Cheryl D'Rozario v The Trustee for The Trimatic Management Services Unit Trust

[2024] FWCFB 380

The attached document replaces the document previously issued document with code [2024] FWC 2577 to correct document referencing on 19 September 2024.

Associate to Deputy President Anderson

Dated 19 September 2024.

[2024] FWCFB 380

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.604 - Appeal of decisions

Cheryl D'Rozario
v

The Trustee for The Trimatic Management Services Unit Trust

(C2024/5230)

DEPUTY PRESIDENT ANDERSON
DEPUTY PRESIDENT COLMAN
DEPUTY PRESIDENT MASSON

MELBOURNE, 19 SEPTEMBER 2024

Appeal from decision [2024] FWC 1901 of Commissioner Perica at Melbourne on 19 July 2024 in matter number U2024/6834

Cheryl D’Rozario has lodged an appeal, for which permission is required, against a decision of Commissioner Perica to dismiss her unfair dismissal application ([2024] FWC 1901, U2024/6834). The application was lodged seventeen days outside of the 21-day period prescribed by 394(2) of the Fair Work Act 2009 (Act). Section 394(3) allows the Commission to allow a further period within which to make an application, but only if it is satisfied that there are exceptional circumstances, having regard to the matters in ss 394(3)(a) to (f).

In his decision, the Commissioner stated that there were good reasons for part of the delay (s 394(3)(a)), but that ultimately the reasons for the delay did not weigh in favour of granting an extension (at [36]). He determined that Ms D’Rozario had taken action to dispute her dismissal (s 394(3)(c)), and that this factor counted in favour of an extension of time (at [36]). He considered that none of the other mandatory considerations in s 394(3) favoured the granting of an extension. The Commissioner stated that on balance he was not satisfied that there were exceptional circumstances to justify an extension of time (at [39]).

An appeal cannot succeed in the absence of appealable error (see Wan v AIRC 116 FCR 481 at [30]). In her notice of appeal, Ms D’Rozario does not identify or allege any error on the part of the Commissioner. Rather, she seeks a ‘reconsideration’ of her case. This is not a proper use of the appellate function of the Commission. Appeals exist for the correction of error, not to afford an unsuccessful party a second opportunity to run their case. As Ms D’Rozario is unrepresented, we have gone beyond the notice of appeal to consider for ourselves whether there is any arguable error in the Commissioner’s decision. We find that there is not. The Commissioner dealt with the matter before him in the manner required by the Act. He considered and weighed the mandatory considerations. He reached a reasoned conclusion. There is no indication of any legal, factual or discretionary error.

During the appeal hearing Ms D’Rozario suggested that the matter had been “rushed”. There is no merit in this contention. Directions and a notice of listing were issued by the Commissioner three weeks prior to the extension of time hearing. Ms D’Rozario filed materials twelve days later. She was served the respondent’s response and written submissions. Upon hearing the matter, a decision was reserved and delivered eight days later. We are well satisfied that these processes were orthodox, efficient and fair.

Moreover, this is an appeal to which s 400(1) applies. This provision directs that the Commission must not grant permission to appeal from a decision made under Part 3-2 of the Act (that is, a decision concerning an unfair dismissal application), unless it considers that it is in the public interest to do so. We do not consider that it would be in the public interest to grant permission. There is nothing about this appeal that engages the public interest.

Permission to appeal is refused.

DEPUTY PRESIDENT

Appearances

C. D’Rozario for herself, assisted by K. D’Rozario

F. Carao for the trustee for the Trimatic Management Services Unit Trust with D. Rayson

Hearing details

2024.
Melbourne;
18 September.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Cheryl D'Rozario has appealed against a decision of Commissioner Perica, who dismissed her unfair dismissal application on the basis that it was lodged outside the 21-day period prescribed by the Fair Work Act 2009. The Commissioner found that there were good reasons for part of the delay but determined that the reasons did not weigh in favour of granting an extension of time. Cheryl D'Rozario argued for a reconsideration of her case but did not identify any error on the part of the Commissioner. The court considered the Commissioner's decision and found no arguable error, as the Commissioner had properly weighed the mandatory considerations and reached a reasoned conclusion. The court also noted that the appeal process was orthodox, efficient, and fair.

The key legal issues in this appeal were whether the Commissioner erred in his determination that there were not exceptional circumstances to justify an extension of time and whether it was in the public interest to grant permission to appeal. The court found that the Commissioner had correctly applied the law and made no error in his decision. It was also determined that there was no public interest in granting permission to appeal, as required by section 400(1) of the Fair Work Act 2009. The appeal was therefore dismissed, and permission to appeal was refused.

The Fair Work Commission found that there was no error in the Commissioner's decision to dismiss Cheryl D'Rozario's unfair dismissal application for being lodged outside the prescribed time period. The Commissioner had considered and weighed the mandatory factors in section 394(3) of the Fair Work Act 2009 and reached a reasoned conclusion that there were not exceptional circumstances to justify an extension of time. The court found no arguable error in the Commissioner's decision and refused permission to appeal. The final order was that permission to appeal was refused.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established