Appeal by D.C. - [2022] FWCFB 241

[2022] FWCFB 241

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.604—Appeal of decision

Appeal by D.C.

(C2022/6773)

VICE PRESIDENT CATANZARITI
deputy president cross
commissioner P Ryan

SYDNEY, 20 DECEMBER 2022

Appeal against decision [2022] FWC 2124 of Commissioner McKinnon at Sydney on 29 August 2022 in matter number SO2022/393 – extension of time refused.

Mr D.C. (the Appellant) has lodged an appeal under s.604 of the Fair Work Act 2009 (Cth) (the Act) against a decision[1] (the Decision) of Commissioner McKinnon, issued on 29 August 2022, for which permission to appeal is required. The Decision concerned an application for an order to stop bullying brought by the Appellant, pursuant to s.789FC of the Act. The Commissioner decided to dismiss the Appellant’s application pursuant to s.587(1).

An appeal filed under s.604 of the Act must be filed within 21 calendar days after the date of the decision being appealed against, or within such further time allowed by the Commission.[2] The Decision was issued on 29 August 2022, and the prescribed 21-day period ended on 19 September 2022. The Appellant lodged the Form F7 – Notice of Appeal on 6 October 2022, therefore making the application 17 days out of time. Accordingly, this appeal cannot proceed unless the Commission grants the Appellant an extension of time.

Directions were set for the filing of material by the Appellant. As this matter was listed for extension of time and permission to appeal only, the Respondent was not required to file any material and it did not do so. The Appellant did not file an outline of submissions but instead provided written submissions to the Commission in the form of emails and made further oral submissions at the hearing on 21 November 2022.

Decision Under Appeal

The Appellant applied for orders to stop bullying at work under s.789FC of the Act. An application under this section can be made by a worker who reasonably believes that they have been bullied or sexually harassed at work. Pursuant to s.593 the Commissioner decided not to hold an oral hearing and determined that it was appropriate, in the circumstances, to determine the matter on the papers.
The Commissioner began the Decision by setting out the alleged bullying at work described by the Appellant:

“[5] A review of the materials discloses the basis of the application as a belief by Mr D.C. that the Victorian labour hire and construction industries are cooperating to punish him, on behalf of corrupt members of Victoria Police and ‘northwest mental health’, for discovering a secret police operation involving the monitoring and sharing of images and text messages about him for fun and to stir up trouble. The operation is alleged to involve the use of mobile phone software that is connected to the police and the mental health service. Mr D.C. submits that the people involved are lying about it to make it seem like Mr D.C. has a mental illness and to prevent him from getting future work. The application filed…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] FWCFB 241
Decision Date: 20 DECEMBER 2022

CaseChat Overview and Summary

The Fair Work Commission was asked to consider an appeal by Mr D.C. against a decision of Commissioner McKinnon, who had dismissed Mr D.C.'s application for an order to stop workplace bullying. Mr D.C. lodged his appeal 17 days after the deadline for doing so, and therefore the appeal could only proceed if the Commission granted an extension of time. The appeal was heard on 21 November 2022.

The appeal turned on whether the Commission should grant an extension of time for Mr D.C. to file his appeal, and the merits of the appeal if it were to proceed. The Commission considered the usual principles in exercising its discretion to grant an extension of time. The Commission found that Mr D.C. had not provided a satisfactory reason for the delay, that the delay was not insignificant, and that the appeal did not have reasonable prospects of success. The Commission concluded that an extension of time should not be granted.

The Commission refused to grant an extension of time for Mr D.C. to file his appeal. The appeal was therefore dismissed as incompetent.

Orders