Cameron Roebuck v Shopping Centres Australasia Property Group Re Limited
[2022] FWCFB 19
•2 MARCH 2022
| [2022] FWCFB 19 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Cameron Roebuck
v
Shopping Centres Australasia Property Group Re Limited
(C2021/8748)
| VICE PRESIDENT CATANZARITI | SYDNEY, 2 MARCH 2022 |
Appeal against decision [2021] FWC 6517 of Deputy President Mansini at Melbourne on 8 December 2021 in matter number C2021/6458 – permission to appeal refused.
Background
Mr Cameron Roebuck (the Appellant) has lodged an appeal under s.604 of the Fair Work Act 2009 (the Act) for which permission to appeal is required, against a decision of Deputy President Mansini (the Deputy President) issued on 8 December 2021. The Decision dealt with whether the Appellant should be granted an extension of time to file an application. The application sought to be filed by the Appellant was an application for the Fair Work Commission (FWC) to deal with a general protections dispute involving dismissal pursuant to s.365 of the FW Act (GP Application).
In the Decision, the Deputy President found that the Appellant’s contended reason for the delay in filing the GP Application, that his legal representative, Mr Potts, had been ‘operating under a false impression as to the effective date of dismissal’ was implausible and not established by the documentary records. Further, the Deputy President was not persuaded that the Appellant had given appropriate instructions to his solicitor in a timely manner. The Deputy President concluded that the circumstances were not exceptional and dismissed the application.
For the reasons that follow permission to appeal is refused.
Permission to be Represented
On 12 January 2022, a submission was filed on behalf of the Respondent seeking permission to be legally represented in accordance with s.596 of the FW Act. On 13 January 2022, the Appellant filed submissions advising that it opposed the Respondent’s request to be represented.
On 2 February 2022, the legal representative on behalf of the Respondent filed a nine-page written submission.
At the Hearing on 10 February 2022, the Appellant represented himself and maintained his objection to the Respondent being legally represented. In the circumstances and taking into account the complexity of the case, the Full Bench was of the opinion that it would not be appropriate for the Respondent to be legally represented. The Respondent had filed comprehensive written submissions, prepared by their legal representative, which could be relied upon at the Hearing.[1] Therefore, having regard to s.596 the Full Bench found there was no basis to grant permission for representation.
The Decision
Section 366 of the FW Act requires that a general protections application involving dismissal be made within 21 days after the dismissal took effect, or within such further period as the FWC allows under s.366(2). Section 366(2) provides that an extension of time can only be granted in “exceptional circumstances”.
When considering whether the application was filed outside the statutory timeframe, the Deputy President recognised that on the records before the Commission, it appeared that the Appellant was emailed the Redundancy Letter on 28 July 2021 not 29 July 2021. The 28 July 2021 email referred to a discussion earlier that day in which the contents of the letter was discussed. The Deputy President concluded that the Redundancy Letter was dated 29 July 2021, and for present purposes it was accepted that the effective date was 29 July 2021.[2]
Further, the Deputy President acknowledged that the evidence also established that an incorrect draft of the application was filed on 20 September 2021. The Appellant’s representative sought to substitute this for a correct draft that was not filed until 24 September 2021 and requested not to pay the filing fee until after the substituted application was accepted. Whilst arguably the application was not made until 24 September 2021, as it was not contested and would only extend the period of delay, for present purposes the Deputy President accepted that the application was filed on 20 September 2021.[3]
Accordingly, it was concluded by the Deputy President that the period of 21 days ended at midnight on 19 August 2021, and the application was filed 32 days out of time.
The Deputy President, having established that the GP Application was made after the prescribed timeframe, considered each of the matters set out in s.366(2) of the FW Act in order to determine whether to grant an extension of time, namely:
a. the reason for the delay;
b. action taken by the Appellant to dispute the dismissal;
c. prejudice to his employer;
d. the merits of the Application; and
e. fairness as between the Appellant and other persons in a like position.
In considering the reasons for delay, the Appellant asked the Commission to accept that the lengthy delay occurred because Mr Potts “misconstrued” the instruction by telephone on 18 August 2021. He pressed this submission notwithstanding the evidence that:[4]
· Mr Potts’ had previously (on 13 August 2021) been provided with the Redundancy Letter which, on its face, plainly conveyed an effective dismissal date of 29 July 2021 (which the Company accepted is correct);
· after 5pm on 18 August 2021, an email was sent to the Appellant which referred to a prior discussion and attached a draft application which Mr Potts or his firm had prepared - being within 21 days of 29 July 2021; and
· the “correct” application, which was completed by Mr Potts and filed with the Commission on 24 September 2021, informed the Commission that the dismissal was effective immediately on 29 July 2021.
The Deputy President found this evidence reflected that the Appellant’s representative had the necessary information and was not in fact operating under a false impression as to the effective date of dismissal. Accordingly, she found the contended reason for the delay to be implausible, not established by the documentary records and declined to accept it as an acceptable, reasonable or credible reason for the delay.[5]
On the case as it was presented, the Deputy President was not persuaded that the Appellant had given appropriate instructions in a timely manner and was then entitled to entrust Mr Potts to act with the level of diligence that might otherwise be expected. The Deputy President acknowledged that the Appellant was given the correct advice initially and was made aware of the short timeframe for filing in writing and with ample time to meet the statutory timeframe. Further, the Deputy President acknowledged that there was evidence that the application was in fact drafted and provided to the Appellant on 18 August 2021, within 21 days of the effective date of his dismissal such that Mr Roebuck was in a position to ensure that it was filed on time.
When all of the circumstances are considered, either individually or together, the Deputy President did not consider there to be a reasonable, acceptable or credible explanation for the delay in this case, and this consideration weighed strongly against a finding of exceptional circumstances.
The Deputy President considered the steps the Appellant had taken to dispute his dismissal to be a neutral factor.[6]
The Deputy President considered the merits to be, at best, a neutral consideration.[7]
The Deputy President considered the fairness as between the Appellant and other persons in a like position to be a neutral factor.[8]
The Deputy President concluded that the absence of an acceptable, reasonable or credible explanation weighed strongly against and, to the extent there was any action taken to dispute the dismissal it weighed only slight in favour of, a finding of exceptional circumstances. In her view, and on balance taking into account all the matters at s.366, the circumstances of this case were not exceptional.
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.[9] There is no right to appeal, and an appeal may only be made with the permission of the Commission.
Subsection 604(2) requires the Commission to grant permission to appeal if satisfied that it is “in the public interest to do so”. The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[10] The public interest is not satisfied simply by the identification of error,[11] or a preference for a different result.[12] In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of Fair Work Australia 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...”[13]
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.[14] However, that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.
Grounds of Appeal
The Appellant being self-represented, has set out grounds of appeal in his application which addresses the question of whether the Appellant provided appropriate instructions to Mr Potts.
The grounds of appeal repeat the case put at first instance that the Appellant’s representative, Mr Potts, made a mistake, admitted and owned that mistake, and clearly communicated the mistake to all parties.
The Appellant said he was not contacted by Mr Potts prior to the hearing, and he was surprised to only hear from his lawyer after the hearing had occurred and a decision reserved.
The Appellant submitted he approached a reputable law firm within 7 days of being made redundant, and within the time frame of 21 days. The Appellant submitted in his mind, the details of the redundancy were quite clear on the letter which he forwarded to Mr Potts, and he made a quite reasonable assumption that he would know the timeframes to lodge the application to the Commission.
The Appellant submitted he would not have communicated he was still working at the Respondent, and he should not be penalised for Mr Potts misinterpretation of the circumstances, and subsequent mistake.
The Appellant submitted it is highly unusual, out of the ordinary, and uncommon, for a lawyer of Mr Potts ilk and part of a reputable long established law firm, to make such a blatant error, and the circumstances of this matter, clearly, fall under the parameters of exceptional. Further, an explanation from a reputable lawyer such as Mr Potts, is indeed a credible explanation.
The Appellant submitted that his experience with contracts is irrelevant, and he did not have experience dealing with legal matters such as these.
The Appellant submitted he is blameless in the delayed application.
The Appellant submitted he did not give any incorrect instructions.
The Appellant’s appeals submissions could be summarised as falling within two broad grounds of appeal. Namely:
1.that the Deputy President erred in finding, in respect of s.366(2)(a), that the Appellant had not provided his solicitor with appropriate instructions in a timely manner; and
2.that on this basis, the Deputy President erred in finding in respect of s.366(2) overall, that the alleged representative error did not constitute an “exceptional circumstance” warranting an extension of time.
Public Interest Grounds
The Appellant submitted in his application that it is the Public Interest that the Commission hears cases involving contentious employment issues as the public pays for the operation of the Commission. The Appellant submitted that in this case when a time frame has been missed because of legal representative error, the public would want the matter to be heard, as opposed to being dismissed on a technicality. The public would not want an Applicant unfairly penalised, and it’s in the best interest of the public that the charter of the Commission is implemented in this matter, that they be the umpire and preside over contentious employment issues.
Consideration
The Appellant accepted in the course of the Full Bench proceedings that there was no evidence before the Commission at first instance of any steps he had taken to ensure the application was filed within time after being provided with the draft application by his solicitor on 18 August 2021.
The Appellant also accepted he did not give evidence at the hearing before the Commission at first instance or attend the hearing, although he submits that he was not advised of the time of the hearing. He appeared to accept he would have received notification of the date of hearing some time prior to the hearing but was not contacted until the day before by his lawyer.
The Respondent submits that the present appeal does not satisfy any of the circumstances described in GlaxoSmithKline Australia.[15] This submission is made on the basis that:
a. The grounds of appeal relied upon by the Appellant are highly specific to the facts and peculiarities of the Appellant’s case, as they pertain to whether the Appellant provided appropriate instructions to his solicitor, and further, whether this displaces the finding at first instance that “exceptional circumstances” did not exist. The grounds of appeal alleged are a mere challenge to the Deputy President’s fact finding at first instance, and do not raise “issues of importance [or] general application”.
b. Extensive guidance has been provided by the Full Bench of the Commission to date regarding the concept of “representative error”. The case law establishing the factors to be taken into account by the Commission in whether an alleged representative error is sufficiently “exceptional” to warrant an extension of time is well settled, and was correctly applied in this matter. As such, the appeal does not turn on legal questions about which a “diversity of decisions” exist.
c. In coming to the Decision, the Deputy President applied each of the criteria set out in s.366(2) of the FW Act in turn. It is submitted that the legal principles applied at first instance are not “disharmonious” compared to other recent decisions. The Respondent noted that the Appellant’s circumstances bear significant similarity to those of the Appellant in Webb v Minterra,[16] a recent matter where the Full Bench affirmed Deputy President Mansini’s use of the same legal principles regarding representative error that the Deputy President applied in the present matter at first instance.
The Respondent, further and in the alternative, submits that permission to appeal should not be granted on the basis that the grounds of appeal fail to identify any arguable error in the Decision.
Permission to Appeal
Having considered all the matters raised by the Appellant with respect to permission to appeal, we are not persuaded that the public interest is enlivened. Mr Potts evidence was before the Commission at first instance. The Appellant did not give evidence at the first instance hearing.
The Deputy President made findings of fact and on the basis of those findings the Deputy President rejected the reason for delay provided by the Appellant’s lawyer and was also not persuaded that the Appellant had given appropriate instructions in a timely manner. The Appellant seeks to reagitate on appeal the same case put at first instance as to why he maintains he was blameless.
We are satisfied that the Deputy President’s findings were open to her based on the evidence before her.
Further we are not satisfied that:
· there is a diversity of decisions at first instance so that guidance from an appellate body is required of this kind;
· the appeal raises issues of importance and/or general application;
· the decision at first instance manifests an injustice, or the result is counter intuitive; or
· the legal principles applied by the Commissioner were disharmonious when compared with other decisions dealing with similar matters.
Conclusion
For the reasons set out above, we are not satisfied that the Appellant has established that there is an arguable case of error in relation to any relevant aspect of the Decision or that the conclusion reached by the Deputy President was attended with sufficient doubt to warrant its reconsideration in an appeal.
Accordingly, permission to appeal is refused and the appeal is dismissed.
VICE PRESIDENT
Appearances:
Mr C Roebuck, for the Appellant.
Ms H Voss, for the Respondent.
Hearing details:
2022.
Microsoft Teams (Video).
10 February.
[1] Fair Work Act 2009 (Cth) s.596(3).
[2][2021] FWC 6517 at [20].
[3] Ibid at [21].
[4] Ibid at [33].
[5] Ibid at [34]-[35].
[6] Ibid at [38]-[41].
[7] Ibid at [44]-[45].
[8] Ibid at [46].
[9] Coal and Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 [17] per Gleeson CJ, Gaudron and Hayne JJ (Coal and Allied Operations Pty Ltd).
[10] O’Sullivan v Farrer (1989) 160 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].
[11] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343, 197 IR 266 at [24]-[27].
[12] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343, 197 IR 266 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 (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].
[13] [2010] FWAFB 5343, 197 IR 266 at [24] – [27].
[14] Wan v AIRC (2001) 116 FCR 481 at [30].
[15] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343.
[16] Robert Webb v Minterra Pty Ltd[2021] FWCFB 6076.
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