dismissal remedy application 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.
[4] The reason for the delay advanced by Mrs Robertson at first instance, and the Senior Deputy President’s consideration of those reasons pursuant to s.394(3)(a), are set out in the Decision as follows:
“[3] In February 2015 the Applicant and her husband had pre booked and fully paid for a short trip to celebrate their 50th wedding anniversary, departing Australia on 2 April 2015 and returning on the morning of 13 April 2015, the day on which her application was required in order to comply with the 21 day period in s.394(2)(a) of the Act. The Applicant argued that she is 70 years old and does not know how to type, use a computer or the internet and was unable to access information in regards to lodging an unfair dismissal remedy while she was overseas in an unfamiliar environment and away from her support network and was therefore unable to lodge an application while she was away.
[4] I am not satisfied that there was a satisfactory explanation for the failure to lodge the application in time nor that the explanation establishes exceptional circumstances for the late lodgement. Whilst I accept that the pre-arranged absence overseas of the applicant for part of the 21 day period explains the failure of the Applicant to lodge an application during that period of absence overseas, there is no adequate explanation for the failure by the Applicant to file an application in the nine day period preceding her absence overseas or take steps to arrange for the filing of her application by her children, in circumstances in which the Applicant was aware of her pending absence from Australia between 2 and 13 April 2015 and in which her children filed the application on her behalf and attended to subsequent communication regarding the application. I accept that the Applicant is unfamiliar with computers and the internet and was reliant on the assistance of her family to institute proceedings. However, there is no explanation of her failure to activate that family support and assistance until shortly before her departure overseas or to authorise her family to act on her behalf during her absence overseas.
[5] The Applicant had an opportunity prior to her departure overseas to verify and act on her legal rights with the support of her children but did not do so, even though she knew she was not returning to Australia until the morning on which a s.394 application would be required to be made to comply with the 21 day time period prescribed in s.394(2)(a) of the Act.
[6] The reasons relied on do not support a finding of exceptional circumstances.”
[5] In considering the other matters required to be taken into account under s.394(3), the Senior Deputy President concluded that:
- Mrs Robertson became aware of her dismissal on 23 March 2015, which lent no support to a finding of exceptional circumstances;
- Mrs Robertson took no action to dispute the dismissal other than to lodge her unfair dismissal remedy application, which did not establish exceptional circumstances;
- In the context of a delay of one day there would be no prejudice to the Respondent caused by the acceptance of the late application, and this was therefore a neutral consideration in the matter;
- Because there was a factual dispute as to whether Mrs Robertson resigned or there was a constructive dismissal and procedural issues around the termination which could only be resolved at a full hearing, it was not possible to conclude that Mrs Robertson’s application was devoid of merit, and this was therefore a neutral consideration; and
- No issue was raised about fairness to other persons, and this was therefore a neutral consideration.
[6] The Senior Deputy President’s overall conclusion was that he was not satisfied that there were exceptional circumstances that would permit the grant of an extension of time.
[7] Mrs Robertson’s notice of appeal and the written and oral submissions in support of her application for permission to appeal raised a number of matters. Mrs Robertson contended that the Senior Deputy President did not properly consider all the exceptional circumstances that attended her dismissal. In particular she says that he did not properly take into account that she could not access the internet and that she travelled overseas on a pre-arranged holiday nine days after the dismissal. She also says that the effective requirement that she make her application within nine days of it occurring because of the overseas travel demonstrates a lack of fairness between herself and others in a similar situation. Mrs Robertson raises a number of additional aspects surrounding her dismissal which she says are exceptional and hence should be taken into account in determining if there are exceptional circumstances warranting an extension of time. She says that the Senior Deputy President was in error in not considering these matters.
Consideration
[8] An appeal under s.604 of the FW Act is only exercisable if there is error on the part of the primary decision maker. 2 There is no right to appeal and an appeal may only be made with the permission of the Commission.
[9] 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.
[10] In the Federal Court Full Court decision 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”. 3 The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment4. In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of the Commission 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.” 5
[11] 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. 6 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.7
[12] In relation to extensions of time to lodge applications under s.394(3), the test of “exceptional circumstances” establishes a “high hurdle” for an applicant for an extension, and a decision as to whether to extend time under s.394(3) involves the exercise of a broad discretion. 8 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 that there was appealable error in the exercise of the discretion. This will require the identification of error of the type described in House v The King9 - that is, that thedecision-maker has acted on a wrong principle, has mistaken the facts, has taken into account an irrelevant consideration or failed to take into account a relevant consideration, or has made a decision which is unreasonable or manifestly unjust. Additionally, where an error of fact is alleged, s.400(2) requires that it must be a significant error of fact and the overriding public interest requirement of s.400(1) remains.
[13] We are not satisfied that the Senior Deputy President made the errors of fact alleged in Mrs Robertson’s notice of appeal. The Senior Deputy President properly took into account and gave due consideration to all of the matters raised by Mrs Robertson.
[14] The Senior Deputy President properly considered whether Mrs Robertson accounted for all of the period of delay in making her application. As set out in the paragraphs from his decision above he considered that Mrs Robertson did nothing to make an application with respect to her dismissal in the nine days after it occurred and did not authorise her children to act on her behalf whilst she was overseas. The Senior Deputy President clearly did consider Mrs Robertson’s capacity to access the internet and her reliance on her family. He also considered all other matters as required under s.394(3) and then turned his attention as to whether these circumstances constituted exceptional circumstances such that he should grant an extension of time.
[15] The Senior Deputy President gave appropriate consideration as to whether exceptional circumstances existed taking into account all of the matters in s.394(3)(a)-(f). We do not consider that he misdirected his consideration as to the existence or otherwise of exceptional circumstances as contended by Mrs Robertson.
[16] We have carefully considered the other matters raised in Mrs Robertson’s notice of appeal. It is sufficient to say that none of them causes us to consider that the Decision was attended by any doubt.
[17] We are therefore not satisfied that it would be in the public interest to grant permission to appeal. Permission to appeal is refused.
VICE PRESIDENT
Appearances:
C. Darma with J. Robertson on behalf of Ann Robertson.
S. McCullough of the Victorian Hospitals’ Industrial Association for Peninsula Health t/a Frankston Hospital.
Hearing details:
2015.
Melbourne:
26 August.
1 [2015] FWC 3973
2 Coal and Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ
3 (2011) 192 FCR 78 at [43]
4 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]
5 [2010] FWAFB 5343 at [27], 197 IR 266
6 Wan v AIRC (2001) 116 FCR 481 at [30]
7 GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343 at [26]-[27], 197 IR 266; 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 at [28]
8 Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21]
9 (1936) 55 CLR 499 at 505
Printed by authority of the Commonwealth Government Printer
<Price code C, PR570093>
9
0