Business Risks International Pty Ltd T/A Certis Security Australia Pty Ltd v Gursharan Singh
[2023] FWCFB 202
•8 NOVEMBER 2023
[2023] FWCFB 202
The attached document replaces the document previously issued with the above code on 8 November 2023.
Paragraph numbering has been updated.
Associate to Vice President Asbury
Dated 9 November 2023
| [2023] FWCFB 202 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Business Risks International Pty Ltd T/A Certis Security Australia Pty Ltd
v
Gursharan Singh
(C2023/4791)
| VICE PRESIDENT ASBURY | BRISBANE, 8 NOVEMBER 2023 |
Appeal against decision [2023] FWC 1892 of Deputy President Anderson at Adelaide on 4 August 2023 in matter number U2023/5651 - permission to appeal refused.
Introduction
Business Risks International Pty Ltd (trading as Certis Security) seeks permission to appeal and if granted, appeals a decision of Deputy President Anderson of 4 August 2023.[1] The Deputy President granted the applicant, Mr Gursharan Singh, additional time to make an unfair dismissal application. An application for a stay of the decision was not granted.[2]
These are our reasons for concluding that it is not in the public interest to grant permission to appeal.
The factual context in which the Deputy President reached his decision included:
(a)On 17 March 2023 Mr Singh made an unfair dismissal application alleging he was unfairly dismissed on 14 March 2023 (the first application). Certis Security responded contending that Mr Singh had not been dismissed. The first application involved Mr Singh claiming that he was forced to resign on 14 March 2023 when his request to work a new roster was not agreed and he did not work the new roster.[3]
(b)The first application was heard on 8 June 2023, and on 14 June 2023 the Deputy President dismissed it on the basis that Mr Singh had not been dismissed. The Deputy President found that Mr Singh had only threatened to, but had not, resigned, and the employment relationship continued beyond that date.[4]
(c)On 24 June 2023 Mr Singh made a second unfair dismissal application alleging he was dismissed on 14 April 2023 (the second application). This application was 50 days outside the 21-day time period.
(d)There was no dispute that Mr Singh was dismissed by Certis Security on 14 April 2023 for failing to comply with a lawful and reasonable direction to work shifts as directed.
The Deputy President found that when considered overall, the combination of circumstances was exceptional, and then exercised his discretion to grant the applicant an additional 50 days in which to make his unfair dismissal application.
The Deputy President considered each of the factors in s.394(3) of the Fair Work Act 2009 (Cth) (FW Act). In relation to the reason for the delay, the Deputy President considered that neither Mr Singh’s distress at being dismissed nor his lack of knowledge was a reasonable explanation for the delay. The Deputy President did find that the Applicant’s active pursuit of the first application was “in part an acceptable explanation for the delay, but only in part”.[5] The Deputy President gave detailed consideration as to whether this issue weighed in favour of or against the applicant. Weighing favourably for Mr Singh were four factors:
1.that both applications were related matters in the respect that they sought the same substantive question be determined;
2.that the first application was attentively prosecuted;
3.that until the jurisdictional question was determined, Mr Singh did not know whether the Commission agreed with Certis Security’s contention that he had not been dismissed on 14 March 2023; and
4.that as a self-represented person dealing with a jurisdictional objection, Mr Singh had no insight into his prospects.
The Deputy President considered that there were also factors weighing against the reasonableness of this explanation for the delay. These were that:
1.Mr Singh’s first application was largely unarguable on the uncontested facts;
2.he had been told by his employer on 27 March 2023 that he was still employed;
3.he was on notice from the jurisdictional objection raised that his application could only be dealt with if he was found to have been dismissed on 14 March 2023; and
4.his dismissal on 14 April 2023 should have alerted him “to the fact that, at least as far as the employer was concerned, he had been employed until 14 April 2023 and not dismissed earlier.”[6]
The Deputy President balanced the considerations weighing against Mr Singh against the fact that an employer’s assertion that there was no dismissal does not make it so, where the concept of forced resignation is recognised under the FW Act. The Deputy President then considered that once the hearing dealing with the jurisdictional objection to the first application took place, it was not unreasonable for Mr Singh to await the outcome before deciding on further action. Further, that the delay between when the decision was issued on 14 June 2023 and making the second application on 24 June 2023 was not unreasonable. The Deputy President concluded that the reasons for the delay “somewhat but only somewhat weigh in favour of a finding of exceptional circumstances.”[7]
In considering s.394(3)(c), the Deputy President considered that actions taken by Mr Singh to dispute the dismissal weighed materially in favour of a finding of exceptional circumstances, because the second application “raised, in practice, the same substantive dispute”, and “clearly put Certis Security on notice that the fairness of its decision to dismiss Mr Singh for failing to work a different roster was the subject of litigation”.[8]
The other considerations in s.394(3) were found by the Deputy President to weigh neutrally, other than s.394(3)(f) which he found did not arise.
In his overall assessment of whether there were exceptional circumstances, the Deputy President noted that the 50-day delay was significant, and that it was a “finely balanced” matter. The Deputy President concluded that “[i]t is unusual that a person brings a late unfair dismissal claim two months after being dismissed in circumstances where they were litigating the substantive dispute via an earlier but misconceived unfair dismissal application that was dismissed because the applicant had not been dismissed when he claimed he had, but subsequently was so dismissed.”[9]
Principles of Appeal
An appeal under s.604 of the FW Act is an appeal by way of rehearing and the Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision maker.[10] There is no right to appeal. An appeal may only be made with the permission of the Commission.
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.”
In the Federal Court Full Court decision in Coal & Allied Mining Services Pty Ltd v Lawler and others[11], Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s.400 as “a stringent one”. The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment. The public interest is not satisfied simply by the identification of error[12] or a preference for a different result.[13] A Full Bench of the Commission, in GlaxoSmithKline Australia Pty Ltd v Makin, 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...” [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.[15] 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. [16]
Public Interest
The Appellant submits that granting leave to appeal is in the public interest for three reasons. Firstly, that the decision is of importance to, and has general application to, the question of jurisdiction and when the discretion to extend time is enlivened pursuant to s.394(3) of the FW Act. Secondly, that the appeal raises a question of general application as to the meaning of ‘exceptional circumstances’ and thirdly, that the correction of the clear and manifest errors of the Commission set out in the appeal grounds is a matter of such importance that, in the public interest, permission to appeal should be granted.[17]
We are not satisfied that any of the matters raised enliven the public interest and justify the grant of permission to appeal. The Decision concerns the application of the question of whether exceptional circumstances exist to the circumstances concerning one individual. We do not consider that the appeal raises any issue of importance or general application. The Decision is the result of the orthodox application of legal principles to the facts and there is no diversity of decisions in similar cases that would make it in the public interest to provide appellate guidance.
The appeal does not contend that the Decision involved any significant errors of fact. The Deputy President was exercising a discretion and we are not satisfied that he acted upon a wrong principle, allowed extraneous or irrelevant matters to guide or affect his decision, mistook certain facts or failed to take into account material considerations. Further, as discussed below we are not satisfied that an arguable case of appealable error has been established nor that any substantial wrong has occurred.
Grounds of Appeal
Three grounds of appeal are advanced by the Appellant. The first ground is that the Deputy President’s finding that there were exceptional circumstances was unreasonable or plainly unjust when he had found that there was only a partial explanation for the delay and the other considerations were largely neutral or irrelevant. Secondly, that the Deputy President erred in finding that the circumstances were exceptional where the only factor weighing positively in favour of the extension was that the Appellant was on notice that the Respondent was challenging his dismissal. The third appeal ground is that the Deputy President failed to take into account material considerations and/or consider in any meaningful way, the forensic choice made by Mr Singh to pursue his argument that he had been constructively dismissed on 14 March 2023, rather than challenge the letter of termination issued by the Respondent on 14 April 2023.[18]
The Appellant contends that the Deputy President erred in placing undue weight on:
(a)the first application and the second application having the “same substantive question to be determined – the fairness of being dismissed (or allegedly dismissed) for failing to work the new roster”, when the circumstances that led to the dismissal on 14 April 2023 was a failure to comply with a lawful and reasonable direction to attend work and Mr Singh had failed to comply;
(b)the fact that “… the first application was being attentively prosecuted (and the jurisdictional objection actively defended) throughout the delay period and the preceding twenty-one days”, when this was a clear forensic choice by Mr Singh to pursue his constructive dismissal case based on the circumstances that led to the roster dispute in mid-March 2023;
(c)the fact that “until the jurisdictional question was determined Mr Singh did not know whether the Commission agreed with the employer’s contention that he had not been dismissed by forced resignation on 14 March 2023”, which fails to have regard to the clear and unambiguous position of Certis Security; and
(d)the fact that “… it was not unreasonable for Mr Singh to await the Commission’s decision on the first application before deciding on further action”, which again fails to grapple with Certis Security’s plain and clear position.
The Appellant points to the contrasting weight placed on these matters against the clear forensic choice made by Mr Singh to pursue his constructive dismissal case rather than challenging the notice of termination issued to him on 14 April 2023. It submits that the forensic choices of Mr Singh to pursue the first application, cannot be the basis for a finding of exceptional circumstances.[19] The Appellant submits that whilst the factual context may be unusual, the circumstances before the Deputy President are properly characterised as being that Mr Singh was faced with a forensic choice, and that such circumstances are not unusual.[20]
The Appellant contends that by looking at the outcome and the facts, the decision is unreasonable or unjust and that a substantial wrong has occurred, such that it may be inferred that the discretion was wrongly exercised, invoking the “second limb” of discretionary error identified in House v The King.[21]
Consideration
The meaning of “exceptional circumstances” was described by the Full Bench in Nulty v Blue Star Group Pty Ltd:[22]
“[13] In summary, the expression ‘exceptional circumstances’ has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. It is not correct to construe ‘exceptional circumstances’ as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural ‘circumstances’ as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of ‘exceptional circumstances’ includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.”
The Deputy President was required to make an evaluative assessment as to whether exceptional circumstances existed. No single consideration and no combination of considerations is necessarily determinative of the result and the decision-maker has considerable latitude in the exercise of their discretion. In an appeal from a discretionary decision, an error on the part of the decision-maker must be demonstrated for a Full Bench to set aside the decision. The error must usually be one of the types of error identified in House v The King:
“If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.” [23] (original footnotes removed).
As the Full Bench in Mt Arthur Coal Pty Ltd v Goodall[24] said:
“[42] It follows that an appellate tribunal is not authorised to set aside a discretionary decision on the basis of a preference for an outcome different to that determined by the first instance decision-maker. In this connection, the High Court said in Norbis v Norbis:
‘The principles enunciated in House v The King were fashioned with a close eye on the characteristics of a discretionary order in the sense which we have outlined. If the questions involved lend themselves to differences of opinion which, within a given range, are legitimate and reasonable answers to the questions, it would be wrong to allow a court of appeal to set aside a judgment at first instance merely because there exists just such a difference of opinion between the judges on appeal and the judge at first instance. In conformity with the dictates of principled decision-making, it would be wrong to determine the parties’ rights by reference to a mere preference for a different result over that favoured by the judge at first instance, in the absence of error on his part. According to our conception of the appellate process, the existence of an error, whether of law or fact, on the part of the court at first instance is an indispensable condition of a successful appeal.’
[43] Nor is appealable error demonstrated by a contention that the decision-maker should have given more or less weight to a particular consideration. In the High Court decision in Gronow v Gronow Aickin J (with whom Mason and Wilson JJ agreed) said: ‘It is however a mistake to suppose that a conclusion that the trial judge has given inadequate or excessive weight to some factors is in itself a sufficient basis for an appellate court to substitute its own discretion for that of the trial judge’. It is only where a relevant matter has been given no weight because it was not considered at all that error in the exercise of the discretion will be demonstrated.” (footnotes omitted)
We consider it artificial and incomplete to characterise the circumstances being evaluated by the Deputy President as simply a forensic choice faced by Mr Singh whether to continue with the first application or discontinue it and make a new unfair dismissal application when issued with the notice of termination on 14 April 2023. Whilst that did involve Mr Singh making a forensic choice, it occurred in an unusual factual context where he was in fact dismissed whilst pursuing an earlier dismissal application, which was misconceived and where he had not, in fact, been dismissed. No challenge is made to the factual findings of the Deputy President.
As the Full Bench in Mt Arthur Coal Pty Ltd v Goodall said, drawing on the High Court’s decision in Gronow, no appealable error arises on the basis of the amount of weight to be given to any particular consideration. We do not consider that the Deputy President gave no weight to a relevant matter by failing to consider it at all. It was open to the Deputy President to take into consideration in his evaluative assessment and ascribe weight to the fact that both the first and second applications raised “the same substantive question to be determined”. Whilst the dismissal prompting the second application was for a failure to comply with a direction, the relevant direction was to attend work in accordance with the roster that formed the basis of the first application. In that sense, both applications did raise the same substantive question. No error is disclosed in the Deputy President taking into account that the first application was being attentively prosecuted by Mr Singh, nor that he did not know whether the Commission accepted the employer’s contention that he had not been constructively dismissed or that it was not unreasonable to await the outcome of that question before deciding on further action. The Deputy President, in weighing up the issue of the reason for delay did not fail to take into consideration the fact that Certis Security’s position was clear and unambiguous, he expressly considered this fact and found that it weighed against Mr Singh.[25]
The Deputy President carefully considered each of the factors in s.394(3) that he was required to take into account, and in his overall consideration found the matter to be “finely balanced”. We consider it was reasonably open to him, in all the circumstances of the matter, to find that the reason for delay weighed partly in favour of a finding of exceptional circumstances, noting that the consideration in s.393(3)(c) weighed in favour of the applicant and that the other factors were neutral or not relevant. Importantly, we consider it was open to the Deputy President to conclude, as he did, that no factor weighed against a finding of exceptional circumstances. Given that evaluation, it was open to the Deputy President to find that there were exceptional circumstances, his discretion to provide additional time was enlivened, and he exercised it in favour of Mr Singh.
Whilst a different conclusion may have been reached, we do not consider that the Deputy President’s conclusion was not reasonably open to him. We are not satisfied that the outcome is plainly unjust or unreasonable or manifests a substantial wrong. The high standard of appealable error in the second limb of House v King is not met.
Conclusion
We do not consider that it is in the public interest to grant permission to appeal. Permission to appeal must therefore be refused in accordance with s.400(1) of the FW Act. We also discern no appealable error in the Decision.
VICE PRESIDENT
Appearances:
V Bulut of Counsel, with permission on behalf of Business Risks International Pty Ltd T/A Certis Security Australia Pty Ltd, the Appellant.
G Singh, appearing on his own behalf.
Hearing details:
2023.
Melbourne (via Microsoft Teams):
September 21, 23.
[1] [2023] FWC 1892 (Decision).
[2] [2023] FWC 2057.
[3] [2023] FWC 1375.
[4] Ibid.
[5] Decision at [53].
[6] Decision at [59]-[61].
[7] Decision at [71].
[8] Decision at [74].
[9] Decision at [90].
[10] Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.
[11] (2011) 192 FCR 78 at [43].
[12] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343; 197 IR 266 at [24]-[27].
[13] Ibid 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; Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 178; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office[2014] FWCFB 1663; 241 IR 177 at [28].
[14] [2010] FWAFB 5343 at [27].
[15] Wan v Australian Industrial Relations Commission (2001) 116 FCR 481 at [30].
[16] Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth[2010] FWAFB 10089, 202 IR 388 at [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54, 192 FCR 78, 207 IR 177; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office[2014] FWCFB 1663, 241 IR 177 at [28].
[17] Notice of Appeal dated 11 August 2023.
[18] Ibid.
[19] Appellant’s Outline of Submissions, p.6-7.
[20] Transcript PN191-194.
[21] Transcript PN68.
[22] [2011] FWAFB 975 at [13].
[23] Mt Arthur Coal Pty Ltd (t/as Mt Arthur Coal) v Goodall[2016] FWCFB 5492 at [41].
[24] Ibid at [42] – [43].
[25] Decision at [59]-[62].
Printed by authority of the Commonwealth Government Printer
<PR768014>
10
0