BlueScope Distribution Pty Ltd t/a BlueScope Steel v Steve Sinclair
[2015] FWCFB 4035
•25 JUNE 2015
| [2015] FWCFB 4035 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
Steve Sinclair
(C2015/3910)
VICE PRESIDENT HATCHER | SYDNEY, 25 JUNE 2015 |
Appeal against order [PR563301] of Senior Deputy President Drake issued on 21 April 2015 and reasons for decision [2015] FWC 3080 issued on 6 May 2015 at Brisbane in matter number U2015/2855.
Introduction
[1] On 11 May 2015 BlueScope Distribution Pty Ltd trading as BlueScope Steel (BlueScope) filed a notice of appeal in which it seeks permission to appeal and appeals against an order 1 (Order) issued by Senior Deputy President Drake on 21 April 2015 and reasons for decision (Decision) issued by the Senior Deputy President on 6 May 20152. The Order granted an extension of time, to 5 February 2015, for Mr Steve Sinclair to file an unfair dismissal remedy application against BlueScope.
[2] The background to this matter may briefly be stated. Mr Sinclair was formerly employed by BlueScope as a structural estimator. Effective from 7 November 2014 Mr Sinclair’s employment with BlueScope was terminated by reason of redundancy. On 5 February 2015 Mr Sinclair lodged his unfair dismissal remedy application.
[3] Under s.394(2) of the Fair Work Act 2009 (FW Act), an unfair dismissal remedy application must be made within 21 days after the dismissal took effect or within such further time as the Commission allows under s.394(3). Section 394(3) allows the Commission to allow a further period for the application to be made where it is satisfied that there are “exceptional circumstances” taking into account a number of specified matters. Mr Sinclair’s application was filed 69 days outside the 21-day time limit, and accordingly it was necessary for him to obtain an extension of time under s.394(3).
[4] In advancing his claim for an extension of time, Mr Sinclair identified the reason for his delay as being that on 4 February 2015 he saw “my position” being advertised. The position advertised was for an estimator for BlueScope at Northgate. It appears that Mr Sinclair formed the view, having seen this advertisement, that it demonstrated that his redundancy was not genuine, or perhaps alternatively that it would have been reasonable for BlueScope to have redeployed him to this position.
[5] At the hearing of his extension of time application, Mr Sinclair also advanced the proposition that he had been informed after his dismissal by another ex-BlueScope employee that his position, far from having been abolished, had in fact been filled by a supervisor who had been demoted the day after the dismissal. Mr Sinclair did not make clear at the hearing whether he had been informed of this before or after he lodged his unfair dismissal remedy application. However in a written note provided to us on 19 June 2015 after the hearing of his application for permission to appeal, Mr Sinclair with commendable honesty said: “I now realise I must have become aware of this after I filed the original paperwork otherwise I would have included this as my main reason [for the delay in filing the application]”. It is therefore apparent that this information received by Mr Sinclair could not have constituted the reason for his delay in filing his application.
[6] In written and oral submissions before the Senior Deputy President, BlueScope explained that the position advertised was not Mr Sinclair’s former position, but was in a different business division. The position had become vacant as a result of the previous occupant being dismissed in January 2015 for misconduct at a Christmas function. This had occurred well after Mr Sinclair’s dismissal, meaning that the position had not been vacant at the time that he had been made redundant and thus that he could not reasonably have been redeployed to that position. There was no indication at the hearing before the Senior Deputy President that Mr Sinclair factually contested any of this.
[7] In the Decision, the Senior Deputy President said in relation to her consideration under s.394(3)(a) of the reason for Mr Sinclair’s delay in lodging his application (emphasis added):
“[10] The reason Mr Sinclair provided for his delay in lodgement was that he did not understand that it was possible that his redundancy was not genuine until he saw his position advertised on 4 February 2015. He lodged his application on 5 February 2015.
[11] I was persuaded that Mr Sinclair’s position was out of the ordinary, unusual or uncommon.”
[8] In considering the merits of the application as required by s.394(3)(e), the Senior Deputy President said:
“[15] Merit was a neutral issue in my consideration of this application.”
[9] The Senior Deputy President’s overall conclusion was:
“[17] Having considered all of the matters to which my attention is directed by the Act I was satisfied that there were exceptional circumstances which would warrant my granting an exception to the statutory time limit and on that basis allowed the application. I was satisfied that Mr Sinclair’s circumstances were out of the ordinary course, unusual, special or uncommon.”
Consideration
[10] This appeal is one to which s.400(1) of the FW 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.
[11] 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”. 3 The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment4. 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.” 5
[12] 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. 6 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.7
[13] BlueScope contended that the Order and Decision were attended by appealable error on a number of bases such as to justify the grant of permission to appeal and the upholding of the appeal. However it is only necessary for us to consider one aspect of BlueScope’s case in this respect. BlueScope submitted that the reasons given in the Decision demonstrated that the Order was made without properly taking into account its submission that the advertisement was for a different position than Mr Sinclair’s which had only become vacant well after his dismissal. This meant, BlueScope submitted, that the discretion miscarried.
[14] There is no reference in the Senior Deputy President’s consideration in the Decision to this submission, although it is referred to in the quotation from BlueScope’s filed response to Mr Sinclair’s application in paragraph [4]. In an interlocutory decision of this nature, which will usually be expressed in fairly brief terms, we would not be persuaded that a submission was not taken into account merely because it is not specifically mentioned as having been considered. However, the reference in relation to the s.394(3)(a) consideration to the advertisement being for “his position” does, with respect, suggest that BlueScope’s submission, which was not factually contested, was not appropriately considered. The reference indicates either that, contrary to the submission and without any reasons being given, the advertisement was in fact considered to be one for Mr Sinclair’s former position or, if it is read as a statement of Mr Sinclair’s subjective understanding of the advertisement, that this was not balanced against what was the actual case in objective terms. This had important implications for the consideration of the merits of Mr Sinclair’s unfair dismissal remedy application, since the uncontested facts concerning the advertisement meant that his application, to the extent that it relied on the advertisement, had no merit. An extension of time would not be granted in respect of an application which on uncontested facts had no prospects of success.
[15] We note that Mr Sinclair’s alternative contention that his position was filled by a demoted supervisor immediately after his dismissal would, if capable of being factually established, mean that his application did have reasonable prospects of success. However, this does not appear to have been taken into account in the Decision either.
[16] For these reasons we consider, with respect, that the exercise of the discretion miscarried. We consider that it is in the public interest to grant permission to appeal, and we uphold the appeal. We will remit the matter to a member of this Full Bench for re-hearing.
[17] We order as follows:
(1) Permission to appeal is granted.
(2) The appeal is upheld.
(3) The Order and Decision are quashed.
(4) Mr Sinclair’s application for an extension of time to file his unfair dismissal remedy application in matter U2015/2855 is remitted to Commissioner Johns for further hearing.
VICE PRESIDENT
Appearances:
R. Bernasconi solicitor for BlueScope Distribution Pty Ltd t/a BlueScope Steel.
S. Sinclair on his own behalf.
Hearing details:
2015.
Sydney:
18 June.
1 PR563301
2 [2015] FWC 3080
3 (2011) 192 FCR 78 at [43]
4 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]
5 [2010] FWAFB 5343 at [27], 197 IR 266
6 Wan v AIRC (2001) 116 FCR 481 at [30]
7 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]
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