Appeal by D.C.
[2022] FWCFB 241
•20 DECEMBER 2022
| [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 | 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 by Mr D.C. contains numerous allegations of this kind arising from separate days of work obtained through labour hire agencies since 2015. Mr D.C. seeks orders to stop bullying and civil damages for pain and suffering.”
The Commissioner decided to exercise her general discretion under s.587(1) of the Act to dismiss the application. The Commissioner provided three reasons for this decision as set out below:
“Firstly, in this application and a previous application since withdrawn (SO2022/305), Mr D.C. names numerous businesses that he believes have been involved in bullying at work of this kind over the period from 2015 to 2022. However, according to the application forms and supporting documents, Mr D.C has not been ‘at work’ in any of these businesses since March 2022. In each case it appears that the employment relationship has come to an end. In those circumstances, it is unlikely that orders could be made by the Commission in relation to the application.
Secondly, the beliefs held by Mr D.C. about the alleged bullying at work are not reasonable beliefs. Aside from being objectively unlikely, documents filed and referred to in support of the application (including one of more than 100 pages) do not establish any reasonable foundation for the beliefs held by Mr D.C. about the existence of a secret cooperative effort against him by Victorian industry, police and mental health providers. For this reason, Mr D.C. is not eligible to apply under sub-s.789FC(1) of the Act for orders to stop bullying at work in the Commission.
Thirdly, and to the extent that the application seeks an order for civil damages from the Commission, it has no reasonable prospects of success. This is because s.789FF of the Act expressly excludes the power to order the payment of a pecuniary (monetary) amount.”
Grounds of Appeal and Submissions
The Appellant’s grounds of appeal as set out in his Form F7 – Notice of Appeal are as follows:
“1. Decision to dismiss the case
2. Wordings of the dismissal letter of some paragraphs are inadequate.
3. Not entitled to make a stop bullying application due to the 100-page report as well Victoria police involving others and mental health services to make my case that it does not exist when it does exist is under secrecy to avoid prosecution.
4. Offensive wording on my disability of beliefs was mentioned,
5. Errors of facts.
6. Unreasonable judgment to dismiss the case.
7. Unfairness as the applicant’s rights have been taken away
8. Suspicious interference of corruption the case being dismissed of the best interest of the correspondent which is the employer – labour hire as the applicant feels that being stood down by judgment was unfair not treated equally as the applicant did not get a fair trial.”
We have also distilled and summarised the Appellant’s written submissions as follows. The Appellant submits that the employer allowed their clients to bully their employees and that this “deliberate criminal corruptive conduct” has been enabled by the Victorian police and the media. The Appellant says that his concerns have been ignored under the guise of him having a mental illness. The Appellant submits that he has been treated badly by approximately 20 construction companies and that the employer has allowed this to happen. He says that the employer has been deliberately breaching employment laws and his privacy by tracking his mobile phone. The Appellant referred specifically to the “guides of labour hire protocol policy” which he says the employer has breached. The Appellant contends that the Commissioner’s decision was unreasonable and unfair as some of the wording offended his beliefs. The Appellant also submitted that he was not given the opportunity to say what he wanted to and dismissed the case.
As to why the appeal is in the public interest, the Appellant submits that he is speaking the truth and it is in the public interest for this scam to be uncovered. Further, it is in the public interest that illegal criminal activity is exposed especially where the Appellant has struggled mentally and physically.
Extension of time to file the appeal
It is necessary at the outset to consider whether the Appellant should be granted an extension of time to file his appeal. The usual principles applying to consideration of an application to extend time to lodge an appeal were summarised by the Full Bench in Jobs Australia v Eland[3] as follows:
“[5] Time limits of the kind in Rule 56 should not simply be extended as a matter of course. There are sound administrative and industrial reasons for setting a limit to the time for bringing an appeal and it should only be extended where there are good reasons for doing so. The authorities indicate that the following matters are relevant to the exercise of the Tribunal’s discretion under Rule 56(2)(c):
·whether there is a satisfactory reason for the delay;
·the length of the delay;
·the nature of the grounds of appeal and the likelihood that one or more of those grounds being upheld if time was extended; and
·any prejudice to the respondent if time were extended.” (footnote omitted)
Taking these matters into account, the exercise of discretion will be guided by a consideration of whether, in all the circumstances, the interests of justice favour the Appellant being granted an extension of time within which to lodge his appeal.[4]
Reason for delay
The Appellant submits that the delay was caused by the distress he experienced as a result of the employer requesting he see a doctor and attempting to hide the truth of their corruptive conduct. The Appellant submits that he suffered illness and injury by the employer and their clients, especially on the last day of his employment where he was intimidated by the employer and accused the employer in engaging in bullying behaviour. We note that despite the Appellant’s claims, he has not provided any medical documentation evidencing that he was unwell and therefore unable to lodge the application.
We have considered the reasons provided by the Appellant and are not satisfied that the Appellant has provided a justifiable reason for the delay. Mere distress surrounding the events at work do not meet the high threshold nor explain why the Appellant waited 17 days before filing his application. We consider that the absence of a satisfactory reason for the delay weighs against the grant of an extension of time.
Length of delay
The delay in filing the appeal is 17 days. This delay is not insignificant. We find that this weighs against the grant of an extension of time.
Nature of the appeal grounds and likelihood that they would be upheld if time were extended
Having considered the Appellant’s submissions and materials filed on appeal, we are not satisfied that there is an arguable case of error. The Appellant’s submissions are brief and fail to point to any evidence or specific parts of the Decision that may be infected by error. We consider that the Appellant’s submissions in the Notice of Appeal are merely an expression of his dissatisfaction with the outcome of the Decision and are an attempt to reagitate the merits of his case as put to the Commissioner at first instance. It is clear that the basis on which the Commissioner reached her Decision discloses an orthodox approach to the determination of the Appellant’s application. The Commissioner applied the correct legal principles, considered, and dealt with the evidence that was before her, and made findings of fact based on that evidence. We are satisfied that the Commissioner’s conclusions in relation to matters of fact appear to have been reasonably open to her on the evidence. For these reasons, we consider that the Appellant’s grounds of appeal do not have reasonable prospects of success and find that this weighs against the grant of an extension of time.
Prejudice to the Respondent
We do not consider that the grant of an extension of time would prejudice the Respondent’s capacity to respond to the appeal. However, the mere absence of prejudice is not necessarily a factor which weighs in favour of the Appellant’s application for an extension of time. We consider this factor is a neutral consideration.
Conclusion
We cannot identify any other consideration relevant to the application for an extension of time. Having regard to the matters discussed above, we are firmly satisfied that the interests of justice would not be served by granting an extension. The delay in filing the appeal was not insignificant, no satisfactory explanation for the delay has been afforded, and the appeal does not have reasonable prospects of success.
The appeal was filed beyond the time prescribed by r.56(2)(a), and an extension of time has been refused. The appeal is therefore incompetent and is dismissed.
VICE PRESIDENT
Appearances:
Mr D.C., on his own behalf.
Mr D.R., for the Respondent.
Hearing details:
2022.
Microsoft Teams (Video).
21 November.
[1] [2022] FWC 2124.
[2] Rule 56(2) of the Fair Work Commission Rules 2013.
[3] [2014] FWCFB 4822; see also Panayiotou v University of Adelaide[2020] FWCFB 1692 at [8].
[4] Brisbane South Regional Health Authority v Taylor [1996] HCA 25, 186 CLR 541.
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