Ben Webster v Costa Exchange Limited t/a Berry Exchange
[2016] FWCFB 7186
•21 OCTOBER 2016
| [2016] FWCFB 7186 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
v
Costa Exchange Limited t/a Berry Exchange
(C2016/5543)
VICE PRESIDENT HATCHER | SYDNEY, 21 OCTOBER 2016 |
Permission to appeal against decision [2016] FWC 6210 of Senior Deputy President Drake at Sydney on 1 September 2016 in matter number U2016/8236.
[1] Mr Ben Webster has applied for permission to appeal and appealed a decision1 of Senior Deputy President Drake issued on 1 September 2016 (Decision). The effect of the Decision was to refuse Mr Webster an extension of time to lodge an application for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (FW Act) and to dismiss the application that had been received by the Fair Work Commission (Commission).
[2] After the appeal was lodged, directions were issued to facilitate the determination of the matter on 23 September 2016. These included a direction requiring Mr Webster to file and serve an outline of submissions, not exceeding three A4 pages in length, addressing the requirement for permission to appeal by 6 October 2016. Mr Webster did not comply with this direction, nor did he seek an extension of time or a waiver of the direction or provide any explanation for his non-compliance. Further, Mr Webster failed to file and serve an appeal book as required by rules 56(3) and 52 of the Fair Work Commission Rules 2013.
[3] The hearing of Mr Webster’s application for permission to appeal was conducted on 11 October 2016 in Melbourne with a video-link to Sydney, in accordance with a notice of listing sent to the parties on 23 September 2016. When the matter was called on, there was no appearance by either party. The Court Officer in Sydney called Mr Webster’s name three times outside the courtroom, to no avail. Neither party contacted the Commission to advise they would be unable to appear or were delayed.
[4] There has been no subsequent contact by Mr Webster to indicate reasons as to why he was unable to attend the hearing or that he had suffered from some misadventure and/or exceptional circumstances that impeded him from attending. Accordingly his application for permission to appeal must be determined by reference to the contents of his notice of appeal.
[5] Section 394(2) of the FW Act requires an unfair dismissal remedy application to be lodged within 21 days after the dismissal took effect or within such further period as the Commission allows under s.394(3). Section 394(3) provides:
(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.
[6] Mr Webster filed his unfair dismissal remedy application on 6 July 2016. On 21 July 2016 the Senior Deputy President wrote to Mr Webster asking him to provide a statement addressing the extension of time matters she was required to address. On 2 August 2016 Mr Webster provided a statement advising the Senior Deputy President that he had difficulty obtaining legal advice and ongoing family difficulties.
[7] The Senior Deputy President found in the Decision that “[t]he relationship between Mr Webster and the respondent ended on 10 June 2016.” 2 There was no challenge to that finding in Mr Webster’s notice of appeal. Mr Webster’s unfair dismissal remedy application was therefore lodged 5 days beyond the 21-day time limit prescribed in s.394(2) of FW Act.
[8] The reasons for the delay advanced by Mr Webster at first instance and the Senior Deputy President’s consideration of those reasons pursuant to s.394(3)(a), are set out in the Decision as follows:
- difficulty in obtaining legal advice;
- difficult in contacting the Fair Work Ombudsman;
- ongoing family difficulties, including the care of his grandmother and mother, and
- other working opportunities
“[10] The reasons Mr Webster provided for his delay in lodgement were:
[11] While sympathetic to these circumstances I was not persuaded that Mr Webster’s difficulties were out of the ordinary, unusual or uncommon.”
[9] In considering the other matters required to be taken into account under s.394(3), the Senior Deputy President concluded that:
- Mr Webster became aware of the end of his relationship with Costa on 10 June 2016.
- Mr Webster disputed his dismissal by lodging his application for unfair dismissal remedy.
- Prejudice to Costa was a neutral consideration.
- Merit was a neutral issue in the consideration.
- There was no issue of fairness in relation to any other person in a similar position.
[10] The Senior Deputy President’s overall conclusion was that she was not satisfied that exceptional circumstances existed that would permit the grant of an extension of time.
[11] Mr Webster’s notice of appeal and grounds for appeal contained numerous grounds that are said to demonstrate an appealable error. Most of the “grounds” consisted of offensive comments of an abusive and racist character. To the extent that there are any intelligible grounds of appeal, it is sufficient for present purposes to note that they sought in essence to rerun the case Mr Webster had advanced before the Senior Deputy President. In particular, Mr Webster contended that the Senior Deputy President, in considering the reasons for the delay in lodging the application, reached the wrong conclusion and should have found the reasons provided constituted “exceptional circumstances” within the meaning of s.394(3).
Consideration
[12] An appeal under s.604 of the FW Act is an appeal by way of rehearing and the Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision maker.3 There is no right to appeal and an appeal may only be made with the permission of the Commission.
[13] This appeal is one to which s.400 of the FW Act applies. Section 400 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.
(2) Despite subsection 604(1), an appeal from a decision made by the FWC in relation to a matter arising under this Part can only, to the extent that it is an appeal on a question of fact, be made on the ground that the decision involved a significant error of fact.
[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”. 4 The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.5 A Full Bench of the Commission, in GlaxoSmithKline Australia Pty Ltd v Makin, 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.” 6
[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.7 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.8
[16] The test of “exceptional circumstances”, in relation to extensions of time to lodge applications under s.394(3), establishes a “high hurdle” for an application for an extension, and a decision as to whether to extend time under s.394(3) involves the exercise of a broad discretion.9 Therefore it will be necessary, in an application for permission to appeal against a decision made under s.394(3) to demonstrate that there is an arguable case that there was appealable error in the exercise of the discretion. This will require the identification of error of the type described in House v The King10 – that is, that the decision-maker has acted on a wrong principle, has mistaken the facts, has taken into account an irrelevant consideration or failed to take into account a relevant consideration, or has made a decision which is unreasonable or manifestly unjust. Additionally, where an error of fact is alleged, s.400(2) requires that it must be a significant error of fact. The overriding public interest requirement of s.400(1) remains.
[17] The Senior Deputy President, having considered the reasons given for the delay and the other relevant criteria, determined that the stringent test of “exceptional circumstances” was not met. We do not consider that this conclusion was unreasonable, manifested any injustice, or was counter-intuitive.
[18] The principal reasons given by Mr Webster for the delay concerned difficulty in obtaining legal advice and ongoing family difficulties, including the care of his grandmother and mother. It was never properly articulated at first instance or before us why these reasons constituted an impediment to Mr Webster filing his unfair dismissal remedy application.
[19] We have considered all the matters raised in Mr Webster’s notice of appeal, including the grounds for appeal. Those “grounds” were mostly irrelevant and did not specifically address the requirements of s.400 of the FW Act. We are not satisfied that any of those grounds for appeal identify an error made by the Senior Deputy President that would justify the grant of permission to appeal in the public interest.
[20] We note that information relating to Mr Webster’s length of service with Costa was not a matter that appears to have been raised before the Senior Deputy President or at this permission to appeal hearing. It is apparent however, based on Mr Webster’s unfair dismissal remedy application lodged 6 July 2016, that Mr Webster had not established the requisite minimum employment period prescribed under s.383(a), that is, six months service where the employer is not a small business employer. As such, Mr Webster was not a person protected from unfair dismissal pursuant to s.382 of the FW Act and his application was destined for failure, in any event, on the basis of a want of jurisdiction. The grant of permission to appeal would therefore have no utility.
[21] We are not satisfied that it would be in the public interest to grant permission to appeal. Accordingly, as required by s.400(1), permission to appeal is refused.
VICE PRESIDENT
Hearing details:
2016.
Melbourne.
11 October.
1 [2016] FWC 6210
2 Decision at [2]
3 This is so because on appeal the Commission has power to receive further evidence, pursuant to s.607(2); see Coal and Allied v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ
4 (2011) 192 FCR 78 at [43]
5 O’Sullivan v Farrer (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch (2011) 85 ALJR 398 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 at [44]-[46]
6 [2010] FWAFB 5343, 197 IR 266 at [27]
7 Wan v AIRC (2001) 116 FCR 481 at [30]
8 GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343 at [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]
9 Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21]
10 (1936) 55 CLR 499
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