Chamath Wijehewa v Coles Supermarket Australia Pty Ltd
[2015] FWCFB 3501
•12 JUNE 2015
| [2015] FWCFB 3501 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
Coles Supermarket Australia Pty Ltd
(C2015/2536)
VICE PRESIDENT HATCHER | SYDNEY, 12 JUNE 2015 |
Appeal against an Order [PR562446] on 26 March 2015 and a decision [[2015] FWC 2972] of Senior Deputy President Drake at Sydney on 30 April 2015 in matter number U2015/645.
Introduction
[1] Mr Chamath Wijehewa has applied for permission to appeal an order issued by Senior Deputy President Drake on 26 March 20151 (Order). The effect of the Order was to refuse Mr Wijehewa an extension of time to lodge an unfair dismissal remedy application under s.394 of the Fair Work Act 2009 (FW Act) and to dismiss, pursuant to s.587(1)(a) of the FW Act, the unfair dismissal remedy application which Mr Wijehewa had lodged on the basis that it had not been made in accordance with the FW Act. The Senior Deputy President published reasons for the decision embodied in the Order on 30 April 20152 (Decision).
[2] Section 394(2) of the FW Act requires an unfair dismissal remedy application to be lodged within 21 days after the dismissal took effect or within such further period as the Commission allows under s.394(3). Section 394(3) provides:
(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.
[3] The factual background is as follows:
a) On 27 September 2013 Mr Wijehewa commenced employment with Coles Supermarket Australia Pty Ltd (respondent);
b) The last shift worked by Mr Wijehewa was on 8 October 2014;
c) By letter dated 21 January 2015 the respondent terminated Mr Wijehewa’s employment;
d) The termination letter was received by Mr Wijehewa by registered post on 23 January 2015;
e) On 23 January 2015 Mr Wijehewa contacted his union for advice. His union advised him that he had 21 days to file an unfair dismissal application; and
f) On 16 February 2015 Mr Wijehewa lodged his unfair dismissal remedy application (notwithstanding that it was dated by him 13 February 2015).
[4] The application was thereby treated by the Senior Deputy President as having been lodged at least 3 days beyond the 21-day time limit prescribed by s.394(2)(a) and thereby requiring an extension of time to be granted under s.394(3).
[5] In the Decision, the Senior Deputy President dealt with all the matters she was required by s.394(3) of the FW Act to take into account.
[6] In relation to the reason for the delay (s.394(3)(a)), the Senior Deputy President noted that the reasons for the delay advanced by Mr Wijehewa were that:
a) He was obtaining medical reports from his orthopaedic surgeon and it took time to get an appointment; and
b) He considered that the termination of his employment was related to his medical condition.3
[7] Having recorded the reasons advanced by Mr Wijehewa, the Senior Deputy President noted that Mr Wijehewa “conceded that there was no physical impediment arising from his medical condition which prevented him from making enquiries by telephone or the internet”4 (to lodge an application in time). Accordingly, the Senior Deputy President “was not persuaded that Mr Wijehewa’s difficulties were out of the ordinary, unusual or uncommon.”5
[8] In relation to when Mr Wijehewa first became aware of the dismissal after it had taken effect (s.394(3)(b)), the Senior Deputy President accepted Mr Wijehewa’s evidence that he only became aware of the dismissal on 23 January 2015.6
[9] In relation to whether Mr Wijehewa had taken any action to dispute the dismissal (s.394(3)(c)), the Senior Deputy President noted that Mr Wijehewa “disputed his dismissal by lodging [his] application” for an unfair dismissal remedy.7
[10] In relation to whether there was any prejudice to the employer (s.394(3)(d)), the Senior Deputy President was satisfied “that there would be no greater prejudice to the respondent caused by [the] application being listed now than there would have been had it been lodged in time.”8 The Senior Deputy President noted that this was a “neutral consideration.”9
[11] In relation to the merits of the application (s.394(3)(e)), the Senior Deputy President said this “was a neutral issue in [her] consideration of [the] application.”10
[12] In relation to fairness between Mr Wijehewa and other persons in a similar position (s.394(3)(f)), the Senior Deputy President found there was no issue arising.11
[13] Having considered all of the matters required by the FW Act the Senior Deputy President said she:
“… was not satisfied that there were exceptional circumstances which would warrant [her] granting an exception to the statutory time limit.”12
[14] The Senior Deputy President dismissed the application.
Consideration
[15] 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.
[16] In the Federal Court Full Court decision 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(1) as “a stringent one”.13
[17] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment14. 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.”15
[18] 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.16 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.17
[19] The first ground of appeal in Mr Wijehewa’s Notice of Appeal is that “The [Senior Deputy President] erred in refusing to approve the extension of time [because there was a] miscalculation … regard[ing the] date of termination, [because] ‘the date the employment will end is unknown and date is not notified in the letter’.” The gravamen of this submission appears to be that Mr Wijehewa was unsure of the date that his termination took effect and was consequently unsure when the 21-day limit to file an unfair dismissal remedy application expired, and that this should have been taken into account under s.394(3)(b) as relevant to when he “first became aware of the dismissal after it had taken effect”.
[20] The letter of termination stated that “it is unlikely that we will be able to offer you work in the future” and “Thank you for your contribution to Coles, we wish you well in the future.”
[21] While the letter of termination did not in terms specify an effective date of termination, Mr Wijehewa’s complaint about it is, we consider, misplaced. Section 394(3)(b) is concerned with when the putative applicant becomes aware of the termination. Notwithstanding a lack of pellucidity in the termination letter, it is clear, and Mr Wijehewa conceded that he understood his employment had been terminated when he received the letter of termination by registered post on 23 January 2015. That is the reason why he contacted his union on the same day (from which he received advice from his union about the 21 day time limit). Consequently there can be no doubt that, for the purposes of s.394(3)(b), Mr Wijehewa was aware of his termination by 23 January 2015. Because his application was lodged 24 days after this, any lack of clarity in the termination letter provides no explanation for why his application was lodged late. There is no merit in the first ground of appeal.
[22] The second ground of appeal in Mr Wijehewa’s Notice of Appeal related to the issue of the letter of termination having been sent by registered post and not received by Mr Wijehewa until some days later. There is no appeal point here. Mr Wijehewa conceded that he received the letter of termination on 23 January 2015. How it was posted to him is irrelevant. There is no merit in the second ground of appeal.
[23] The third ground of appeal in Mr Wijehewa’s Notice of Appeal related to the issue of Mr Wijehewa’s claim that he was a part-time employee and not a casual and therefore that he should have been provided with two weeks’ notice in accordance with s.117 of the FW Act. Although this was not made clear by Mr Wijehewa, we assume that the point of this submission was that if s.117 applied then, absent a payment in lieu of notice, his termination could only lawfully have taken effect two weeks after 21 January 2015, with the result that his application was not lodged out of time. It is not necessary for us to entertain the merits of this (assumed) proposition since the material before the Senior Deputy President made it clear, we consider, that Mr Wijehewa was a casual employee. He was certainly paid as such. The only submission made on this point by Mr Wijehewa to the Senior Deputy President was as follows (in answer to a question as to whether he was being paid workers’ compensation):
MR WIJEHEWA: No, ma’am. Because initially I interview for part time but they hadn’t given me part time work. But they have signed me for a part time roster but they [pay] me the casual rates.18
[24] It cannot be concluded from this that Mr Wijehewa even contested at first instance the proposition, clearly advanced by the respondent, that he was a casual. There is no merit in the third ground of appeal.
[25] The fourth ground of appeal in Mr Wijehewa’s Notice of Appeal is that “the [Senior Deputy President did not consider] matters which were relevant to the application…”. Mr Wijehewa submitted that the relevant matters which were not considered included “the applicant[‘s] medical condition of the time of the application. Applicant has restriction on his physical activities including mobility and standing for longer period…”.
[26] It is apparent from the Decision that the Senior Deputy President did consider Mr Wijehewa’s medical condition in determining the extension of time application. However, the Senior Deputy President noted that Mr Wijehewa “conceded that there was no physical impediment arising from his medical condition which prevented him from making enquiries by telephone or the internet.”19 We discern no error in the Senior Deputy President’s approach. There is no merit in the fourth ground of appeal.
[27] The fifth and sixth grounds of appeal relate to the merits of the unfair dismissal claim and do not found a basis for impugning the Decision.
[28] In his Notice of Appeal Mr Wijehewa sets out a number of reasons for asserting that it is in the public interest for the Commission to grant permission for the appeal. In summary those reasons are said to arise out of the need to give guidance about the operation of sections:
a) 117 (requirement for notice of termination or payment in lieu);
b) 118 (modern awards and enterprise agreements may provide for notice of termination by employees);
c) 351 (discrimination);
d) 352 (temporary absence – illness or injury);
e) 382 (when a person is protected from unfair dismissal);
f) 394 (application for unfair dismissal remedy); and
g) 598 (decisions of the FWC).
[29] Out of the sections listed above only s.394 is relevant to the extension of time application. All of the other sections appear to relate to the merits of the underlying unfair dismissal claim (leaving aside s.117 which we have earlier dealt with). As stated above we do not consider that it is arguable that the Senior Deputy President fell into error in relation to the extension of time application on any of the grounds identified by Mr Wijehewa.
[30] Further, we are not satisfied that this matter:
a) raises issues of importance and/or general application;
b) is in a class where there is a diversity of decisions at first instance so that guidance from an appellate bench is required;
c) is one 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.
Conclusion
[31] We are not persuaded that Mr Wijehewa has established that it is in the public interest to grant permission to appeal. The Senior Deputy President addressed the relevant statutory criteria and we are not persuaded that there is an arguable case that the Decision or Order were attended by any error of principle or any significant error of fact.
[32] As we have mentioned, s.400(1) provides that permission to appeal must not be granted unless the Commission considers that it is in the public interest to do so. We do not consider that it is in the public interest to grant permission to appeal and accordingly we refuse permission to appeal.
VICE PRESIDENT
Appearances:
C. Wijehewa on his own behalf.
A. Pollock solicitor for Coles Supermarket Australia Pty Ltd.
Hearing details:
2015.
Sydney:
21 May.
1 PR562446
2 [2015] FWC 2972
3 Decision at [9]
4 Ibid
5 Ibid [10]
6 Ibid [11]
7 Ibid [12]
8 Ibid [13]
9 Ibid
10 Ibid [14]
11 Ibid [15]
12 Ibid [16]
13 (2011) 192 FCR 78 at [43]
14 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 [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]
15 [2010] FWAFB 5343 at [27], 197 IR 266
16 Wan v AIRC (2001) 116 FCR 481 at [30]
17 GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343 at [26]-[27], 197 IR 266; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth[2010] FWAFB 10089 at [28], 202 IR 288, affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663 at [28]
18 Transcript 20 March 2015, PN115
19 Decision at [9]
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