Benjamin Close v Woolworths Limited t/a Woolworths Wodonga
[2016] FWCFB 7189
•28 OCTOBER 2016
| [2016] FWCFB 7189 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
Woolworths Limited t/a Woolworths Wodonga
(C2016/5752)
VICE PRESIDENT HATCHER | SYDNEY, 28 OCTOBER 2016 |
Permission to appeal against decision in transcript and Order PR585640 of Vice President Watson at Melbourne on 20 September 2016 in matter number U2016/10082.
Introduction
[1] Mr Benjamin Close has applied for permission to appeal an ex tempore decision of Vice President Watson made during a jurisdictional hearing on 20 September 2016 (Decision) and confirmed in a separate order giving effect to the Decision 1. The effect of the Decision was to refuse Mr Close an extension of the time to lodge an application for 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). At the hearing of the appeal before us, the parties were self-represented. Ms Natalie Novak appeared for Woolworths.
[2] 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.
[3] Mr Close’s employment with Woolworths was terminated on Friday 5 February 2016. He filed a first unfair dismissal remedy application on 25 February 2016 2. This application was lodged within 21 days after the dismissal took effect and indicated that Ms Ruth Tai of the Disability Advocacy and Information Service (DAIS) was representing him. On 6 May 2016, an email from Ms Tai was received by the Commission advising:
“Mr Benjamin Close has given me his authority to advise you that after receiving legal advice the matter of the above subject reference is being withdrawn from the Fair Work Commission. Instead this matter will be the subject of an Equal Opportunity Act claim.
Would you please advise whether I have the responsibility to inform the respondent, and if there is anything further Mr Close is required to do to close this matter with the Fair Work Commission?”
[4] Mr Close was copied into this email communication and on 13 May 2016, Ms Tai then forwarded a Form F50-Notice of Discontinuance to the Commission by email. It had been signed by Mr Close on 6 May 2016.
[5] On 26 July 2016, Mr Close sent an email to the Commission requesting his case be re-opened, together with an attachment stating:
“U2016/4894
To whom it may concern,
I am writing to request my case be reopened as I did not wish to close the case as I do not consider the matter to be resolved. I wish a hearing to go ahead regarding the unfair dismissal claim I made against Woolworths Limited.
Regards
Ben Close”
[6] A copy of this request and the attachment was forwarded by the Commission to Woolworths on 29 July 2016. Woolworths subsequently advised it did not consent to the request of Mr Close. Telephone contact with Ms Tai was made by the Commission on 5 August 2016. In this telephone conversation, Ms Tai stated that from her perspective, the matter had been resolved, that she had explained the situation to Mr Close and that she was no longer acting on his behalf. On 5 August 2016, Mr Close was sent a letter from the Commission by email which stated:
“Your email has been provided to Deputy President Gooley. A notice of discontinuance was filed in U2016/4894 - Close, Benjamin v Woolworths Limited T/A Woolworths Wodonga.
In AB v Tabcorp Holdings Limited [2015] FWCFB 523 a Full Bench held as follows in relation to setting aside a notice of discontinuance and that any such application would have to be made to a court.
[10] We note that the Deputy President's decision is predicated on the assumption that the Commission has the power to set aside a notice of discontinuation if the notice was filed by mistake or under duress. In that regard the Deputy President relied on an obiter comment in Narayan to that effect. However the ratio in Narayan is set out at paragraph 6 of that decision,:
"... s.586 provides a power to correct or amend an application, or to waive an irregularity in the form or manner in which an application is made. It is not a power to revoke or set aside an application. Once filed a notice of discontinuance is self executing and it brings the application to an end." (footnotes omitted)
[11] We agree with the proposition that in certain circumstances a notice of discontinuance can, in effect, be set aside if it was filed by mistake or under duress. However we doubt that such a power may be exercised by the Commission. It seems to us that any such application would have to be made to a court - for a declaration that the notice was a nullity. As an arbitral body the Commission cannot grant declaratory relief. The issue does not arise in this case because the Deputy President dismissed the application before her.
[12] Of course, as was observed in Narayan, filing a notice of discontinuance does not preclude the filing of a further unfair dismissal application (see Narayan at [15]-[30]), though such an application will be subject to the time periods specified in s.394(3). In deciding whether to extend the time for the filing of such an application it would be open to the Commission to consider the circumstances surrounding the filing of the earlier notice of discontinuance, including whether it was filed by mistake or under duress.
In light of that decision the application cannot be listed for hearing. You may make an
application to set aside the notice of discontinuance or file a new application and make
an application for an extension of time.”
[7] On 9 August 2016, Mr Close filed a second unfair dismissal remedy application with the Commission 3 (Application). On 25 August 2016 an email was sent from the Commission to both Mr Close and Woolworths advising that the Application would be listed for an Extension of Time Conference/Hearing. A range of documents for their attention and completion were also enclosed. The Application was ultimately listed for a Jurisdiction Conference/Hearing by telephone before the Vice President on 20 September 2016. Both parties filed material for the Vice President’s consideration.
[8] As regards the material of Mr Close:
● he had included the statement “previous application was mistakenly discontinued and I do not consider the matter to be resolved” in the Application form 4;
● he had included the statement “original application was filed within the 21 days but was incorrectly cancelled” in his Outline of Argument document 5; and
● he had advised the Commission by email dated 30 August 2016 “the matter was discontinued by a person who was representing me but they did that in error”.
[9] Ultimately, the Vice President declined to grant Mr Close an extension of time to lodge the Application. It was therefore 164 days beyond the 21 day time limit in s.394(2).
[10] Mr Close’s notice of appeal raised that the Vice President neither properly considered his application or the basis upon on which it was made nor the fact that the decision to withdraw the original application was not intended and an error.
[11] In his oral submissions, Mr Close raised that there had been a miscommunication between himself and Ms Tai, that he was in a hurry at the time and because he did not realise that what he was signing would cancel the original hearing, it had been cancelled by mistake. Mr Close submitted that while he had explained this, the Vice President did not properly consider the explanation.
[12] In relation to the delay in lodging the Application, Mr Close submitted that he only became aware of the 6 May 2015 email sent by Ms Tai, despite having been included as a recipient at that time, when it was brought to his attention by the Vice President. Further, he said that he only discovered that the first application had in fact been discontinued, despite having signed the Notice of Discontinuance on 6 May 2016, when he telephoned the Commission in late July 2016 in order to find out when it was to be heard. The matters raised in Mr Close’s notice of appeal and submissions represent, in essence, an attempt by him to reargue the case he had advanced before the Vice President.
[13] Mr Close submitted that it was in the public interest that his case be heard because he did not commit the alleged offence that lead to his dismissal and he should be given the opportunity to prove his innocence.
Consideration
[14] 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. 6 There is no right to appeal and an appeal may only be made with the permission of the Commission.
[15] 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.
[16] 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”. 7 The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment8. In GlaxoSmithKline Australia Pty Ltd v Makin 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.” 9
[17] 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. 10 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.11
[18] 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.12 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 King13 – 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.
[19] The principal reasons given by Mr Close for the delay in filing the Application were that the discontinuance of the first application was a mistake and he did not realise it had occurred at the time. As outlined above, Mr Close asserted he was only alerted to the discontinuance as a result of a phone call he made to the Commission in July 2016, despite having been copied into Ms Tai’s email sent on 6 May 2016 advising that his application was being withdrawn and having signed the Notice of Discontinuance on the same day. There is, however, no record of such a phone call having been made to the Commission during that period from either of the two mobile telephone numbers Mr Close supplied to the Commission as part of providing his contact details. As to the 6 May 2016 email sent to the Commission by Ms Tai, Mr Close said he did not receive it on that day and nor did he check his email until mid-June 2016. We have significant doubt as to the credibility of this explanation.
[20] As to the further 14 days delay in filing the Application that ensued after Mr Close sent his 26 July 2016 email to the Commission, Mr Close stated that he did not have internet access and was reliant on public transport to get to public facilities where it was available.
[21] The Vice President determined that the stringent test of “exceptional circumstances” was not met. On the material before us, we do not consider that this conclusion was unreasonable, manifested any injustice, or was counter-intuitive.
[22] We are not satisfied that any of Mr Close’s submissions identify any error made by the Vice President that would justify the grant of permission to appeal in the public interest or otherwise. Accordingly, as required by s.400(1), permission to appeal is refused.
VICE PRESIDENT
Appearances:
B. Close on his own behalf.
N. Novak for Woolworths Limited t/a Woolworths Wodonga.
Hearing details:
2016.
Melbourne:
11 October
1 PR585640
2 U2016/4894
3 U2016/10082
4 Appeal Book page 6
5 Appeal Book page 13
6 Coal and Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ
7 (2011) 192 FCR 78 at [43]
8 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]
9 [2010] FWAFB 5343 at [27], 197 IR 266
10 Wan v AIRC (2001) 116 FCR 481 at [30]
11 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]
12 Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21]; 241 IR 177
13 (1936) 55 CLR 499
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