Christine Williams v Pretty Girl Fashion Group Pty Ltd t/a Rockmans
[2015] FWCFB 8215
•1 DECEMBER 2015
| [2015] FWCFB 8215 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
v
Pretty Girl Fashion Group Pty Ltd t/a Rockmans
(C2015/6830)
VICE PRESIDENT HATCHER | SYDNEY, 1 DECEMBER 2015 |
Permission to appeal sought against decision [[2015] FWC 6985] on 9 October 2015 and an order [PR571972] on 15 September 2015 of Senior Deputy President Drake at Sydney in matter number U2015/10737.
[1] On 6 October 2015 Ms Christine Williams lodged an appeal against the Order of Senior Deputy President Drake dated 15 September 2015 1 dismissing her application for an extension of time in which to file her unfair dismissal application under s.394 of the Fair Work Act 2009 (the Act). Senior Deputy President Drake published Reasons for Decision on 9 October 20152. The s.394 application was filed 1 year, 10 months and 29 days out of time.
[2] This matter was listed in the Permission to Appeal roster and was heard on 26 November 2015. Permission was granted for both parties to be represented by solicitors pursuant to s.596(2)(a) of the Act.
[3] We have taken account of the submissions put to us.
Permission to appeal
[4] In considering whether permission to appeal should be granted, the Full Bench is required by s.400(1) of the Act to determine whether it is in the public interest to grant permission to appeal. The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment. In GlaxoSmithKline Australia Pty Ltd v Makin 3 a Full Bench of the Tribunal 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 ...”
[5] 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. 4 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.5 Subject to the appellant demonstrating an arguable case of appealable error, the Commission has a broad discretion as to the circumstances in which it can grant permission to appeal in the public interest. Some examples of considerations which have been adopted in granting permission include:
- that the decision is attended with sufficient doubt to warrant its reconsideration;
- that the Commission at first instance may have exceeded its jurisdiction; and
- that substantial injustice may result if leave is refused.
Submissions
[6] The grounds of appeal assert that the appellant was not afforded the opportunity to state her case by telephone or in person, as no hearing occurred, and that the respondents did not provide a response to the statements and submissions provided by the appellant. She further asserts that the circumstances met the definition of exceptional circumstances, and that an extension of time should have been granted. Her written submission elaborated on these grounds in a statement which referred to a number of family difficulties she experienced, including medical issues with family members, the care she needed to provide for her husband, her own anxiety and depression, and other matters.
Consideration
[7] Section 397 provides:
The FWC must conduct a conference or hold a hearing in relation to a matter arising under this Part if, and to the extent that, the matter involves facts the existence of which is in dispute.
[8] The Senior Deputy President referred in the Decision to the submissions put by the applicant at the time, such as the “catastrophic illnesses suffered by her husband and son”, and the care given by Ms Williams. There were no “facts the existence of which is in dispute” which required a hearing under s.397. Further, the Senior Deputy President advised the appellant on 10 August 2015 that:
“If no statement is received and no request is made by you beforehand to be heard in person, by telephone or by video conference then I will consider your extension of time application on the material before me without further notice to you.”
[9] There was no requirement to hold a hearing, and the appellant never requested a hearing despite being given notice that no hearing would be held unless she requested one.
[10] The employer had previously provided a Form F3 Employer response to the application. There was no need for the employer to provide anything further. The Senior Deputy President was required to apply the Act in considering the application for an extension of time, and did so on the basis of the submissions and material before her.
Conclusion
[11] We are not persuaded that there is any public interest warranting granting permission to appeal. The matter does not involve issues of importance and general application, there is no diversity of decisions, the Decision does not manifest any injustice, and the legal principles are not disharmonious. We dismiss the application for permission to appeal.
VICE PRESIDENT
Appearances:
J. O’Donnell solicitor for C. Williams.
W. O’Donnell solicitor for Pretty Girl Fashion Group Pty Ltd t/a Rockmans.
Hearing details:
2015.
Sydney:
26 November.
1 PR571972
2 [2015] FWC 6985
3 [2010] FWAFB 5343
4 Wan v AIRC (2001) 116 FCR 481 at [30]
5 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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