Asia Pacific Cleaning Services Pty Ltd v Cook
[2013] FWCFB 5320
•13 AUGUST 2013
[2013] FWCFB 5320 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Fair Work Australia Rules 2010
Rule 12.3(b)—Extension of time
v
Janice Cook
(C2013/4875)
JUSTICE BOULTON, SENIOR DEPUTY PRESIDENT | SYDNEY, 13 AUGUST 2013 |
Appeal against decision - appeal lodged out of time - non-compliance with procedural rules - long delay - no adequate reason for delay - no reasonable prospects of success.
[1] This is an application by Asia Pacific Cleaning Services Pty Ltd (the Company) for an extension of time to appeal pursuant to Rule 12.3(b) of the Fair Work Australia Rules 2010 (the Rules), 1 permission to appeal and, if both the extension and permission are granted, an appeal pursuant to s.604 of the Fair Work Act 2009 (the Act) against two decisions and an order made by Senior Deputy President O’Callaghan.
[2] In a decision dated 18 March 2013 2 (the First Decision) the Senior Deputy President dismissed a number of jurisdictional objections lodged by the Applicant against an application by Ms Janice Cook for an unfair dismissal remedy pursuant to s.394 of the Act. In a decision dated 15 May 20133 (the Second Decision) the Senior Deputy President determined that the Company’s dismissal of Ms Cook was unfair and awarded $4000 compensation. The Senior Deputy President issued an order giving effect to the Second Decision on the same day.4
[3] The background to the appeal can be briefly set out as follows. In February 2011 Ms Cook was engaged by Blue Hygiene Pty Ltd (Blue Hygiene), which ceased trading on 30 July 2011. Subsequently Ms Cook acted as a representative of the Company. Ms Cook performed sales functions for both Blue Hygiene and the Company. The relationship between Blue Hygiene and the Company, and the nature of Ms Cook’s engagement with them, were matters in dispute in the proceedings before the Senior Deputy President.
[4] Ms Cook’s engagement with the Company was terminated by email dated 20 September 2012. The email makes a number of statements regarding Ms Cook’s performance, including the number of inspections that she conducted and her failure to meet budgets. The email also refers to an explicit video sent by Ms Cook to the partner of the Company’s Managing Director, Mr Darryl James.
[5] No grounds of appeal are set out in the Notice of Appeal lodged by the Company. However it is clear that the Company contends that the Senior Deputy President’s finding that Ms Cook was an employee was wrong. It also seems from the Notice and the Company’s written submissions that it objects to the Senior Deputy President having conducted the hearing that led to the Second Decision in its absence.
[6] On 28 June 2013 the Full Bench issued directions as to the filing of the following:
- Written submissions in relation to the application for an extension of time to appeal;
- The parties’ views as to whether the question of the extension of time could be dealt with on the basis of written submissions only; and
- Written outlines of submissions in relation to the merits of the appeal.
[1] The directions noted that if the matter required a hearing, it would be listed for 2 August 2013. The Commission received advice from the Company to the effect that it wished to make oral submissions in relation to the application for an extension of time. The matter was therefore listed to be heard before the Full Bench on 2 August 2013 in Adelaide. The listing was advised to the parties on 10 July 2013. A video link was arranged so that Mr James could appear on behalf of the Company from Sydney.
[2] The Company was advised as to various deficiencies in the documentation filed with its Notice of Appeal. On 25 June 2013 the Commission’s South Australian Registry Team Manager wrote the Company, noting that its Notice of Appeal was incomplete, and that an appeal book had not been filed as required by Rule 12.2. On 11 July 2013, Justice Boulton’s chambers wrote to the Company noting again that no appeal book had been filed and that the Company should comply with Rule 12.2 as soon as possible. The Company has still not filed an appeal book.
[3] On 1 August 2013 at approximately 6:55 pm, an email message was sent by Mr James to the Commission, requesting an adjournment of the hearing listed for 2 August, on the basis of his “current illness”. Mr James offered to provide a medical certificate in relation to his inability to attend. A response was sent at to Mr James approximately 8:35 pm the same evening, to the effect that the matter remained listed for hearing on the next day.
[4] The Company did not appear at the hearing on 2 August. The Full Bench proceeded with the hearing and Ms Cook appeared in person in the proceedings in Adelaide. Ms Cook submitted that the hearing should not be adjourned, and that the extension of time for the lodgement of the appeal should be refused.
[5] On 2 August the Full Bench issued further directions in the following terms:
“[1] Asia Pacific Cleaning Services Pty Ltd (the Company) is directed to provide to the Full Bench a medical certificate relating to its Managing Director’s inability to attend the hearing of this matter on 2 August 2013. The medical certificate is to be provided to the chambers of Justice Boulton ([email protected]) by close of business, Wednesday 7 August 2013.
[2] The proceedings on 2 August 2013 went ahead in the absence of the Company. A copy of the transcript of the hearing will be provided to the Company in the week beginning 5 August 2013.”
[6] The transcript of the 2 August hearing was sent to the Company by email on Tuesday 6 August. The Company has not provided a medical certificate as directed, and has made no further contact with the Commission.
Principles in considering an application for an extension of time
[7] Rule 12.3 provides that:
“12.3 An appeal must be instituted:
(a) within 21 days after the date of the award, order or decision appealed against; or
(b) on application to FWA — within such further time as is allowed.”
[8] The Company lodged its Notice of Appeal against the Senior Deputy President’s decisions and order on 25 June 2013, i.e. 99 days after the date of the First Decision and 41 days after the date of the Second Decision and the order. The appeal was therefore instituted 78 days outside the usual limit imposed by Rule 12.3(a) with respect to the First Decision, and 20 days out of time with respect to the Second Decision and the order. The Company therefore seeks an extension of time to institute its appeal pursuant to Rule 12.3(b).
[9] The principles to be taken into account in determining whether to grant an extension of time pursuant to Rule 12.3(b) were considered by a Full Bench of FWA in Tokoda v Westpac Banking Corporation. 5 The Full Bench said that:
“[3] Time limits of the kind in Rule 12 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 12.3(b):
- 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.
[4] In broad terms the issue for the Tribunal is whether, in all the circumstances and having regard to the matters set out above, the interests of justice favour an extension of the time within which to lodge the appeal.” 6
[10] In accordance with directions issued on 28 June 2013, the Company and Ms Cook made written submissions in relation to the application for an extension of time. The Company also requested that it be given the opportunity to make oral submissions. The matter was therefore listed for hearing of both the application for an extension of time and, if the extension was granted, the application for permission to appeal and the appeal.
[11] In its written submissions to the Full Bench, the Company submitted that its failure to attend the hearings before the Senior Deputy President was a result of a medical condition suffered by its Managing Director. An Attending Doctor’s Statement verifying the existence of this condition was provided to the Full Bench. The Company requested an extension of time in relation to the lodgement of the appeal so that the matter could be heard fairly and with all of the relevant facts set out.
[12] Ms Cook opposed the application for an extension of time. She submitted that the Company had the same opportunity that she did to put evidence and submissions to the Commission, and had failed to do so. Ms Cook also explained that she suffers from two medical conditions but had still participated in the Commission proceedings. She said that she would like the proceedings to be concluded in the interests of her health and because of the considerable delays already experienced. Ms Cook also suggested that Mr James’s reliance on medical reasons was merely a tactic he has followed in various proceedings, including this matter, in order to attempt to delay and frustrate the hearing process.
[13] The circumstances of the present matter include the following:
- The failure of the Company to file appeal books as required by the Rules and as requested by the Full Bench;
- The failure of the Company to appear in the appeal proceedings on 2 August and the late notice to the Commission that it would not be able to appear;
- The absence in the Notice of Appeal lodged by the Company of grounds of appeal or grounds upon which it is said that there is public interest in granting permission to appeal;
- The failure of the Company to comply with the order made by Senior Deputy President O’Callaghan on 15 May 2013 to pay compensation to Ms Cook or to seek an order from the Full Bench for a stay of the Senior Deputy President’s decision; 7
- The very considerable efforts (set out below) made by the Senior Deputy President to provide additional opportunities for the Company to present submissions and materials in the proceedings before him, even after the Company had failed to appear in the proceedings, and the Company responses to these efforts;
- The failure of the Company to provide medical evidence relating to its inability to appear at the 2 August hearing, even when specifically directed to do so by the Full Bench; and
- The impact on Ms Cook of the actions of the Company in failing to prosecute its appeal in accordance with the Rules and directions issued by the Full Bench.
[1] Having regard to the history of the matter, including the above circumstances, we have decided that it is appropriate to determine the applications before us on the basis of the material and submissions which have been filed by the parties, together with the additional material provided by Ms Cook. We have taken this view even though, in the light of the conduct of the Company in not complying with directions and the Rules, we consider that there might be proper grounds for dismissing the appeal for want of prosecution.
Extension of time: the First Decision
[2] In the appeal, the Company primarily seeks to challenge the finding in the First Decision that Ms Cook was an employee rather than a contractor. In relation to this aspect of the appeal, the Notice of Appeal was lodged 78 days outside the usual time limit imposed by Rule 12.3(a).
[3] A delay of 78 days in lodging an appeal is significant. It is much longer than the delays of 33 and 48 days described by Full Benches of the Australian Industrial Relations Commission (AIRC) as “considerable” and “significant” respectively. 8
[4] We do not consider that the Company has provided a satisfactory explanation for a delay of this length in filing the appeal. The Company’s submissions in relation to the issue refer to a medical condition suffered by Mr James. The submissions, however, only refer to the medical condition as a reason that Mr James was unable to attend the hearings before the Senior Deputy President, and are more in the nature of a ground of appeal than an explanation for the delay in lodging the appeal. The Company has not explained how Mr James’s medical condition caused a delay of 78 days in appealing the decision. Compounding this failure is that when Mr James wrote to the Senior Deputy President to protest that the First Decision was wrong, he was directed to sources of information regarding appealing Commission decisions.
[5] In relation to the prospects of permission to appeal being granted and the appeal succeeding, we note that the First Decision is not a discretionary decision, but relates to the jurisdictional fact of whether Ms Cook was an employee of the Company. 9 The Company would therefore not have to establish error in the reasoning process, but only that the Senior Deputy President’s conclusion was wrong.10 We also note authority with respect to the appeal provisions in the Workplace Relations Act 1996 to the effect that where an arguable case of error is made out in relation to jurisdictional fact, the AIRC was ordinarily disposed to grant leave to appeal,11 although the granting of leave was not automatic.12
[6] An appeal under s.604 of the Act may only be pursued with the permission of the Commission. This would normally require an applicant to demonstrate an arguable case of appealable error and to refer to other considerations which would justify the granting of permission to appeal. Section 400 of the Act varies the general approach to granting permission to appeal against decisions relating to unfair dismissal. Significantly, permission to appeal may only be granted where the Commission considers it is in the public interest to do so (s.400(1)). The Company has not made any submissions in relation to the public interest in hearing its appeal.
[7] There are also a number of other problems for the Company’s appeal. The Company has not complied with the requirement to lodge an appeal book (see Rule 12.2) either at the time of lodgement or subsequently. The Company has filed a large number of documents in support of its appeal, only some of which were in evidence before the Senior Deputy President. In relation to the remainder of the documents, the Full Bench would need to give permission for the introduction of new evidence pursuant to s.607(2) of the Act.
[8] Most significantly, the Notice of Appeal does not contain grounds of appeal, and the Company has not in its written outline of submissions put any substantial argument based on legal principles. The argument, such as it is, essentially amounts to a bald assertion that the Senior Deputy President’s decision is wrong.
[9] For all of the above reasons, we do not consider that there is a realistic prospect that the Company would be granted permission to appeal, or that an appeal would be successful.
[10] Although submissions were made in relation to Ms Cook’s health, it does not seem that extending the time to appeal would cause her any prejudice beyond the normal difficulties associated with an appeal against a favourable decision.
[11] In all of the circumstances and having regard to all of the above matters, we conclude that we should not extend the time for the lodgement of the appeal insofar as it relates to the First Decision.
Extension of time: the Second Decision
[12] The same considerations set out above in relation to the explanation for the delay and the potential prejudice to Ms Cook apply equally to the Second Decision. In relation to the length of the delay, the appeal was lodged 41 days after the date of the Second Decision, or 20 days out of time. Although the delay is substantially shorter than that in relation to the First Decision, there was still a significant delay.
[13] In relation to the nature of the appeal grounds and the prospect of the appeal’s success, the Company has made few submissions with respect to the Second Decision. What comments it has made seem to relate primarily to the inability of the Company’s Managing Director to attend the hearing of the matter. There are circumstances in which the inability of a party to attend a hearing that leads to a decision adverse to its interests will constitute a denial of fairness. However in the present case this is not what occurred.
[14] Subsequent to the First Decision, the matter before the Senior Deputy President was listed for hearing on 1 May 2013 in Adelaide to consider the merits of the application. The Notice of Listing and directions were sent to the parties on 21 March 2013. The directions stated, in part, that:
“[5] Compliance with these directions is mandatory and a failure to do so, or to participate in the hearing... may disadvantage the party concerned. Any enquiries with respect to these directions should be addressed to my office...
[15] The hearing was to be held in Adelaide and a video link was arranged in order for the Company to appear from Sydney. The parties were reminded of the hearing by a text message sent on the day before the hearing.
[16] The Company did not appear at the hearing, without giving any prior notice to the Commission or Ms Cook. The Senior Deputy President issued directions on 1 May 2013 requiring the Company to provide by 8 May evidence of its reason for failing to appear at the hearing. The directions stated, in part:
“[5] Unless Mr James provides evidence of why he could not attend this hearing or could not advise the Commission of his inability to attend this hearing, I will reach a conclusion relative to this application on the material before me. Any evidence relative to Mr James’ non-attendance must be received by my office by close of business 8 May 2013...”
[17] On 3 May 2013 Mr James wrote to the Senior Deputy President and advised that he was unable to attend the hearing due to ongoing illness. He requested that the matter be re-listed. The Senior Deputy President issued further directions on the same day as follows:
“[1] I refer to my directions of 1 May 2013 and note that I have received the attached advice from Mr James.
[2] This advice does not meet the requirements of my directions
[3] Evidence addressing Mr James’ position is to be provided to me by close of business 8 May 2013.
[4] In the event that Mr James relies on a medical certificate, that certificate must specifically state that Mr James was unfit to both attend the hearing on 1 May 2013 and was unable to advise the Commission of his inability to do so.
[5] Unless satisfactory evidence of this nature is provided to me by the nominated date, I will determine the matter on the material before me.”
[18] No further communication was received from the Company, and the Senior Deputy President determined the matter on the material before him. In the circumstances of the case, we therefore do not consider that the failure of the Company to appear at the hearing on 1 May 2013 and the subsequent determination of the matter by the Senior Deputy President represents a denial of procedural fairness. The Company was given ample opportunity to make submissions and present evidence in relation to the matter but did not do so. It did not provide adequate reasons for its failure to appear at the 1 May hearing, and provided no response when the Senior Deputy President explicitly set out the nature of the medical evidence that would be required.
[19] As noted above, the Company would need to demonstrate public interest before permission to appeal would be granted. It has not made submissions in relation to this matter.
[20] It is unclear whether error is alleged by the Company in relation to the substance of the Second Decision. The Company did not make submissions in this regard. When the Commission determines the merits of an unfair dismissal decision, as the Senior Deputy President did in the Second Decision, “no one [consideration] and no combination of [considerations] is necessarily determinative of the result” and the decision-maker is “allowed some latitude as to the choice of the decision to be made”. 13 The Second Decision is therefore a discretionary decision. To succeed in an appeal against a discretionary decision, the Company would have to demonstrate error in the decision-making process itself.14 If the error alleged were an error of fact, it would have to be a significant error of fact (s.400(2) of the Act).
[21] For all of the above reasons we consider that there is no realistic prospect that the Company will be successful in seeking permission to appeal the Second Decision, or that an appeal would succeed.
[22] Having regard to these matters and all of the circumstances of the case, we conclude that we should not extend the time for the lodgement of an appeal against the Second Decision.
Conclusion
[23] For all of the above reasons, we decline to extend the time for the Company to appeal pursuant to Rule 12.3(b). The appeal is dismissed.
SENIOR DEPUTY PRESIDENT
Appearances:
J Cook on her own behalf.
Hearing details:
2013.
Adelaide:
August 2.
1 In this decision, any reference to a “Rule” is a reference to the relevant part of the Rules. Despite the change of name from Fair Work Australia (FWA) to the Fair Work Commission (the Commission) on 1 January 2013, the Rules continue in force until they are replaced. Pursuant to s.25B(1)(b) of the Acts Interpretation Act 1901, references in the Rules to FWA are construed as references to the Commission.
2 [2013] FWC 1641.
3 [2013] FWC 3027.
4 PR536653.
5 [2012] FWAFB 3995.
6 Citations omitted. See Stevenson-Helmer v Epworth Hospital, AIRC Print T2277 (19 October 2000); Dundovich v P&O Ports, AIRC Print PR923358 (8 October 2002); SPC Ardmona Operations Ltd v Esam (2005) 141 IR 338.
7 Transcript of 2 August 2013, PN13-PN14.
8 Stevenson-Helmer v Epworth Hospital, AIRC Print T2277 (19 October 2000) at [14]; SPC Ardmona Operations Ltd v Esam (2005) 141 IR 338 at 348-9.
9 See e.g. Sammartino v Commissioner Foggo [1999] FCA 1231 at [8].
10 McKewin v Lend Lease Project Management & Construction (Australia) Pty Ltd [2013] FWCFB 2568.
11 Staff Aid Services v Bianchi,AIRC Print PR945924 (5 May 2004) at [17].
12 See e.g. Sammartino v Mayne Nickless (2000) 98 IR 168 at 176 [20].
13 Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at 205 [19].
14 Ibid at 205 [21].
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