Daniel Sorrell v Hutt Street Centre
[2016] FWCFB 5505
•30 AUGUST 2016
| [2016] FWCFB 5505 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
Hutt Street Centre
(C2016/1708)
VICE PRESIDENT HATCHER | SYDNEY, 30 AUGUST 2016 |
Permission to appeal against decision [2016] FWC 4790 of Commissioner Platt at Adelaide on 21 July 2016 in matter number U2016/2872.
Introduction
[1] This is an appeal, for which permission to appeal is required, against a decision of Commissioner Platt issued on 21 July 2016 1 (Decision) in which he declined, under s.394(3) of the Fair Work Act 2009 (FW Act), to extend time to the appellant, Mr Daniel Sorrell, to file an unfair dismissal remedy application. Consequently, the Commissioner issued an order dismissing Mr Sorrell’s substantive application.2
[2] At the hearing of the appeal before us Mr Sorrell represented himself. The respondent sought permission, under s.596 of the FW Act, to be represented by Ms Sonia Bolzan, a solicitor. After hearing the submissions of Mr Sorrell we decided it was unnecessary to hear from the respondent. Consequently, it was unnecessary to decide whether to grant the respondent permission to be 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 Sorrell filed his unfair dismissal application in the Commission on 16 June 2016. In that application he identified the date of the dismissal the subject of the application as being 29 March 2016. That means Mr Sorrell should have filed his application by 19 April 2016. In filing the application on 16 June 2016 it was filed 58 days after the 21-day time period, and it was therefore necessary for Mr Sorrell to obtain an extension of time under s.394(3) in order to make his application.
Consideration
[5] 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.
[6] 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.
[7] 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
[8] 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
[9] 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.8 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 King9 - 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.
The Decision
[10] In the Decision, the Commissioner described the sequence of events between the dismissal and the filing of Mr Sorrell’s s.394 application in the Commission. These may briefly be summarised as follows:
- On 29 March 2016 the applicant’s employment was terminated (consequently, he had until 19 April 2016 to file an application under s.394 that was within time);
- On 30 March 2016 the applicant began completing an online unfair dismissal application. He said he was aware that there was a time limit, but not what that time limit was;
- Also after the termination of his employment Mr Sorrell sought legal advice from two sources. He stated that he may have discussed the time limit with his advisors;
- From 25 May 2016 Mr Sorrell was hospitalised. A doctor confirmed that Mr Sorrell’s “stresses, pains, medication … infection (pre and post-surgery), surgery over these several months have impaired his capacity to complete the large amount of paperwork he has had to submit”; and
- On 16 June 2016 the applicant filed the present application.
[11] In the Decision, the Commissioner gave consideration to each of the matters he was required to take into account under s.394.
[12] In relation to s.394(3)(a), the reason for the delay, the Commissioner considered the various reasons for the delay advanced by Mr Sorrell, which can be summarised as follows:
- Mr Sorrell’s inability to complete the application due to stress and difficulty in coming to terms with the dismissal;
- a decision to delay lodgement pending obtaining a reference, legal opinions and investigating the possibility of civil litigation;
- the complexity of the matter, the fact Mr Sorrell was unrepresented, his view that the application required a significant amount of supporting documentation and the work required to construct the case, all of which was beyond his physical and mental capabilities of time; and
- the impact of illness and sinus complications. 10
[13] Where there is a delay in the filing of an application it is necessary to consider whether the employee has a credible reason for the whole of the period that the application was delayed. 11 In the present matter there are two relevant periods:
- between 19 April 2016 (by which time the application should have been filed in order for it to be within time) and 25 May 2016 (when Mr Sorrell was hospitalised) (First Period); and
- 25 May 2016 (when Mr Sorrell was hospitalised) and 16 June 2016 (when the present application was filed) (Second Period).
[14] In relation to the First Period the Commissioner noted that:
“[16] 57 days had passed between the date of Mr Sorrell's termination and his hospitalisation. This means that had Mr Sorrell submitted an application immediately prior to being hospitalised, it still would have been made 35 days out of time. Dr McGee's letter relates to the entire period between the dismissal and 21 June 2016 and states that Mr Sorrell's capacity to complete the large amount of paperwork was impaired.
[17] The unfair dismissal application process commenced by Mr Sorrell on 30 March 2016 required him to complete a six page form. Mr Sorrell was well enough to seek legal advice and investigate the possibility of civil litigation in the week following the dismissal and on 5 April 2016 he communicated his desires concerning an employer's reference at length in an email. This appears to be inconsistent with the contention that he was incapable of completing an unfair dismissal application.
[18] An alternative explanation for the delay was that Mr Sorrell made a conscious decision to wait pending receipt of a reference and a review of his civil litigation options with respect to his insurance policy.”
[15] The Second Period can be attributed to Mr Sorrell’s hospitalisation. The Commissioner found that to be the case 12 and accepted that:
“[19] … Mr Sorrell’s hospitalisation would have impacted his ability to lodge a claim but recognise that by this stage the application was already considerably out of time.”
[16] The Commissioner also considered and made findings about the remaining matters specified in s.394(3) as follows:
● s.394(3)(b) - whether the person first became aware of the dismissal after it had taken effect:
“...Mr Sorrell stated that he was advised of the termination of his employment on 29 March 2015 and the dismissal took immediate effect.” 13
● s.394(3)(c) - action taken by the person to dispute the dismissal:
“The application was taken on 16 June 2016.” 14
● s.394(3)(d) - prejudice to the employer (including prejudice caused by the delay):
“The Hutt Street Centre argues that an extension of time would prejudice its position. Whilst this may be the case; I have not founded my decision in this matter on that prejudice.” 15
● s.394(3)(e) - merits of the application:
“[20] In terms of the merits of the application, I have reviewed the material and information provided by Mr Sorrell. I have noted that:
● Mr Sorrell resigned his employment following various complaints which he made about smoking adjacent to his workplace about the temperature in the office environment;
● Mr Sorrell made various complaints about certain managers; and
● The Hutt Street Centre’s position that the applicant resigned in writing.
[22] As the evidence in support of each party’s contentions is unable to be tested, I have regarded the merits of the application as a neutral factor.”
● s.394(3)(f) - fairness as between the person and other persons in a like position:
“[23] Considerations of fairness relative to other persons in similar positions do not generally support an extension of time.”
The Commissioner concluded:
“[24] Having considered the material before me, I am not satisfied that Mr Sorrell has established that the reason for the significant delay in this matter represents exceptional circumstances so as to warrant an extension of time. The application will be dismissed on that basis and an Order (PR582882) giving effect to this decision will be issued.”
[17] The approach taken by the Commissioner was orthodox. To the extent that in his Notice of Appeal the appellant submitted that the “Commissioner erred in his decision as he has not addressed the criteria and is obliged to do so” we reject that submission.
Public interest and grounds of appeal
[18] The Notice of Appeal claimed that it was in the public interest for the Commission to grant permission to appeal because:
- of the nature of the respondent’s work and the fact that it “solicits donations from the public, donations of time by volunteers, and significant amounts of funding from the Government”.
- (in the opinion of the appellant) the respondent “appears to have broken the law by failing in its duty of care to myself, its statutory duty of care, its common law duty of care…”;
- the respondent did not uphold its own policies; and
- the appellant suffered from “severe sinus infection requiring heavy medication and hospitalisation. I also suffered from significant psychological stress.”
[19] Noting the test for public interest it is not immediately apparent to us how the matters submitted by the appellant raise any issue of relevance beyond the particular interests of the appellant as an individual.
[20] Before us Mr Sorrell submitted that the public interest was also enlivened because:
“this case raises issues of injustice for unrepresented litigants insofar as the Commissioner failed to afford the applicant the ability to speak to his submissions as the Commissioner frequently interrupted and spoke over the applicant.”
[21] Mr Sorrell’s appeal raised a number of issues. The grounds of the appeal claimed that the Commissioner had been biased, spoke over the appellant and had pre-judged the outcome of the matter.
[22] It is well established that Commission members are required to act “judicially” and accord all parties procedural fairness. This duty must be applied in the context of the particular circumstances including the nature of representation and the nature of the matter before the Commission. 16 The role of the Commission member when an applicant appears in person also needs to be taken into account. The duty is to provide for a fair hearing but not to provide a positive advantage to a self-represented litigant.17 Noting the matters canvassed by the Commissioner in the Decision we are not satisfied that the appellant has established that he was denied procedural fairness, nor that he has an arguable case in that respect.
[23] The grounds contained in the Notice of Appeal were supplemented by written and oral submissions before us. The appellant submitted that the Commissioner:
- made a number of significant errors of facts;
- did not acknowledge the significant impact of the applicant’s psychological distress in combination with the impairment arising from his physical illness;
- did not consider the impact of the medication that the applicant was required to take for his physical illness, which impaired his cognitive ability to prepare an application or provide instructions to a legal representative;
- did not refer to the issue of bullying and harassment as a factor in the delay of filing the application;
- did not consider the applicant’s evidence that he attended a psychiatrist to assist with his mental health prior to and after his employment ended;
- failed to consider that prior to the applicant’s hospitalisation and surgery, he was seriously unwell;
- made an error of fact when he found that the six page form was within the abilities of the applicant when the evidence indicated that completing such paperwork was not within the applicant’s ability; and
- made an erroneous speculation about the applicant’s interest in an insurance policy.
[24] In our view, the majority of the appellant’s appeal submissions are a reiteration of the submissions made at first instance and refer to matters which were clearly considered by the Commissioner at first instance. The balance of the appellant’s submissions raise issues which do not address the findings of the Commissioner. The appeal process is not intended to provide an avenue for an unsuccessful party to rerun their case simply because he or she is dissatisfied with the outcome of the decision at first instance.
[25] Having considered all the matters put by Mr Sorrell, and reading the decision as a whole, we are not satisfied that he has not identified any error in the decision which would meet any of the criteria for appealable error in a discretionary decision enunciated in House v The King. 18
[26] Further, the conclusion of the Commissioner that the circumstances attending the significant delay in filing the application did not meet the stringent criterion of “exceptional circumstances” is not counter-intuitive and does not manifest any substantial injustice.
[27] We are not satisfied that any of the matters raised by Mr Sorrell justify the grant of permission to appeal in the public interest or otherwise. Mr Sorrell’s appeal does not raise any issue of law or policy which is novel and/or has broader implications. It is not inconsistent with any other relevant Commission decision. The determination of his extension of time application turned entirely on its particular facts.
Conclusion
[28] We are not satisfied that it is in the public interest to grant Mr Sorrell permission to appeal. We are not satisfied that he has established an arguable case of appealable error.
[29] Accordingly permission to appeal is refused.
VICE PRESIDENT
Appearances:
D. Sorrell on his own behalf.
I. Cox for Hutt Street Centre.
Hearing details:
2016.
Sydney:
10 August.
<Price code C, PR583913>
1 [2016] FWC 4790
2 PR582882
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 Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21]
9 (1936) 55 CLR 499
10 [2016] FWC 4790 at [9]
11 Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers [2010] FWAFB 7251, (2010) 197 IR 403 at [17]; Thiess Services Pty Ltd v Stephens[2014] FWCFB 2426 at [37]. That is not to say that a credible explanation for the whole of the delay is a necessary pre-condition for the grant of an extension of time, since the reason for the delay is but one of a number of matters which are required to be considered under s.394(3) in determining whether exceptional circumstances exist.
12 Decision at [15]
13 Decision at [2]
14 Decision at [9]
15 Decision at [22]
16 Coal and Allied Services v Lawler (2011) 192 FCR 78 at [25]
17 Rajski v Scitec Corporation Pty Ltd [1986] NSWCA 1 at [28]
18 (1936) 55 CLR 499 at [504] – [505] per Dixon, Evatt and McTiernan JJ
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