Chuen-Tat Kang v The Council of Swinburne University of Technology T/A Swinburne University of Technology
[2013] FWCFB 5743
•14 AUGUST 2013
[2013] FWCFB 5743 |
FAIR WORK COMMISSION |
REASONS FOR DECISION |
Fair Work Act 2009
s.604—Appeal of decision
v
The Council of Swinburne University of Technology T/A Swinburne University of Technology
(C2012/2179)
VICE PRESIDENT LAWLER | |
Appeal - extension of time to institute appeal – no matter of principle.
[1] This is an edited version of reasons for decision given ex tempore on 15 February 2012.
[2] This is an application for an extension of time within which to institute an appeal against a decision of Gooley C given on 3 June 2010, dismissing an application by the present appellant pursuant to section 773 of the Fair Work Act 2009 (FW Act).
[3] The right of appeal with permission is conferred by s.604 of the FW Act:
“604 Appeal of decisions
(1) A person who is aggrieved by a decision:
(a) made by FWA (other than a decision of a Full Bench or the Minimum Wage Panel); or
(b) made by the General Manager (including a delegate of the General Manager) under the Fair Work (Registered Organisations) Act 2009;
may appeal the decision, with the permission of FWA.
(2) Without limiting when FWA may grant permission, FWA must grant permission if FWA is satisfied that it is in the public interest to do so.
Note: Subsection (2) does not apply in relation to an application for an unfair dismissal (see section 400).
(3) A person may appeal the decision by applying to FWA.
[4] Sub rule 12.3 of the Fair Work Australia Rules 2010 prescribes a time limit for filing a notice of appeal.
“12.3 An appeal must be instituted:
(a) within 21 days after the date of the award, order or decision appealed against; or
(b) on application to FWA — within such further time as is allowed.
[5] Mr Kang, the appellant, was a PhD student at Swinburne University. His PhD candidature and a scholarship associated with it were terminated in 2006. On 28 June 2006, he filed an application for an unfair dismissal remedy under the Workplace Relations Act 1996.
[6] On 4 June 2006, after considering submissions on the papers, Lewin C dismissed the application for want of jurisdiction on the basis that Mr Kang was not an employee.
[7] There was no appeal brought against that decision. Some years later, in May 2010, the appellant filed an application under s.773 and the matter came before Gooley C. The application related to the same dismissal that was the subject of the 2006 unfair dismissal application. Gooley C dealt with this application on the papers and delivered a decision on 3 June 2010, in which she held that there was no valid application before her and dismissed the application. The applicant filed the present notice of appeal against that decision 9 January 2012.
[8] We have taken account of the written material which Mr Kang submitted and we have taken account of his further oral submissions at the appeal hearing. Turning to the present application for an extension of time within which to which to institute the appeal, we have considered the explanation for delay in bringing this present appeal some 18 months out of time and we are not persuaded that a proper explanation for that delay has been given. Nor are we persuaded that there is an arguable case that Gooley C erred in respect of the decision that she reached. There were, in any event, compelling discretionary factors against granting that application given the earlier decision by Lewin C in respect of which there was no appeal.
[9] We are not satisfied that an arguable case of error has been established on the written or oral submissions of the appellant and we are not satisfied that the balance of convenience and the reason for the delay justifies an extension of time and accordingly, we are required to refuse the application for an extension of time and we do so.
VICE PRESIDENT
Appearances:
C. Kang appearing on his own behalf
Hearing details:
2012.
Melbourne:
February 15.
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