China Southern Airlines Limited v Anesha Mohanan
[2015] FWCFB 8260
•9 DECEMBER 2015
| [2015] FWCFB 8260 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
Anesha Mohanan
(C2015/6946)
VICE PRESIDENT HATCHER | SYDNEY, 9 DECEMBER 2015 |
Permission to appeal against decision [[2015] FWC 6421] of Deputy President Sams at Sydney on 17 September 2015 in matter number U2014/9637.
Introduction and background
[1] China Southern Airlines Limited (CSA) has applied for permission to appeal a decision issued by Deputy President Sams on 17 September 2015 1 (Decision). CSA wishes to appeal that part of the Decision in which the Deputy President determined to grant Ms Anesha Mohanan an extension of time to lodge an unfair dismissal remedy application under s.394 of the Fair Work Act 2009 (FW Act). CSA does not seek to appeal the further conclusion stated in the Decision that Ms Mohanan’s dismissal by CSA was not a case of genuine redundancy within the meaning of s.389 of the FW Act.
[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] Ms Mohanan filed her unfair dismissal remedy application on 9 October 2014. There was no dispute that her dismissal occurred on 1 August 2014. The application was therefore filed 48 days beyond the 21-day time limit in s.394(2).
[4] The reasons for the delay advanced by Ms Mohanan at first instance, as summarised in the Decision, were as follows:
“[16] As earlier mentioned, from August 2013 and throughout 2014, the applicant had been suffering from a very serious, life-threatening illness, which required both surgery and chemotherapy. The applicant provided a detailed witness statement setting out the circumstances of her illness and recuperation. She annexed various medical reports in relation to her illness and psychological condition. Given that the respondent did not seek to cross examine the applicant on her recent medical history and that the respondent did not query the severity of the applicant’s condition and its consequences (appropriately in my view), I need not refer, in any great detail to the contents of the applicant’s statement and annexures.
[17] The applicant’s submissions divided the periods for the delay in filing her unfair dismissal application into three distinct periods:
(a) 1 August 2014 – 24 August 2014;
(b) 25 August 2014 – 18 September 2014; and
(c) 19 September – 9 October 2014.
[18] It was submitted by the applicant that she was not in a position to file her unfair dismissal application within time, due to a combination of the following factors:
(a) The side effects of her cancer illness;
(b) The cancer treatment;
(c) The onset of adjustment disorder related to the experience of her cancer illness; and
(d) Time spent with her family in Singapore, recuperating from her cancer illness, cancer treatment and adjustment disorder.
[19] In respect to the period 19 September – 9 October, the applicant submitted that the delay was due to the time taken to obtain pro bono legal assistance, meet urgently with her lawyers to prepare the application and file it. This was all done within 21 days.”
[5] In his consideration for the reason for the delay under s.394(3), the Deputy President accepted that “it is incumbent on an applicant to provide an acceptable reason/s for the whole period of the delay in filing an unfair dismissal application” but found that “in this case, a combination of factors, including the applicant’s serious and life-threatening medical condition, her consequential psychological state and a desire to recuperate with family and friends, must on any objective analysis, constitute ‘exceptional circumstances’.” 2 The Deputy President went on to say:
“[33] This case, however, is in an entirely different category. I know of no other case which involved such serious and life changing medical circumstances affecting a dismissed employee. Coupled with the ordinary levels of stress just referred to and when an employee contests the reasons for their dismissal, the levels of the applicant’s stress, anxiety and worry must have been extraordinary, particularly when she was trying from overseas, to understand her likely termination of employment. I am fortified in this view by Ms van Lloy’s opinion that the applicant’s symptoms were consistent with a diagnosis of adjustment disorder.
[34] That said, I acknowledge the apparent logic of the respondent’s submission that if the applicant could communicate with the respondent and could arrange her overseas travel, why could she not file her application within time? However, making arrangements to recuperate with family and communicating with the respondent by short emails, in the context of what the applicant had recently experienced, is not a reasonable basis for concluding that the applicant was able to function normally and conduct normal day to day activities.”
[6] In relation to the other matters required to be taken into account under s.394(3), the Deputy President found:
- Ms Mohanan became aware of her dismissal on 1 August 2014 and took no action to dispute it until 18 September 2014. The Deputy President treated this as a neutral factor. 3
- There was no prejudice to the respondent save for the costs and time associated with defending the matter. This was also treated as a neutral matter. 4
- The application was substantially meritorious, given the subsequent conclusion that the dismissal was not a case of genuine redundancy. This was treated as weighing in favour of an extension of time being granted. 5
- There was no issue of fairness between persons in a similar situation, making this a neutral factor. 6
Submissions
[7] CSA’s submissions focused upon the Deputy President’s conclusions concerning the reason for Ms Mohanan’s delay in filing her application. CSA submitted in this connection that the Deputy President erred in finding that:
- Ms Mohanan had an acceptable explanation for the whole of the delay, in circumstances where the evidence was incapable of supporting such a conclusion;
- Ms Mohanan suffered from a “life threatening medical condition” and/or “consequential psychological state” at any part of the 48 day period, given that the evidence demonstrated that her conditions had resolved well before the dismissal;
- the “diagnosis of adjustment disorder with mixed anxiety and depressed mood” was relevant to the delay in circumstances where that diagnosis related to a period which predated the dismissal.
[8] CSA also referred in its submissions to documentary evidence (specifically copies of pages in Ms Mohanan’s passport) which was said to cast doubt on that part of her explanation for the delay which had her recuperating with her family in Singapore.
[9] CSA submitted that the Decision was disharmonious with other identified decisions of the Commission which were said to emphasise the degree of medical incapacity necessary to justify the conclusion that there was an acceptable reason for delay in filing an unfair dismissal remedy application. It further submitted that the Decision was counter intuitive, manifested an injustice, and raised an issue of importance and general application, namely the “importance [of] … uniformity between and adherence to established principles in decisions pursuant to section 394(3)”.
[10] Ms Mohanan submitted that the Deputy President took account of the matters specified in s.394(3) and exercised the discretion to extend time in a manner which was not attended by any appealable error.
Consideration
[11] 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. 7 There is no right to appeal and an appeal may only be made with the permission of the Commission.
[12] 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.
[13] 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 as “a stringent one”. 8 The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment9. 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.” 10
[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. 11 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.12
[15] We are not satisfied that CSA has demonstrated that the grant of permission to appeal would be in the public interest, for the following reasons:
(1) The Deputy President clearly acknowledged at paragraph [30] of the Decision that, for the purpose of his consideration under s.394(3)(a), it was necessary to take into account the entire period of the delay. There was no error of principle in this respect.
(2) We do not consider that there was any error in the Deputy President’s conclusion that Ms Mohanan’s medical conditions explained the substantial part of the delay (until 18 September 2014). It is not necessary to detail all the medical evidence in this respect. It is sufficient for present purposes to refer to the report of Ms Mohanan’s treating clinical psychologist, Ms Van Lloy, to the effect that Ms Mohanan “remained distressed about her redundancy and again cited her concerns about the potential impact of stress on her risk of cancer recurrence as the main reason for not taking this dispute further”. Ms Van Lloy said in her report: “In the context of Ms Mohanan’s fear and anxiety about cancer recurrence and her focus on maintaining psychological wellness, it was my opinion that this was the basis in which she was reluctant to pursue the matter”. There was no challenge to this expert opinion at first instance. Ms Van Lloy provided reassurance to Ms Mohanan in this respect, emphasised the importance of ongoing psychological support as being the main issue if Ms Mohanan contested her dismissal, and provided her with a reference to the Cancer Council Legal Services on 22 September 2014. Once this was done, Ms Mohanan followed this up in an orderly fashion leading to her application being filed on 9 October 2014.
(3) We do not think that much benefit is to be gained by comparing the facts of this case to those of other cases involving medical issues in which an extension of time was refused. Each case will turn on its own facts. This case involved an unusual combination of factors, namely recuperation from a serious cancer condition, an associated psychological illness, and the applicant being overseas at the time of dismissal.
(4) CSA’s submissions fail to take into account that consideration under s.394(3) as to whether exceptional circumstances exist and whether the discretion ought be exercised in favour of the grant of an extension of time involves taking into account and weighing all the matters identified in the subsection. The matter is not to be determined solely by reference to whether there is an acceptable explanation for the delay. This case had the unusual feature that, in the same decision as the Deputy President granted an extension of time, he also found that Ms Mohanan’s dismissal was not a case of genuine redundancy as defined in s.389. That finding was not appealed. That inevitably meant that Ms Mohanan’s application had substantial merit, and that this would be a powerful factor weighing in support of an extension of time.
(5) It was not open to CSA in the hearing on permission to appeal to attempt to challenge that part of Ms Mohanan’s explanation for the delay concerning her period of recuperation in Singapore. In the hearing before the Deputy President, Ms Mohanan’s evidence was not challenged and this matter was not raised. There is no basis for it now to be raised in the appeal.
[16] We do not consider that CSA’s notice of appeal raises any issue of general importance or application or identifies any disharmony in the application of legal principles or diversity in first instance decision-making. The Decision does not manifest any injustice and is not counter intuitive in its result. The public interest is not attracted. Permission to appeal must therefore be refused.
VICE PRESIDENT
Appearances:
P. Thew of counsel for China Southern Airlines Limited.
J. Darams of counsel for A. Mohanan.
Hearing details:
2015.
Sydney:
26 November.
1 [2015] FWC 6421
2 Decision at [30]
3 Decision at [35]
4 Decision at [36]
5 Decision at [37]
6 Decision at [38]
7 Coal and Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ
8 (2011) 192 FCR 78 at [43]
9 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]
10 [2010] FWAFB 5343 at [27], 197 IR 266
11 Wan v AIRC (2001) 116 FCR 481 at [30]
12 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]
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