Bernard Ryan v Power & Data Support Services Pty Ltd
[2015] FWCFB 3498
•5 JUNE 2015
| [2015] FWCFB 3498 |
| 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 | SYDNEY, 5 JUNE 2015 |
Appeal against Order [PR561998] on 13 March 2015 and a decision [2015] FWC 2430 of Deputy President Sams at Sydney on 14 April 2015 in matter number U2014/16762.
Introduction
[1] Bernard Ryan has applied for permission to appeal 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] 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 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. The Deputy President said:
“[14] Having considered the material filed by the parties and the Commission’s records, I find that the application was lodged on 30 January 2015. In any event, I am not persuaded that the reasons provided by the applicant for the delay in filing his unfair dismissal application are ‘exceptional circumstances’, as contemplated by the Act. The evidence provided by the applicant (See Annexure A - Screenshots of the applicant’s personal computer registry, indicating access to the Commission’s website, does not demonstrate the filing of an application) does not positively demonstrate that he lodged or attempted to lodge his application on 19 December 2014. Enquiries with the Commission’s IT department confirmed that no such document was lodged on this date. This is not a conflict of evidence, because it is the applicant’s own evidence which does not provide an evidentiary foundation for his submission.”
[5] The Deputy President also rejected Mr Ryan’s contention that the fact that he had been engaged in negotiations with the respondent and its legal representatives during the 21-day period provided a reason for the delay, finding that such negotiations did not prevent Mr Ryan lodging his application and subsequently discontinuing it if a settlement was reached. 3
[6] In relation to when Mr Ryan first became aware of the dismissal after it had taken effect, the Deputy President rejected Mr Ryan’s contention that he had only become fully aware of the dismissal on 19 December 2014. The Deputy President referred to Mr Ryan’s own evidence that, at a meeting on 5 December 2014, the Director of the respondent, Mr Leo Ward, said to him “go on get out - get out now - you’re done that’s the end of you” as demonstrating an “unequivocal and definite expression of the termination”. 4
[7] In relation to whether Mr Ryan had taken any action to dispute the dismissal (s.394(3)(c)), the Deputy President accepted that he had engaged in settlement discussions with the respondent, but again found that this did not constitute any impediment to Mr Ryan lodging his application within time. 5 The Deputy President did not find that the delay in filing the application caused any prejudice to the respondent (s.394(3)(d)). Concerning the merits of the application (s.394(3)(e)), the Deputy President noted that the respondent contended that Mr Ryan was an independent contractor, not an employee, but concluded that “it cannot be said that the applicant’s case is devoid of merit”.6 As for fairness between the applicant and other persons in a similar position (s.394(3)(f)), the Deputy President noted that Mr Ryan relied in respect of this criterion upon his difficulties in lodging his application, and referred to his earlier reasons on this point.7 The Deputy President’s overall conclusion was that he was not satisfied that there were exceptional circumstances warranting the grant of an extension of time, and alternatively that even if exceptional circumstances had been established he would decline to exercise his discretion to grant an extension of time.8
[8] It is important to note that in determining the extension of time issue, the Deputy President did not conduct a conference or hold a hearing in relation to the matter, but rather dealt with it “on the papers” - that is, by way of the written submissions and evidentiary material filed by the parties. In support of his application for permission to appeal, 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:
397 Matters involving contested facts
The FWC must conduct a conference or hold a hearing in relation to a matter arising under this Part if, and to the extent that, the matter involves facts the existence of which is in dispute.
[9] Mr Ryan contended that “there were a number of facts in dispute including whether the appellant attempted to upload the application on the FWC website on 19 December”. He referred to the Full Bench decision in Dris v St Luke’s Family Practice Management Trust 9 in support of his submission concerning s.397.
[10] The respondent, having been properly notified of the date of the hearing of Mr Ryan’s application for permission to appeal, declined to participate in the hearing. The day prior to the listed date for the hearing, the respondent’s solicitors, HR Law, sent an email to the Commission which stated, among other things:
“ ... As previously mentioned, for cost efficiency reasons, we do not intend to appear at tomorrow’s hearing unless this would assist the Commission”.
[11] It was not considered appropriate for the Commission to provide a legally represented party with advice as to whether to appear at a hearing in order to protect its interests. The result of the respondent’s non-attendance was that there was no contradictor to Mr Ryan’s submissions.
Consideration
[12] 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.
[13] 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(1) as “a stringent one”. 10 The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment11. 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.” 12
[14] 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. 13 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.14
[15] We consider that Mr Ryan’s submission that the Deputy President erred by not conducting a conference or holding a hearing in accordance with the requirement in s.397 is strongly arguable. It is apparent, on our perusal of the materials that were before the Deputy President, that there was a dispute about when Mr Ryan’s engagement with the respondent had terminated and the basis upon which this occurred. Mr Ryan’s application, which as earlier stated was lodged on 30 December 2014 but was signed by him on 12 December 2014, stated (in response to questions contained in the standard application form 15) that he was notified of his dismissal on 5 December 2014 and that the dismissal had taken effect on that day. However, in response to the question in the standard form “Are you making this application within 21 days of your dismissal taking effect?”, Mr Ryan crossed the box for the answer “Yes”. Additionally, annexed to the application was a letter from the respondent to him dated 7 December 2014, and signed by Mr Ward, which relevantly stated:
“RE: Employment Cessation Notification
This letter is to confirm that your employment with Power & Data Support Services Pty Ltd, will cease effective close of business 19-12-2014 (mandatory 2 weeks’ notice).
Your position as Business Manager has become redundant...”.
[16] There was no evidence that Mr Ryan had been paid any amount in lieu of notice, nor was this even suggested by the respondent. In its response to Mr Ryan’s application 16, the respondent denied that it had dismissed Mr Ryan at all and said that he had “left work on 05.12.2014”. It relied on this denial of any dismissal as a jurisdictional objection to the application in addition to the objections that “the applicant is out of time”, was an independent contractor and not an employee, and “did not return to work after 5 December 2014”.
[17] In his written submissions made to the Deputy President concerning whether an extension of time should be granted dated 8 February 2015, Mr Ryan, who was at that time representing himself, said (among other things):
“...# Leo Ward (PDSS) gave me a ‘signed Termination letter’ saying ‘Redundancy’ was the grounds for my dismissal, effective as of 19-12-14. This it would seem is not a genuine redundancy.
...
# The Respondent now denies that I did return to ‘Work’ on 8-12-14 to discuss this issue. There were 3 x other Employees who all witnessed my arrival and attempt to speak with L Ward ...”.
[18] In its written submissions dated 3 March 2015, the respondent contended that there had been a discussion between Mr Ward and Mr Ryan concerning allegations of dishonesty which led to a “heated discussion” following which “the Applicant left the workplace”. The respondent denied that Mr Ward had attended the workplace on 8 December 2014, but contended he had attended on 9 December 2014 and had a further conversation with Mr Ward about certain financial matters, following which Mr Ward “attended the bank to cancel the Applicant’s access to his personal accounts and PDSS’s bank accounts”. The respondent went on to submit (underlining added):
“At no time did PDSS terminate the Applicant’s engagement as an Independent Contractor. Rather, PDSS submits that the Applicant resigned and/or abandoned his employment on or about 5 December 2014.”
[19] In reply submissions dated 9 March 2015, Mr Ryan contended among other things that after his “sacking” by Mr Ward on 5 December 2014, he continued to work on “Friday night & Saturday and Sunday to complete all Staff Xmas-Pays & Advance-Pays for 7/12 to 9/12 to ensure that all the other Employees got paid their Standard Weekly Pays” and “also calculated-out all the Quarterly Super Instalments for them & processed those too”. He also contended that “There are many Bank Records to prove my work that I undertook & completed via ‘on-line fund transfers to each Employee’”, that at “At no time did I simply abandon my position”, and that he had advised the Australian Taxation Office that his last day of work was 7 December 2014.
[20] Having regard to all these matters, it is apparent that there were contested facts relevant to the question of the date upon which Mr Ryan’s engagement with the respondent terminated (to put it neutrally) and therefore bearing upon the issue of whether an extension of time was required and, if so, the length of the required extension. The respondent did not accept that there had been any dismissal at all, and was only prepared to say that the engagement had terminated “on or about” 5 December 2014. 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).
[21] In determining the question of permission to appeal, we do not need to reach a final conclusion as to whether the circumstances we have described activated the requirement in s.389 for the conduct of a conference or the holding of a hearing, and we do not consider that we should do so in the absence of any submissions from the respondent. A determination of that question in favour of Mr Ryan is certainly supported by the Full Bench decision in Dris v St Luke’s Family Practice Management Trust 17. In that decision, the Full Bench granted permission to appeal from a decision to refuse an extension of time on the basis that there was a contest at first instance about the date of the dismissal, there had been no finding made concerning when the dismissal had taken effect, and there had been a failure to conduct a conference or hold a hearing in accordance with s.389. However, arguably against a final conclusion in favour of Mr Ryan is the fact that he consistently contended before the Deputy President that his dismissal had taken effect on 5 December 2014.
[22] A failure to comply with the requirement in s.389 in respect of an unfair dismissal remedy application might not attract the public interest under s.400(1) and thus permit the grant of permission to appeal if the relevant fact in contest was not of significance in the determination of the matter or if the conduct of a conference or the holding of a hearing could not have made any difference to the determination of the factual issue. However that could not be said to be the case here. The question of the date of dismissal (if any) was clearly critical to the determination of the extension of time issue, and the material before the Deputy President to which we have referred raised significant doubt about the question. In particular, the meaning and effect of the termination letter was left unexplained by both parties in their written submissions and may well have been the subject of further evidence and submissions at a conference or hearing. In those circumstances, we consider that the strongly arguable case presented by Mr Ryan in respect of s.389 attracts the public interest. The dismissal of his application by the Deputy President would constitute a manifest injustice if the facts, as properly established at a conference or hearing, demonstrated that his application was filed within 21 days of his dismissal having taken effect. Any error concerning the date of his dismissal would also clearly be a significant error of fact for the purposes of s.400(2) for the same reason.
[23] We also consider that Mr Ryan has an arguable case concerning s.389 in respect of a second factual issue. To the extent that his application was filed out of time, Mr Ryan at first instance relied substantially on the factual contention that he attempted to “e-file” his application on 19 December 2014, that he did not realise that he had not successfully done so until 30 December 2014, and that he had then successfully filed his application that same day. The respondent submitted that the Commission should not accept this application on the basis, among other things, that Mr Ryan had “not provided any evidence to show that he made valid attempts to lodge his Unfair Dismissal Application”. Arguably this placed the factual issue of what attempt, if any, Mr Ryan made on 19 December 2014 to file his application in contest.
[24] As earlier stated, the Deputy President was not persuaded that Mr Ryan had “positively demonstrate[d] that he lodged or attempted to lodge his application on 19 December 2014”, and referred to enquiries made of the “Commission’s IT department” which confirmed that there was no application lodged on that date. While it is clear from the Commission’s IT records that there was no successful lodgement of an application on 19 December 2014, those records nonetheless provide support for the proposition that Mr Ryan made an attempt to lodge his application on 19 December 2014. The critical record in that connection is an automatically generated email which was sent by the Commission to Mr Ryan’s email address on 19 December 2014 at 11.44am acknowledging that he “had been registered on the FWC web site as an e-Filing User with contact details as set out below”. The contact details are those of Mr Ryan, and included the “Position” of “Business manager/Book-keeper” and the “Party Name” of “Power & Data Support Services P/L”. Registration as an “e-Filing User” is the first step required by the Commission’s web site to e-file an application.
[25] It is not clear whether the Deputy President had access to this email. It was in Mr Ryan’s possession, but it was not (as he conceded at the hearing of his application for permission to appeal) placed by him before the Deputy President. There is a document attached to his submissions at first instance which refers to the email, but the submissions themselves do not draw attention to this. If a conference had been conducted or a hearing held, this email may have come to the Commission’s attention with the result that Mr Ryan’s explanation for the delay (if any) in lodging his application may have been accepted as demonstrating exceptional circumstances. That raises the possibility that Mr Ryan has been the subject of a manifest injustice in a further respect. For this reason we consider that the public interest is also attracted in relation to this second factual issue.
Conclusion
[26] We are satisfied that it would be in the public interest to grant permission to appeal. Accordingly permission to appeal is granted.
[27] It remains necessary to determine the merits of the appeal itself. To this end, the following directions are made:
(1) Mr Ryan is directed to file in the Commission and serve on the respondent an outline of submissions prepared in accordance with the Appeal Proceedings Practice Note within 7 days of this decision.
(2) The respondent is directed to file in the Commission and serve on Mr Ryan an outline of submissions prepared in accordance with the Appeal Proceedings Practice Note within 14 days of this decision.
(3) The parties shall, by separate communication to the Commission and within 7 days of this decision, indicate whether they consent for the purposes of s.607(1) of the FW Act to the appeal being conducted without a hearing and determined on the basis of the filed submissions. If the parties indicate that they do not consent, the appeal will be listed for hearing following the receipt of the parties’ outlines of submissions.
VICE PRESIDENT
Appearances:
T. Sturgeon solicitor for B. Ryan.
Hearing details:
2015.
Sydney:
21 May.
1 PR561998
2 [2015] FWC 2430
3 Decision at [15]
4 Decision at [21]
5 Decision at [23]
6 Decision at [31]
7 Decision at [32]
8 Decision at [33]
9 [2015] FWCFB 2168
10 (2011) 192 FCR 78 at [43]
11 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]
12 [2010] FWAFB 5343 at [27], 197 IR 266
13 Wan v AIRC (2001) 116 FCR 481 at [30]
14 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 288, 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]
15 Form F2
16 Form F3
17 [2015] FWCFB 2168
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