Bradley Van Moolenbroek v Hastings Deering (Australia) Limited
[2015] FWCFB 1737
•25 MARCH 2015
| [2015] FWCFB 1737 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
v
Hastings Deering (Australia) Limited
(C2015/1519)
JUSTICE ROSS, PRESIDENT |
|
Appeal against an order [PR560012] of Deputy President Sams at Sydney on 13 January 2015 in matter number U2014/15586 - significant error of fact - permission to appeal granted in public interest and order quashed.
[1] Mr Bradley Van Moolenbroek (Mr Van Moolenbroek) was dismissed from his employment with Hastings Deering (Australia) Limited (Hastings) on 17 February 2014 and subsequently lodged an application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Cth) (the FW Act). The application was lodged on 2 December 2014.
[2] Under s.394(2) of the 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 Fair Work Commission (the Commission) allows under s.394(3). Section 394(3) allows the Commission to allow a further period for the making of the application where it is satisfied there are “exceptional circumstances” taking into account a number of specified matters. Mr Van Moolenbroek’s application was lodged over 200 days outside the 21 day time limit. Accordingly it was necessary for him to obtain an extension of time under s.394(3).
[3] The extension of time matter was dealt with by Deputy President Sams.
[4] On 13 January 2015, the Deputy President issued an order dismissing Mr Van Moolenbroek’s unfair dismissal remedy application 1 and on 4 February 2015 issued the reasons for his decision to dismiss the application.2 In his reasons, the Deputy President refused to grant an extension of time for the lodgement of Mr Van Moolenbroek’s unfair dismissal remedy application and dismissed his application on that basis. Mr Van Moolenbroek has filed a notice of appeal against the Deputy President’s order and that is the matter before us. The matter is opposed by Hastings.
[5] Section 400(1) of the FW Act provides that permission to appeal must not be granted from such a decision unless the Commission considers that it is in the public interest to do so. Further, in such matters appeals on a question of fact may only be made on the ground that the decision involved a ‘significant error of fact’ (s.400(2)). In Coal & Allied Mining Services Pty Ltd v Lawler and others, 3 Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s.400 as “a stringent one”.4 The Commission must not grant permission to appeal unless it considers that it is “in the public interest to do so”.
[6] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment. 5 In GlaxoSmithKline Australia Pty Ltd v Makin,6 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.” 7
[7] The fact that a Member of the Commission at first instance has made an error is not necessarily a sufficient basis for the grant of permission to appeal. 8
[8] Subsection 394(3) deals with extensions of time for the making of unfair dismissal remedy applications. It provides:
“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.”
[9] In the decision subject to appeal the Deputy President considered each of the matters specified in s.394(3)(a) to (f).
[10] In respect of s.394(3)(d) of the FW Act, the Deputy President said:
“[12] Given the significant period of time which has elapsed between the dismissal of the applicant and the filing of his unfair dismissal application, I am satisfied that the respondent would be exposed to considerable prejudice in the event that an extension of time was granted. This factor weighs against the extension of time being granted.” 9
[11] Further, in considering s.394(e) of the FW Act, the Deputy President said:
“[13] It is important to note that a consideration of the merits of an application, at such an early stage in the proceedings and without the benefit of tested evidence, will only ever be on a prima facie basis. The applicant alleges that his dismissal occurred after his unauthorised use of an Elevated Work Platform. He asserts that his BMA Tracks Training Book confirms that he was certified to operate an Elevated Work Platform. This, it was said, was ‘black and white’ evidence of him being unfairly dismissed. A prima facie assessment of this material would suggest that the applicant’s case is not devoid of merit. However, this assessment is far outweighed by the insufficient reasons for his delay in filing during the two relevant periods, and the prejudice that would be imposed on the respondent, in the event that an extension of time was granted.” 10 (underlining added)
[12] The Deputy President concluded as follows:
“[15] Having considered all of the matters which the Commission is required to take into account under s 394(3) of the Act, I am not satisfied that there are ‘exceptional circumstances’ which would warrant my granting an exception to the statutory time limit for the lodgement of this unfair dismissal application. The circumstances, as disclosed by the material submitted by the applicant, are not ‘out of the ordinary course, unusual, special or uncommon’. The application for an unfair dismissal remedy must be dismissed. I confirm my order of 13 January 2015.” 11
[13] In support of his application for permission to appeal, Mr Van Moolenbroek submitted that the Deputy President erred in considering the prejudice to the respondent.
[14] We are satisfied the Deputy President’s finding that ‘the respondent would be exposed to considerable prejudice in the event that an extension of time was granted’ was not open to him. There was no material on prejudice to the respondent before the Deputy President. Mr Van Moolenbroek’s submissions did not deal with the issue of prejudice and Hastings was not afforded the opportunity to do so by the Deputy President.
[15] The Deputy President’s finding on the prejudice to Hastings was a significant error of fact. It is apparent the Deputy President regarded the finding as a factor weighing against an extension of time being granted. Further, the finding was one of the factors that the Deputy President regarded as outweighing the fact that the merits of Mr Van Moolenbroek’s unfair dismissal remedy application was a factor weighing in favour of an extension of time being granted.
[16] The Deputy President’s conclusion also suggests his erroneous finding on the prejudice to Hastings was relevant to him failing to be satisfied as to the existence of exceptional circumstances warranting him granting an extension of time for the making of the unfair dismissal remedy application. There is no sound basis for us to conclude the Deputy President’s failure to be satisfied as to the existence of such exceptional circumstances would not have been different in the absence of his erroneous finding on the prejudice to Hastings.
[17] In these circumstances, we consider it is in the public interest for us to grant permission to appeal and quash the Deputy President’s order. Accordingly, we grant permission to appeal in the public interest and quash the Deputy President’s order. We refer the matter of whether the Commission should allow Mr Van Moolenbroek a further period for the making of his unfair dismissal remedy application in matter U2014/15586 to Senior Deputy President Richards and require his Honour to deal with it pursuant to s.607(3)(c)(i).
PRESIDENT
Appearances:
The Appellant: B. Van Moolenbroek on his own behalf.
The Respondent: S. Mackenzie for Hastings Deering (Australia) Limited.
Hearing details:
Melbourne with video link to Brisbane and Mackay
18 March 2015
1 Bradley Van Moolenbroek v Hastings Deering (Australia) Limited, PR560012.
2 Bradley Van Moolenbroek v Hastings Deering (Australia) Limited,[2015] FWC 722.
3 (2011) 192 FCR 78
4 Ibid at paragraph 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 paragraph 69 per Gummow, Hayne, Heydon, Crennon, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54 at paragraphs 44 - 46.
6 (2010) 197 IR 266.
7 Ibid at paragraph 27.
8 GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343 at [26]-[27]; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth[2010] FWAFB 10089 at [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler; [2011] FCAFC 54; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663 at [28].
9 Bradley Van Moolenbroek v Hastings Deering (Australia) Limited [2015] FWC 722 at[12].
10 Ibid at [13].
11 Ibid at [15].
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