Craig Fitzpatrick v T S & D E Cowcher Farms Pty Ltd T/A Derek Murray & Co

[2015] FWCFB 5119

[2015] FWCFB 5199

DECISION

Fair Work Act 2009
s.604 - Appeal of decisions
Craig Fitzpatrick
v
T S & D E Cowcher Farms Pty Ltd T/A Derek Murray & Co
(C2015/4122)
VICE PRESIDENT CATANZARITI
SENIOR DEPUTY PRESIDENT DRAKE
COMMISSIONER JOHNS	SYDNEY, 10 AUGUST 2015

Appeal against Order [PR567791] and a decision [2015] FWC 3600 of Deputy President

Gooley at Melbourne on 27 May 2015 in matter number U2015/1468.

Introduction

[1]        Craig Fitzpatrick has applied for permission to appeal an order issued by Deputy

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President Gooley on 27 May 2015 (Order). The effect of the Order was to refuse

Mr Fitzpatrick an extension of time to lodge an unfair dismissal remedy application under

s.394 of the Fair Work Act 2009 (FW Act) and to dismiss, pursuant to s.587(1)(a) of the FW

Act, the unfair dismissal remedy application which Mr Fitzpatrick had lodged on the basis

that it had not been made in accordance with the FW Act. The Deputy President published

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reasons for the decision embodied in the Order on 27 May 2015 (Decision).

[2] Section 394(2) of the FW Act requires an unfair dismissal remedy application to be

lodged within 21 days after the dismissal took effect or within such further period as the

Commission allows under s.394(3). Section 394(3) provides:

(3) The FWC may allow a further period for the application to be made by a person

under subsection (1) if the FWC is satisfied that there are exceptional circumstances,

taking into account:

(a) the reason for the delay; and

(b) whether the person first became aware of the dismissal after it had taken

effect; and

(c) any action taken by the person to dispute the dismissal; and

(d) prejudice to the employer (including prejudice caused by the delay); and

(e) the merits of the application; and

(f) fairness as between the person and other persons in a similar position.

[2015] FWCFB 5199

[3]        The factual background is as follows:

a) On 23 June 2014,Mr Fitzpatrickcommenced employment with T S & D E

Cowcher Farms Pty Ltd T/A Derek Murray & Co (Respondent) as a truck driver;

b)	On 27 January 2015, Mr Fitzpatrick was involved in an accident;
c)	The Respondent submitted that it terminated Mr Fitzpatrick’s employment on the

day of the accident (effectively summarily);

d) On 2 February 2015,Mr Fitzpatrick attended the worksite to complete the

paperwork;

e)	Mr Fitzpatrick submitted that 2 February 2015 was the effective date dismissal;
f)	On 24 February 2015, Mr Fitzpatrick completed a Form F8 application in respect

of a general protections claim (although Mr Fitzpatrick had attempted to file it the

day before but experienced difficulties with the Fair Work Commission’s on-line

payment gateway); and

g) On 1 April2015,Mr Fitzpatrickdiscontinued his general protections application

and lodged an application for an unfair dismissal remedy.

[4]        Only the general protections application was the closest to being filed in time, and

only if the effective date of termination was 2 February 2015. However, as observed above,

the Applicant discontinued the general protections application and then lodged an application

for an unfair dismissal remedy.

[5]        The only issue before the Deputy President was the unfair dismissal application. On

any analysis it was filed late, either:

a)	43 days late, if the effective date of termination was 27 February 2015; or
b)	37 days late, if the effective date of termination was 2 February 2015.

[6]        However, a reading of the decision suggests that the matter proceeded on the basis that

if the effective date of termination was 2 February 2015 then the Applicant should be granted

an extension of time because, he took action to dispute the dismissal (by filing a general

protections claim) and that application was made within the 21 day time limit. The Deputy

President noted that,

“Mr Fitzpatrick's general protection application clearly was based on an allegation that

his termination was unfair. It was his uncontested evidence that he always intended

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filing an unfair dismissal application. ”

[7]        The issue of what was the effective date of termination was a crucial question to be

determined. In the Decision, the Deputy President:

a) observed that “there was a dispute between the parties about when Mr Fitzpatrick

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was dismissed”	;
b)	set out the evidence of the Operations Manager, David Hand, who attended the

accident site on 27 January 2015. It was his evidence that he said to Mr Fitzpatrick

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“as a driver for Derek Murray and Co, you are no longer required”	;
c)	set out the evidence of the Respondent’s Director, Tim Cowcher, that on the night

of the accident or the next day he was told by Mr Hand that he (Mr Hand) “had

finished Mr Fitzpatrick up because there had been speed involved in the

[2015] FWCFB 5199

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accident”	;
d)	set out the evidence of the Applicant that,

i.       on 27 January 2015, at the accident site,

A. Mr Hand said to him “you are through here”

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B. he replied to Mr Hand “I know” ; and

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ii.       he did not understand that Mr Hand was terminating his employment;

e) noted that Mr Fitzpatrick “attended work on 2 February 2015 to complete the end

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of month paperwork”	; and
f)	made a finding that Mr Fitzpatrick’s employment was terminated on 27 January

2015. The Decision records the finding as follows;

“[20] I accept that Mr Hand terminated Mr Fitzpatrick’s employment on 27

January 2015. This is supported by Mr Hand’s note and Mr Cowcher’s evidence.

It is also supported by Mr Fitzpatrick's evidence.

[21] I do not accept that Mr Fitzpatrick did not understand that his

employment was terminated on that day. The accident occurred on 27 January

2015 which was Tuesday. Mr Fitzpatrick made no contact with his employer until

2 February 2015. This is not consistent with an understanding that he was still

employed.”

[8]        Having found that the effective date of termination was 27 January 2015, the Deputy

President treated the unfair dismissal application as having been lodged 42 days beyond the

21-day time limit prescribed by s.394(2)(a) and thereby requiring an extension of time to be

granted under s.394(3).

[9]        In the Decision, the Deputy President dealt with all the matters she was required by

s.394(3) of the FW Act to take into account.

[10]      In relation to the reason for the delay (s.394(3)(a)), the Deputy President noted that the

reasons for the delay advanced by Mr Fitzpatrick were that:

a) he “wanted to see if he was going to be paid entitlements” for making an

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application ;

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b) he “thought he had 28 days to lodge the application form” ;

c) he experienced difficulties when attempting to lodge the application because the

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Fair Work Commission “payment gateway … failed to accept credit cards”	;
d)	he was not told until 31 March 2015 “that he had submitted incorrect form for an

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unfair dismissal”;

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e) he “did not review the forms after he lodge them”;

[2015] FWCFB 5199

[11]      Having noted the reasons advanced by Mr Fitzpatrick, the Decision records that:

“[22] I accept that Mr Fitzpatrick at all times meant to lodge an unfair dismissal

application. His error in filing the wrong form explains part of the delay in lodging his

application. I do not accept the submission of Cowcher Farms that the technical

problem faced by Mr Fitzpatrick was not unusual. It is unusual for the Commission

website to refuse to accept the payment. Mr Fitzpatrick is entitled to rely on the

website to lodge his application.

[23]      I accept that Mr Fitzpatrick had a reasonable explanation for some of the

delay, but even if he had filed the correct form on 23 February 2015, he would not file

his application within 21 days of the dismissal taken effect. I have not accepted his

submission that he was not dismissed until 2 February 2015, this weighs against

extending time.”

[12]      In relation to when Mr Fitzpatrick first became aware of the dismissal after it had

taken effect (s.394(3)(b)), the Deputy President wrote “I have not accepted that Mr

Fitzpatrick was not aware of the dismissal until after it took effect. This weighs against

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extending time.”

[13]      In relation to whether Mr Fitzpatrick had taken any action to dispute the dismissal

(s.394(3)(c)), the Deputy President determined that she was,

“satisfied that Mr Fitzpatrick dispute the dismissal at the time…. Further, Mr

Fitzpatrick lodged a general protections claim. Cowcher Farms has been on notice

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that Mr Fitzpatrick disputed this dismissal. It weighs in favour of extending time.”

[14]      In relation to whether there was any prejudice to the employer (s.394(3)(d)), the

Deputy President noted that one of the people involved in matters relating to Mr Fitzpatrick’s

employment was no longer employed by the Respondent. Consequently, the Deputy President

accepted “that there will be prejudice to the employer and that weighs against an extension of

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time.”

[15]      In relation to the merits of the application (s.394(3)(e)), the Deputy President

determined that she was “not able to make any assessment of the merits as there are factual

disputes between the parties that have not been tested.” The Decision records this criterion

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“to be neutral”.

[16]      In relation to fairness between Mr Fitzpatrick and other persons in a similar position

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(s.394(3)(f)), the Deputy President notes that no submissions were made on this criterion.

[17] Having considered all of the matters required by the FW Act, the Deputy President

decided she:

“[33] [did] not consider that there are exceptional circumstances. Mr Fitzpatrick

does not have a reasonable explanation for the whole of the delay. Mr Fitzpatrick was

dismissed on 27 January 2015 and while some of the delay was caused by a failure of

the Commission’s website, even had he lodged his application on 23 February 2015,

he would still have not lodged it within 21 days of the date of the dismissal. This is not

[2015] FWCFB 5199

a case where the merits of the matter outweigh the lack of a reasonable explanation

for the whole of the delay. An extension of time will not be granted …”

[18]      The Deputy President dismissed the application.

Consideration

[19] This appeal is one to which s.400 of the FW Act applies. Section 400 provides:

(1) Despite subsection 604(2), the FWC must not grant permission to appeal from a

decision made by the FWC under this Part unless the FWC considers that it is in the

public interest to do so.

(2) Despite subsection 604(1), an appeal from a decision made by the FWC in relation

to a matter arising under this Part can only, to the extent that it is an appeal on a

question of fact, be made on the ground that the decision involved a significant error

of fact.

[20]      In the Federal Court Full Court decision in Coal & Allied Mining Services Pty Ltd v

Lawler and others, Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised

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the test under s.400(1) as “a stringent one.”

[21]      The task of assessing whether the public interest test is met is a discretionary one

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involving a broad value judgment . In GlaxoSmithKline Australia Pty Ltd v Makin

(GlaxoSmithKline), 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

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with similar matters.”

[22]      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

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of appealable error. However, the fact that the Member at first instance made an error is not

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necessarily a sufficient basis for the grant of permission to appeal.

Grounds of appeal

[23]      The first ground of appeal in Mr Fitzpatrick’s Notice of Appeal was described as a

significant error of fact. Mr Fitzpatrick submitted that the Deputy President was wrong to find

that the date of termination was 27 January 2015. Mr Fitzpatrick submitted that,

[2015] FWCFB 5199

“employees expect an employer to provide written notice of termination. In

acknowledging “you are through” an accident seen as being dismissed is totally

unconscionable.”

[24]      The Deputy President considered all of the evidence relating to the events on

27 January 2015. While the finding that Mr Fitzpatrick's employment was terminated on

27 January 2015 demonstrates that the termination of employment was effected summarily,

without notice (written or otherwise), and without any other formality, that does not mean that

the Deputy President fell into error by so finding. Mr Fitzpatrick’s complaint about the

manner of the dismissal does not establish that the dismissal did not occur on that day. The

manner of the dismissal might be considered unfair, but that does not invalidate the dismissal

having occurred on that day. Mr Fitzpatrick’s complaint in this regard relates to the merits of

his unfair dismissal application. Having heard the evidence, the Deputy President found that

she did not accept that Mr Fitzpatrick “did not understand that his employment was

terminated on that day.” Having had the benefit of seeing and hearing each of the witnesses

give their evidence, this was a finding open to the Deputy President. There is no merit in the

first ground of appeal.

[25]      The second ground of appeal in Mr Fitzpatrick’s Notice of Appeal was also

characterised as a significant error of fact. In the Decision the Deputy President recorded that,

“[8] Mr Fitzpatrick was injured in the accident and his doctor said he had no

capacity to work until 16 April 2015. No medical certificate was provided to the

Commission and there was no evidence that Mr Fitzpatrick contacted his employer

about this prior to the termination of his employment. Mr Fitzpatrick did not attend

work for the rest of the week”

[26]      Mr Fitzpatrick submitted that the finding that there was no contact with his employer

between 27 January 2015 and 2 February 2015 was an error. Mr Fitzpatrick pointed to

paragraph 4 in the witness statement before the Deputy President which stated that,

“On 28 January 2015 immediately after attending the doctors, I informed work of my

incapacity to work and suffering significant pain. My month-end paperwork was

mentioned and I replied that I'll do it Monday, 2 February 2015 which was an issue

and not at all abnormal.”

[27]      Mr Fitzpatrick also produced before the Deputy President records of telephone calls

that he made on 28 January 2015. Those records indicate that at 12 noon on 28 January 2015

the applicant called a mobile number and spoke for 1 minute and 19 seconds. Before this Full

Bench Mr Fitzpatrick submitted that,

“the phone call register clearly shows over a minute conversation between [me] and

Dave Wilkinson, a manager of Derek Murray & Co, this call was initiated by [me]

immediately after attending a doctor’s appointment. During this conversation [I]

informed Derek Murray & Co [I] was unfit work and [had] another doctor’s

appointment for 2 February 2015. At the time rangers are made to complete end of

month paperwork on the morning of to February 2015 for the doctor’s appointment.

Medical Certificate the attached from 28 January 2015.”

[28]      What is apparent from the submissions made before us is that Mr Fitzpatrick provided

a greater level of detail about the alleged telephone call on 28 January 2015 than he did before

the Deputy President. The person to whom Mr Fitzpatrick spoke to on 28 January 2015 was

not identified to the Deputy President. The phone number in the call register was not

identified in the evidence. The medical certificate was not provided before the Deputy

President.

[2015] FWCFB 5199

[29]      An appeal is not an opportunity to conduct, before a Full Bench, the case that the

appellant wishes they had conducted before the member at first instance.

[30]      In the present circumstances where:

a)	evidence about who Mr Fitzpatrick spoke to on 28 January 2015 was not provided;
b)	the phone numbers in the call register were not identified; and
c)	the medical certificate was not provided,

it is difficult to see how the Deputy President fell into error.

[31]      In any case, even if the evidence had been provided it would not have disturbed the

Deputy President’s finding that the termination of employment occurred on 27 January 2015.

That finding was based on the evidence of people involved in the events that occurred on that

day. Evidence of what happened on 28 January 2015 would not have disturbed that finding.

There is no merit in the second ground of appeal.

[32]      The third and fourth grounds of appeal in Mr Fitzpatrick’s Notice of Appeal were that

the Deputy President fell into error in the exercise of her discretion in relation to her finding

that Mr Fitzpatrick became aware of the termination of his employment and the date of

termination. Each of these grounds has no merit for the same reason as the first ground of

appeal. While Mr Fitzpatrick disagrees with the Deputy President’s finding that his

employment was terminated on 27 January 2015, it was open to the Deputy President to make

that finding and we see no reason to dislodge it.

[33]      The sixth ground of appeal has no merit for the same reason. In substance it was a

submission about why the Deputy President should have found that the dismissal occurred on

2 February 2015. It was an attempt to re-run the case before the Full Bench.

[34]      The fifth ground of appeal in Mr Fitzpatrick’s Notice of Appeal was that the

Deputy President was guided by irrelevant factors. However, it is apparent that the argument

advanced by Mr Fitzpatrick is one that goes to the merits of his unfair dismissal application.

The same can be said for the seventh and eighth grounds of appeal. For this reason there is no

merit in the fifth, seventh and eighth grounds of appeal.

[35]      In his Notice of Appeal, Mr Fitzpatrick sets out a number of reasons for asserting that

it is in the public interest for the Commission to grant permission for the appeal. In summary

those reasons are said to arise out of:

a)	the personal effect the termination of employment has had on him;
b)	risks to remaining employees of Derek Murray & Co.; and
c)	allegations of sham contracting and non-award compliance.

[36]      None of the above reasons fall within the GlaxoSmithKline categories of public

interest. As stated above, we do not consider that it is arguable that the Deputy President fell

into error in relation to the extension of time application on any of the grounds identified by

Mr Fitzpatrick.

[37]      Further, we are not satisfied that this matter:

a)	raises issues of importance and or general application;
b)	is in a class where there is a diversity of decisions at first instance so that guidance

from an appellate bench is required; or

c) is one 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.

[2015] FWCFB 5199

Conclusion

[38]      We are not persuaded that Mr Fitzpatrick has established that it is in the public interest

to grant permission to appeal. The Deputy President addressed the relevant statutory criteria

and we are not persuaded that there is an arguable case that the Decision or Order were

attended by any error of principle or any significant error of fact.

[39] As we have mentioned, s.400(1) provides that permission to appeal must not be

granted unless the Commission considers that it is in the public interest to do so. We do not

consider that it is in the public interest to grant permission to appeal and accordingly we

refuse permission to appeal.

VICE PRESIDENT

Appearances:

C. Fitzpatrick in person.

C. MacLeod, solicitor for the Respondent.

Hearing details:

2015.

Sydney:

June, 15.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR569869>

1

PR567791.

2

[2015] FWC 3600.

3

[2015] FWC 3600, at [15].

4

[2015] FWC 3600, at [6].

5

Ibid.

6

Ibid.

7

[2015] FWC 3600, at [7].

8

Ibid.

9

[2015] FWC 3600, at [9].

10

[2015] FWC 3600, at [10].

11

[2015] FWC 3600, at [12].

12

Ibid.

13

[2015] FWC 3600, at [13].

14

[2015] FWC 3600, at [14].

15

[2015] FWC 3600, at [24].

16

[2015] FWC 3600, at [26].

17

[2015] FWC 3600, at [28].

18

[2015] FWC 3600, at [31].

19

[2015] FWC 3600, at [32].

20

(2011) 192 FCR 78 at [43]

21

O’Sullivan v Farrer (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch

(2011) 85 ALJR 398 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty

Ltd v Lawler and others (2011) 192 FCR 78 at [44] -[46]

22

[2010] FWAFB 5343 at [27], 197 IR 266

23

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

24

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]