Australian Postal Corporation v Lili (Karen) Zhang
[2014] FWCA 3580
•27 NOVEMBER 2015
| [2015] FWCFB 5285 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
Lili (Karen) Zhang
(C2015/4721)
VICE PRESIDENT HATCHER |
|
Appeal against decision [[2015] FWC 4202] of Commissioner Ryan at Melbourne on 22 June 2015 in matter number U2015/7140.
[1] The Australian Postal Corporation (Australia Post – the Appellant) has applied for permission to appeal and appealed a decision of Commissioner Ryan issued on 22 June 2015 1 (the Decision). The Decision concerned whether there were exceptional circumstances warranting the granting of a further period of time for Ms Lili (Karen) Zhang (the Respondent) to lodge her unfair dismissal application. Ms Zhang was dismissed from her employment by Australia Post on 9 September 2014. Ms Zhang’s unfair dismissal application was received by the Fair Work Commission (the Commission) on 24 April 2015, 205 days outside the 21 day statutory timeframe specified in s.394(2)(a) of the Fair Work Act 2009 (the Act).
[2] By way of background, Ms Zhang commenced employment with Australia Post on 16 July 2008 and in May 2011 commenced in the role of Manager, Capital Reporting and Planning. As a result of a review of resources and capability required within Australia Post’s Investment Management Group (IMG) it was determined that certain duties performed by Ms Zhang were no longer required to be performed by anyone. Ms Zhang was subsequently made redundant on 9 September 2014. Twelve other staff were also made redundant as a result of the abovementioned review. As noted above, Ms Zhang’s application was received by the Commission 205 days outside the 21 day statutory timeframe. In her application, Ms Zhang disputed, among other things, the genuineness of her redundancy.
[3] One of a number of grounds on which Ms Zhang relied upon as the reason for delay in lodging her application was that she suffered trauma, depression and stress as a result of her dismissal. In support of her application in this regard Ms Zhang provided a report from her treating psychologist, Ms Middling, dated 20 April 2015. The report confirmed that Ms Zhang was experiencing Post Traumatic Stress Disorder (PTSD) symptoms and indicated that Ms Middling first saw Ms Zhang on 3 February 2015. Ms Zhang had been referred to Ms Middling by her general practitioner who Ms Zhang first consulted about her post termination symptoms in December 2014. The Commissioner noted in the Decision that Ms Zhang was diagnosed with PTSD in February 2015. 2
[4] Australia Post submitted to the Commissioner, inter alia, that Ms Zhang provided no explanation as to why she had not lodged her application prior to the commencement of sessions with her general practitioner in December 2014. Australia Post further contended that Ms Zhang was not sufficiently incapacitated to prevent her from making the application on time, or alternatively, that she was not sufficiently incapacitated for the entire period between the termination and lodging her application to justify the delay in her application.
[5] Ms Zhang’s application was determined on the papers.
[6] In his Decision the Commissioner stated that “In the absence of any more direct evidence from the Applicant’s treating GP or psychologist the proper way of interpreting the evidence before the Commission is to have regard to the standard texts dealing with PTSD. The Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM 5) edited by the American Psychiatric Association is considered to be an authoritative text on mental health issues.” 3 The Decision does not allude to any submissions from the parties regarding DSM 5.
[7] Based on his analysis of DSM 5 and the report from Ms Zhang’s psychologist, the Commissioner found that “it would appear that the Applicant’s PTSD symptoms would have been present (either partly or fully) within a short time after the Applicant was dismissed from her employment … It would appear to be out of the ordinary, unusual or uncommon for a dismissed employee to develop PTSD as has the Applicant.” 4
[8] The issue of whether or not permission to appeal should be granted and, weather the appeal should be upheld, was heard by the Commission on 26 August 2015. At the hearing, Mr Mark McKenney of Counsel appeared with permission on behalf of Australia Post. Ms Zhang did not attend the hearing. As a result, the Commission issued further Directions on 1 September 2015 which provided Ms Zhang with an opportunity to make any submissions in response to the Appellant’s submissions at the hearing by 8 September 2015. Ms Zhang provided written submissions in accordance with those further Directions and on 17 September 2015 provided additional submissions to the Commission.
The Relevant Statutory Provisions and the Code
[9] The relevant provision of the Act which deals with the timeframe for making an unfair dismissal application is s.394 and is set out below:
394 Application for unfair dismissal remedy
(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.
Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.
Note 2: For application fees, see section 395.
Note 3: Part 6-1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.
(2) The application must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (3).
(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) whether the person first became aware of the dismissal after it had taken effect; and
(c) any action taken by the person to dispute the dismissal; and
(d) prejudice to the employer (including prejudice caused by the delay); and
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.
The Grounds of Appeal and Views of the Parties
[10] Australia Post in its Notice of Appeal cited the following nine grounds of appeal:
(1) the Commissioner misapplied the test of “exceptional circumstances” in s.394(3) of the Act;
(2) the Commissioner took into account extraneous or irrelevant matters by referring to DSM 5 and made erroneous findings on the basis of it;
(3) the Commissioner denied Australia Post natural justice in not alerting both it and Ms Zhang to the intended reliance upon DSM 5;
(4) the Commissioner failed to have regard to material considerations, in particular the evidence lead by Australia Post and its written submissions;
(5) the Commissioner’s decision is unreasonable and/or plainly unjust given that the entire period of the delay was unexplained;
(6) the Commissioner made a significant error of fact in finding at paragraph [32] that “it would appear to be out of the ordinary, unusual or uncommon for a dismissed employee to develop PTSD as has the Applicant” with no explanation of a causal link for the delay;
(7) the Commissioner also made a significant error of fact in relying on DSM 5 and the report of Ms Middling as these documents do not support a finding of the existence of exceptional circumstances;
(8) the conclusions expressed by the Commissioner at paragraphs [56] and [57] of the Decision do not disclose an adequate path of reasoning and do not contain adequate reasons to support a degree of satisfaction that there are exceptional circumstances in this case; and
(9) such further grounds as may be advanced on the hearing of the appeal.
[11] As to the reasons why it was in the public interest for permission to appeal to be granted, Australia Post submitted that:
(1) the Decision raises issues of importance and general application where extensions of time are sought to seek a remedy for unfair dismissal;
(2) the Decision manifests an injustice as a result of the errors made by the Commissioner;
(3) the Decision is counter intuitive given the extensive delay involved in allowing the filing of Ms Zhang’s application;
(4) the legal principles applied appear disharmonious when compared with other decisions of the Commission and its predecessors in which the Commission has declined to exercise its discretion to grant an extension of time in circumstances where the delay was far less than the 205 day delay in this case; and
(5) such further grounds as may be advanced on the hearing of the appeal.
[12] We will deal with the parties’ written and oral submissions in detail below in the context of dealing with the grounds of appeal relied upon by Australia Post.
Dealing with the Appeal
[13] This appeal is one to which s.400(1) of the Act applies. Section 400(1) provides:
(1) Despite subsection 604(2), the FWC must not grant permission to appeal from a decision made by the FWC under this Part unless the FWC considers that it is in the public interest to do so.
[14] In the Federal Court Full Court decision in Coal & Allied Mining Services Pty Ltd v Lawler and others, Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s.400 as “a stringent one”. 5 The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment6. In GlaxoSmithKline Australia Pty Ltd v Makin (GlaxoSmithKline) a Full Bench of the Commission identified some of the considerations that may attract the public interest:
“... the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or 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.” 7
[15] It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of appealable error. 8 However, the fact that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.9
Consideration of the Issues
[16] We turn now to deal with the grounds of appeal relied upon by Australia Post. We have, for the purposes of our consideration, grouped a number of those grounds together where those grounds overlap and to reflect Australia Post’s written and oral submissions.
Grounds 1, 2, 5, 6 and 7 – significant error
[17] In its written submissions Australia Post cited a number of significant errors of fact in the Decision. These were:
(a) the matters relied upon at paragraphs [22]-[24] of the Decision do not support the factual conclusions at paragraphs [30]-[32] nor the ultimate conclusion at paragraph [56] of the Decision;
(b) the matters at paragraphs [25]-[29] of the Decision do not support the factual conclusion of exceptional circumstances when regard is had to the evidence of normal conduct by Ms Zhang following her dismissal, e.g. evidence of Ms Zhang attending job interviews from January 2015. Further, the reliance on DSM 5 in relation to the ultimate conclusion that there is an explanation for the delay is not supported by the references at paragraphs [26]-[28] of the Decision that there has been an explanation for the delay for the entire period of the delay;
(c) the finding that there had been a breakdown in Ms Zhang’s de facto relationship at paragraph [29] of the Decision as the relationship breakdown did not happen at the relevant time;
(d) the Commissioner’s finding at paragraphs [17] and [24] of the Decision that there was a diagnosis of PTSD in February 2015 which in turn informed his wrong conclusion at paragraph [32] that Ms Zhang had developed PTSD. That finding also calls into question the concurrent finding in paragraph [32] that there were exceptional circumstances.
[18] At the hearing, Australia Post submitted that there was no evidence before the Commissioner of stress symptoms, and PTSD symptoms in particular, during the 21 day period following Ms Zhang’s termination, adding that the evidence indicated that the earliest the existence of stress symptoms could be inferred was following a visit by Ms Zhang to her general practitioner in December 2014. Australia Post highlighted that that date was well outside the 21 day period. Australia Post further submitted that the Commissioner had gone beyond identifying PTSD symptoms to actually making a diagnosis of PTSD which appears to have been a critical factor in his finding that there were exceptional circumstances 10.
[19] Ms Zhang submitted that the Commissioner did not make an error in the exercise of his discretion as to the existence of exceptional circumstances. As to the Commissioner’s finding of PTSD as opposed to PTSD symptoms, Ms Zhang contended that this “is practically a contrived distinction.” She further contended that her symptoms commenced in September 2014 but were not fully diagnosed before December 2014, adding that “mental issues cannot be as clearly prescribed as the Appellant would make out.” In her written submissions, Ms Zhang also contended that from as early as October 2014 she started to collect evidence going to the genuineness of her redundancy.
[20] An analysis of the material that was before the Commissioner indicates that:
- Mr Wilson Lorimer, the Head of Portfolio Planning and Reporting at Australia Post, assisted Ms Zhang to collect her personal possessions from the workplace on 20 September 2014; 11
Ms Zhang emailed Mr Lorimer on 28 September 2014 indicating that she and her partner were together again; 12
after a few sessions with her general practitioner in December 2014 and January 2015 Ms Zhang was referred by her general practitioner to a psychologist for treatment; 13
Ms Zhang had been “going through interviews” for jobs since January 2015; 14
Ms Zhang first consulted her psychologist, Ms Middling, in February 2015; and
Ms Middling’s report stated that Ms Zhang “has experienced Post Traumatic Stress Disorder symptoms” but gave no indication that Ms Zhang had been incapacitated at any time after her dismissal.
[21] Drawing on the above, it does not appear that Ms Zhang was incapacitated for the period January 2015 until 24 April 2015 when her application was received by the Commission when, based on her own submissions, she was attending interviews for jobs. Nor does it appear that she was incapacitated prior to 20 September 2014 when she collected her possessions from Australia Post. More significantly, however, it is not clear to us on what basis the Commissioner felt qualified to make a determination that Ms Zhang suffered from PTSD in the immediate aftermath of her termination.
[22] In our view, in the absence of compelling medical evidence to that effect, such a finding was simply not open to the Commissioner. We note that the medical evidence before the Commissioner provided no insight into the extent to which Ms Zhang was incapacitated during the entire 205 day period of delay, let alone the 21 day period immediately following the termination of her employment for making an unfair dismissal application.
[23] Finally, with regard to Ms Zhang’s submission that from as early as October 2014 she started to collect evidence going to the genuineness of her redundancy, we would point out that Ms Zhang only commenced doing so after the 21 day period had already expired.
[24] Taken together, the above supports a finding that it would be in the public interest to grant permission to appeal on these grounds.
Ground 3 – denial of natural justice
[25] Australia Post contended in its written submissions that the Commissioner’s reliance on DSM 5 without providing either party with the opportunity to address the Commission on its relevance and/or application to the facts was a denial of natural justice. While Australia Post acknowledged that the Commission can inform itself in any manner its sees fit, it submitted that this does not obviate the need to accord procedural fairness to the parties.
[26] Ms Zhang made no submission on this ground.
[27] From the Decision it is clear that the Commissioner had regard to DSM 5 as “the proper way of interpreting the evidence before the Commission” 15 and drew on DSM 5 in concluding that Ms Zhang’s “PTSD symptoms would have been present (either partly or fully) within a short time” after she was dismissed16. It is also clear from the Decision that the Commissioner did not inform the parties of his intention to rely on DSM 5. Nor did the Commissioner give the parties an opportunity to be heard on what, if any, conclusions could be drawn from DSM 5 in the circumstances of the matter before him. This, in our view, constitutes a significant denial of natural justice on the part of the Commissioner, particularly as the conclusions which the Commissioner drew from DSM 5 underpinned his finding that the primary reason for the delay relied upon by Ms Zhang was substantiated.
[28] In our view, the Commissioner’s denial of natural justice is a significant error which supports a finding that it would be in the public interest to grant permission to appeal on this ground.
Ground 4 – failure to have regard to material considerations
[29] Australia Post submitted that the Commissioner did not have regard to aspects of its submissions and evidence, including its submissions that:
- it is common for employees to suffer shock and trauma as a result of dismissal from employment;
- Ms Zhang had not provided evidence to substantiate that she was incapacitated for the entire period since the termination of her employment; and
- the factors outlined at paragraph [17] above.
[30] Again, Ms Zhang did not directly address this ground of appeal in her submissions.
[31] As was observed by the Full Bench in Soliman v University of Technology, Sydney (Soliman) 17:
“[27] It is not the case that a failure to refer to every submission advanced in support of a party's case constitutes a failure to exercise jurisdiction. In the Federal Court Full Court decision in Linfox Australia Pty Ltd v Fair Work Commission, the Court (Dowsett, Flick and Griffiths JJ) said:
"[47] First, it is not necessary for those making a decision to refer to "every piece of evidence and every contention" made by a party: WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184 at [46], 75 ALD 630 at 641 per French, Sackville and Hely JJ; Reece v Webber [2011] FCAFC 33 at [67], 192 FCR 254 at 277 per Jacobson, Flick and Reeves JJ. Although reasons for decision are not to be scrutinised with an eye to discerning error where none truly exists (Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 271-272 per Brennan CJ, Toohey, McHugh and Gummow JJ),
0
6
0