Butterly v Boldstate Corporation T/A Kalamunda Patisserie

[2014] FWCFB 7474

[2014] FWCFB 7474

DECISION

Fair Work Act 2009
s.604 - Appeal of decisions
Mr Desmond Butterly
v
Boldstate Corporation T/A Kalamunda Patisserie
(C2014/6345)
JUSTICE ROSS, PRESIDENT
DEPUTY PRESIDENT GOSTENCNIK	PERTH, 30 OCTOBER 2014
COMMISSIONER WILLIAMS

Appeal against decision [[2014]FWC 5774] of Deputy President McCarthy at Perth on 25 August 2014 in matter number U2014/7783 - refusal to extend time - s.394 Fair Work Act 2009 (Cth) - permission to appeal refused.

[1] On 21 March 2014 Mr Desmond Butterly (the Appellant) was dismissed from his employment with the Boldstate Corporation T/A Kalamunda Patisserie (the Respondent) and on 8 June 2014 he lodged an unfair dismissal application with the Fair Work Commission (the FWC). The Fair Work Act 2009 (Cth) (the FW Act) provides that an application for an unfair dismissal remedy must be made within 21 days after the dismissal took effect or within such further period allowed by the FWC (s.394(2)). Mr Butterly’s application was filed about 8 weeks outside the prescribed time. On 25 August 2014 Deputy President McCarthy issued a decision[1]in which he refused to extend the time within which the application could be lodged.

[1][2014] FWC 5774.

Mr Butterly has appealed the Deputy President’s decision and that is the matter before us.

[2] 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.[2]There is no right to appeal, rather an appeal may only be made with the permission of the Commission.

[2]This is so because on appeal FWC has power to receive further evidence, pursuant to s.607(2); see Coal and Allied v AIRC

[3] The decision subject to appeal was made under Part 3.2 - Unfair Dismissal - of the FW Act. Section 400 (1) 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, Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s.400 as ‘a stringent one’.[3]The Commission must not grant permission to

[3](2011) 192 FCR 78 at paragraph 43.

appeal unless it considers that it is ‘in the public interest to do so’.
[2014] FWCFB 7474

[4] 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 issue 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

[5] The appeal concerns the Deputy President’s decision to refuse to extend the time within which the Appellant’s application for an unfair dismissal remedy could be lodged. The relevant statutory provision which governs the FWC’s jurisdiction to extend time in these circumstances is s.394(3), which is in the following terms:

“(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.”

[6] In the decision subject to appeal the Deputy President addressed the matters set out in paragraphs 394(3)(a) to (f) and concluded that there were no ‘exceptional circumstances’ which warranted the grant of an extension of time. The Deputy President’s findings in respect of the relevant matters are summarised below:

	s.394(3)(a): the stated reason for the delay was that the Appellant was trying to resolve the issue directly with the Respondent. The Deputy President accepted that this was the reason for the delay (or at least a significant element of the reason) but held that there was nothing exceptional about such a circumstance. 6
	s.394(3)(b): the Appellant was informed of his dismissal on 15 March 2014 and the dismissal took effect on 21 March 2014. The Deputy President held that: ‘This fact does not weigh in favour of a finding of there being exceptional circumstances’.7
	s.394(3)(c): the Appellant stated that he tried to resolve the issue directly with the Respondent. The Deputy President accepted that the Appellant genuinely endeavoured to resolve the issues relating to his dismissal and did so in a timely manner but concluded that these efforts did not support a finding of exceptional circumstances.
	s.394(3)(d): in relation to prejudice to the Respondent the Deputy President held: ‘The Applicant asserted that the Respondent would not be prejudiced if an extension were

[2014] FWCFB 7474

allowed. I consider that there will be some prejudice although not such that it would

weigh in favour of the Respondent in my findings’8

 s.394(3)(e): in relation to the merits of the substantive application the Deputy President held: ‘The merits of the Application rely on the facts asserted by the Applicant and those asserted by the Respondent. The facts are strongly contested by both sides and without a full hearing and findings in relation to those facts I am not in a position to weigh the merits of the case in either parties favour.’9

 s.394(3)(f): in relation to fairness as between the Applicant and other persons in a similar position the Deputy President held: ‘I do not consider that it would be fair between the Applicant and other persons in a similar position if the Application were to be allowed.’10 Having regard to the context it is clear that the ‘Application’ being referred to is the application to extend time.

[7] After considering each of the matters set out at paragraphs 394(3)(a)-(f) the Deputy President concluded in the following terms:

“I find that exceptional circumstances do not exist and I will not allow an extension of

the time allowed for the Application to be lodged. The Application is dismissed.”11

[8]        The grounds of appeal stated in the Appellant’s notice of appeal are as follows:

“1. I have been denied nature justice.

2. My last day at work at Kalamunda Patisserie was the 21 March 2014. So the 21 day period to lodge an unfair dismissal claim ended on 11 April. Despite my best endeavours, I didn’t have the information from Yvette Boyland at Kalamunda Patisserie to make the claim by that date.

3. I took the following timely steps to dispute the dismissal.

I received my formal letter of dismissal on 17/3,
I sent an email requesting further information on 18/3
I received a response to this email on 21/3
I sent an email requesting further information on 23/3
I sent reminder emails on 7 and 22/4
I received a reply to my email of 23/3 on 22/4
I sent a letter by email on 2/5 outlining my complaints
I sent a reminder email on 25/5 (Please note this email informed Yvette if I didn’t get
an answer from her by the 30 May, I would contact the FWC)
To date I have not received a reply to my emails of 2 and 25 of May.”

[9] During the course of oral argument the Appellant confirmed that the alleged denial of natural justice referred to in the ground of appeal did not relate to any failure by the Deputy President to provide him with an opportunity to be heard but was put on the basis that the refusal to extend time had denied the Appellant the opportunity to challenge his dismissal.

[10] The Appellant also contended that it was in the public interest that the FWC grant

permission to appeal. In the Notice of Appeal the Appellant advanced the following
submission in support of this contention:

[2014] FWCFB 7474

“I believe it is in the public interest for the FWC to outline the position of the FWC regarding granting an extension of time when a former employee tries in good faith to negotiate directly with his/her former employer regarding an unfair dismissal claim and the former employer fails to adequately reply within the 21 day period to lodge an unfair dismissal claim. The current decision, if not overturned, will encourage all employers in the same position to ignore their former employees. A bizarre outcome. For the FWC to be supported by the community, their decisions must be fair and reasonable. I don’t believe that the community would consider that this decision fits these criteria. Also for the FWC to be supported by the community, their decisions must be fully explained. If the FWC doesn’t overturn the decision, a full explanation of the reasons why the decision is not being overturned should be given. This explanation must be related to the reasons for the delay in the submission of the claim by me.”

[11] During the course of the oral hearing it became apparent that the Appellant’s real complaint with the decision subject to appeal is that the Appellant’s extensive efforts to contest his dismissal - by direct communication with the Respondent - should have led the Deputy President to conclude that there were ‘exceptional circumstances’ such as to warrant an extension of time.

[12] The Deputy President dealt with the action taken by the Appellant to resolve the issues relating to his dismissal at paragraphs [6] and [8] of his decision:

“The Applicant states that the reason for the delay was that he was trying to resolve the issue directly with the Respondent. Whilst I accept that this was the reason, or at least a significant element of a reason, I do not consider this to be a reason in the circumstances here that weights in favour of the Applicant as there is nothing exceptional about such a circumstance. ...

In regards to the action taken to dispute the dismissal the Applicant states that he tried to resolve the issue directly with the Respondent. He provided material that supported that contention and also his contention that he had been timely and that the material was relevant to the actions he took. I accept that the Applicant made these efforts and also that he made them in a timely manner. I also accept that the Applicant genuinely endeavoured to resolve the

issues relating to his dismissal. I do not however accept that the efforts, whilst commendable,

support a finding of there being an exceptional circumstance.”12

[13] It is apparent from the above extracts that the Deputy President accepted that the Appellant genuinely endeavoured to resolve the issues relating to his dismissal by direct communication with the Respondent and that he did so in a timely manner. In making this finding the Deputy President relied on the uncontested material filed by the Appellant in the proceedings at first instance. The Deputy President then concluded that while the efforts taken by the Appellant to resolve the issues relating to his dismissal were commendable he did not accept that those efforts ‘support a finding of there being an exceptional circumstances’. It is that conclusion which is at the heart of the Appellant’s complaint, none of the findings made in respect of the other relevant matters are challenged on appeal.

[14] In the grounds of appeal the Appellant says that he did not have the information from the Respondent that he needed to lodge his unfair dismissal application within the time period prescribed by s.394 of the FW Act. When asked to elaborate on this proposition during the course of the hearing the Appellant indicated that the information he needed to obtain prior to

[2014] FWCFB 7474

lodging his unfair dismissal application related to the exact reason for his dismissal including the details about the allegation that he had been late in delivering items to a client of the Respondent. It is not apparent to us that this level of detail was necessary in order for the Appellant to lodge an unfair dismissal application and accordingly the delay in obtaining this information does not provide a proper basis for the grant of an extension of time.

[15] We are not persuaded that the Deputy President made an error in the manner in which he dealt with this issue. The delay in lodging the unfair dismissal application was considerable and we are not persuaded that there was an adequate explanation as to why the application could not have been lodged while the efforts to resolve the dispute continued. It seems to us that in the circumstances of this case the Appellant’s efforts to resolve the issues relating to his dismissal did not support a finding of ‘exceptional circumstances’ within the meaning of s.394(3).

[16] We are not persuaded that the Deputy President erred in the manner contended by the Appellant and, further, it is not contended that the Deputy President made a significant error of fact. In all the circumstances we are not satisfied that it is in the public interest to grant permission to appeal and accordingly permission to appeal is refused.

PRESIDENT

Appearances:

The Appellant: Mr D. Butterly in person

The Respondent: Ms B. Boyland for the Respondent

Hearing details:

2014.
29 October

Perth

Printed by authority of the Commonwealth Government Printer

<Price code C, PR556872>

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 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.

5 (2010) 197 IR 266 at paragraph 27.

6 [2014] FWC 5774 at [6].

7 Ibid at [7]

8 Ibid at [9].

9 Ibid at [9].

10 Ibid at [10].

11 Ibid at [11].

12 Ibid at [6] and [8].

(2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.