Daniela Prince-Agbodjan v Victorian Aboriginal Child & Community Agency Co-Op Ltd
[2025] FWCFB 27
•12 FEBRUARY 2025
| [2025] FWCFB 27 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Daniela Prince-Agbodjan
v
Victorian Aboriginal Child & Community Agency Co-Op Ltd
(C2024/9266)
| DEPUTY PRESIDENT MILLHOUSE DEPUTY PRESIDENT O’NEILL | MELBOURNE, 12 FEBRUARY 2025 |
Appeal against the decision of Commissioner Connolly delivered ex-tempore on 2 December 2024 in matter number U2024/13355 – permission to appeal refused.
Ms Daniela Prince-Agbodjan has lodged an appeal under s 604 of the Fair Work Act 2009 (Cth) (Act), for which permission to appeal is required, against an ex-tempore decision and order[1] of Commissioner Connolly issued on 2 December 2024.
In the ex-tempore decision, the Commissioner declined to grant the Appellant, Ms Prince-Agbodjan, an extension of time to file her unfair dismissal application against the Respondent, Victorian Aboriginal Child & Community Agency Co-Op Ltd (VACCA) and dismissed her application. On 22 January 2025 the Commissioner published written reasons for that decision.[2]
The matter was listed for permission to appeal only. Mr Truong was granted permission to appear on behalf of Ms Prince-Agbodjan and Ms Williams appeared on behalf of the VACCA. For the reasons that follow, permission to appeal is refused.
Context
Section 394(2) of the Act requires an application for an unfair dismissal remedy to be filed 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.”
Ms Prince-Agbodjan’s application for an unfair dismissal remedy was lodged on 7 November 2024. The dismissal took effect on 14 October 2024. To have been made within the 2-day statutory timeframe, the application needed to have been lodged with the Commission by 4 November 2024. The application was therefore lodged 3 days out of time.
In her Form F2 application for an unfair dismissal remedy, Ms Prince-Agbodjan answered “no” to the question, “Is this form being lodged within the 21 days limit?” In the Form F2 Ms Prince-Agbodjan included, “I was sick for 2 weeks during the period I started working on my application and I can provide a medical certificate if requested.”
The decision under appeal
In the ex-tempore decision, the Commissioner commenced by noting that he thought it appropriate to issue his judgement orally having regard to the obligations on the Commission to be effective and efficient in the exercise of its powers. In respect to the reason for the delay, the Commissioner accepted Ms Prince-Agbodjan had been suffering from a condition for a significant period of time before the termination but nevertheless was able to engage with the VACCA during that time. While the Commissioner accepted the evidence that Ms Prince-Agbodjan was ill for 10 days following the dismissal and unable to file the application during that period, this did not account for the remaining 11 days of the 21-day timeframe, nor the 3-day delay after the prescribed lodgement period passed.
The Commissioner noted that Ms Prince-Agbodjan was aware of her dismissal on the day she was terminated and that she had acted to dispute her dismissal. He found that there was not any prejudice to the VACCA should an extension be granted. On the merits of the case, the Commissioner recorded that he had not heard submissions on merit and accordingly considered it a neutral factor, while indicating he had taken into account the remarks of Ms Prince-Agbodjan as to why she was pursuing the matter. The Commissioner concluded that he was not inclined to grant the extension of time and issued an order dismissing the application.
On 22 January 2025, the Commissioner issued ‘reasons for decision’ which recorded at paragraph [6] that he had refused Ms Prince-Agbodjan’s application for an extension of time on 2 December 2024 and dismissed the application. The Commissioner proceeded by setting out in detail why he had reached this conclusion. Relevantly, the Commissioner concluded that the period of the 3-day delay was “relatively short” but that he was “not satisfied Ms Prince-Agbodjan has provided a credible and reasonable explanation for the period of the delay” and therefore the consideration in s 394(3)(a) weighed against the grant of an extension of time.
In respect to s 394(3)(b), the Commissioner was satisfied that Ms Prince-Agbodjan became aware of the dismissal on the date it occurred. As to s 394(3)(c), the Commissioner considered the attempts of Ms Prince-Agbodjan to dispute the dismissal prior to it coming into effect and that this factor weighed in favour of granting an extension of time. The Commissioner recorded that there was no prejudice to the VACCA if an extension of time was granted (s 394(3)(d)) and in respect to s 394(3)(f), the Commissioner stated that neither party brought to his attention any relevant matter. As to the merits of Ms Prince-Agbodjan’s substantive case (s 394(3)(e) the Commissioner noted that there was insufficient evidence before him to make an assessment and therefore regarded the merits as a neutral factor. Accordingly, the Commissioner considered that these factors were neutral.
In conclusion the Commissioner recorded that on balance, there were no exceptional circumstances warranting the exercise of his discretion to grant an extension of time.
Ground of appeal
Ms Prince-Agbodjan’s Form F7 Notice of Appeal contains six grounds of appeal which are in summary:
The Commissioner erred in not considering the evidence of Ms Prince-Agbodjan’s ongoing illness prior to the date of termination until 9 November 2024 and that the Commissioner only considered Ms Prince-Agbodjan’s illness during the period commencing 21 October until 31 October 2024;
The Commissioner failed to assess the merit of the unfair dismissal application pursuant to s 394(3)(e);
The Commissioner failed to examine the fairness between the person and the other persons in a similar position pursuant to s 394(3)(f);
The Commissioner failed to consider that the F3 Employer Response which was filed by the VACCA on 25 November was filed 2 hours and 38 minutes later than the 4pm deadline;
Ms Prince-Agbodjan was represented by the HACSU, which incorrectly advised her that she should not apply for the unfair dismissal, and negotiate with the VACCA for a resignation. Ms Prince-Agbodjan commenced the unfair dismissal application on 7 November 2024 after a lengthy period of waiting for HACSU’s action in relation to the unfair dismissal; and
When the s 394(3) factors are considered in totality, the circumstances of Ms Prince-Agbodjan are exceptional circumstances.
In relation to the public interest, Ms Prince-Agbodjan states in her Notice of Appeal as follows:
The appeal raises the issue of whether a request for an extension of time ought to be granted in exceptional circumstances pursuant to s 394 of the Act;
The first decision manifests injustice as it prevents Ms Prince-Agbodjan proceeding with the unfair dismissal claim which has a prospect of success;
The matter also raises issue of general application of whether an extension of time should be granted in relation to Ms Prince-Agbodjan’s circumstances; and
There are other decisions of the Commission dealing with similar matters in which an extension to file the unfair dismissal application was granted.
Principles – permission to 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.[3] There is no right to appeal, and an appeal may only be made with the permission of the Commission.
This appeal is one to which s 400 of the 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.”
In the Federal Court Full Court decision in Coal & Allied Mining Services Pty Ltd v Lawler and others,[4] 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.[5] A Full Bench of the Commission, in GlaxoSmithKline Australia Pty Ltd v Makin[6], 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...”
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, the fact that the Member at first instance made an error is not necessarily a sufficient basis to grant permission to appeal.[8]
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.[9] However, it is necessary to engage with the appeal grounds to consider whether they raise an arguable case of appealable error.
Fresh evidence
In the appeal, Ms Prince-Agbodjan’s representative, Mr Truong, sought to admit further evidence, the particulars of which were not made clear at the hearing. The relevance was said to be connected to the ground of appeal related to the alleged failures of Ms Prince-Agbodjan’s union, the HACSU. During the hearing we determined we would not accept further evidence. Despite this, Ms Prince-Agbodjan filed further materials subsequent to the hearing. We decline to admit those materials for the following reasons.
Section 607(2) of the Act confers a discretion on the Full Bench to “admit further evidence” and “take into account any other information” on appeal, however it is by no means a matter of course that it will do so.
It is well-settled that the principles governing the discretion to admit new evidence or to consider further material are set down in Akins v National Australia Bank.[10] In that case, the New South Wales Supreme Court identified three conditions which need to be met before fresh evidence can be admitted. These are: (1) it must be established that the evidence could not have been obtained or adduced with reasonable diligence for use at first instance; (2) it must be evidence which is of such a high degree of probative value that there is a probability that there would have been a different result at first instance; and (3) the evidence must be credible.[11]
It has been recognised by Full Benches of the Commission that, in considering whether to exercise the discretion in s 607(2), it is permissible in an appropriate case to depart from the principles set out in Akins and the principles need not be strictly applied.[12] However, the Full Bench decisions referred to indicate it will be rare for fresh evidence to be admitted on appeal where the conditions in Akins are not met.
We decline to admit the further material provided by Ms Prince-Agbodjan subsequent to the hearing, as we are not satisfied that the requirements of Akins are met or that the material is otherwise appropriate to admit. Specifically, having considered the material, we are not satisfied that the second of the three conditions in Akins have been met. That is, the SMS messages are not of such a high degree of probative value that there is a probability that it would have changed the result in first instance. Two of the messages to the HACSU are dated after the Commissioner had dismissed the application and are of no relevance. The two other phone records indicate that Ms Prince-Agbodjan made attempts to make contact with an official of the HACSU on 14 October, 22 October and 1 November 2024. These messages may have been relevant had an argument been made before the Commissioner that the delay was caused by representative error. However, representative error was not advanced at first instance as a reason for the delay. Further, these messages could have been provided to the Commissioner at first instance and therefore do not meet the first requirement of Akins. The other material provided appear to be google reviews of the HACSU which, are of no relevance.
Consideration
We do not consider that it is appropriate to grant permission to appeal. The time limit that applies to the exercise of a person’s right to bring an application under s 394 of the Act reflects Parliament’s intention that this right be exercised promptly. The Act recognises that there are some cases where a late application should be accepted, namely where there are exceptional circumstances.
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.[13] A decision as to whether to extend time under s 394(3) involves the exercise of a broad discretion.[14]
The appeal grounds upon which Ms Prince-Agbodjan relies do not identify an arguable case of appealable error in the exercise of the Commissioner’s discretion.[15]
The first appeal ground invites the Full Bench to conclude that the Commissioner erred because he only considered Ms Prince-Agbodjan’s illness during the period between 21 October and 31 October 2024 and did not take into account Ms Prince-Agbodjan’s on-going illness prior to the dismissal date until 9 November 2024. It is apparent from the decision that the Commissioner did take into account all aspects of the Ms Prince-Agbodjan’s evidence as to her health condition, including Ms Prince-Agbodjan’s on-going illness.[16] The Commissioner also took into account that Ms Prince-Agbodjan was able to perform functional tasks including engaging with the VACCA at the time her illness was said to persist. The Commissioner’s consideration of the medical reasons advanced by Ms Prince-Agbodjan to explain the delay discloses no arguable error on appeal.
The second appeal ground invites the Full Bench to conclude that the Commissioner failed to assess the merits of the application. To the extent that Ms Prince-Agbodjan alleges that the Commissioner erred by not reaching a concluded view on the merits of the case, this ground has no arguable prospects of success. The Commission should not embark upon a detailed consideration of the merits of the substantive case in determining whether to grant an extension of time. Consistent with this principle, the Commissioner took the merits into account noting that he had considered the remarks of Ms Prince-Agbodjan as to why she was pursuing the matter. It is apparent from the materials before the Commissioner that Ms Prince-Agbodjan was dismissed for alleged misconduct. Ms Prince-Agbodjan asserts that the dismissal was unfair for reasons including that she is not guilty of the misconduct and that there were flaws in the investigation. The claims and counterclaims would need to be tested in a hearing on the merits, which is not appropriate in a proceeding to deal with extension of time. The Commissioner’s approach to the merits consideration and the conclusion reached, being that it was a neutral consideration, discloses no arguable error on appeal.
The third appeal ground contends that the Commissioner failed to examine the fairness between Ms Prince-Agbodjan and other persons in a similar position pursuant to s 394(3)(f). It is apparent that in the ex-tempore decision the Commissioner did not address this matter. While the reasons for decision issued by the Commissioner on 22 January 2025 do make reference to s 394(f), we accept that the decision that is the subject of this appeal is the one made upon the conclusion of the hearing on 2 December 2024. As that decision failed to take into account
s 394(3)(f) of the Act, the Commissioner erred. However, as we set out earlier, the fact that the Member at first instance made an error is not necessarily a sufficient basis to grant permission to appeal.[17]
The transcript of the proceedings before the Commissioner records that the Commissioner asked Ms Prince-Agbodjan if she had any remarks on the consideration in s 394(3)(f). The extent of Ms Prince-Agbodjan’s evidence in relation to this matter was as follows:
“I'm talking about both. So - - -?---Okay. I have – I have witnessed a few of unfair treatment, especially at the place that I work. But those – my work colleagues, they just choose to, you know, just separate themselves from like – seek elsewhere.”[18]
This remark is no more than a submission that others at the workplace have been treated unfairly. This is not a matter that is relevant to the consideration under s 394(3)(f) and we were not taken to any further matters in the hearing before us that may have had a material bearing in the overall consideration of this factor. In the circumstances, while the Commissioner was in error to not take s 394(f) into account in his ex-tempore decision, had he done so, there was nothing in evidence that would have changed the result, as his written reasons demonstrate. It follows that the grant of permission to appeal on this ground alone lacks utility. A lack of practical utility is a well-established basis for the refusal of permission to appeal, even if appealable error is demonstrated.[19]
The fourth appeal ground is that the Commissioner did not take into account that the VACCA filed its Form F3 Employer Response outside of the compliance deadline. This fact made no practical difference to the conduct of the proceeding and no error arises from the exercise of the Commissioner’s discretion to accept the filing of the respondent’s material.
The fifth appeal ground is related to the involvement of the HACSU. The ground of appeal refers to the union giving “incorrect advice” to not apply for unfair dismissal. It is further submitted that Ms Prince-Agbodjan was waiting for the union’s action in relation to the unfair dismissal. If Ms Prince-Agbodjan had been told by the union not to pursue unfair dismissal, it is not apparent what action she was expecting the union to take. In fact, her evidence before the Commissioner was that she was not expecting the union to take any action:
“Yes?---However, she – she didn't really – I kind of felt that she was not on my side. She was really – she said to me that I shouldn't go to the Fair Work Commission, that they're not going to do anything about it, and so I told her, 'Okay, that's fine. I'll have a look at other options and I'll take it from there'. So I didn't really trust her because some of the union – some of the representatives have this agenda of their own to kind of go behind my back and get – make deals with the organisation. So, you know, they go behind your back and be like, 'You know, you should just do this', and then they talk to the manager behind your back so – because of that I decided to work this on my own, the best as I can.”[20]
There was no argument before the Commissioner that there was representative error on the part of the union, nor do we think such an argument could have been advanced given the evidence of Ms Prince-Agbodjan that she was not expecting the union to lodge an unfair dismissal application on her behalf. In the circumstances, this ground of appeal discloses no arguable error on appeal.
The sixth appeal ground is simply a statement that Ms Prince-Agbodjan considers that the decision should have yielded a different result. It is not directed at raising any particular error with the decision under appeal.
Conclusion
We are not persuaded that any of the matters raised by Ms Prince-Agbodjan justify the grant of permission to appeal or enliven the public interest. Ms Prince-Agbodjan’s application for an extension of time was determined on the basis of its own facts. In this respect, we are not satisfied that the appeal raises any issue of importance or general application, nor does it identify any relevant diversity of decisions at first instance. We do not consider it to be arguable that the decision of the Commissioner manifests an injustice, or that the result is counterintuitive or unjust. For the reasons we have given, the legal principles are not disharmonious with other authorities concerning s 394(3) of the Act.
As we are not satisfied that the grant of permission to appeal would be in the public interest, permission to appeal must be refused in accordance with s 400(1) of the Act.
Order and disposition
Permission to appeal is refused.
DEPUTY PRESIDENT
Appearances:
Mr T Truoung, on behalf of the Appellant.
Ms B Williams, with Ms A Briggs for the Respondent.
Hearing details:
2025:
Melbourne (by video link):
5 February
[1] PR781918.
[2] [2025] FWC 173.
[3] This is so because on appeal, the Commission has the 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] (2011) 192 FCR 78 at [43].
[5] O’Sullivan v Farrer [1989] HCA 61; 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch [2011] HCA 4, 243 CLR 506; 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] FCAFC 54; 192 FCR 78; 207 IR 177 at [44]-[46].
[6] GlaxoSmithKline Australia Pty Ltd v Colin Makin[2010] FWAFB 5343 at [27].
[7] Wan v AIRC [2001] FCA 1803, 116 FCR 481 at [30].
[8] Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth[2010] FWAFB 10089; 202 IR 388 at [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54; 192 FCR 78; 207 IR 177; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office[2014] FWCFB 1663; 241 IR 177 at [28].
[9] Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82].
[10] (1994) 34 NSWLR 155.
[11] Cited in Perry v Rio Tinto Shipping Pty Ltd [2016] FWCFB 6936.
[12] JJ Richards & Sons Pty Ltd v Transport Workers’ Union of Australia (2010) 202 IR 180; [2010] FWAFB 9963 at [95]; Mermaid Marine Vessel Operations Pty Ltd v Maritime Union of Australia (2014) 241 IR 35; [2014] FWCFB 1317 at [17]; C Ozsoy v Monstamac Industries Pty Ltd[2014] FWCFB 2149 at [21] - [25]; Perry v Rio Tinto Shipping Pty Ltd [2016] FWCFB 6963 at [11].
[13] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21].
[14] Ibid.
[15] See, House v The King [1936] HCA 40, 55 CLR 499.
[16] Transcript of proceedings dated 2 December 2024 (Transcript) at PN119.
[17] Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth[2010] FWAFB 10089; 202 IR 388 at [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54; 192 FCR 78; 207 IR 177; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office[2014] FWCFB 1663; 241 IR 177 at [28].
[18] Transcript at PN72.
[19] See Ferrymen Pty Ltd v Maritime Union of Australia[2013] FWCFB 8025; 238 IR 258 at [48]; Australian Rail, Tram and Bus Industry Union v Queensland Rail Limited[2013] FWCFB 2165 at [5]; Australian Licenced Aircraft Engineers Association v Qantas Airways Ltd[2012] FWAFB 7791 at [8].
[20] Transcript at PN62.
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