Constantine Galigalis v The Group of Four Pty Ltd t/a Mazzaro Restaurant
[2015] FWCFB 391
•30 JANUARY 2015
| [2015] FWCFB 391 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
The Group of Four Pty Ltd t/a Mazzaro Restaurant
(C2014/8475)
JUSTICE ROSS, PRESIDENT | MELBOURNE, 30 JANUARY 2015 |
Appeal against Order [PR558887] of Deputy President Sams at Sydney on 10 December 2014 in matter number U2014/14701 - public interest not enlivened - permission to appeal refused.
[1] Constantine Galigalis (the appellant) was dismissed from his employment with The Group of Four Pty Ltd t/as Mazzaro Restaurant (the respondent) on 20 September 2014. He subsequently lodged an application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Cth) (the FW Act). The application was lodged in an incomplete form on 29 October 2014, and in a complete form on 3 November 2014.
[2] Under s.394(2) of the FW Act, an unfair dismissal remedy application must be made within 21 days after the dismissal took effect or within such further time as the Commission allows under s.394(3). Section 394(3) allows the Commission to allow a further period for the application to be made where it is satisfied that there are “exceptional circumstances” taking into account a number of specified matters. The appellant’s application was filed outside the 21-day time limit, and accordingly it was necessary for him to obtain an extension of time under s.394(3).
[3] On 10 December 2014 the appellant was notified that Deputy President Sams had decided, on the papers, that there were no exceptional circumstances within the meaning of s.394(3) and accordingly that his application was dismissed. The appellant was further informed that written reasons for this decision would be issued on request. A separate order dismissing the appellant’s application was issued by the Deputy President on the same day. 1 The appellant lodged a notice of appeal against the Deputy President’s decision on 31 December 2014 and that is the matter before us. The Deputy President issued his reasons for the decision of 10 December 2014 on 16 January 2015.2
[4] The decision subject to appeal was made under Part 3-2 – Unfair Dismissal – of the FW Act. Section 400(1) provides that permission to appeal must not be granted from such a decision unless the Commission considers that it is in the public interest to do so. Further, in such matters appeals on a question of fact may only be made on the ground that the decision involved a “significant error of fact” (s.400(2)). 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”. 3 The Commission must not grant permission to appeal unless it considers that it is “in the public interest to do so”.
[5] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment. 4 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.” 5
[6] 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. 6 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.7
[7] In his notice of appeal, the appellant has repeated the circumstances which he relied upon at first instance to support his application for an extension of time. This principally involved an allegation that he had made contact with the offices of “Fair Work Australia” and did not receive appropriate or timely advice about his rights. The appellant has also complained that, contrary to a statement in the Deputy President’s decision of 10 December 2014 that he had decided the matter on the papers because the applicant did not request a hearing, he had in fact sought a hearing, in that “Prior to my lodging an application for extension of time, I visited the Fair Work office in Sydney, to request such a hearing ... I was advised to prepare & submit an application in writing, as no-one would be able to facilitate a hearing in person”. The matters which the appellant has identified as making it in the public interest to grant permission to appeal are as follows:
“It is in the public interest as employers such as my previous employer cannot be allowed to act as they have in my particular case & in other cases and effectively get away with it, due to a timing technicality, which wasn’t caused by me.
This employer conducts themselves in questionable business practices, which are in the public interest for those practices to be exposed in the form of a hearing”. 8
[8] In his reasons for decision of 16 January 2015, the Deputy President summarised the principles applicable to applications for extension of time under s.394(3) by reference to the Full Bench decision in Nulty v Blue Star Group Pty Ltd. 9 The appellant does not challenge the Deputy President’s summary, and we consider it to be correct. The Deputy President then considered each of the matters required to be taken into account under s.394(3). In relation to the reason for the delay, the Deputy President said:
“[6] The applicant claimed that the reason for the delay in filing his application arose due to the timing of his receipt of material from ‘Fair Work Australia’. He had been advised to contact the respondent to require them to remedy the situation within 7 days. He had been advised to contact ‘Fair Work Australia’ again if the respondent did not do so. A week after this conversation with ‘Fair Work Australia’, he was sent the forms to complete and submit his application. This would appear to be advice from the Fair Work Ombudsman (FWO) rather than ‘Fair Work Australia’ or the Commission. It is unclear as to why it would take a week for FWA or FWO to send him the appropriate forms. The applicant did not claim any difficulty in accessing the relevant form from the Commission’s website or at the Commission’s premises.
[7] The applicant complained that he had not been advised, at any point, as to the 21 day statutory time limit. He had received the forms on or around the 20th day after he was dismissed and had physically attended the Sydney office of ‘FWA’ to lodge his application on what he said was the 22nd day. He claimed that this had been the earliest opportunity for him to do so.
[8] It is clear that the applicant was pursuing an underpayment claim through the Fair Work Ombudsman following his dismissal. I note that the email attached to his statement was from an officer of the Fair Work Ombudsman and provided advice on pursuing his claim in the Federal Circuit Court. However, none of these other applications ever represented any barrier to him simultaneously lodging an unfair dismissal application with the Commission within the 21 day statutory time limit.
[9] I am not persuaded that a delay in being provided with forms for unfair dismissal by the Fair Work Ombudsman or the Commission (this was not clear from the applicant’s submission) constituted an ‘exceptional circumstance’ within the meaning of s 394(3) of the Act. I note that the relevant Form F2 application is provided on the Commission’s website and extensive public guidance is provided as to the lodgement of an application. I have difficulty reconciling the applicant’s explanation with the dates he has provided.
[10] In any event, the applicant’s submission that he filed the application on the 22nd day after his dismissal is either disingenuous or misconceived, as the application was lodged, at the earliest, 18 days outside the statutory time limit.”
[9] In relation to the other s.394(3) matters, the Deputy President found that the appellant first became aware of the dismissal on 20 September 2014, that the actions he had taken in contacting and dealing with “Fair Work Australia” and in making an application to the Federal Circuit Court weighed against a finding of exceptional circumstances, that prejudice to the employer was a neutral factor, that the merits of the application were on a prima facie assessment not particularly strong, and there was no issue of fairness as between the appellant and another person in a similar position. The Deputy President then concluded:
“[18] Having considered all of the matters which the Commission is required to take account under s 394(3) of the Act, I am not satisfied that there are ‘exceptional circumstances’ which would warrant my granting an exception to the statutory time limit for the lodgement of this unfair dismissal application. The circumstances, as disclosed by the material submitted by the applicant, are not ‘out of the ordinary course, unusual, special or uncommon’. The application for an unfair dismissal remedy must be dismissed. I confirm my order of 10 December 2014.”
[10] We do not consider that the appellant has established any arguable case of error in the Decision. As the Deputy President’s reasons for decision disclose, he decided the matter in accordance with the requirements of s.394(3) and applicable Full Bench statements of principle. The findings which the Deputy President made concerning the reason for the delay, which appears to be the main issue agitated in the appeal, were reasonably available to be made on the material before him. Further, they are findings with which we agree. Likewise, the Deputy President’s overall conclusion that no exceptional circumstances had been demonstrated was one which was reasonably available.
[11] In relation to the appellant’s complaint that, contrary to the Deputy President’s statement in the 10 December 2014 decision, he had requested a hearing, we do not consider that any appealable error is apparent. There is no record on the Commission’s file of any such request having been made, and in any event it is clear that the appellant was not denied procedural fairness because he was able to put before the Commission a detailed written submission concerning his application for an extension of time which addressed each of the matters identified in s.394(3). The Deputy President was able to decide the extension of time application on the basis of that submission without requiring a response from the respondent. The appellant did not in his appeal submissions identify anything he would have said in addition to what was contained in his written submission if there had been a hearing.
[12] There is nothing else before us which we consider attracts the public interest in respect of this appeal. Accordingly permission to appeal is refused as required by s.400(1).
PRESIDENT
Appearances:
The Appellant: C. Galigalis on his own behalf
The Respondent: M. Moir of counsel on behalf of the respondent.
Hearing details:
Sydney
20 January 2015
1 PR558887
2 [2015] FWC 410
3 (2011) 192 FCR 78 at [43]
4 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, Crennon, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54 at [44] -[46].
5 (2010) 197 IR 266 at [27]
6 Wan v AIRC [2001] FCA 1803 at [30]
7 GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343 at [26]-[27]; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth[2010] FWAFB 10089 at [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler; [2011] FCAFC 54; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663 at [28]
8 Section 3.1 of the Form F7 - Notice of Appeal
9 [2011] FWAFB 975
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