Daniel Golding v Senwill Civil Pty Ltd t/a Senwill Civil
[2017] FWCFB 2802
•2 JUNE 2017
| [2017] FWCFB 2802 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
v
Senwill Civil Pty Ltd t/a Senwill Civil
(C2017/2361)
VICE PRESIDENT HATCHER |
|
Permission to appeal against decision [2017] FWC 2089 of Commissioner Platt at Adelaide on 12 April 2017 in matter number U2017/1292.
[1] Daniel Golding has applied for permission to appeal a decision1 of Commissioner Platt issued on 12 April 2017 (Decision). The effect of the Decision was to refuse Mr Golding an extension of the time to lodge an application for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (FW Act) and to dismiss the application that had been received by the Fair Work Commission (Commission).
[2] At the hearing of the appeal before us, Mr Golding was self-represented. The respondent, Senwill Civil Pty Ltd (Senwill) was represented by Alice Tester, solicitor. We granted Senwill permission to be represented by a lawyer in these proceedings pursuant to s.596(2)(a) of the FW Act because we were satisfied that the matter could be deal with more efficiently if Senwill was represented.
[3] 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.
[4] Mr Golding’s unfair dismissal application was sent to the Fair Work Commission by email, and was time stamped as having been received on Wednesday, 8 February 2017 at 1:03am ACDT. The Commissioner did not accept Mr Golding’s contention that he had actually sent his emailed application at 11:33pm on 7 February 2017. In that respect the Commissioner found:
“[13] As to when the application was lodged, the Commission’s records indicate that the application was made at 1:03am on 8 February 2017. Despite my request, Mr Golding was unable to forward an exact copy of the lodgement email used to file the unfair dismissal application, sending instead a mobile phone screenshot which indicated the email was sent at 11:33pm on 7 February 2017. I am unable to verify the accuracy of this information. There are a number of circumstances which could explain the time difference. I prefer the Commission’s records as to the date the application was made.” 2
[5] It was not in dispute in the hearing before the Commissioner that Mr Golding had been informed of his termination on 17 January 2017. While Mr Golding’s application referred to the dismissal taking effect on the following day, 18 January 2017, the Commissioner concluded that the actual date of effect of the dismissal was 17 January 2017. Consequently the application was filed 1 day outside of the 21 day time limit allowed for by s.394(2)(a), and it was necessary for Mr Golding to obtain an extension of time under s.394(3).
[6] The Commissioner concluded that there were no exceptional circumstances that would allow an extension of time to be granted to Mr Golding. In forming that view, the Commissioner into took account Mr Golding’s contention about when he originally forwarded his application to the Commission, as earlier discussed, as well as his evidence about the correspondence he sent to his former employer prior to the expiry of the time limit.
[7] In considering the other matters required to be taken into account under s.394(3), the Commissioner concluded that:
● Mr Golding had not provided a credible explanation for the whole of the delay;
● Mr Golding became aware of his dismissal on 17 January 2017;
● Mr Golding did not take any step to dispute his dismissal (by sending an email to a Director of Senwill) until 20 days after the dismissal;
● There was no submission that an extension would cause prejudice to Senwill;
● The merits of the application weighed against Mr Golding because the conduct which led to the dismissal was not in dispute and Senwill provided evidence that Mr Golding’s casual employment was not regular and systematic;
● Consideration of fairness relative to other persons in similar positions was a neutral factor.
[8] Mr Golding’s grounds of appeal, outlined in the notice of appeal, were as follows:
“1. That the merits of the case are in the Appellants favour.
2. Senwill Civil misrepresented their response, and selectively chose to only attach total hours worked not the Appellants time books which would have shown a more consistent work schedule.
3. Of the 13 weeks Senwill state that the Appellant did not work, it was actually only 2 weeks.
4. The remaining 11 weeks were comprised of the previous owner passing away/Christmas holidays, and time that the Appellant had requested off in the jobs diary/work book of his manager.
5. Senwill not treating employees consistently or fairly, in relation to an employee being ill at work.
6. Senwill stating that the Appellant and other casuals preferred to be casual
7. Which is a false statement, as 3 of those casuals wanted full time work at the time of re-written contracts.
8. Of the 3 one actually quit at the beginning of the financial year after we had been over looked when management had engaged the rest of the staff full time.
9. As shown through Senwill recently putting a previously regular casual employee onto part time employment after a discussion we had with Randall Deer at the work Christmas party in December.”
[9] Mr Golding did not add anything of substance to these appeal grounds in his written or oral submissions. In support of his application for permission to appeal, Mr Golding’s appeal notice stated:
“Continuing the unfair dismissal in relation to Golding v Senwill Civil is not only in the public interest as well as the current employees at Senwill Civils interests.
Senwill Civil is a prime contractor for SA Water, and as such it is in SA Water and the public’s interest to ensure that the contractor reflects the expectations SA Water has that Senwill is capable of meeting its requirements under law to enforce its Work Health and Safety Standards, and as such its obligation to justify any such enforcement, and provide procedural fairness.
Along with the expectations the general public have that a contractor engaged by a public corporation funded by the tax payer is capable of treating its employees professionally, and respectfully conducting business in South Australia.
In relation to this matter Senwill utterly failed to provide any procedural fairness to the Appellant.”
[10] Again, Mr Senwill did not add anything of substance to the above in his written or oral submissions.
Consideration
[11] An appeal under s.604 of the FW 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.3 There is no right to appeal and an appeal may only be made with the permission of the Commission.
[12] 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.
[13] In the Federal Court Full Court decision in Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [43], Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s.400 as “a stringent one”. The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.4 A Full Bench of the Commission, in GlaxoSmithKline Australia Pty Ltd v Makin, 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
[14] 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
[15] 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
[16] 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 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 King10 – 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.
[17] Mr Golding’s appeal did not seek to challenge the Commissioner’s conclusion that his unfair dismissal remedy application was filed 1 day beyond the prescribed 21-day time period. In respect of the Commissioner’s conclusion that there were no exceptional circumstances permitting the grant of an extension of time, the appeal grounds only seek to challenge one aspect of the Commissioner’s consideration under s.394(3), namely his assessment of the merits of Mr Golding’s application under paragraph (e).
[18] We do not consider that anything raised by Mr Golding in his appeal notice gives rise to any arguable case that the Commissioner erred in his consideration under s.394(3). In relation to the merits of the appeal, the Commissioner took into account the fact that Senwill had provided evidence that Mr Golding’s casual employment was not regular or systematic (and consequently that Mr Golding was jurisdictionally disqualified from bringing an unfair dismissal remedy application). That was plainly a relevant consideration in the assessment of the merits of the application, and nothing raised by Mr Golding in grounds 2, 3, 4, 6, 7, 8 and 9 of his notice of appeal is capable of demonstrating that the Commissioner erred in doing so. The Commissioner was not required to, and did not, reach a final conclusion concerning this jurisdictional issue. He did no more than have regard to the fact that Senwill had advanced a strong evidentiary case about the issue, and this formed one element of the Commissioner’s assessment of the merits. Grounds 1 and 5 are no more than generalised assertions concerning the merits of Mr Golding’s case which do not disclose any contention of appealable error on the part of the Commissioner.
[19] Mr Golding’s appeal does not otherwise raise any issue which attracts the public interest. The matter was decided on its particular facts and raised no issue of principle or general importance. That Senwill is a contractor to a publicly-owned corporation has, by itself, no apparent relevance to the public interest. The Decision does not manifest any injustice, is in accordance with established principle, and is not counter-intuitive.
[20] For the reasons stated, we do not consider that it would be in the public interest to grant permission to appeal. Therefore, as required by s.400(1) of the FW Act, permission to appeal is refused.
VICE PRESIDENT
Appearances:
D. Golding on his own behalf.
A. Tester on behalf of Senwill Civil Pty Ltd t/a Senwill Civil.
Hearing details:
2017.
Sydney:
29 May.
1 [2017] FWC 2089
2 [2017] FWC 2089
3 This is so because on appeal the Commission has power to receive further evidence, pursuant to s.607(2); see Coal and Allied v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ
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, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [44]-[46]
5 [2010] FWAFB 5343, 197 IR 266 at [24] – [27]
6 Wan v AIRC (2001) 116 FCR 481 at [30]
7 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, 241 IR 177 at [28]
8 Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]
9 Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21]
10 (1936) 55 CLR 499
Printed by authority of the Commonwealth Government Printer
<Price code C, PR593116>
0
10
0