Damien Gurgone v MLG Oz Pty Ltd
[2022] FWCFB 201
•7 NOVEMBER 2022
| [2022] FWCFB 201 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Damien Gurgone
v
MLG Oz Pty Ltd
(C2022/5527)
| VICE PRESIDENT CATANZARITI | SYDNEY, 7 NOVEMBER 2022 |
Appeal against decision [2022] FWC 1998 of Deputy President Lake at Brisbane on 27 July 2022 in matter number C2022/2988
Mr Damien Gurgone (the Appellant) has lodged an appeal pursuant to s.604 of the Fair Work Act 2009 (Cth) (the Act) for which permission to appeal is required against a decision[1] (the Decision) of Deputy President Lake (Deputy President) issued on 27 July 2022. The Decision concerns an application lodged by the Appellant under s.365 of the Act, to deal with a General Protections dispute in relation to the termination of his employment by MLG OZ Pty Ltd (the Respondent).
On 23 August 2022, directions were set for the filing of material by the Appellant. As this matter was listed for permission to appeal only, the Respondent was not required to file any substantive material and it did not do so. On 6 October 2022, the Full Bench refused permission for the Respondent to be legally represented at the hearing, taking into account the factors in s.596 of the Act. The Appellant failed to file any written submissions prior to the hearing but made oral submissions at the hearing on 11 October 2022.
For the reasons that follow, permission to appeal is refused.
Decision Under Appeal
The Appellant commenced employment on 8 December 2021 and was terminated during his probation period on 2 April 2022. The Appellant lodged a Form F2 – Application for an Unfair Dismissal on 24 April 2022. This application was out of time by one day with no explanation offered. The Commission advised the Appellant that he had not met the Minimum Employment Period and he proceeded to discontinue his application. The Appellant then filed a Form F8 – General Protections application on 17 May 2022 which was 24 days late. The Appellant did not provide any further materials until the day of the first instance hearing in which he forwarded emails between himself and the Respondent to the Deputy President’s chambers.
Respondent’s case
The Respondent asserted that the Appellant’s employment ended by way of dismissal within his probation period on 2 April 2022. The Appellant was employed as a mobile plant operator. He was given a site induction and had theoretical and practical assessments regarding the Respondent’s policies and procedures. This included training in “positive communication” requirements when driving a mobile plant. Positive communication requires workers to proactively respond to all communications over the radio system to confirm information has been received and understood, and to communicate respectfully. This is a critical skill when working on a mining site.
On 23 and 24 March 2022, the Respondent received several incident reports from workers in relation to the Appellant failing to demonstrate positive communication. On 28 March 2022, the Appellant was invited to attend a disciplinary meeting in relation to the allegations of misconduct. The meeting took place on 29 March 2022. On 2 April 2022, the Respondent wrote to the Appellant and notified him that a decision had been made to terminate his employment during his probation period because he had failed to follow the positive communications procedure on several occasions.
The Respondent submitted that the Appellant has failed to demonstrate any exceptional circumstances upon which the Commission can be satisfied to exercise its discretion to extend the time period within which the application can be lodged.
Appellant’s case
The Appellant asserted that he was dealing with family issues, looking for work, and dealing with the shock of being dismissed unfairly. He said that he tried to gain legal assistance and he stated that he had spoken with the Commission. He said that he does not know how the Commission works and how to make an application. However, he believed he was bullied and treated badly by the Respondent and thought that this dismissal was unfair. Further, the Appellant said that he wanted the facts of his dismissal laid out for him so he could address the matters as he felt that he had been treated poorly.
As to why his application was filed out of time, the Appellant said that he was back from the mine for 7 days but then had found work and so he had been at a site with poor reception and unable to pursue any applications until he returned home where he had a very sick family member to care for. He stated it was a very difficult time for him and he did not know what to do or how to make an application.
Extension of time
General protections applications must be made within 21 days after a dismissal took effect or in such further time as the Commission allows pursuant to s.366(2). The Deputy President noted that the Appellant’s application was filed 24 days outside of the statutory time period, and for the application to proceed it was necessary for the Appellant to obtain an extension of time under s.366(2). The Deputy President then proceeded to consider the factors in s.366(2) which dictate whether exception circumstances exist to justify an extension of time.
First, considering the reason for the delay (s.366(2)(a)), the Appellant submitted that he did not know that his Unfair Dismissal application was subject to the minimum employment period, requiring him to subsequently submit a General Protections application. The Appellant claims it was the incorrect filing that delayed this application. Relevantly, the Deputy President noted that the Appellant submitted the Unfair Dismissal application after the 21 days had expired. His reason for the delay was the difficulty he had in getting information on how to apply, limited resources, combined with looking for work, and finding work which took him to a remote location.
The Deputy President commented that although the Appellant had limited access to the resources which would assist him in making an application, he was still able to make the first unsuccessful application within time. His second attempt should have only taken a few days if that to complete. It needs substantially the same information and if he had submitted the second application more quickly, he may have been in a better position to argue his case for an extension. Therefore, the Deputy President found that none of the reasons for the delay were exceptional and that this factor weighed against an extension being granted.
In terms of s.366(2)(b), the Deputy President noted that the Appellant did not take any action to dispute the dismissal until he filed the Unfair Dismissal application and found that this factor did not weigh in favour of an extension of time.
Considering s.366(2)(c), the Appellant submitted that an extension of time would not prejudice the employer. However, the Respondent submitted that they should not be put to bear the cost of defending an application which is clearly out of time. The Deputy President found this weighed against an extension of time.
The Deputy President then turned to the merits of the application (s.366(2)(d)) and noted that the material provided by the Appellant purported to show that he was bullied and targeted by his supervisor and team members for identifying potential safety issues. The Deputy President found that there may be some merit to the Appellant’s matter and therefore weighed this as a positive factor.
The Deputy President found fairness as between the Appellant and other persons in a like position (s.366(2)(e)) to be a neutral factor.
In conclusion, the Deputy President was not satisfied that exceptional circumstances existed to warrant the granting of an extension of time and therefore ordered that the application be dismissed.
Grounds of Appeal
The Appellant did not provide any formal grounds of appeal. We have therefore relied on his F7 – Notice of Appeal and oral submissions at the hearing to distil the following submissions.
The Appellant submitted that [15] and [16] of the Decision are hearsay in terms of the positive communication incidents. Further, the Appellant asserts that the facts presented in those paragraphs have not been verified nor was he given an opportunity to respond to those allegations at the time of his dismissal. The Appellant submits that he was never given the opportunity to work as an Excavator Operator, which was the job he was employed to do. The Appellant also says that he has consistently been denied access to documentation related to his employment and that without this documentation he has struggled to obtain legal representation for these proceedings.
Additionally, the Appellant submits that he encountered many technological issues in the application process and in the appeal. Specifically, he submits that because he is a fly-in-fly-out worker the reality of being on site for many days means that he does not have access to submit documentation, to print or deal with Commission correspondence while on site. He also submits that he had issues with his mobile phone which prevented him from filing any written submissions in the appeal.
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. An appeal may only be made with the permission of the Commission.
Subsection 604(2) requires the Commission to grant permission to appeal if satisfied that it is “in the public interest to do so.” 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.
An application for permission to appeal is not a de facto or preliminary hearing of the appeal. In determining whether permission to appeal should be granted, it is unnecessary and inappropriate for the Full Bench to conduct a detailed examination of the grounds of appeal.[8] However, it is necessary to engage with the appeal grounds to consider whether they raise an arguable case of appealable error.
Consideration
Having considered the Appellant’s submissions, we are not satisfied that there is an arguable case of error in the Decision. The Appellant’s submissions are very brief and fail to point to any evidence or parts of the Decision that may be infected by error. We consider that the Appellant’s submissions are merely an expression of his dissatisfaction with the outcome of the Decision and are an attempt to reagitate the merits of his case as put to the Deputy President at first instance.
It is clear that the basis on which the Deputy President reached his Decision discloses an orthodox approach to the determination of the Appellant’s extension of time application. The Deputy President applied the correct legal principles, considered, and dealt with the evidence that was before him, and made findings of fact based on that evidence. We are satisfied that the Deputy President’s conclusions appear to have been reasonably open to him on the evidence before him.
Further, we have considered whether this appeal attracts the public interest, and we are not satisfied that:
· there is a diversity of decisions at first instance so that guidance from an appellate body is required;
· 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 Deputy President were disharmonious when compared with other decisions dealing with similar matters.
Conclusion
Permission to appeal is refused.
VICE PRESIDENT
Appearances:
Mr Gurgone, on his own behalf.
Mr Waller, for the Respondent.
Hearing details:
2022.
Microsoft Teams (Video).
11 October.
[1] [2022] FWC 1998 (the Decision).
[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] Ibid 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] Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82].
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