Cecilia Liao v Canberra Grammar School
[2023] FWC 2790
•3 NOVEMBER 2023
| [2023] FWC 2790 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Cecilia Liao
v
Canberra Grammar School
(C2023/5693)
| DEPUTY PRESIDENT MILLHOUSE DEPUTY PRESIDENT BELL COMMISSIONER CIRKOVIC | MELBOURNE, 3 NOVEMBER 2023 |
Appeal against decision [2023] FWC 2382 of Deputy President Dean at Canberra on 18 September 2023 in matter number C2023/4657
Ms Cecilia Liao has lodged an appeal under s 604 of the Fair Work Act 2009 (Cth) (Act), for which permission to appeal is required, against a decision[1] and order[2] of Deputy President Dean issued on 18 September 2023. In the decision, the Deputy President declined to grant Ms Liao an extension of time to file her general protections application pursuant to s 365 of the Act against the respondent, Canberra Grammar School. The Deputy President ordered that Ms Liao’s application be dismissed.
This matter was listed for permission to appeal only. The parties consented to the application being determined without holding a hearing pursuant to s 607(1)(b) of the Act. We are satisfied, having regard to s 607(1)(a), that the question of permission to appeal can be adequately determined without the need for oral submissions. Accordingly, the parties were advised that the Full Bench would determine the appeal on the basis of Ms Liao’s notice of appeal and the written submissions filed in accordance with the directions.
For the reasons that follow, permission to appeal is refused.
Decision under appeal
Ms Liao was employed as a casual relief teacher with the respondent. The respondent’s position at first instance was that it provided written confirmation to Ms Liao on 12 May 2023 that her casual engagement with the respondent had ceased. Accordingly, it was accepted by the Deputy President, and not in contest, that the effective date of dismissal was 12 May 2023.[3]
Ms Liao’s general protections application was lodged with the Commission on 2 August 2023. The Deputy President correctly determined that the application was therefore filed 61 days outside the 21-day statutory timeframe prescribed by s 366(1)(a) of the Act.[4] Accordingly, if Ms Liao’s application was to proceed, a further period of time was required in accordance with s 366(1)(b) of the Act.
Section 366(2) of the Act provides as follows:
“(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) any action taken by the person to dispute the dismissal; and
(c) prejudice to the employer (including prejudice caused by the delay); and
(d) the merits of the application; and
(e) fairness as between the person and other persons in a like position.”
The decision records the Deputy President’s conclusions in relation to each of the above matters. In respect of s 366(2)(a) of the Act, the Deputy President was not satisfied that Ms Liao provided a satisfactory explanation for the delay and this weighed against a finding of exceptional circumstances.[5] The Deputy President regarded the numerous emails sent by Ms Liao to the respondent following the cessation date to constitute action to dispute the dismissal and therefore concluded that the factor at s 366(2)(b) weighed in favour of an extension of time.[6] In relation to the matters at s 366(2)(c) and (e), being the issue of prejudice to the employer and fairness between Ms Liao and other persons in a like position, the Deputy President concluded that these were neutral considerations in her overall assessment.[7]
As to the merits of Ms Liao’s general protections application, the Deputy President stated that for the purposes of s 366(2)(d), the Commission should not embark upon a detailed consideration of the substantive case. The Deputy President noted Ms Liao’s concerns in relation to workplace bullying and the respondent’s concerns with respect to matters it said constituted a breach of Ms Liao’s employment contract. In these circumstances, the Deputy President concluded that the application turned on contested points of fact, which could only be determined at a hearing of the substantive dispute. Accordingly, the merits of Ms Liao’s substantive application were regarded as a neutral consideration.[8]
The Deputy President concluded by acknowledging that Ms Liao felt aggrieved and wronged, and felt that her complaint concerning alleged workplace bullying was not appropriately managed by the respondent. However, the Deputy President declined to exercise her discretion to extend time as she was not satisfied there were exceptional circumstances.[9] On that basis, the Deputy President dismissed the application.
Grounds of appeal and public interest
The matters set out in Ms Liao’s Form F7 Notice of Appeal in response to the question, “What are the grounds of your appeal?” largely comprise of submissions in response to aspects of the decision with which Ms Liao disagrees or seeks clarification on. Grounds (1)-(5), summarised below, disclose Ms Liao’s dissatisfaction with the Deputy President’s overall finding that there were no exceptional circumstances:
(1)Regarding [12] of the decision, Ms Liao states that “I would like to know how I can satisfy [the Deputy President] and what is her threshold for “exceptional circumstance.”
(2)Regarding [13] and [14] of the decision, Ms Liao states that “I am NOT convinced that my large amount of evidence could not satisfy [the Deputy President].”
(3)Regarding [16] of the decision, Ms Liao states that based on the situation described, “I am NOT convinced why my circumstances could not satisfy [the Deputy President] as exceptional but the Respondent’s super weak or even fake example could be accepted.”
(4)Regarding [18] of the decision, which weighed in favour of an extension of time, Ms Liao states that “BUT WHY IN THE END THE EXTENTION WAS NOT GRANTED AND MY APPLICATION DISMISSED?”
(5)Regarding [20] of the decision, Ms Liao states that “[m]y question is – since [the Deputy President] admit that the extension will NOT cause prejudice to the Respondent, why not give this case a chance to proceed for a fair evaluation by the FWC? Especially in fact, all the delay was caused by the Respondent because they have NOT followed or have actually breached quite a few school policies to cause this situation???”
(emphasis in original)
Grounds (6) and (8) demonstrate Ms Liao’s disagreement with the position advanced by the respondent at first instance. These grounds, in summary, provide as follows:
(6)The respondent has misused Ms Liao’s casual status in the contract to cover up the fact that she was bullied and discriminated. The respondent has “played with” the words between “dismissal” and “termination of employment” which in Ms Liao’s case was the same in nature.
(8)The respondent’s misuse of terms and concepts were not picked up to determine that Ms Liao has a strong merits case, and an extension should be granted.
Grounds (7) and (10) may be described as submissions explaining the basis for Ms Liao’s applications. These are summarised as follows:
(7)The reason Ms Liao argued that the contract was not fair to casual teachers was for the public interest of all casual teachers, who need to be told of sudden changes to their employment situation to plan their life accordingly.
(10)Ms Liao is a vulnerable person acting alone against a huge entity and seeks justice.
Ground (9) concerns Ms Liao’s contention that the result of the decision is unfair:
(9)Ms Liao does not understand why she was denied an extension of time in circumstances where the Deputy President acknowledged that Ms Liao felt aggrieved and wronged, and this amounts to a denial of natural justice.
In relation to the public interest, Ms Liao states that the application is relevant to casual teachers Australia-wide, who may be vulnerable and young. Ms Liao submits that it is not in the public interest if the education system loses potential teachers given the ongoing need for these roles.[10]
Principles – permission to appeal
There is no right to appeal and an appeal may only be made with the permission of the Commission. By s 604(2), without limiting when the Commission might grant permission, the Commission must grant permission if the Commission is 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.[11] The public interest is not satisfied simply by the identification of error,[12] or a preference for a different result.[13] 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 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, that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.
An application for permission to appeal is not a de facto or preliminary hearing of the appeal. In determining whether permission to appeal should be granted, it is unnecessary and inappropriate for the Full Bench to conduct a detailed examination of the grounds of appeal.[16]
Consideration
A decision made under s 366(2) of the Act is a decision involving a discretion, to which the principles in House v The King[17] apply. For there to be legal error, it would need to be shown that the Deputy President acted on a wrong principle, took into account irrelevant matters, mistook facts, did not take into account a material consideration or is manifestly wrong. Ms Liao does not allege any such matters.
At the heart of Ms Liao’s appeal, demonstrated by her written submissions, is Ms Liao’s contention that the decision to not extend time amounts to a severe injustice to her. This position is said to arise from Ms Liao’s submission that the decision contains no “in-depth analysis” of her bullying allegation or her contention the respondent failed to comply with its policies in connection with Ms Liao’s complaint. Ms Liao submits that the Deputy President “ignored” these matters despite Ms Liao’s comprehensive argument in support of them. Ms Liao says that these circumstances amounted to “the situation being exceptional.” Further, Ms Liao contends that in the result, her workplace bullying case has been determined based on the “bully’s one sided story” and this has affected Ms Liao’s health and well-being.[18]
It is apparent from these submissions that Ms Liao holds the mistaken view that her substantive general protections application, which includes the allegation of workplace bullying, has been determined by the Deputy President absent any considered analysis. This is not the case. Consistent with the Directions issued by the Deputy President on 22 August 2023, a jurisdictional hearing was convened for the purpose of determining whether to grant Ms Liao an extension of time for the filing of her general protections application. In the absence of an extension of time, this application cannot progress to a further proceeding dealing with Ms Liao’s substantive complaints, as it was filed 61 days out of time.
In correspondence sent by the Deputy President’s Chambers concurrently with the Directions, the parties were advised that the jurisdictional hearing would “solely” deal with the question of whether a further period for the making of Ms Liao’s application would be granted, having regard to the specific matters in s 366(2) of the Act.
The contention that the Deputy President erred by failing to conduct an “in-depth analysis” of the matters which informed Ms Liao’s general protections application does not give rise to an arguable case of appealable error. The Deputy President was not required to – and did not – reach a concluded view on the merits of Ms Liao’s general protections application for the purposes of s 366(2)(d) of the Act. As correctly noted in the decision, the Commission should not embark on a detailed consideration of the merits of the substantive case in determining whether to grant an extension of time.[19] Consistent with this principle, the Deputy President concluded that a final determination of the merits of Ms Liao’s general protections application could not be made.
Ms Liao’s position that she has a “strong merits case” of workplace bullying informs appeal grounds (6) and (8). These grounds each note Ms Liao’s disagreement with the respondent’s first instance position in which it addressed Ms Liao’s allegations. However, disagreement with the respondent’s argument does not give rise to an arguable case of appealable error in the decision before us. To the extent Ms Liao contends that the respondent’s “inaccurate” submissions led the Deputy President to determine the “bullying case” based on the respondent’s one-sided story, such contention is not arguable for the reasons stated at [23] above.
Ms Liao’s view as to the strength of her general protections case also provides the basis for appeal grounds (1) to (3). However, as was made clear in the decision, the merits of Ms Liao’s substantive application is one of five matters to be taken into account when considering an extension of time. Section 366(2) of the Act does not require any greater weight to be assigned to a consideration of the merits in paragraph (d) or any other factor. Similarly, insofar as it concerns appeal grounds (4) and (5), the Deputy President’s conclusion that the consideration at s 366(2)(b) weighed in favour of an extension and s 366(2)(c) was neutral, were matters that the Deputy President weighed as part of her overall consideration of the matters in s 366(2). Absent a reason to do so, it is not for an appellate body to interfere in this weighing exercise. Ms Liao has not advanced any arguable case of appealable error in the weighing of these matters, or the overall conclusion that the circumstances were not exceptional.
With respect to the matters raised by appeal grounds (7) and (10), Ms Liao has not drawn a connection between the concerns raised about her casual contract of employment and related vulnerabilities, to any aspect of the decision under appeal. Nor did these matters bear upon the Deputy President’s consideration of the criteria in s 366(2) or the outcome of the decision. Accordingly, no arguable case of appealable error arises in respect of these grounds.
As to ground (9), there is no arguable basis to conclude that the Deputy President denied Ms Liao natural justice. Ms Liao does not contend that she was impaired by the Deputy President from presenting her case in support of an extension of time. Rather, Ms Liao contends that the Deputy President ought to have exercised her discretion in favour of an extension in light of recognising in the decision that Ms Liao felt “wronged.” For the reasons at [19] above, ground (9) discloses no arguable error on appeal.
Conclusion
The matters raised by Ms Liao in her Notice of Appeal do not demonstrate an arguable case of appealable error. Nor are we persuaded that the public interest is enlivened. Specifically, we are not satisfied for the purposes of s 604(2) of the Act that:
(a) there is a diversity of decisions at first instance so that guidance from an appellate body is required of this kind;
(b) the appeal raises issues of importance and/or general application;
(c) the decision at first instance manifests an injustice, or the result is counter intuitive; or
(d) the legal principles applied by the Deputy President were disharmonious when compared with other decisions dealing with similar matters.
Order and disposition
For the reasons given, permission to appeal is refused.
DEPUTY PRESIDENT
Hearing details:
Matter determined on the papers.
[1] [2023] FWC 2382
[2] PR766277
[3] Decision at [4]
[4] Decision at [4]
[5] Decision at [15]
[6] Decision at [18]
[7] Decision at [20] and [28]
[8] Decision at [24]
[9] Decision at [30]
[10] Appeal Book 12 at [7]
[11] O’Sullivan v Farrer (1989) 168 CLR 210 at 216-217 per Mason CJ, Brennan, Dawson and Gaudron JJ: applied in Hogan v Hinch (2011) 243 CLR 506 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]
[12] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343, 197 IR 266 at [24]-[27]
[13] 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]
[14] [2010] FWAFB 5343, 197 IR 266 at [24] – [27]
[15] Wan v AIRC (2001) 116 FCR 481 at [30]
[16] Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]
[17] (1936) 55 CLR 499 at 505
[18] Appeal Book 23-26
[19] Decision at [21]
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