Ashlee O'Connor v Greater Geelong Constructions Pty Ltd trading as GGC Cranes, Rigging & Scaffolding
[2025] FWCFB 34
•14 FEBRUARY 2025
| [2025] FWCFB 34 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Ashlee O’Connor
v
Greater Geelong Constructions Pty Ltd trading as GGC Cranes, Rigging & Scaffolding
(C2024/9263)
| DEPUTY PRESIDENT BINET DEPUTY PRESIDENT O’KEEFFE | PERTH, 14 FEBRUARY 2025 |
Appeal against decision [2024] FWC 3349 and order PR781939 of Commissioner Simpson at Brisbane on 3 December 2024 in matter number C2024/4741 – permission to appeal refused.
Ms Ashlee O’Connor (“the Applicant”) has lodged an appeal under s 604 of the Fair Work Act 2009 (Cth) (“Act”) against a decision[1] and order[2] of Commissioner Simpson issued on 3 December 2024. In the decision, the Commissioner determined that Ms O’Connor’s application under s.365 of the Act against Greater Geelong Construction Pty Ltd trading as GGC Cranes, Rigging and Scaffolding (“the Respondent”) had been lodged outside of the 21-day time limit. The Commissioner then declined to grant an extension of time for the filing of the application. The Applicant requires permission to appeal.
The matter was listed before the Full Bench for permission to appeal only. The parties consented to the application being determined without holding a hearing under s 607(1)(b) of the Act. We were satisfied, having regard to s 607(1)(a), that the question of permission to appeal could be adequately determined without the need for oral submissions. For the reasons that follow, permission to appeal is refused.
Decision under appeal
In the directions issued to the parties in the first instance, the Commissioner advised that there were two jurisdictional issues to be considered with respect to the Applicant’s application. The two issues identified in the directions were:
“(i) The application is out of time (i.e. lodged more than 21 days after the dismissal took effect); and
(ii) The Applicant was not dismissed within the meaning of s.386 of the Fair Work Act 2009 (i.e. the Applicant was not an employee and not dismissed).”[3]
The Applicant submitted that the issue of her status as an employee should be determined before the out of time issue objection. However, the Commissioner – correctly in our view – determined that the issue of out of time should be considered first.[4] The originating application had claimed that the Applicant was notified of her dismissal on 12 June 2024 and that the dismissal had taken effect on 17 June 2024. However, the Commission wrote to the Applicant suggesting that the application, which had been lodged on 10 July 2024, appeared to be out of time. In response, the Applicant’s representative lodged a Form F1 with the Commission seeking to amend the original application to reflect that the Applicant had been advised of her dismissal on 13 June 2024 and that the dismissal had taken effect on 20 June 2024 at the expiry of 1 weeks’ notice of the dismissal (Form F1).
The Respondent’s Form F3 response set out a different timeline. While it conceded that the Applicant had been advised on 12 June 2024 that her engagement would end on 17 June 2024, the Respondent noted that on 13 June 2024, the Applicant advised that she would not be able to provide her services after that date until 21 June 2024. On that basis, the Respondent says that it emailed the Applicant later in the day on 13 June 2024, advising that her engagement was at an end as at 13 June 2024.
Clearly, this was a material issue as had the engagement ended on 20 June 2024 then the application lodged on 10 July 2024 would have been within the required time limit. The Commissioner examined the party’s submissions on this issue and concluded as follows:
“It is not in dispute that the email sent to the Applicant on 13 June included the following words:
“Given you are unable to work until Monday 24 June 2024 then I think we can all agree your last day working with GGC was yesterday” and “the business relationship has now ended”.
It is clear from the email that the relationship, whether it be a contract of service, or a contract for service, was ended that day with immediate effect by the inclusion of the words “the business relationship has now ended”. The email is unambiguously ending the relationship with immediate effect.
Given that finding is unavoidable it is clear the application was filed six days late.”[5]
Having determined that the application was late, the Commissioner then addressed himself to the issue of an extension of time using the matters set out in s.366(2) of the Act. In the first instance, he determined that the reason for the delay was the Applicant’s belief that she would be receiving notice, which did not weigh in favour of a finding of exceptional circumstances justifying an extension of time. The Commissioner further found that the Applicant had not taken action to dispute the dismissal until the filing of the Form F1 and that this also did not weigh in favour of a finding of exceptional circumstances justifying an extension of time.
The Commissioner found that with respect to prejudice to the employer and fairness between the Applicant and other persons in a similar position that these should be treated as neutral considerations in assessing whether exceptional circumstances existed to warrant an extension of time. Finally, the Commissioner noted that with respect to the merits of the Application, there was another jurisdictional objection to be assessed. Such assessment would require the hearing of evidence to determine and as such he treated this matter as neutral in his consideration of exceptional circumstances.
The Commissioner then concluded that he should not grant the Applicant’s request to amend the Form F1 such that the date of dismissal was 20 June 2024 given his findings in relation to the date upon which the Applicant’s dismissal took effect and noted that he was not satisfied that exceptional circumstances existed to warrant an extension of time. The application was thus dismissed.
Principles – permission to appeal
There is no right to appeal. An appeal may only proceed with the permission of the Commission.
Section 604(2) of the Act 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 judgement.[6] The public interest is not satisfied simply by the identification of error, or a preference for a different result.[7] The public interest might be attracted where a matter raises issues of importance and general application, where there is a diversity of decisions at first instance so that guidance from an appellate court is required, 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]
It will rarely be appropriate to grant permission to appeal unless the appellant demonstrates an arguable case of appealable error. This is because an appeal cannot succeed in the absence of an appealable error.[9] However, that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.
An application for permission to appeal is not a de facto or preliminary hearing of the appeal. In determining whether permission to appeal should be granted, it is unnecessary and inappropriate for the Full Bench to conduct a detailed examination of the grounds of appeal.[10]
It is well established that an appellate body will not interfere with the factual findings of a first instance decision-maker unless it is concluded that a finding cannot stand because it was contrary to incontrovertible facts or uncontradicted testimony, glaringly improbable, or contrary to compelling inferences.[11]
Where a finding or conclusion involves the exercise of a discretion, where some latitude is afforded, an appellate body will also generally not interfere with the conclusions of the decision-maker. As stated by the High Court in Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission:[12]
““Discretion” is a notion that “signifies a number of different legal concepts”. In general terms, it refers to a decision-making process in which “no one [consideration] and no combination of [considerations] is necessarily determinative of the result.” Rather, the decision-maker is allowed some latitude as to the choice of the decision to be made. The latitude may be considerable as, for example, where the relevant considerations are confined only by the subject-matter and object of the legislation which confers the discretion. On the other hand, it may be quite narrow where, for example, the decision-maker is required to make a particular decision if he or she forms a particular opinion or value judgment.”
For there to be a legal error, it is not enough that a different member or an appellate body might have reached a different conclusion. The appellant must show that the Commissioner acted on a wrong principle; took into account irrelevant matters; mistook facts; or that the outcome is unreasonable or plainly unjust.[13]
Grounds of appeal and public interest
In her notice of appeal, the Applicant sets out – but does not expand upon - the following grounds of appeal:
“The decision maker, in determining the effective date of dismissal, has:
(a) acted upon a wrong principle
(b) been guided by irrelevant factors
(c) mistaken the facts
(d) failed to take some material consideration into account
Further, it is submitted that:
(a) the decision is attended with sufficient doubt to warrant its reconsideration
(b) that the Commission at first instance may have exceeded its jurisdiction
(c) that substantial injustice may result if leave is refused”[14]
However, in her written submissions, the Applicant only notes three grounds of appeal, being representative error, procedural fairness and failure to consider the evidence. With respect to representative error, the Applicant submits that the Commissioner did not give proper consideration to the reason for the delay and failed to apply the principles regarding representative error. In essence, the Applicant submits that case precedent supports the notion that where the applicant is blameless, representative error would be grounds for finding exceptional circumstances. In concluding her submissions on this issue, the Applicant says as follows:
“It is respectfully submitted that the Commissioner erred in diminishing the significance of the representative error in completing and lodging the Form F8 filed on 10 July 2024 and subsequently lodging a Form F1 on 18 July 2024 on Ms O’Connor’s behalf.”
The second ground advanced by the Applicant is procedural fairness. With respect to this ground, the Applicant notes that in the “Conclusion” section of his decision, the Commissioner determines not to grant the amendment to the dismissal date sought by the Applicant in the Form F1based on “the conclusions above.”[15] The Applicant submits that there were no conclusions made with respect to the reasons for not granting the application contained in the Form F1. As such the Applicant submits that the Commissioner has not provided reasons for his decision, because he outlined conclusions without expressing reasons for the formation of those conclusions. Such a situation was submitted to create an unfairness for the Applicant in that she cannot discern what it was that informed the decision.
The Applicant’s third ground of appeal asserts that the Commissioner failed to consider all the evidence. In respect of this ground the Applicant submits that the Commissioner found[16] that the Applicant took no action to dispute the dismissal. The Applicant submits that the evidence demonstrated that she acted promptly – on 13 June 2024 - to obtain legal representation and to instruct her legal representative to file her application. The Commissioner was therefore in error about the Applicant’s actions to dispute her dismissal and should not have found that this matter weighed against a finding of exceptional circumstances justifying an extension of time.
With respect to the public interest, the Applicant submitted that issues arose with respect to interpretation of s.117 of the Act. Specifically, the implications of the failure of the Respondent to provide written notice - being a contravention of the National Employment Standards (“NES”)- and potentially thereby entitling the Applicant to payment of notice. The Applicant argued that the Commissioner should have made a finding that the termination was a contravention of the NES.
We should also make comment on the Applicant’s statements at the end of her submissions under the heading of “Further Delays”. The Applicant sets out circumstances which led to determination of the Application being delayed and notes that as a consequence, her representative had asked that the matter `be determined on the papers. The Applicant subsequently submits that the evidence considered by the Commissioner was thereby unsworn and untested. We assume the substance of this submission is that the Application was improperly decided because the evidence relied upon by the Commissioner was unsworn and untested.
Consideration
In dealing with the Applicant’s concerns regarding the decision we have focused on those matters which were set out and explained in her submissions. We have not, other than to the extent that there is crossover with the matters in the submissions, dealt with the matters set out in the notice of appeal as those matters were not in any way explained such as to identify the nature of the ground of appeal.
In the first instance, we turn to the issue of representative error. The submissions do not clearly articulate the precise nature of the purported representative error other than to say it was contained in the Form F8 and in the Form F1. We presume the purported representative error was to not identify that the dismissal took effect on 13 June 2024.
The Commissioner was not presented with any argument that the delay in lodging was due to representative error at first instance. In such circumstances, the Commissioner cannot be said to have failed to give this issue due consideration or diminished its importance. While we accept that representative error is a pleading that might be made, where it is not made it is not incumbent on the Commission member to prompt an Applicant as to whether such error might exist. Given this, we see no failure on the part of the Commissioner related to representative error.
The second appeal ground is that the Commissioner failed to give reasons for his refusal to grant the application for amendment contained in the Form F1. With respect, this ground cannot succeed. The Commissioner has concluded at paragraph 31 of his decision that the application was filed six days late. In such circumstances, it is clear that the Form F1 application – to effectively amend the Applicant’s application to propose a different cessation date so her application was not late – had no utility.
We are further satisfied that, with respect to the date on which the engagement of the Applicant ended – being the subject of the Form F1 application – the Commissioner has considered the issue, drawn a conclusion and made clear the reasons for that conclusion in paragraphs 29 and 30. We therefore find no merit in this ground of appeal.
The third ground of appeal was failure to consider relevant evidence, specifically, evidence that the Applicant had in fact taken steps to dispute her dismissal. The Commissioner found that the first action taken by the Applicant to dispute her dismissal was the lodging of her claim with the Commission. This finding appears to us to be consistent with previous decisions of the Commission that have dealt with this issue. For example, in Jenson Curtin v High Country Plumbing & Gas Fitting Pty Ltd, Deputy President Colman was considering an extension of time to lodge an unfair dismissal claim. We note that the wording of s.394(3)(c) of the Act is identical to the wording of s.366(2)(b) and requires the Commission to consider “any action taken by the person to dispute the dismissal”. In respect of that consideration, the Deputy President stated as follows:
“The consideration in s 394(3)(c) is whether the applicant took any action to dispute the dismissal. In my view this is primarily concerned with action taken by the applicant to dispute the dismissal directly with the former employer, such as telling the employer that the dismissal was unfair or would not be accepted by the applicant, rather than action of which the employer is unaware.”[17]
In our view the approach set out in Deputy President Colman’s decision is correct. It is open to the Commission to regard actions of which the employer is unaware as not being actions taken to dispute the dismissal. Given this, it is in our view open to a member to determine that seeking and obtaining legal assistance does not meet the standard of disputing the dismissal as set out in s.394(3)(c) and s.366(2)(b) of the Act.
In such circumstances, it is open to the member to then assess what significance to place on the applicant’s failure to dispute the dismissal. It may be that a member takes the view that in all of the circumstances this should be a factor weighing against a finding of exceptional circumstances. Or a member may regard it as neutral. In our view, it is clear that even if the Commissioner in the matter under appeal had taken this matter to be neutral in his consideration, he would have been faced with four neutral matters and one matter weighing against a finding of exceptional circumstances. In such a situation it would be clearly open to a member to find that there were no exceptional circumstances.
With respect to the implication contained in the submissions under the heading of “Further Delays”, we note that the Commission dealing with the matters on the papers was, in the first instance, requested by the Applicant’s representative – who ought to have understood the concept and implications – and in the second instance a process open to the Commission. As such we do not see any merit in the implication contained within the submission.
Conclusion
We note that in relation to the Appeal, the Applicant failed to comply with directions to lodge submissions by the appointed date. It was only after that date had passed and the Respondent wrote to the Commission seeking to have the appeal dismissed that the Applicant sought permission for an extension of time to file her materials. While that extension was granted, we note that the Applicant still did not fully comply with the directions given that that no appeal book was filed.
In conclusion, we find no arguable case that the Commissioner’s decision was attended by appealable error. Nor do we find that the appeal attracts the public interest because (a) there is a diversity of decisions at first instance so that guidance from an appellate body is required, (b) the appeal raises issues of importance and/or general application, (c) the decision manifests an injustice, or the result is counter intuitive, or (d) the legal principles applied by the Commissioner were disharmonious when compared with other decisions dealing with similar matters.
Permission to appeal is therefore refused.
DEPUTY PRESIDENT
[1] [2024] FWC 3349
[2] PR781939
[3] See Notice of Listing issued to parties at page 2
[4] [2024] FWC 3349 at [24]
[5] [2024] FWC 3349 at [29] to [31]
[6] O’Sullivan v Farrer and another (1989) 168 CLR 210 at [216]-[217] per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch (2011) 243 CLR 506 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; (2011) 207 IR 177 at [44]-[46].
[7] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343 [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 388, 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] GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343 at [27]; (2010) 197 IR 266.
[9] Wan v AIRC (2001) 116 FCR 481 at [30].
[10] Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82].
[11] Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [27]-[29].
[12] [2000] HCA 47; 203 CLR 194 at [19].
[13] House v The King (1936) 55 CLR 499 at 505.
[14] Applicant’s Form F7 section 2.1
[15] [2024] FWC 3349 at [43]
[16] [2024] FWC 3349 at [39]
[17] Jenson Curtin v High Country Plumbing & Gas Fitting Pty Ltd[2022] FWC 2916 at [10].
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