Asia Pacific Cleaning Services Pty Ltd v Cook - [2013] FWCFB 5320

[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

Asia Pacific Cleaning Services Pty Ltd
v
Janice Cook
(C2013/4875)

JUSTICE BOULTON, SENIOR DEPUTY PRESIDENT
DEPUTY PRESIDENT GOOLEY
COMMISSIONER HAMPTON

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…

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: [2013] FWCFB 5320
Decision Date: 13 AUGUST 2013

CaseChat Overview and Summary

Asia Pacific Cleaning Services Pty Ltd appealed against a decision of the Fair Work Commission, arguing that the appeal was lodged out of time due to non-compliance with procedural rules. The dispute involved the dismissal of an employee by the appellant, which was challenged by the respondent. The Federal Circuit and Family Court of Australia was tasked with determining whether the appeal was valid and if the procedural rules had been properly adhered to.

The primary legal issues before the court were whether the appeal was lodged beyond the allowable time frame and whether any exceptional circumstances existed to excuse the delay. The court had to consider the statutory provisions governing appeals and the procedural rules established by the Fair Work Commission. Furthermore, the court needed to assess whether the respondent had a reasonable prospect of success on the merits of the appeal, as this could potentially mitigate the consequences of the procedural non-compliance.

In reaching its decision, the court noted that the appeal was indeed lodged beyond the permitted timeframe and that no adequate reason was provided for the delay. The court emphasised the importance of adhering to procedural rules and noted that the respondent had not demonstrated any exceptional circumstances that would warrant an extension of time. Additionally, the court found that the respondent did not have reasonable prospects of success on the merits of the appeal, which further supported the dismissal of the appeal. Consequently, the court upheld the decision of the Fair Work Commission and dismissed the appeal.

The court made an order dismissing the appeal and confirming the decision of the Fair Work Commission. The court also noted that costs were to be borne by the appellant, Asia Pacific Cleaning Services Pty Ltd.

Orders