Craig Thomson v Linx Cargo Care Pty Ltd T/A Linx Port Services
[2022] FWCFB 40
•21 APRIL 2022
| [2022] FWCFB 40 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Craig Thomson
v
Linx Cargo Care Pty Ltd T/A Linx Port Services
(C2022/1191)
| VICE PRESIDENT CATANZARITI | SYDNEY, 21 APRIL 2022 |
Appeal against decision [2022] FWC 190 of Deputy President Asbury on 28 January 2022 in matter number U2021/9152 – permission to appeal refused.
Background
Mr Craig Thomson (Appellant) has lodged an appeal under s.604 of the Fair Work Act 2009 (Act) for which permission to appeal is required, against a decision of Deputy President Asbury (Deputy President) issued on 28 January 2022 (Decision). The matter before the Deputy President was an unfair dismissal application made by the Appellant under s.394 of the Act (application). The application was lodged outside of the 21-day standard time limit provided by s.394(2)(a) of the Act and the decision dealt with the Appellant’s request to extend the period in which the application could be made under s.394(2)(b). Section 394(3) of the Act empowers the Commission to grant such an extension of time where it is satisfied that there are exceptional circumstances.
For convenience, we set out the terms of s.394(3) of the Act:
“394 Application for unfair dismissal remedy
(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.”
The application was lodged 1 day outside of the 21-day period. Most of the material before the Deputy President, and the focus of the disputed contentions, concerned the explanation for the delay. This is one of the factors to be taken into account in making the assessment of exceptional circumstances. Amongst other matters, the Appellant relied upon his medical circumstances and the steps he had taken, either directly or through his partner Ms Karen O’Sullivan, to dispute the dismissal and lodge the application.
In the Decision, the Deputy President was not satisfied that there were exceptional circumstances and dismissed the application. The Appellant challenges that decision on various grounds and seeks that the Full Bench grant permission to appeal, overturn the Decision, redetermine the matter, and grant an extension of time.
For the reasons that follow, permission to appeal is refused.
The Decision
The Deputy President set out the conventional approach to ascertaining exceptional circumstances in the context of s.394(3) of the Act and outlined the evidence before the Commission. That evidence included statements and sworn evidence from the Appellant and Ms O’Sullivan. The Deputy President then comprehensively set out the submissions made by the parties.
In relation to each of the factors identified in s.394(3) of the Act, and without overlooking the considerations leading to these outcomes, the Deputy President concluded as follows:
Reason for the delay
“[73] The medical certificates relied on also establish that the Applicant was unfit for work between 20 September and 21 September, and continued to be unfit for work following his termination until at least 19 October 2021. However, there is no evidence before the Commission that the Applicant was completely incapacitated for the entire period of the delay, either from his clinical psychologist who prescribes the Applicant antidepressants or another medical practitioner. Nor is there evidence that the Applicant’s medical condition or the medication he was taking incapacitated him to the point he was unable to file his application within the required time or to give instructions for it to be filed. In fact, Ms O’Sullivan states that the Applicant did request her to make the application on 6 October 2021, and on 13 October, signed the application for Ms O’Sullivan to file. Further, the Applicant lodged his application within the period covered by the medical certificates he tendered.
[74] I am not satisfied that the Applicant’s circumstances are similar to those in Ovenden. In that case, the Applicant provided medical evidence establishing that he was suffering from depression and anxiety exacerbated by work stress as well as exhibiting signs of post-traumatic stress disorder and suffered from an intellectual impairment. While I accept that the Applicant in the present case has given evidence about the effect of taking his prescribed anti-depressants as well as painkiller medication for his broken ribs, that evidence does not establish that the Applicant’s medical condition was such that he was unable to file his application within time or that he was incapacitated to the extent that he was prevented from giving instruction to either Mr Petersen or Ms O’Sullivan during the period of the delay. It is also the case that other than the medical certificate indicating the Applicant was unfit for work, the only evidence of the Applicant’s incapacity is his own assessment of his medical condition and Ms O’Sullivan’s impression of the extent of the Applicant’s impairment.
[75] I accept the Respondent’s submission that during the period of the delay where the Applicant asserts he was incapacitated, the Applicant was able to send emails to the Respondent making enquiries about the payment of sick leave including the email of 29 September 2021, in which the Applicant contests the amount of accrued sick leave owing to him and communicates his view to the Respondent that his employment could not be terminated while he was on sick leave. This evidence is at odds with the Applicant’s evidence that he was focussing on his mental health and was not in a mental state to run an unfair dismissal application.”
We observe that the reference to “Ovenden” is to a decision[1] of the then Fair Work Australia in 2010 concerning an extension of time application under the same provisions.
Before the Deputy President, the Appellant relied upon the notion of representative error in relation to efforts undertaken by Ms O’Sullivan on his behalf. In that regard, the Deputy President concluded:
“[76] I do not accept that the Applicant can rely on the established principles of representative error as a basis for contending that there are exceptional circumstances justifying the grant of a further period to make his application. Generally, representative error as an acceptable explanation for delay is founded upon an assumption that there is an obligation on the part of the person considered to be a representative which is more than voluntarism. A necessary prerequisite for the Commission to accept representative error as a reasonable explanation for delay weighing in favour of a finding that there are exceptional circumstances, is that the person raising the argument has engaged (or engaged with) a representative in a sense that creates an obligation which gives rise to a legitimate and reasonable expectation that the representative will exercise appropriate care and diligence on behalf of that person. The negligence relied on must also be encompassed by the obligation. Further, the Applicant must be blameless in the error. The error in the present case was made by the Applicant’s partner, Ms O’Sullivan who was not acting as a representative in the sense that founds an exceptional circumstance on the basis of representative error.
[77] The provisions in s. 394(3) present a high bar for late applications. If error or oversight on the part of a representative was an automatic basis for a finding that there are exceptional circumstances justifying the grant of a further period, the purpose of s. 394(3) would be subverted. That purpose would be further subverted if error on the part of a person who was not a representative, but simply assisting a person to make an application for an unfair dismissal application, was given the same, or similar weight as representative error.
[78] The FW Act recognises various categories of representatives, including organisations, paid agents and lawyers. Section 596 provides that paid agents and lawyers may appear in matters before the Commission only with permission and prescribes the grounds upon which the Commission may decide to grant permission. It is common for persons to be assisted or supported by other persons – friends or family members with varying qualifications – in making or advancing applications to the Commission. However, such assistance or support will not necessarily, or of itself, result in the provider of assistance or support being considered a representative. The Form F2 Application has a section of an applicant to nominate a representative by including details of the person who is acting in that capacity. The coversheet for the Form F2 also states:
“Legal or other representation
Representation is where another person (such as a lawyer or paid agent, union official, family member or friend) speaks or acts on your behalf, or assists you in certain other ways in relation to your matter. There is no requirement for you to be represented at the Commission.
You will need permission from the Commission Member dealing with your matter if you wish to be represented by a lawyer or paid agent at a conference conducted by the Commission Member or a hearing, unless the lawyer or paid agent is an employee or officer of a union or a peak union body that is representing you. If you want to seek permission, you must lodge a Form F53 – Notice that a person: (a) has a lawyer or paid agent; or (b) will seek permission for lawyer or paid agent to participate in a conference or hearing.
You do not need permission to have a lawyer or paid agent prepare and lodge this application with the Commission.”
[79] There may be cases where a person who seeks to make an unfair dismissal application may be impacted by circumstances that are exceptional and for that reason entrusts another person to file an application on his or her behalf. In such a case, an error by the person entrusted to file the application may be considered, with other factors, to explain a delay and to weigh in favour of a finding of exceptional circumstances. However, the mere fact that a person relies on another person to file an application, and the latter person fails to do so in the required time, is not of itself, a reasonable explanation for delay constituting an exceptional circumstance.
[80] For these reasons I am not satisfied that the Applicant has provided a reasonable explanation for the delay in filing his application either when the circumstances he describes are considered individually or in combination. This weighs against a further period being granted.”
Whether the person first became aware of the dismissal after it had taken effect
“[82] The Applicant had the full period of 21 days from 22 September 2021 to lodge his unfair dismissal application. In all the circumstances, I consider this to be a neutral consideration.”
Action taken to dispute the dismissal
“[83] While the Applicant’s partner took some action as a consequence of his dismissal, it was not action directed specifically at making an unfair dismissal application. Further, the action did not put the Respondent on notice that the Applicant was disputing his dismissal. To the contrary, the Applicant engaged with the Respondent in relation to his sick leave entitlements rather than his dismissal. On the other hand, where the delay in making the application is not significant, this is a matter which is at best neutral in the consideration of whether a further period should be granted.”
Prejudice to the employer
“[84] I cannot identify any prejudice that would accrue to the Respondent if an extension of time were to be granted. The mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. However, if one were to consider the absence of prejudice as favouring of an extension, I would attribute it little weight in the consideration of whether there are exceptional circumstances.
Merits of the application
“[86] After considering the material filed by the parties, it is clear that there are factual disputes between the parties which can only be resolved at a hearing. I do not consider that the application is totally without merit, although it is not possible to say that it has strong prospects of success. In particular, it appears that the Respondent followed a detailed and apparently comprehensive “show cause” process before dismissing the Applicant.
[87]Accordingly, I am of the view that the merits are a neutral consideration.
Fairness as between the person and other persons in a similar position
“[88] This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to an unfair dismissal application. However, cases of this kind will generally turn on their own facts. Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. I therefore consider this to be a neutral consideration”
The Deputy President ultimately concluded the Decision as follows:
“[89] Having regard to the matters I am required to take into account under s 394(3), and all of the matters raised by the Applicant in support of the grant of a further period, I am not satisfied that there are exceptional circumstances such that I should exercise the discretion in s.394(3) to grant a further period for the application to be made. Accordingly, I am required to dismiss the application in U2021/9152. An Order to that effect will issue with this decision.”
Appeal grounds and submissions
In his notice of appeal, the Appellant advanced the following grounds of appeal:
“1. The Deputy President erred in her construction of and approach to s 394(3)(a) of the FW Act by:
a. determining at J[76] and [79] that the reason for delay in filing an application needed itself to amount to an exceptional circumstance when, properly construed, the mandatory consideration under s 394(3)(a) requires the Commission to assess the reason for the delay and weigh it with the totality of factors in determining whether there are exceptional circumstances;
b. adopting an unduly narrow view of the concept of ‘representative error’ at J[76] and failing to properly consider the reason for the delay occasioned by the missteps of the appellant’s wife by:
(i) determining that an applicant must be entirely blameless for the error of their representative before an error by a representative can be considered as providing an explanation for the delay;
(ii) determining that the principles of representative error could be relied on only where an applicant has engaged a professional or experienced person so as to create an obligation which gives rise to a legitimate and reasonable expectation that the representative will exercise appropriate care and diligence.
c. asking the wrong question and/or taking into account an irrelevant consideration at J[73]-[74] by assessing whether the appellant was incapacitated to such an extent he was unable to either file his application or give instructions to a person to file the application;
d. asking the wrong question and/or taking into account an irrelevant consideration at J[75] be assessing whether the appellant was in a mental state to run an unfair dismissal application.
2. The Deputy President erred in her construction of s 394(3)(c) of the FW Act at J[83] by:
a. taking an unduly narrow view of ‘action to dispute the dismissal’ as being action that had to be specifically directed to making an unfair dismissal application and which puts the employer on notice that the applicant is disputing the dismissal;
b. taking into account irrelevant considerations, including that:
(i) the actions disputing the dismissal were not specifically directed at making an unfair dismissal application;
(ii) the actions disputing the dismissal did not put the respondent on notice that the appellant was disputing the dismissal;
c. failing to take into account relevant considerations, including:
(i) the applicant requesting his wife take steps to challenge the dismissal on his behalf by making an application for an unfair dismissal remedy on 6 October 2021;
(ii) the applicant’s wife emailing the Commission on 7 October 2021 and stating that he wished to proceed as he had been unfairly dismissed;
(iii) the applicant’s wife emailing the Commission on 12 October 2021 and stating that he wished to proceed as he had been unfairly dismissed.
3. The Deputy President erred in her approach to s 394(3)(e) and acted inconsistently with authority by failing to assess the merits of the appellant’s case through the prism of viewing his case at its most favourable.”
In relation to the factors raising public interest considerations, the Appellant contends that:
“1. The Deputy President’s approach to s 394(3)(a) of the FW Act was premised on an erroneously narrow construction of that factor as requiring the reasons themselves to be ‘exceptional’ and involved conflation of an assessment of the reasons for delay with the question of whether in the totality of circumstances there were exceptional circumstances. Such an approach involved a misconstruction of s 394(3)(a) and a failure to properly take into account the reasons for delay as a factor in determining whether there were exceptional circumstances. The Deputy President’s approach was wrong in principle and demands appellate correction.
2. The Deputy President misconstrued and misapplied Full Bench authorities including Officeworks Ltd v Parker[2014] FWCFB 5779 concerning representative error by discounting missteps by the appellant’s wife in seeking to make an unfair dismissal application on his behalf on the basis that:
(i) delay caused by a representative can only be considered where an applicant is blameless, when the authorities make clear that if an applicant is blameless in the representative’s delay this may constitute an exceptional circumstance of itself, but that consideration should be given to the applicant’s conduct contributing to the delay in assessing the appropriateness of the explanation for the delay;
(ii) a representative needed to be someone who was professional or expert before the errors of the representative could be taken into account, when these were factors which bore on the reasonableness of the explanation rather than entailed that representative error would not provide an appropriate explanation for the delay.
3. The appeal raises questions of general importance and significance in relation to the construction and application of s 394(3)(c) of the FW Act and whether the Deputy President’s view that the action need be directed specifically at making an unfair dismissal application or action which puts the employer on notice that an applicant is disputing their dismissal are preconditions to consideration of ‘action to dispute the dismissal’ or relevant considerations under s 394(3)(c). This is a matter which will have wider significance
4. The Deputy President’s construction and approach to s 394(3)(c) of the FW Act is contrary to authority, including Cowen v Renascent Regional Pty Ltd[2021] FWCFB 2606 and involves an impermissible gloss on the statutory text in requiring that steps to dispute the dismissal should both be steps directed to making an unfair dismissal application and which also put an employer on notice the employee is disputing their dismissal.
5. The Deputy President’s construction and approach to s 394(3)(e) of the FW Act was inconsistent with Cowen and requires appellate correction. The proper approach to assessment of the merits of an application is a matter of general importance and significance in relation to the proper approach to the Commission’s exercise of power under s 394(2)(b).
6. The decision manifests an injustice to the appellant as he was denied the ability to advance his application on the merits in circumstances where the Deputy President acted on a number of errors of principle and took into account irrelevant matters and failed to take into account relevant matters.”
The Appellant’s Submissions
Ground 1
The Appellant contends that the Decision represents an error of approach to the statutory task on the basis that the Deputy President:
· in holding that the explanation for the delay did not weigh in favour of exceptional circumstances was in error as the assessment of the exceptional circumstances required that an overall assessment of the factors in s.394(3) be conducted;
· conflated the finding of exceptional circumstances with the exercise of a discretion to grant an extension of time;
· erroneously discounted the reasons for delay stemming from the actions of Ms O’Sullivan and her own circumstances;
· inappropriately took into account the Appellant’s early apathy and despondency arising from his medical condition; and
· misapplied the consideration of the Appellant’s medical condition by focusing upon whether he was incapacitated and overlooked his request that the unfair dismissal application be lodged.
Ground 2
The Appellant contends that the Deputy President’s consideration under s.394(3)(c) of the efforts of Ms O’ Sullivan not being “specifically directed to making an unfair dismissal application” in [83] of the Decision was an error of construction as it involved an impermissible gloss of the statutory text, involved the irrelevant consideration as to whether the Respondent was aware that the dismissal was being contested and a failure to properly weigh the efforts made on behalf of Mr Thomson to contest the dismissal.
Ground 3
The Appellant contends the finding that the merits of the application under s.394(3)(e) of the Act was a neutral consideration failed to recognise that it was appropriate only to have regard to prospects of the applicant’s case through the prism of their case at its most favourable. This was not done.
The Respondent’s Submissions
The Respondent contends that permission to appeal should not be granted. In general terms, the Respondent submits that there was nothing in the relevant facts that establish exceptional circumstances, and no injustice arises from dismissing the application.
Ground 1
The Respondent submits that the Deputy President:
· Did not rely upon the explanation for delay as a requirement for exceptional circumstances and it was clear when the decision was read as a whole that all factors were taken into account;
· Did not conflate the finding of exceptional circumstances with the discretion and this was made clear in [89] of the Decision;
· Appropriately drew a distinction between a delay caused by the Appellant and a delay caused by the representative and acknowledged that an error by the person entrusted to make the application may be considered; and
· Took into account the assistance provided to Ms O’Sullivan by the Commission’s staff.
The Respondent also contended that the Deputy President appropriately took into account the Appellant’s medical condition and considered whether the medical evidence provide an explanation for the delay.
Ground 2
The Respondent submits that the Deputy President took into account the actions taken on behalf of the Appellant “as a consequence of the dismissal” and not merely whether the Respondent was on notice that the dismissal was being contested. That consideration was entirely orthodox.
Ground 3
The Respondent contends that the Deputy President’s decision did not contain an impermissible determination of the strengths of the Appellant’s case but was required to make some assessment of the merits for the purposes of the matter. This was done.
Principles of appeal
An appeal under s.604 of the 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.[2] There is no right to appeal and an appeal may only be made with the permission of the Commission.
The matter concerned an application made under Part 2-3 of the Act and s.400 provides as follows:
400 Appeal rights
(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.
The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[3] The public interest is not satisfied simply by the identification of error,[4] or a preference for a different result.[5] 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 issue 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...”[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.[7] However, that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.[8]
The test of “exceptional circumstances”, in relation to extensions of time to lodge applications under s.394(3), establishes a “high hurdle” for an application for an extension, and a decision as to whether to extend time under s.394(3) involves the exercise of a broad discretion.[9] Therefore it will be necessary, in an application for permission to appeal against a decision made under s.394(3), to demonstrate that there is an arguable case and 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[10] - that is, 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. Additionally, where an error of fact is alleged, s.400(2) requires that it must be a significant error of fact. The overriding public interest requirement of s.400(1) remains.
In a matter of this kind, and absent appealable error, it is not sufficient that the Full Bench or another Member of the Commission may have come to a different conclusion.
Consideration of permission to appeal
The Appellant raises various grounds largely associated with how certain findings and conclusions in the Decision were stated. In approaching these grounds, we consider that the Decision must be read fairly and as a whole. Further, the reasons must articulate the essential grounds for reaching the decision and address material questions of fact and law so as to disclose the steps which lead to a particular result. Subject to that qualification, the reasons need not address every detail in the reasoning process or deal with every matter which was raised in the proceedings. The adequacy of reasons depends on the circumstances, including the nature of the statutory function being exercised.[11]
When read as a whole, it is evident that the Deputy President understood and applied the terms of the Act. In relation to Ms O’Sullivan’s role in the explanation for the delay, the Deputy President’s observation in [79] that “… the later person fails to do is not of itself, a reasonable explanation for the delay constituting exceptional circumstances”, must be read in the context of [67] to [69], [80] and [89] of the Decision. These make it clear that the explanation for the delay was but one of the factors to be assessed.
Further, the Deputy President’s consideration of the Appellant’s medical condition and her approach to representative error, when read as a whole and in the context of the Decision more generally, does not lead us to conclude that the ultimate findings were in error.
The Deputy President’s finding at [83] that the Appellant did not put the Respondent on notice that he was disputing the dismissal, must be tested against the evidence brought by the Appellant. In an email sent by the Appellant to the Respondent on 29 September 2021, in a series of exchanges about medical certificates and the payments to be made, the Appellant stated:
“2 days ?? I Hve 6 weeks sick leave owing & went on that leave prior 2 knowing about being terminated ? You cannot terminate me whilst I’m on sick leave & let’s face it it’s not like I could predict having a fall & breaking ribs ?.......”[12]
At its highest, this infers that the Appellant may be disputing the termination but in the absence of any more explicit indication to that end, we do not consider any error in this regard to be significant. Further, the finding that the actions of the Applicant’s partner (Ms O’Sullivan) were not “directed specifically at making an unfair dismissal application” must be considered in the context of the earlier recognition of the steps taken by Ms O’Sullivan within the Decision. That is, there was communication made to the Commission that asserted that the Appellant had been unfairly dismissed; however, the emails[13] referenced an earlier stop-bullying application made by the Appellant and requested advice on how to continue that process. This may reasonably have been assessed by the Deputy President as being a reference to the stop-bullying application. No significant factual error has been demonstrated in this regard.
In relation to the merit finding, the Deputy President set out[14] the approach summarised in Kornicki[15] and found that the factual disputes between the parties could only be resolved at a hearing. The Deputy President also found that she could not be satisfied that the substantive application “is totally without merit, although it is not possible to say that is has strong prospects of success …”. As set out earlier, the Deputy President concluded that this was a “neutral” consideration.
In Long v Keolis Downer T/A Yarra Trams,[16] (Long) a Full Bench of the Commission reviewed the approach taken in Kornicki and observed:
“[67] The Applicant contends that he was only required to establish that his substantive unfair dismissal application was ‘not without merit’ and refers to Kornicki v Telstra Network Technology Group (‘Kornicki’) in support of this proposition. In Kornicki the Full Bench considered that in determining whether to grant an application to extent time primary consideration should be given to two factors:
· whether there is an acceptable explanation for the delay; and
· the merits of the substantive application.
[68] As to the merits of the substantive application, the Full Bench said:
‘If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.’
[69] The above observation needs to be seen in the context of the legislative framework at that time. In Kornicki the Full Bench was construing s.170CE(8) of the Workplace Relations Act 1996 (Cth) which provided that:
‘The Commission may accept an application that is lodged out of time if the Commission considers that it would be unfair not to do so’.
[70] The Full Bench observed that:
‘…s.170CE(8) is intended to convey an approach to the exercise of the Commission’s discretion which is more generous to applicants than that which prevailed under the former s.170EA(3)(b)… The central consideration in determining whether or not an out of time application should be accepted is whether it would be unfair to the applicant not to extent the time limit’.
[71] The discretion to extend time in s.394(3) is not enlivened on the basis of a finding that it would be ‘unfair not to do so’; rather the Commission must be satisfied that ‘there are exceptional circumstances’. For the consideration in s.394(3)(e) to weigh in favour of such a finding it must be shown that there is some merit in the substantive application. The weight to be given to this consideration is dependent on the extent to which there is merit in the substantive application.
[72] In considering the merits of the substantive application for the purpose of s.394(3)(e) the Commission is not in a position to make findings of fact on contested issues, unless evidence is called in respect of these issues. And, as the Full Bench observed in Kyvelos v Champion Socks Pty Ltd, evidence is rarely called on the merits and there are sound reasons why the Commission should not embark on a detailed consideration of the substantive case in an extension of time application:
‘In particular, it is undesirable that parties be exposed to the requirement to present their evidentiary cases twice.’
[73] Though this observation was made in relation to s.170CE(7) of the Workplace Relations Act 1996 (Cth) it is apposite to the consideration of the merits in s.394(3)(c).”
We observe that a finding that the consideration established by s.394(3)(e) was a “neutral consideration” should be made with some caution in the context of a merit finding of the kind made by the Deputy President. It may be, in a given case, that it is not possible to draw any conclusions about substantive merits. A preliminary view, as expressed by the Deputy President, that the substantive application is not without merit (that is, not meritless) but no more would meet the approach outlined in Kornicki as clarified in Long. On the other hand, it may be possible to make a more definitive preliminary assessment about merits, or lack thereof, and this would then be a factor going to weight in the overall assessment required by s.394(3) of the Act.
When read as a whole, we understand the Deputy President’s conclusions on merit to be that the only conclusion she could reach was not a strong motivating factor in determining the existence of exceptional circumstances.
The contention that the Deputy President conflated the necessity for a finding of exceptional circumstances with the discretion that would arise, is without merit.
Notwithstanding our observations about [83] of the Decision, we do not consider that the Appellant has demonstrated a significant error of fact.
The conclusion that exceptional circumstances had not been demonstrated was open to the Deputy President and is not unreasonable or manifestly unjust as comprehended in House v The King.
Further, we have considered whether this appeal attracts the public interest. We are not satisfied that:
· There is a diversity of decisions at first instance so that guidance from an appellate body is required of this kind;
· The appeal raises issues of importance and/or general application;
· The Decision at first instance manifests an injustice, or the result is counter intuitive; or
· The legal principles applied by the Commissioner were disharmonious when compared with other decisions dealing with similar matters.
Conclusion
Permission to appeal is refused and the appeal is dismissed.
VICE PRESIDENT
Appearances:
P Boncardo of Counsel, for the Appellant.
J Arndt of Australian Business Lawyers and Advisors, for the Respondent.
Hearing details:
2022.
Microsoft Teams (Video).
April 7
[1] Overden v Fortezza Pty Ltd T/A high Country Automotive Group[2010] FWA 3863.
[2] Coal and Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 [17] per Gleeson CJ, Gaudron and Hayne JJ (Coal and Allied Operations Pty Ltd).
[3] O’Sullivan v Farrer (1989) 168 CLR 210 at 216-217 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) 192 FCR 78 at [44] – [46].
[4] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343, 197 IR 266 at [24]-[27].
[5] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343, 197 IR 266 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; Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 178; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663, 241 IR 177 at [28].
[6] [2010] FWAFB 5343, 197 IR 266 at [24] – [27].
[7] Wan v AIRC (2001) 116 FCR 481 at [30].
[8] House V King. See also Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54 at [16] and [51] and Minister for Immigration and Citizenship v SZMDS [2010] HCA 16, (2010) 240 CLR 611 at 648 to 650.
[9] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace
Relations [2014] FWCFB 2288 at [21].
[10] [1936] HCA 40, 55 CLR 499 at 505.
[11] Soliman v University of Technology [2012] FCAFC 146. See also Barach v University of New South Wales[2010] FWAFB 3307; (2010) 194 IR 259 at [16] and Transport Workers’ Union of Australia v WA Freightlines Pty Ltd[2011] FWAFB 3863; 211 IR 369 at [10].
[12] Appeal Book pg 92.
[13] Emails of 7 and 12 October 2021 – appeal book pages 110, 111.
[14] [85] of the Decision.
[15] Kornicki v Telstra-Network Technology Group AIRC Print P3168 per Ross VP, Watson SDP, Gay C.
[16] [2018] FWCFB 4109.
Printed by authority of the Commonwealth Government Printer
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