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

[2024] FWCFB 2577

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.604 - Appeal of decisions

Cheryl D'Rozario

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 to dismiss her unfair dismissal application, lodged outside of the 21-day period prescribed by section 394(2) of the Fair Work Act 2009. The appeal, lodged seventeen days late, was dismissed by Commissioner Perica who found that while there were good reasons for part of the delay, they did not justify an extension of time. The appeal was brought before the Full Commission, which found that the appeal could not succeed in the absence of appealable error, and that the Commissioner had considered and weighed the mandatory considerations appropriately. The Commission also found that the processes followed by the Commissioner were orthodox, efficient and fair.

The appeal raised a number of legal issues, including whether the Commissioner erred in finding that the reasons for the delay did not weigh in favour of granting an extension of time, and whether the processes followed by the Commissioner were fair and efficient. The appeal also raised issues as to whether the appeal was in the public interest, as section 400(1) of the Act requires the Commission to consider whether it is in the public interest to grant permission to appeal. The Commission found that there was no arguable error in the Commissioner's decision, and that the processes followed were orthodox, efficient and fair. The Commission also found that there was nothing in the appeal that engaged the public interest.

The Commission found that the appeal could not succeed in the absence of appealable error, and that the Commissioner had considered and weighed the mandatory considerations appropriately. The Commission found that the Commissioner had correctly determined that the reasons for the delay did not weigh in favour of granting an extension of time, and that there was no indication of any legal, factual or discretionary error. The Commission also found that the processes followed by the Commissioner were orthodox, efficient and fair, and that there was no merit in the contention that the matter had been "rushed". Finally, the Commission found that there was nothing in the appeal that engaged the public interest.

Permission to appeal is refused.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established