Bernard Ryan v Power & Data Support Services Pty Ltd
[2015] FWCFB 4393
•2 JULY 2015
| [2015] FWCFB 4393 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
Power & Data Support Services Pty Ltd
(C2015/2379)
VICE PRESIDENT HATCHER |
|
Appeal against Order [PR561998] on 13 March 2015 and decision [2015] FWC 2430 of Deputy President Sams at Sydney on 14 April 2015 in matter number U2014/16762.
[1] Mr Bernard Ryan has appealed an order issued by Deputy President Sams on 13 March 2015 1 (Order). The effect of the Order was to refuse Mr Ryan an extension of time to lodge an unfair dismissal remedy application under s.394 of the Fair Work Act 2009 (FW Act) and to dismiss, pursuant to s.587(1)(a) of the FW Act, the unfair dismissal remedy application which Mr Ryan had lodged on the basis that it had not been made in accordance with the FW Act. The Deputy President published reasons for the decision embodied in the Order on 14 April 20152 (Decision).
[2] We granted permission to appeal in this matter on 5 June 2015 3. In that decision we determined that it would be in the public interest to grant permission to appeal and we directed the parties to file and serve submissions on the merits of the appeal. We have been able to consider and determine this appeal without holding a hearing pursuant to s.607. We formed the view that the appeal could be adequately determined without the parties having to make oral submissions, and Mr Ryan and Power & Data Support Services Pty Ltd (the respondent) consented to this course. Our consideration of the matter is based upon the submissions in support of his application for permission to appeal lodged by Mr Ryan, the oral submissions at the hearing on the issue of permission to appeal on 21 May 2015 (noting that the respondent did not attend the hearing), and the submissions of both parties in respect of the merits of the appeal.
[3] In our earlier decision we outlined the background to the matter and for convenience, we reproduce and adopt that summary here:
“[3] Mr Ryan lodged his unfair dismissal remedy application on 30 December 2014. It concerned his alleged dismissal from his position as Business Manager/Book-keeper with Power & Data Support Services Pty Ltd (respondent) after allegations of financial dishonesty or impropriety had been made against him. The Decision records in paragraph [1] that Mr Ryan was dismissed by the respondent on 5 December 2014. The application was thereby treated by the Deputy President as having been lodged 5 days beyond the 21-day time limit prescribed by s.394(2) and thereby requiring an extension of time to be granted under s.394(3).
[4] In the Decision, the Deputy President dealt with all the matters he was required by s.394(3) to take into account. In relation to the reason for the delay (s.394(3)(a)), the Deputy President was not satisfied that the evidence before him supported Mr Ryan’s contention that he lodged or attempted to lodge his application on 19 December 2014…”
[4] The main issue that arose in the hearing before us as to whether permission to appeal should be granted was whether there were factual issues in contest which should have been the subject of evidence at a conference or hearing. Mr Ryan’s application for an extension of time was determined by the Deputy President on the basis of written submissions and documentary material only. Mr Ryan submitted that in failing to conduct a conference or hold a hearing the Deputy President fell into jurisdictional error by failing to comply with the requirement in s.397 of the FW Act. Section 397 provides that “[t]he FWC must conduct a conference or hold a hearing … if, and to the extent that, the matter involves facts the existence of which is in dispute.” We found that Mr Ryan had a “strongly arguable” case that the Deputy President erred by not conducting a conference or holding a hearing in accordance with the requirement in s.397 because there was a factual dispute about two matters - the date upon which Mr Ryan’s dismissal took effect, and whether Mr Ryan had attempted to “e-file” his unfair dismissal remedy application on 19 December 2014.
[5] Regarding the question of the date upon which Mr Ryan’s engagement with the respondent terminated we said:
“[20] … The material before the Deputy President raised the possibility that the dismissal, if there was one, happened on 5 December 2014, on 7 December 2014 (based on the date of the termination letter), 8 December 2014 (after Mr Ryan had allegedly worked for a further two days and then come in for a further discussion with Mr Ward), 9 December 2014 (when the respondent alleged that the further discussion occurred) and 19 December 2014 (the date of effect of the dismissal identified in the termination letter). If the dismissal had taken effect on or after 9 December 2014, the application would not have been lodged out of time. If the dismissal had taken effect on 7 or 8 December, the extent to which the application was filed late would have been less than 5 days upon which the Deputy President proceeded, and may have affected the consideration of the matters identified in s.394(3).”
[6] In relation to the issue of whether Mr Ryan attempted to “e-file” his application on 19 December 2014, we referred to Commission records which demonstrate that the Commission had sent Mr Ryan an email acknowledgement at 11.44am on that day that he had been successfully registered as an e-filing user. We would add that the Commission’s records also show that Mr Ryan logged on to the e-filing account which he had established at 1.45pm the same day. This material strongly indicates that Mr Ryan did make a serious attempt to file his application on 19 December 2014. This material was apparently not before the Deputy President when he made his decision, but may have come before him if there had been a conference or hearing in relation to this matter.
[7] Mr Ryan’s submissions on the merits of the appeal advanced ten grounds of appealable error and the respondent responded to each of these grounds. It is not necessary for us to consider each ground of appeal because we are satisfied that the Deputy President erred in not holding a conference or hearing in circumstances where this was required by s.397 because the two factual matters we have identified, both of which were of a critical nature, were in dispute. There is nothing in the respondent’s submissions which we read as contesting the proposition that the two factual matters were in dispute. Indeed, the respondent’s submissions, insofar as they address these two matters, strongly confirm the existence of a factual dispute. Nor does the respondent contest that s.397 applied to the question of whether Mr Ryan should be granted an extension of time under s.394(3).
[8] It is clear, we consider, that the error we have identified raises a serious risk that Mr Ryan had been the subject of a manifest injustice. We will therefore uphold the appeal. The issue of whether Mr Ryan requires an extension of time to lodge his application and, if so, whether such an extension of time should be granted, will need to be determined afresh in a manner consistent with the requirement in s.397. We will remit the matter to a member of this Full Bench for this purpose.
[9] We order as follows:
(1) The appeal is upheld.
(2) The Order and Decision are quashed.
(3) Mr Ryan’s application for an extension of time to file his unfair dismissal remedy application in matter U2014/16762 is remitted to Commissioner Johns for further hearing.
VICE PRESIDENT
Final written submissions:
12 June 2015 – Bernard Ryan.
19 June 2015 - Power & Data Support Services Pty Ltd.
1 PR561998
2 [2015] FWC 2430
3 Ryan v Power & Data Support Services Pty Ltd [2015] FWCFB 3498
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