Brett Hutton v Sykes Australia Pty Ltd
[2015] FWCFB 258
•14 JANUARY 2015
| [2015] FWCFB 258 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
Sykes Australia Pty Ltd
(C2014/6732)
JUSTICE ROSS, PRESIDENT |
|
Appeal against decision [2014] FWC 6434 of Deputy President Asbury at Brisbane on 15 September 2014 in matter number U2014/4464.
[1] Mr Brett Hutton has filed a notice of appeal under s.604 of the Fair Work Act 2009 (Act) in which he seeks permission to appeal and appeals a decision of Deputy President Asbury issued on 15 September 2014 1 (Decision). In the Decision, the Deputy President dismissed an application by Mr Hutton made under s.394 of the Act for an unfair dismissal remedy in respect of his dismissal from his employment with Sykes Australia Pty Ltd (Sykes) on 24 January 2014.
[2] Rule 56(2) of the Fair Work Commission Rules 2013 (Rules) relevantly provides that a notice of appeal under s.604 must be filed within 21 calendar days after the date of the decision the subject of the appeal or within such further time allowed by the Commission on application by the appellant. Mr Hutton’s notice of appeal was filed on 13 October 2014, seven days after the prescribed 21-day time period had expired. Accordingly it is necessary for Mr Hutton to apply for an extension of time.
[3] We would infer that Mr Hutton’s notice of appeal contains an application for an extension of time, in that under the section of the notice headed “Extension of time”, Mr Hutton, although he ticked “Yes” to the question asking whether the application had been made within 21 days of the decision, then went on to say in response to the further requirement in the form to “Explain the reason for the delay and the grounds on which you say an extension of time should be granted” if “No” had been the answer to the previous question, said:
“I am appealing on 28 days grounds to appeal on website.
My reason is other primary responsibilities prevented any earlier submission.
Emotional stress in decision without justice.”
[4] The usual principles applying to the consideration of an application to extend time to lodge an appeal were summarised in the Full Bench decision in Jobs Australia v Eland 2as follows:
“[5]Time limits of the kind in Rule 56 should not simply be extended as a matter of course. There are sound administrative and industrial reasons for setting a limit to the time for bringing an appeal and it should only be extended where there are good reasons for doing so. The authorities indicate that the following matters are relevant to the exercise of the Tribunal’s discretion under Rule 56(2)(c):
• whether there is a satisfactory reason for the delay;
• the length of the delay;
• the nature of the grounds of appeal and the likelihood that one or more of those grounds being upheld if time was extended; and
• any prejudice to the respondent if time were extended.”
[5] We will consider the relevant matters identified in Eland in the order set out above.
[6] We do not consider that Mr Hutton has provided a satisfactory reason for the delay in filing the appeal. To the extent that he appears to contend that the Commission’s website identifies 28 days as the time to appeal, that contention is incorrect. The “Guide [to] Appealing a decision” which appears on the Commission’s website states as follows:
“3. Timeframes
A Notice of appeal (Form F7) must be lodged (submitted) with the Commission within 21 days after the date the award, order or decision appealed against was issued.
If the notice is lodged after the 21 days, an extension of time must be sought as part of the application. You must provide reasons for seeking an extension of time. The Commission will then consider whether or not to grant such an extension.”
[7] The other matters identified by Mr Hutton are no more than generalised assertions which do not address why he could not file an appeal notice within 21 days but was able to do so within 28 days.
[8] In his oral submissions, Mr Hutton identified additional reasons for the delay in filing his notice of appeal as follows:
• his displacement from his residence;
• difficulties with his typist; and
• the lack of assistance available to him.
[9] However when clarification of these matters was sought, it became apparent that the first two of these additional matters referred to events which occurred after the notice of appeal was filed, and could therefore not explain the delay. As to Mr Hutton’s assertion that he lacked assistance, no explanation was forthcoming as to why this lack of assistance prevented him from filing the appeal notice within the 21 day period but did not prevent him from filing it seven days after that period had expired.
[10] The delay in filing the notice of appeal cannot be characterised as a lengthy one, but at the same time a seven-day delay is not insignificant when related to the 21-day time period for filing prescribed by rule 56(2).
[11] The prospects of success of the appeal, if an extension of time was to be granted, must be assessed as negligible. On our reading of the Decision, it is apparent to us that the Deputy President considered, in concluding that that Mr Hutton’s dismissal was not unfair, all the matters she was required to take into account under s.387, and made findings about those matters which were reasonably open on the evidence. Having found that there was a valid reason for Mr Hutton’s dismissal in that he sent an inappropriate email to staff of Sykes’ major client and that Mr Hutton had been afforded procedural fairness prior to being dismissed, the Deputy President’s conclusion that his dismissal was not unfair cannot be said to be manifestly unjust, counter-intuitive or unavailable on the findings of fact that had been made.
[12] Mr Hutton’s notice of appeal does not advance any intelligible contention of error on the part of the Deputy President. Insofar as we can comprehend its contents, it appears to simply re-canvass the merits of the matter and invite the Full Bench to determine a different outcome. This approach is not consistent with the requirement identified by the High Court in Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission 3for an appellant from a discretionary decision to demonstrate error of the type identified in House v the King.4 Mr Hutton’s various written submissions made in support of his appeal do not advance the position any further.
[13] Additionally, a consideration of the prospects of success of the appeal must include a consideration of the prospects of permission to appeal being granted. Because Mr Hutton’s appeal is one against a decision made under Part 3-2 of the Act, s.400(1) would apply to the appeal if an extension of time is granted. Section 400(1) prohibits the grant of permission to appeal unless the Commission considers it is in the public interest to do so. This provision imposes a stringent test for the grant of permission to appeal. 5 Examples of where the public interest might be attracted include 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 tribunal 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.6 None of these elements manifests itself in Mr Hutton’s case, and there is nothing else raised in Mr Hutton’s appeal which would otherwise attract the public interest.
[14] Finally, we do not consider that Sykes would be prejudiced if an extension of time was granted. No prejudice of this nature was identified in Sykes’ submissions.
[15] We have concluded that an extension of time should not be granted. In doing so, we have placed critical weight upon our conclusion that the appeal’s prospects of success if an extension of time is granted are negligible. Because in those circumstances the grant of an extension of time would be a futility, the other matters which we have taken into account could not tip the balance in favour of the extension sought being granted even if those other matters were all in Mr Hutton’s favour - which they are not.
[16] Mr Hutton’s notice of appeal is therefore incompetent and is dismissed.
PRESIDENT
Appearances:
B. Hutton on his own behalf.
C. Murdoch of counsel with S. Woodward solicitor for Sykes Australia Pty Ltd.
Hearing details:
2015.
Brisbane:
12 January.
1 [2014] FWC 6434
2 [2014] FWCFB 4822
3 [2000] HCA 47; 203 CLR 194 at [17]-[21] per Gleeson CJ, Gaudron and Hayne JJ.
4 [1936] HCA 40; 55 CLR 499 at 504-505 per Dixon, Evatt and McTiernan JJ.
5 Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54 at [43] per Buchanan J, with whom Marshall and Cowdroy JJ agreed.
6 GlaxoSmithKline Australia Pty Ltd v Colin Makin[2010] FWAFB 5343 at [27]
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