Christopher Humphries v Australian Capital Territory (as represented by the Chief Minister, Treasury and Economic Development Directorate) - [2024] FWCFB 402

[2024] FWCFB 402

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.604—Appeal of decision

Christopher Humphries
v

Australian Capital Territory (as represented by the Chief Minister, Treasury and Economic Development Directorate)

(C2023/7024)

VICE PRESIDENT ASBURY

DEPUTY PRESIDENT SAUNDERS
DEPUTY PRESIDENT WRIGHT

BRISBANE, 21 OCTOBER 2024

Appeal against decision [2023] FWC 2809 and Order PR767628 of Commissioner P Ryan at Sydney on 25 October 2023 in matter number C2023/3463 – Application for further period to lodge general protections application – Appellant seeks to call new evidence on appeal – Documents Appellant relies on as basis for new evidence were before Commission at first instance – Not an appropriate case for new evidence to be received on appeal – No error in first instance decision – Permission to appeal refused.

Background and procedural history

Mr Christopher Humphries (Appellant) has lodged an appeal under s. 604 of the Fair Work Act 2009 (the FW Act), for which permission is required, against a decision of Commissioner P Ryan issued on 25 October 2023[1] (Decision). The Decision concerned an application made under s. 365 of the FW Act for the Fair Work Commission (Commission) to deal with an alleged contravention of Part 3–1 General Protections in relation to the Appellant’s dismissal by the Australian Capital Territory (as represented by the Chief Minister, Treasury and Economic Development Directorate) (Respondent). In the Decision, the Commissioner dismissed the application on the basis that it was made outside the time required in s. 366(1) and the Commissioner was not satisfied that there were exceptional circumstances to justify the grant of a further period for the application to be made. An Order[2] dismissing the application was issued on 25 October 2023.

It is necessary to deal in some detail with the procedural history of the appeal. The Form F7 Notice of appeal was lodged on 15 November 2023. The Form F7 contains instructions requiring that within 7 calendar days the Appellant lodge an appeal book and as soon as practicable thereafter, serve it on the other parties to the matter from which the appeal is brought. The Commission’s Appeal Proceedings Practice Note, also referenced in the Form F7, contains further information to the effect that an appeal book is required to be paginated and to contain any orders made by the Commission at first instance, the statement of reasons for the decision being appealed against, the transcript of the first instance proceedings, and exhibits and written submissions that were before the Commission, and relate to the grounds of appeal, as set out in the Notice of appeal.

On 24 November 2023, Directions were issued from the Chambers of the President, informing the parties that the appeal had been listed for hearing on 13 February 2024, in relation to permission to appeal and merits. The Appellant was informed that his appeal book was overdue and requested to lodge and serve an appeal book as soon as possible. On 27 November, the Appellant emailed the Chambers of the President advising that he had been unwell and was granted until 8 December 2023 to lodge and serve his appeal book. On 8 December 2023, the Appellant again emailed the President’s Chambers requesting a further extension to lodge and serve his appeal book and was informed that Commission staff would prepare an appeal book. Although Commission staff prepared an appeal book, it was inadvertently not sent to the parties.

Between 5 and 15 January 2024, there was an email exchange between the Appellant and the President’s Chambers in which the Appellant advised of further health issues which had resulted in hospitalisation and sought “an indefinite postponement” of his appeal to allow him to recover and ensure the stability of his family. The Appellant was informed that a medical certificate he had forwarded did not evidence the medical conditions set out in his email or address his incapacity to comply with the directions relating to his appeal. The appeal was allocated to a Full Bench for hearing (first Full Bench). On 1 February 2024, the Presiding Member on the first Full Bench sought the views of the parties about a hearing date and the matter was listed for hearing on 13 February 2024. That hearing date was vacated at the request of the Appellant who advised that he was unable to attend on medical grounds. The Presiding Member directed the Appellant to provide medical reports from specified treating medical practitioners addressing his current and future capacity to comply with directions to prepare material in relation to his appeal, and to attend and participate in an appeal hearing, by Thursday, 29 February 2024.

On 20 February 2024, the Appellant sent an email to the Chambers of the Presiding Member of the first Full Bench stating that the evidence he was relying on to support a claim that he did not know of, or did not read, the email advising of the termination of his employment, until the day after it was sent, was incorrect, but that he had other evidence to support this contention. On 22 February 2024, an email was sent to the Appellant from the Chambers of the Presiding Member, reminding the Appellant of the requirement to file his medical evidence and informing him that the issue of whether he would be permitted to call new evidence in his appeal was at the discretion of the Full Bench, and the principles in Akins v National Australia Bank[3] would be relevant to the exercise of the discretion. Those principles were set out in the email. On 29 February 2024, the Appellant sent a response to that email (copied to the Respondent) advising that he had yet to hear back from either of his medical support staff. The email went on to state: “Please find attached my attempt to produce a document that would otherwise be of value to you.” The “document” attached to the email is a bundle comprising 205 pages of material. The Appellant did not indicate that the bundle was intended to be an appeal book. Further, he had been informed on 8 December 2023 that an appeal book would be prepared by Commission staff.

The Presiding Member of the first Full Bench conducted a Mention by video, on 22 March 2024, during which the Appellant outlined difficulties he continued to have in obtaining a medical certificate in relation to his capacity to progress his appeal. The bundle of material emailed to the Commission by the Appellant on 29 February 2024 was discussed at the Mention and the Presiding Member noted that it included material of the kind that would generally be provided in an appeal book. The material was not accepted as an appeal book. The material did not include the transcript of the first instance proceedings. However, the Commission’s file includes email correspondence to the effect that the Appellant requested transcript of the first instance proceedings and the Commissioner advised in response that he had not ordered a transcript and provided links for the parties to order a transcript at their own cost or an audio recording of the hearing at no cost. There is no record of the Appellant ordering the transcript or completing the form to obtain the audio recording of the hearing. At the Mention, the Appellant confirmed that pages 187 – 205 of the bundle were his submissions in the appeal and that the bundle contained all of the material he wished to put before the Full Bench in his appeal. Material in the bundle relevantly included:

A two-page document headed Australian Law School Super GPT in the form of a submission;
The Commissioner’s decision and order;
The digital hearing book;
The original Form F8 general protections application;
The Appellant’s original submissions in the first instance proceedings dealing with his application for a further period to lodge his general protections application;
A document that appears to be a response to the allegations that led the Appellant’s dismissal;
A report of an Independent Medical Examination (IME Report) referring to a psychiatric assessment by a Consultant Psychiatrist to determine the Appellant’s fitness for work, conducted on 7 March 2023 and dated 22 March 2023;
An email exchange between the Commission’s General Protections Team in relation to calculating the date by which the Appellant was required to lodge his general protections application;
Email to Commissioner Ryan in relation to an honest mistake calculating time for lodgement and health issues;
Email to the Appellant dated 11 May 2023 attaching a letter outlining proposed disciplinary action and an opportunity to respond, advising of suspension, and confirming Appellant’s preference to receive correspondence by email;
Email to the Appellant dated 23 May 2023, 4.10 pm, attaching Notice of Termination and related correspondence preceding termination notice;
A tabular summary of email exchanges between the Appellant and the Respondent in the period preceding the termination of employment and response period, including emails between the Appellant and his Community and Public Sector Union (CPSU) representative; and
Email to the Appellant from Mr Steven Wright of 25 May 2023 referring to the date of notification of termination as 24 May 2023.

Despite confirming that the bundle was all the material he was relying on in the appeal, the Appellant stated at the Mention that there was other material he thought he would like to include. The Presiding Member of the first Full Bench reiterated the earlier advice provided by email, to the effect that if the Appellant sought to place evidence before the Full Bench that was not before the Commissioner at first instance, he would need to satisfy the Full Bench that the principles relevant to the exercise of the discretion to introduce new evidence applied. Further Directions were issued by the Presiding Member requiring the Appellant to file and serve an outline addressing any remaining submissions he wished to advance, in addition to those set out in the document he filed and served on 29 February 2024. Those submissions were required to be filed with the Commission and served on the Respondent, by Friday 12 April 2024. On 15 April 2024, outside the time required in the Directions issued by the Presiding Member of the first Full Bench, the Appellant filed several additional documents and a submission concerning those documents.

The appeal was subsequently allocated to this Full Bench. We conducted a hearing by video link on 15 May 2024. The Appellant was self-represented. The Respondent was represented by the ACT Government Solicitor, and the lawyers appearing for the Respondent are its employees. The Appellant objected to the Respondent being granted permission to be represented by lawyers. Permission for the Respondent to be legally represented was not required on the basis that the Respondent is taken not to be represented by lawyers in circumstances where the lawyers are employees of the Respondent.

During the hearing of the appeal the Full Bench was alerted to the fact that the appeal book had not been sent to the parties, when we were informed by the Respondent’s representative that no appeal book had been received. The hearing proceeded on the basis that both parties had copies of the bundle of documents filed by the Appellant on 29 February and it was treated as an appeal book on the basis that the bundle was provided to the Respondent on 29 February 2024, and the Respondent had formulated its submissions in response to the Appellant’s submissions, which are included in the bundle at pages 197 – 205. The email relied on by the Appellant in support of his contention that he was confused about the date of his dismissal is contained in the bundle and was also tendered by both parties in the proceedings at first instance. Other documents relevant to the appeal are also in the bundle or were tendered by the parties in the first instance hearing. We have considered all this material in the appeal.

For reasons that follow, we have decided to refuse permission to appeal.

The Decision

The Commissioner commenced his consideration by noting that the Appellant’s Form F8 application stated he was notified of his dismissal on 23 May 2023, that it took effect on that date and that the application was made at 11.35 pm on 14 June 2023, one day outside the time required by s. 366(1) of the FW Act. After setting out s. 366(2) and outlining relevant case law in relation to the meaning of “exceptional circumstances”, the Commissioner considered the matter in s. 366(a) – reason for the delay.

In relation to this matter, the Commissioner noted the Appellant’s concession that he made an honest mistake in calculating the 21-day period by counting the day following the day his dismissal took effect as “day zero”, resulting in the application being made 22 days after the dismissal took effect. The Commissioner observed that it is well established that lack of knowledge, ignorance or miscalculation is not an acceptable explanation weighing in favour of a conclusion that there were exceptional circumstances.

Next the Commissioner noted the Appellant’s evidence that “the miscalculation was a consequence of medical incapacity, exacerbated by his dismissal and an ongoing personal matter” and that “collectively these matters had the effect of impairing his cognitive function” with respect to calculating the date by which the application was required to be made.[4] The Appellant’s evidence about the personal matter was that in March 2023, following the breakdown of a domestic relationship, the Australian Capital Territory’s Child and Youth Protection Services placed his children into a kinship care arrangement. The Appellant also said that he was experiencing financial difficulties after his dismissal and that he required assistance from his father to pay the fee for lodging his application, which also contributed to the delay.[5]

At paragraph [21], the Commissioner referred to a summary of the legal principles relevant to reasons for delay of the kind described by the Appellant, which were distilled by Deputy President Easton into the following principles in Blanco v White Bathroom Co Pty Ltd[6] (Blanco):
(i)stress, shock, confusion and similar conditions are not exceptional circumstances in and of themselves;[7]
(ii)depressive illness might point towards exceptional circumstance if the illness had a material impact upon the applicant’s capacity to lodge the application within the statutory time limit;[8]
(iii)the evidence should positively demonstrate that the Applicant’s depressive illness had an impact on their mental capacity so as to prevent the lodging of the application within the 21-day time frame;[9] (per Beard, Underwood and Merhi); and
(iv)an applicant’s self-assessment of their alleged psychological incapacity is unlikely to be sufficient.[10]
In relation to the Appellant’s depressive illness, the Commissioner considered an IME Report tendered by the Appellant. The IME Report was dated 22 March 2023 and written by a consultant psychiatrist based on a medical assessment of the Appellant conducted on 7 March 2023.[11] The Commissioner noted that the IME was undertaken to assess the Appellant’s fitness to return to work after a period of personal leave which had commenced on 22 December 2022. At paragraphs [24] – [26] of the Decision, the Commissioner observed:

“[24]       While the IME Report states that the Applicant has a major depressive illness (in partial remission) and persisting anxiety and related concerns regarding family stressors that may impact his capacity to complete his duties, the IME Report concludes that the Applicant is able to perform his usual duties on restricted hours. The IME Report also records that the Applicant is independent and able to perform a range of domestic and personal activities.
[25]       Consistent with the conclusions reached by Dr Chambers, the Applicant returned to work on 9 May 2023.
[26]       Although the medical assessment was undertaken over two months prior to the Applicant’s dismissal, to the extent that the Applicant relies on the IME Report in support of his application for an extension of time, it does not positively demonstrate that his mental health condition was such to prevent the lodging of the Application within the 21 day time frame. To the contrary, it concludes that he was fit to return to work and go about his daily activities.”

The Commissioner also considered the Appellant’s assertion that he was experiencing flu symptoms within the 21-day period and was of the view that the Appellant did not adduce any evidence of when those symptoms were experienced or demonstrating that he was incapacitated such as to prevent the filing of the application. Whilst noting that the personal matters involving the Appellant’s children were stressful, the Commissioner said that the contention that the miscalculation of the 21-day period was a result of the Appellant’s medical conditions was based on the Appellant’s own assessment rather than medical evidence demonstrating such incapacity.

The Commissioner concluded that medical incapacity was not a reasonable explanation for the delay, in the absence of medical evidence indicating that the Appellant was incapacitated to the point he was unable to lodge his application within the required time, and this weighed against a conclusion that there were exceptional circumstances. In addition, the Commissioner was of the view that the explanation of financial difficulties was not an acceptable reason for the delay as it went no higher than the Appellant requesting his father to assist him by paying the application fee and that his father would likely have assisted in any event had the request been made at an earlier date.

In relation to the actions taken by the Appellant to dispute the dismissal – s. 366(2)(b) – the Commissioner found that it was clear that the Respondent was put on notice through email correspondence sent by the Appellant that he would be seeking reinstatement and compensation. This circumstance, in the Commissioner’s view, weighed in favour of a conclusion that there were exceptional circumstances.

In relation to prejudice to the employer if an extension of time is granted – s. 366(2)(c) – the Commissioner considered this to be a neutral consideration on the basis that no submission was advanced indicating that the employer would be prejudiced, and no such prejudice was able to be identified by the Commissioner.

As to the merits of the application – s. 366(2)(d) – the Commissioner said that the application turned on contested facts which would need to be tested at a hearing and it was not possible at that stage to make any firm or detailed assessment of the merits. The Commissioner considered this to be a neutral consideration.

In relation to fairness as between the person and other persons in a similar position – s. 366(2)(e) – the Commissioner said that there have been numerous decisions of the Commission refusing an extension of time in circumstances where there is a failure to provide medical evidence demonstrating that a medical condition had a material impact on a person’s capacity to file the application within time. Adopting that position as to fairness between the Appellant and other persons relying on medical incapacity, this factor did not weigh in favour of a conclusion that there were exceptional circumstances.

The Commissioner concluded that having regard to the matters in s. 366(2) and all the matters raised by the Appellant, he was not satisfied that there were exceptional circumstances. The application was accordingly dismissed.

Grounds of appeal and submissions

The grounds of appeal as outlined in the Notice of appeal are as follows:

“Incorrect calculation of the 21-day period for lodging an application, based on the Fair Work Act’s guidelines on the effective communication date of dismissal.

Relevant Sections of the Fair Work Act:
Section 117: Regarding notice of termination requirements.
Section 394: Pertaining to unfair dismissal applications and the 21-day period.
1. My termination notice was emailed by Ms. Alana Lundy to my personal Gmail account at approximately 16:00 on May 23, 2023. There was no clear indication before or after it was sent that a decision had been arrived at, I was otherwise left without any notice.
2. Email logs show that this email was not opened until approximately 09:44 AM on May 24, 2023. Therefore, the effective date of communication and awareness of my termination should be considered May 24, 2023. See attachment for logs as evidence: A
3. Calculation of the 21-Day Period: According to the Fair Work Act, the 21-day period for lodging an application does not include the date the dismissal took effect. This implies that the first day of the 21-day period is the day following the effective dismissal date. Thus, in my case, the 21-day period should start from May 25, 2023.
4. Deadline for Application: Based on the above calculation, my application falls within the 21-day window, making it timely and valid according to the legal requirements of the Fair Work Act.”

In his written submissions for the appeal, the Appellant raised what appears to be a further ground based on an email sent to him by Mr Steven Wright, Executive Branch Manager, People and Capability, CMTEDD Corporate, at 3.10 pm on 25 May 2023, in the following terms:

“Dear Mr Humphries,
I refer to the numerous emails you sent Ms Lundy and myself after you were notified on 24 May of the decision to terminate your employment. The termination notice advised you of appeal rights and ongoing access to the Employee Assistance Program.
Having taken this decision, the directorate does not intend to respond to your individual emails on this matter. We encourage you to seek support through the CPSU should you wish to exercise your appeal rights. (emphasis added)”

In his written submissions the Appellant articulated this ground of appeal as “Steven Wright’s email a source of confusion”, stating that:
“Steven Wright's email, asserting that the appellant was notified on 24 May 2023, created substantial ambiguity. This document argues that the email substantiates the appellant's confusion, warranting a re-evaluation of when the 21-day period for lodging an unfair dismissal application should begin.”
The Appellant also sought in his written submissions to advance an appeal ground based on the weight the Commissioner gave to the matters in s. 366(2), specifically the finding under s. 366(2)(c) that that there was no identifiable prejudice to the employer if the extension was granted and the finding under s. 366(2)(d) in relation to the merits of his case. The Appellant contends that both considerations should have weighed in his favour, and instead were considered neutral.

Permission to appeal

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.[12] There is no right to appeal, and an appeal may only be made with the permission of the Commission. By virtue of s. 604(2), without limiting when the Commission may grant permission, the Commission must grant permission if satisfied that it is in the public interest to do so.

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.[13] 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.[14] Some of the grounds justifying the grant of permission to appeal include that the decision is attended with sufficient doubt to warrant its reconsideration; and that substantial injustice may result if leave is refused.

The task of assessing whether the public interest test is met is discretionary and involves a broad value judgment.[15] The public interest might be attracted where:

·     a matter raises issues of importance and general application;
·     there is a diversity of decisions at first instance so that guidance from an appellate court is required;
·     the decision at first instance manifests an injustice;
·     the result is counter intuitive; or
·     the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters.[16]

In relation to extensions of time to lodge applications under s. 366(2) of the FW Act, the test of “exceptional circumstances” establishes a “high hurdle” for an applicant. It is also the case that a decision as to whether to extend time under s. 366(2) involves the exercise of a broad discretion.[17] It will therefore be necessary in an application for permission to appeal against a decision made under s. 366(2), to demonstrate that there is an arguable case that there was appealable error in the exercise of the discretion. This will require the identification of error of the type described in House v The King[18] – that the decision-maker has acted on a wrong principle, has mistaken the facts, has taken into account an irrelevant consideration or failed to take into account a relevant consideration, or has made a decision which is unreasonable or manifestly unjust.

Appellant’s submissions

In his written submissions the Appellant said that:

The decision to refuse an extension of time was based on several considerations under s. 366(2), notably ss. 366(2)(c) and (d).
The Commissioner identified no prejudice to the employer if an extension were granted but deemed this a neutral factor when it should have tilted the balance in favour of an extension.
The Commissioner found it impossible to assess the merits and treated this as a neutral factor when inability to assess merits without further examination should arguably weigh in favour of granting an extension, as this acknowledges the existence of substantive issues worth exploring.
The decision of the Commissioner, while strictly interpreting s. 366(2) of the FW Act, fails to adequately account for the absence of prejudice and unexplored merits.

The grounds of appeal raise a contention that the date on which the dismissal took effect was 24 May 2023 rather than 23 May 2023. The premise of this contention is that the Appellant only became aware of his dismissal on 24 May when he opened the email from the Respondent attaching the letter of termination. In support of this ground of appeal, the Appellant cited the decision of a Full Bench of the Commission in Ayub v NSW Trains[19] as authority for the proposition that a dismissal becomes effective only upon the employee becoming aware of the dismissal or having a reasonable opportunity to become aware of it.[20] If the Appellant’s contention is correct, and his dismissal did not take effect until 24 May 2023, his application would have been filed within 21 days and he would not require a further period in which to lodge it.

In relation to Mr Wright’s email, said to be “a source of confusion” the Appellant also referred to Ayub. In this regard, the Appellant said that Mr Wright’s email “implies notification of termination on 24 May 2023”, directly impacting his perception of the termination timeline and the commencement of the 21-day period.

The letter advising the Appellant of the termination of his employment was dated 23 May 2023 and informed the Appellant inter alia that the Appellant’s employment with the Respondent was to be terminated with immediate effect. The letter was signed by Ms Alana Lundy, Executive Branch Manager, and was attached to an email sent to the Appellant at 4:10 pm on 23 May 2023.[21] In his Notice of appeal the Appellant referred to “email logs”, which were said to be “Attachment A” and to show that the email of 23 May 2023, was not opened by the Appellant until approximately 9:44 am on 24 May 2023. There were no attachments to the Notice of appeal.

At the hearing of the appeal, the Appellant made oral submissions in which he said that his dismissal was not carried out as would be expected, he was not invited for a formal separation meeting and was not advised either in person or by telephone that he was dismissed or required to sign a document confirming his understanding. The Appellant also queried whether the Respondent had been notified by its email system as to whether he had opened and read the email notifying him of his dismissal. Further, the Appellant said that in his circumstances, where the Respondent knew that he had significant issues impacting his mental health, the “usual processes around termination” should be followed. The Appellant went on to submit that his numerous responses to the email notifying of his dismissal were sent on 24 May 2023 and made it “fairly clear” that he had woken up at about 10.00 am on that day to find that it had been determined that his employment was to be terminated, and he responded accordingly.[22]

In relation to the email logs referred to in the Notice of appeal, we asked the Appellant at the hearing to identify and take us to that document as it was not attached to his Notice of appeal or included in any material filed by the Appellant in the appeal. Representatives for the Respondent also confirmed that they were unable to identify that attachment.[23] In relation to this matter, the Appellant said:

“Okay. Look, if I did not attach it I certainly have a record of that elsewhere, but it was – it was very specific in that. The detail was correct. You’re correct, it was 9.44 am.
However, that evidence – I can't rely – it's not able to be relied upon, because it's actually false. I tested that evidence again a couple of weeks, or maybe a month or two later, just for whatever reason, and it came back with a different result, and it was – yes, it was a very distressing realisation that, you know, I was otherwise – you know, I was granted this Full Bench appeal, and I felt that it was – yes, I had no choice but to otherwise advise that I don't believe that the evidence I'm relying upon is valid, and therefore I don't know if it makes any difference that it's not there at this point in time.”[24]

In response to our questions as to whether the Appellant advanced any argument before the Commissioner to the effect that he did not open the email notifying him of his dismissal until the day after it was sent, that he did not assert that he was misled by Mr Wright’s email into thinking that his dismissal took effect on 24 May 2023, or that he was confused by that email as to the date his dismissal took effect. The Appellant was unable to confirm when he read the email from Mr Wright, or when the confusion about the date his dismissal took effect said to have been caused by the email, occurred. In relation to this matter, the Appellant had the following exchange with the Full Bench:

“MR HUMPHRIES: I did not identify that email because it just wasn't something that I looked at until I was afforded the – you know, the appeal, the last appeal and it was there.
So you didn't look at that email until the hearing before Commissioner Ryan?
MR HUMPHRIES: Well - - -
Is that what you're saying?
MR HUMPHRIES: Yes, that's my – I did not see that email, I did not note that particular date. It's on the one email from him because I didn't read that closely and it would have skipped past my eyes at that time but, yes.
Okay. So you didn't read it prior to filing your application in the Commission? You only read it once you got to the hearing?
MR HUMPHRIES: There was a lot of emails and I was more focused on the other aspects and I didn't – that whole notion that I was somehow – yes, that it was the 24th, it was not something I was looking for and ---
Mr Humphries, I'm simply asking you to confirm that you did not read that email until after you had filed your unfair – sorry, your general protections application?
MR HUMPHRIES: No, that's not true, because the – I believe I stopped responding after that email from Mr Wright so I must have read it at some point. I would have received it, opened it, read it. So whether I submitted it as part of an evidence brief of material, no, I didn't. I guess I relied on the respondent to actually include that as part of all the emails that were tendered or supposed to be tendered; all the documentary, all the evidence, all the material was in my – in my mind ---
Mr Humphries, I'm not being critical of you for not filing the email. As I understand it, you have agreed with – you've answered a question that Deputy President Saunders put to you, which was that that email you did not rely on that in the hearing before Commissioner Ryan to argue that it had confused you about the date of the termination of your employment.
MR HUMPHRIES: I wasn't – at that time I was still of the belief that somehow my mental stress that I was under with my children and everything like that had somehow caused this – some anomaly, some sort of situation where I – I mean, I'm honest enough to be able to acknowledge that from time to time I might not be across every detail that comes in front of me and if there was ever a time for me to miss something like that it would have been probably at that time. It was a very stressful time to have to – yes, prepare myself to appeal something that has – had very little prospect of – yes, I just didn't know. I did not present it as a reason for – I wasn't aware of it as existing as a reason that could otherwise explain something that I still did not quite understand and probably never will.”[25]

Respondent’s Submissions

The Respondent submitted that permission to appeal, or alternatively the appeal, should be refused as it was open to the Commissioner to reach the decision as he did, and no error can be identified in his decision. There is otherwise no reason for permission to appeal to be granted and the further material provided by the Appellant does not change this position.

The Respondent submitted that the test for granting an extension of time involves a broad discretion and a “high hurdle” of exceptional circumstances. It is a test for which decision makers can appropriately place greater or lesser reliance on the same factors. No error can be identified in the Commissioner’s reasoning in relation to each of the factors to be considered in determining whether the Commission will grant an extension of time.

In relation to the reason for the delay, the Respondent submitted that there is no error in how the Commissioner approached this factor. The Commissioner considered a summary of the authorities in Blanco which led to an assessment of whether the evidence in fact provided a justification for the delay. The Commissioner also held that the Appellant’s asserted financial difficulties did not provide an acceptable or reasonable explanation for the delay. The Respondent said that support for the Commissioner’s approach is seen in Full Bench appeals as exemplified by two authorities. In Singh v TSA Group[26], the Full Bench dismissed an appeal against an extension of time decision. In that matter, the application was dismissed where the appellant’s claimed reasons for delay included that he was “depressed, stressed, anxious and mentally unwell”, and “had no money and was in financial distress”, but failed to provide evidence of those matters. In Arch v Insurance Group Services Pty Limited[27], an appeal was upheld, and an extension of time granted, where the appellant put forward reasons including the state of their mental health at the relevant time, which was supported by medical evidence specifically directed at the appellant’s capacity to make an application at the relevant time. In the present matter, the Respondent said it was open to the Commissioner to find that the evidence did not directly address the Appellant’s claimed incapacity to make an application in time, and therefore weighed against the conclusion that there were exceptional circumstances.

The Commissioner found that the Appellant had taken action to dispute the dismissal, and this weighed in favour of a conclusion there were exceptional circumstances. The Respondent submitted that this finding was open to the Commissioner, and it was also open to the Commissioner to weigh the relevant factors such that a further period was ultimately not granted. In relation to the prejudice to the employer, the Commissioner held this was a neutral consideration as neither party submitted that the Respondent would be prejudiced, and the Commissioner could not identify any prejudice that would result. The Respondent submitted that the Commissioner was entitled to make that finding, which was appropriate in the circumstances.

As to the merits of the application, the Commissioner held that this was a neutral consideration given the contested points of fact leading to a situation where it was not possible to make a firm or detailed assessment of the merits. While the Respondent maintains its view that the Appellant’s general protections application has little to no merits, it submitted that it was open to the Commissioner to find as he did for the purposes of s. 366 noting that no hearing of the evidence has occurred.

The Commissioner approached the fairness as between the Appellant and other persons in similar position by reference to the summary of authorities in Blanco, specifically the expectation that evidence be provided where medical incapacity is asserted, while also finding that cases of this kind generally turn on their own facts. The Commissioner ultimately found that this factor does not weigh in favour of a conclusion there are exceptional circumstances. The Respondent, noting Blanco and the authorities cited above, submitted that this finding was open to the Commissioner.

In respect of the Appellant’s reference to Mr Wright’s email of 24 May 2023 and reliance on the decision in Ayub in support of his proposition that the 21-day period be re-evaluated, the Respondent submitted that while this appears at first blush to be a legal submission, the submission indicates a substantial change in the Appellant’s position regarding his state of mind at the time of the first instance proceedings. At first instance the Appellant indicated in the Form F8 application that the date he was notified of the dismissal, and when it took effect, was 23 May 2023; stated that he was “not ignorant of the 21-day time limit” in written submissions; provided a calculation to the Commission in correspondence on the basis of 23 May 2023 being the dismissal date; and did not raise the confusion point at first instance even though Mr Wright’s email was before the Commission as Exhibit R1.

The Respondent submitted that the assertion to the effect that Mr Wright’s email caused the Appellant “confusion” is new evidence and a matter whereby leave is required for it to be admitted on appeal. In this regard, the Respondent submitted leave should not be granted because it was open to the Appellant to raise this issue at the first instance proceedings and the giving of this evidence at the appeal stage raises significant credibility concerns and specifically, it provides a strong inference that the evidence is a recent invention.

Consideration

The grounds set out by the Appellant in his Notice of appeal in relation to the date his dismissal took effect, depend on two assertions:

The Appellant did not open the email sent to him by Ms Lundy at 4.10 pm on 23 May 2023, notifying him of his dismissal until some time after 10.00 am (when the Appellant states that he awoke) on 24 May 2023.
He was confused as to the date his dismissal took effect by an email sent to him by Mr Steven Wright, Executive Branch Manager, People and Capability, CMTEDD Corporate, at 3.10 pm on 25 May 2023, stating that he had been notified on 24 May 2023 of the termination of his employment.

In support of the first assertion the Appellant relies on emails he sent to Ms Lundy and others commencing on the afternoon of 24 May 2023, in response to the 23 May email with some emails being copied to an official of the CPSU who had been assisting the Appellant prior to his dismissal. The Appellant states that the fact that he did not respond to the email advising of the termination of his employment until the day after it was sent, indicates that he did not open that email until 24 May 2023. The Appellant asserts that consistent with the Full Bench decision in Ayub, his dismissal did not take effect until it was communicated to him. Because he did not open the email advising that his employment was terminated until 24 May, his dismissal took effect on that date, so that his general protections application was not made outside the 21-day period required by s. 366(1) of the FW Act.

The emails relied on by the Appellant were contained in a bundle of documents tendered by the Respondent in the hearing at first instance and marked as Exhibit R1. The first email in the series was sent at 2.26 pm on 24 May 2023 and stated that the Appellant would be seeking reinstatement and compensation and made allegations that he had been bullied. The second email was sent at 2.29 pm and stated that the Appellant did not have any uniforms to return to the Respondent. At 2.34 pm the Appellant sent an email outlining his mental health issues, raising issues with the allegations against him and asserting that the investigation in relation to those allegations was biased. At 2.38 pm the Appellant sent an email in relation to being unable to find his reading glasses and asserting the investigation was biased. At 2.40 pm the Appellant sent a further email reminding Ms Lundy that he had been on reduced working hours. At 2.44 pm the Appellant sent an email stating that he was allowed to speak to the Camera (sic) Times about his situation. At 2.49 pm the Appellant sent an email asserting that he had been a victim of domestic violence and had received compensation for this and asserting that this issue was being used to justify a claim that he is mentally unwell and violent. At 3.07 pm the Appellant sent an email to the CPSU, raising what appear to be wages complaints. The email states “please note all of the above” and we infer that the Appellant forwarded to the CPSU other emails he had sent and received at that point including the email notifying him of his dismissal, which is in the chain of emails. At 3.11 pm the Appellant copied Ms Lundy into an email addressed to the CPSU, asking if he was allowed to speak to former colleagues and take the matter to the Canberra Times. At 3.26 pm the Appellant sent a further email addressed to the CPSU and copied to Ms Lundy, asking for details of a “the lawyer or law firm” and stating that: “Finally I get to fight this with my hands untied.” At 3.29 pm the Appellant again emailed the CPSU stating that he would need to subpoena people and seeking advice about preventing the Respondent from deleting emails and preventing staff from being directed not to talk to him. The Appellant states that the fact that he sent numerous emails on 24 May 2023 in response indicates that he did not open the email notifying him of his dismissal until that date. The Appellant continued to correspond with the CPSU on 25 May 2023 sending an email at 9.44 am in relation to his “fight back” beginning that day and that he was going to become more committed to fight the allegation or the investigation. The Appellant also sent emails to Ms Lundy and Mr Wright on 25 May 2023.

The email from Mr Wright said to have confused the Appellant about the date his dismissal took effect, was sent on 25 May 2023, in response to the Appellant’s emails. As we have noted, the email refers to numerous emails sent by the Appellant after on 24 May 2023 being notified of the decision to terminate his employment and advises that there will be no response to those emails.

Notwithstanding that the emails the Appellant relies on to support these assertions, were before the Commission in the first instance proceedings, the Appellant did not advance the contentions that he now advances in the appeal, and effectively sought to put further evidence to the Full Bench in the appeal. The Appellant contends that an inference should be drawn to the effect that the fact he commenced sending emails on 24 May in response to the dismissal email sent to him on 23 May is consistent with him waking at around 10.00 am on 24 May and reading the dismissal email at some time after he awoke. In relation to the email from Mr Wright, the Appellant contends that we should find that confusion caused by “the incorrect termination date” in the email is an explanation for the delay in lodging his general protections application.

Section 607(2) of the FW Act permits the Commission to admit further evidence and take into account any other information or evidence in an appeal brought pursuant to s. 604(1). However, the fact that the Commission has discretion to receive new evidence in an appeal is not an open invitation for an appellant, armed with the benefit of hindsight, to advance a different case on appeal, to cure deficiencies in the case at first instance.

Previous decisions of the Commission[28] have referred to the principles governing the discretion to admit new evidence or to consider further material in an appeal, which are set out in Akins v National Australia Bank[29] (Akins). In that case, the New South Wales Court of Appeal identified three conditions which need to be met before fresh evidence can be admitted in an appeal. These are firstly that it must be shown that the evidence could not have been obtained or adduced with reasonable diligence for use at first instance, secondly it must be evidence which is of such a high degree of probative value that there is a probability that there would have been a different result at first instance and thirdly the evidence must be credible.[30]

It has been recognised by the Commission that, in considering whether to exercise the discretion in s. 607(2), the principles in Akins need not be strictly applied, and in an appropriate case it is permissible to depart from those principles.[31] That said, it is rare for fresh evidence to be admitted on appeal where the conditions in Akins are not met.[32] In the present case, we are not satisfied that any of the conditions are met in relation to either of the new contentions that the Appellant raises in the appeal, nor are we satisfied that the Appellant’s case is an appropriate case in which to depart from those principles and exercise our discretion to admit new evidence in the appeal.

With respect to the first condition, the emails the Appellant relies on to establish that he did not open the 23 May email until 24 May, were before the Commission at first instance and did not need to be obtained. The emails were either sent to, or from, the Appellant and he had access to them before filing his general protections application and his material at first instance, and before the correspondence he exchanged with Commission staff in relation to whether his application was filed within the required period. During the first instance hearing the emails were sent to the Commission by the Appellant and the Commissioner received and considered them. The Appellant was taken to the emails and asked to identify them and clarify when they had been originally sent. During this discussion the Commissioner specifically referred to the emails as having been sent by the Appellant to various persons on 24 and 25 May. There is no reason why the evidence the Appellant now seeks to give in relation to the emails and the evidence he now seeks to give on this matter, could not have been adduced at first instance. At the very least, the Appellant could have made a submission at first instance about the inference he now asks us to draw based on the time he commenced sending emails in response to the dismissal email.

Similarly, the email of 25 May 2023 from Mr Wright now said by the Appellant to have confused him as to the date his dismissal took effect, was also before the Commission at first instance. The email was among a number of emails that the Commissioner allowed the Appellant to send to him during the hearing and was also tendered by the Respondent in a bundle marked as Exhibit R1. There is no reason why the Appellant could not have drawn the Commissioner’s attention to the email to advance his contention that he was confused because of the date set out in the email referring to the Appellant being notified of the dismissal which explained the delay in lodging his general protections application. The failure of the Appellant to refer to the emails at first instance, or to refer in his submissions to the inferences he now asks us to draw from them, is also a matter going to the question of whether the evidence is credible. This is a matter to which we will return.

Relevant to the second condition, we do not accept that the evidence the Appellant could have given about the emails would have had a high degree of probative value, sufficient to establish a probability that the inference he states should be drawn from the timing of the emails sent on 24 and 25 May 2023, and the contents of the email from Mr Wright to the Appellant received on 25 May, would have changed the outcome of the first instance proceedings. Our reasons for reaching these conclusions are as follows. The emails sent by the Appellant to various people on 24 and 25 May 2023 do not establish when the Appellant opened and read the termination email of 23 May. The emails referred to by the Appellant, establish only that the Appellant responded to the dismissal email of 23 May, over a two-day period from 24 to 25 May. The email of 23 May 2023 was a covering email for a letter and other attachments regarding Ms Lundy’s final decision in relation to the Appellant’s dismissal. The email confirms that the final decision is summary dismissal and states that the attachments include details of the Appellant’s final payment. The Appellant would have been aware of his summary dismissal simply by reading the email.

We also note that in an email sent to the CPSU (copied to Ms Lundy and Mr Wright) at 2.40 pm on 25 May 2023, with a subject line “Please consider everything that I send as it gives clarity to my situation over the last few years”, the Appellant stated that: “I have only started reading your judgment and I am finding there is so much to pick apart” and went on to include a segment from the termination letter attached to the 23 May email. Taken at its highest, this email indicates that on 25 May the Appellant had commenced reading the letter setting out the reasons for his dismissal which was sent to him by email on 23 May and does not confirm that he had not read the covering email sent with the letter when it was received on 23 May 2023.

It is also the case that prior to the email on 23 May advising of his dismissal, the Appellant was stood down without pay on 11 May 2023 and had received a “Notice of proposed disciplinary action” by email on that date. The Notice confirmed that the Appellant had advised the Respondent that email was his preferred mode of communication and requested that he confirm that contact details set out in the letter, including his personal email address, were correct. The Notice also states that the Appellant should be vigilant in monitoring his email and personal mobile telephone, to enable timely receipt of documentation. The Notice informed the Appellant that the Respondent proposed to terminate his employment and gave him 7 calendar days to respond to the proposed termination and the allegations on which the termination of his employment was based. As stated in the termination letter sent to him on 23 May 2023, the Appellant sent 31 emails in relation to the 11 May email with the last email being sent on 20 May, outside the deadline for his response. In those emails the Appellant expressed his desire to return to work and his anxiety about the outcome of the disciplinary process.

There is evidence that the Appellant was closely monitoring his emails to ensure he received the letter of 11 May 2023. The incident which led to his dismissal occurred on 9 May 2023. The Appellant emailed Ms Lundy at 9.07 pm on 10 May 2023 requesting news as to when an email would be sent in relation to the allegations about his conduct on 9 May and Ms Lundy replied at 9.12 pm advising the Appellant that he would receive the email during the day of 11 May and that he should not attend work before receiving and reading it. The Appellant responded by email at 9.25 pm, thanking Ms Lundy for her advice. The content and frequency of the emails from the Appellant both before and after his dismissal took effect, indicates that the Appellant was on notice from 11 May 2023, that the Respondent was considering whether to confirm its provisional view that his employment should be terminated. In these circumstances, it is improbable that the Appellant did not continue to monitor his emails after 11 May 2023 to learn of the outcome.

The decision of a Full Bench of the Commission in Ayub does not assist the Appellant. While it is true that Ayub generally confirmed that a dismissal does not take effect prior to it being communicated to the employee[33] the Full Bench in that case also said:

“[50] In a situation where an employee is informed by email that he or she has been dismissed, the employee can usually be regarded as knowing or having a reasonable opportunity to know of the dismissal when the email is received in the inbox of the employee’s usual email address. We note in this connection that s.14A of the Electronic Transactions Act 1999 (Cth) provides that an email is deemed to have taken place when the email becomes capable of being retrieved by the addressee at an email address designated by the addressee. There may be circumstances in which mere receipt of an email may not constitute a reasonable opportunity to become aware of a dismissal - for example when the employee has not read the email because of an incapacitating illness or is legitimately unable to access their email for other reasons. However a simple refusal to read an email would of course not operate to delay the date of effect of the dismissal.”[34]

The email sent to the Appellant at 4.10 pm on 23 May 2023, was capable of being retrieved at or around the time it was sent to an email address nominated by the Appellant and in accordance with his stated preference to be notified of matters related to the disciplinary action under contemplation by the Respondent. There is no evidence to establish that the Appellant was incapacitated by illness or legitimately unable to access his email for other reasons. To the contrary, the Appellant was able to send numerous emails immediately before and the day after the 23 May email was sent to him. We are satisfied that the Appellant had a reasonable opportunity to know, on 23 May 2023, that he had been dismissed by virtue of him receiving the email of 23 May 2023 and that the probability is that the outcome would not have changed had the Appellant raised this point at first instance.

The probative value of the email sent to the Appellant on 25 May 2023 stating that he was notified of his dismissal on 24 May, is also limited. Any confusion caused to the Appellant because of reading that email, can only be relevant to the question of whether the Appellant should be granted a further period to lodge his general protections application, if it arose before 14 June 2023 when the Appellant lodged the application. Any confusion suffered by the Appellant after that date can have had no impact on the application being lodged outside the required time. For the email to have probative value the Appellant would need to establish that he opened and read the email and was confused by its contents, before lodging his general protections application. Even if we accept the correctness and accuracy of all that the Appellant said in the appeal, we do not accept that there is credible evidence of the kind required by the third principle in Akins.

As the extract from the transcript of the appeal hearing we have set out above indicates, the Appellant did not establish the point at which confusion was said to have been caused by Mr Wright’s email, commenced, with sufficient particularity to justify the admission of new evidence on this matter. Based on the Appellant’s submissions at the appeal hearing, it is probable that he did not identify the inconsistency between the date his dismissal took effect stated in the termination letter and the date in Mr Wright’s email, until he was preparing his material for this appeal. The Appellant said in submissions to the Full Bench that he did not submit Mr Wright’s email as part of his evidence brief in the appeal. That statement is incorrect as the email is in the 205 page bundle sent to the Commission on 29 February 2024 by the Appellant. The Respondent also pointed to the fact that the email in question was tendered in the first instance proceedings in a bundle of emails marked as R1. The Appellant’s assertion in the appeal that he must have read the email before the hearing at first instance, does not support his submission on this point in the appeal.

In this regard, the Appellant said that the basis of his assertion that he must have read the email before the hearing at first instance, is that he stopped communicating with the Respondent before filing his general protections application. This establishes that the Appellant read the email at or around the time it was sent but does not establish that the email caused him to be confused about the date he was notified of his dismissal. For the email to be accepted into evidence, consistent with the principles in Akins, would require some indication that the Appellant raised the issue of his confusion about the effective date of his dismissal in the first instance proceedings, given that it was tendered by the Respondent in the first instanced proceedings and the issue of it not being reasonably available to him does not arise.

Weighing against the credibility of the Appellant’s contention that he did not read the dismissal email until the day after it was sent, and that he was confused by Mr Wright’s email, is the manner in which he conducted his case at first instance. Firstly, there was documentary evidence before the Commission that is entirely at odds with the new evidence that the Appellant seeks to call in the appeal, and indicates that the reason for the Appellant lodging his application outside the time required was a simple miscalculation. In the Form F8 general protections application lodged on 14 June 2023, the Appellant states that he was notified of his dismissal and that it took effect on 23 May 2023 and goes on to state that his application is being made within 21 days of that date. The Appellant makes no mention of any confusion about the accuracy of these statements. In the Form F8A response lodged in the Commission on 27 June 2023, the Respondent objected to the application on grounds including that it was lodged outside the time required – i.e. more than 21 days after the dismissal took effect. At that point, the Appellant had also received email correspondence from the Commission’s General Protections Team (GPT) advising that his application appeared to have been made outside the time required in s. 366(1)(a) of the Act.

On 4 July 2023 the Appellant corresponded with the GPT by email, in the following terms:

“Hello GPT -
I was dismissed on the 23 May 2023 and calculated within 21 days as I read the following:
The Fair Work Commission (the Commission) decides on cases of unfair dismissal. Employees need to apply to the Commission within 21 days of the dismissal taking effect. The 21 day period starts the day after the dismissal.26 Oct 2022

My calculations were as follows:
From May 24 to May 31 is 7 days.
Adding the 14 days of June (until June 14), we have an additional 14 days.
Therefore, there are a total of 21 days from May 24, 2023, to June 14, 2023.
Please let me know if I have missed anything? Otherwise I am trying to get clarification with regards to what is next.[35]

In an email reply sent to the Appellant on 4 July 2023, the GPT advised that the 21-day time frame for lodgement does not include the date the dismissal took effect and that day one commences the day following the dismissal. The email went on to inform the Appellant that as per his form F8 Application (at question 1.3) his dismissal took effect on 23 May 2023, his application was lodged on 14 June 2023, there are 22 days between 24 May and 14 June 2023 and his application was required to be filed on 13 June to be made in time.[36]

Secondly, consistent with the documentary evidence, the Appellant accepted in the first instance proceedings that he understood that he was required to lodge his application within 21 days and made an error in his calculations with respect to when the period began and ended. As the first instance decision records, the Appellant conceded that he made an honest mistake in counting the 21-day period by counting the day after his dismissal took effect as day zero. The Appellant also asserted that he was incapacitated by a medical condition and ongoing personal issues, to the extent that his cognitive function was impaired. The Appellant further asserted that the IME Report and his flu symptoms explained the delay in filing his application and that further delay was occasioned by his father being required to pay the filing fee for his application. The submissions of the Appellant at first instance as to the reasons for the delay in lodging his application make no reference to the Appellant not having opened the 23 May email until 24 May or that he was confused by Mr Wright’s email.

For these reasons, we do not accept the credibility of the evidence the Appellant seeks to rely on in support of the contentions that he was not aware that he had been dismissed until the day after the dismissal email was sent, or that he was confused by Mr Wright’s email of 25 May 2023. When the evidence in relation to these contentions is considered, it is more probable than not that in the process of preparing for the appeal, and armed with the benefit of hindsight, including an understanding about why his case in the first instance proceedings had not succeeded, the Appellant viewed the emails in a different light and reconstructed his argument in the appeal. We do not find that the Appellant is dishonest. Rather, we accept that his perception about when various events occurred has been clouded by difficult personal circumstances, which have affected his mental health at various times. Further, the Appellant accepted in the hearing before us that he was not misled or confused by the reference in Mr Wright’s email to his termination on 24 May 2023. Accordingly, we reject the four grounds set out in the Appellant’s Notice of appeal and the additional ground in the Appellant’s written submissions in the appeal relating to Mr Wright’s email of 25 May 2023.

The final ground of appeal advanced in the Appellant’s written submissions relates to the weight assigned by the Commissioner to the matters in s. 366(2) and can be dealt with in short compass. Section 366(2) of the Act requires that the Commission “take into account” the specified matters in the provision. It is well established that where a statute requires that a decision maker take various factors into account and does not indicate that weight to be given to those matters, it is generally for the decision maker to determine the appropriate weight to be given to each matter required to be considered. While it is open to an appeal bench to set aside a decision which has failed to give adequate weight to a relevant factor of great importance or to give excessive weight to a matter of no importance, the ground on which this is done is not the failure to take a relevant consideration into account, or the taking into account of irrelevant considerations. The preferred ground for a decision to be set aside is on the ground that it is manifestly unreasonable, which means that no reasonable person could have come to the decision.[37] It has also been said that failure to give “sufficient weight” to relevant matters may allow a conclusion that the exercise of the discretion miscarried.[38] This proposition has also been expressed in terms that:

“An appellate court will not disturb a discretionary judgment if it considers that insufficient weight has been given to a relevant consideration unless it “clearly” concludes that for that reason the discretion has been wrongly exercised.”[39]

The decision in the present case is far from unreasonable, and nor is there any basis to find that the Commissioner’s discretion in deciding whether to refuse a further period miscarried or that it was clearly wrongly exercised. It is apparent that the Commissioner considered each of the matters he was required to take into account and weighed them to reach a conclusion.

There is no basis to disturb the weight put on the factors identified by the Appellant. In relation to s. 366(2)(c) while prejudice to the employer will weigh against granting an extension of time, conversely, the mere absence of prejudice to the employer is an insufficient basis to grant an extension of time.[40] In some cases, the fact that an employer will be caused cost and inconvenience may weigh against a further period being granted. In Brodie-Hanns v MTV Publishing Ltd (Brodie-Hanns)[41] Marshall J had regard for the fact that the respondent was a small employer with two employees and reliant on subsidies to cover its costs and found that it should not lightly be put to the cost and inconvenience of defending an application out of time, “unless the interests of justice so dictate”, concluding that this weighed in favour of the respondent in that case. A further factor weighing in favour of the respondent in Brodie-Hanns was that delay may impact on recollections of the respondent’s officers concerning the events that led to the dismissal. In other cases, the fact that an employer will be put to the cost of defending an unfair dismissal claim may be viewed as neutral as the cost would be incurred regardless of an application being out of time, and the employer raises no contention of prejudice.

In the present case, that the Commissioner assigned a neutral weight to the consideration that there was no identifiable prejudice to the employer if the extension was granted, was an orthodox approach to weighing this matter and no error arises, much less an error that would justify a finding that the decision not to grant a further period is manifestly unreasonable or that the discretion miscarried. It is also well established that on an extension of time hearing, it will not be appropriate for the Commission to resolve contested issues of fact going to the ultimate merits for the purposes of taking into account the matter in s. 366(2)(d).[42]

As the Commissioner properly found, the substantive application turns on contested facts which would need to be tested at hearing, and it was not possible at that stage to make any firm or detailed assessment of merits. We agree with that assessment and the Commissioner was correct to ascribe neutral weight to this matter. Contrary to the Appellant’s submission, inability to assess merits does not acknowledge the existence of substantive issues worth exploring so that it weighs in favour of a further period to lodge an application being granted. There is no error on this basis.

Conclusion

It is not in the public interest to grant permission to appeal to allow the Appellant to conduct an entirely different case from that he conducted at first instance, in circumstances where much of the material on which he relies to do so was already before the Commission and the arguments were not advanced at first instance. For the reasons set out above, there is no proper basis upon which the new evidence the Appellant seeks to give in relation to that material should be accepted on appeal.

Further, even if the Appellant’s contentions are accepted, the material he relies on does not support the inferences he asserts should be drawn. Finally, the decision of the Commissioner discloses no appealable error. Accordingly, permission to appeal is refused.

VICE PRESIDENT

Appearances:

Mr C Humphries, the Appellant
ACT Government Solicitor, for the Respondent

Hearing details:

2024.
By Microsoft Teams:
15 May.

[1] [2023] FWC 2809 (Decision).

[2] PR767628.

[3] [1994] 34 NSWLR 155 at 160.

[4] Decision at [17].

[5] Decision at [20].

[6] [2021] FWC 4694.

[7] Shaw v ANZ Bank [2015] FWCFB 287 at [15].

[8] Roberts v Westech IT Solutions Pty Ltd [2014] FWCFB 4226; Beard v Valley Industries Limited (2020) FWC 4523 at [16]; Underwood v Terra Firma Pty Ltd T/A Terra Firma Business Consulting [2015] FWCFB 3435 at [15] – [16].

[9] Beard v Valley Industries Limited op. cit. at [16]; Underwood v Terra Firma Pty Ltd op. cit. at [15];-[16] Mehri v Commonwealth of Australia, represented by Services Australia (formerly the Department of Human Services) [2020] FWCFB 3523 at [8], [37] – [39].

[10] Underwood v Terra Firma Pty Ltd op. cit. at [15] – [16].

[11] Exhibit A3 in the proceedings before the Commissioner Appeal Book pages 104 – 115.

[12] This is so because on appeal the Commission has power to receive further evidence, pursuant to s.607(2); see Coal and Allied v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.

[13] Wan v AIRC (2001) 116 FCR 481 at [30].

[14] 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] FWCFB1663, 241 IR 177 at [28].

[15] O’Sullivan v Farrer (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch (2011) 243 CLR 506 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54, 192 FCR 78, 207 IR 177 at [44]-[46].

[16] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343, 197 IR 266 at [24] – [27].

[17] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288 at [21].

[18] (1936) 55 CLR 499 at 505.

[19] [2016] FWCFB 5500.

[20] Bundle of Documents filed by the Appellant on 29 February 2024 at p. 190.

[21] Bundle of Documents filed by the Appellant on 29 February 2024 at pp. 92 – 97; First Instance Digital Hearing Book at pp. 80 – 85.

[22] Transcript of appeal hearing on 15 May 2024 at PN19.

[23] Transcript of appeal hearing on 15 May 2024 at PN40.

[24] Transcript of appeal hearing on 15 May 2024 at PN42 – PN43.

[25] Transcript of appeal hearing on 15 May 2024 at PN117 – PN127.

[26] [2020] FWCFB 553.

[27] [2020] FWCFB 601.

[28] See for example Max Vincent v Roof Safe Pty Limited[2023] FWCFB 182, [27]; Levin v Douglas and Mann Pty Ltd (T/A Histopath Diagnostic Specialists) [2022] FWCFB 39, [17]; C Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 [21]; Perry v Rio Tinto Shipping Pty Ltd [2016] FWCFB 6963, [11].

[29] (1994) 34 NSWLR 155.

[30] Ibid, 160.

[31] J.J. Richards & Sons Pty Ltd v Transport Workers’ Union of Australia [2010] FWAFB 9963, [95].

[32] JJ Richards & Sons Pty Ltd v Transport Workers’ Union of Australia[2010] FWAFB 9963, [95]; Mermaid Marine Vessel Operations Pty Ltd v Maritime Union of Australia; [2014] FWCFB 1317, [17]; C Ozsoy v Monstamac Industries Pty Ltd[2014] FWCFB 2149, [21]-[25]; Perry v Rio Tinto Shipping Pty Ltd [2016] FWCFB 6963, [11]; Max Vincent v Roof Safe Pty Limited[2023] FWCFB 182, [27]

[33] Ayub op. cit. at [35].

[34] Ibid at [50].

[35] Appellant’s bundle of documents filed on 29 February 2024 page 51 of 205.

[36] Ibid at page 50 of 205.

[37] Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986 – 87) 162 CLR 24 at 41 per Mason J.

[38] Lovell v Lovell (1950) 81 CLR 513 at 533; Australian Coal and Shale Employees’ Federation v Commonwealth (1953) 94 CLR 621 at 627, per Kitto J.

[39] Waters v Commonwealth (Australian Taxation Office) (2015) 108 ACSR 445; [2015] FCAFC 46 at [60] per Katzman J with whom North J agreed.

[40] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 300.

[41] (1995) 67 IR 298.

[42] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [36].

Printed by authority of the Commonwealth Government Printer