Darrell Sander Kay v Fulton Hogan Construction Pty Ltd
[2025] FWCFB 70
•9 APRIL 2025
| [2025] FWCFB 70 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Darrell Sander Kay
v
Fulton Hogan Construction Pty Ltd
(C2025/1845)
| DEPUTY PRESIDENT MILLHOUSE DEPUTY PRESIDENT WRIGHT | MELBOURNE, 9 APRIL 2025 |
Appeal against decision [2025] FWC 330 of Deputy President Butler at Brisbane on 6 February 2025 in matter number U2024/453 – extension of time refused.
Mr Darrell Sander Kay has lodged an appeal under s 604 of the Fair Work Act 2009 (Cth) (Act) against a decision[1] of Deputy President Butler issued on 6 February 2025. The decision was made in connection with Mr Kay’s application to the Commission for an unfair dismissal remedy.
In the decision, the Deputy President accepted that the respondent, Fulton Hogan Construction Pty Ltd, no longer required Mr Kay’s job to be performed by anyone because of changes in the operational requirements of its enterprise. However, the Deputy President was not persuaded that the respondent complied with the obligation under the relevant enterprise agreement to consult about the redundancy. Accordingly, the Deputy President was not satisfied that Mr Kay’s dismissal was a case of genuine redundancy within the meaning of s 389 of the Act.
Upon considering the merits of Mr Kay’s application for an unfair dismissal remedy, the Deputy President recorded her satisfaction that the reason for Mr Kay’s dismissal was redundancy, and this represented a valid reason for his dismissal. While there were deficiencies in the respondent’s process, the Deputy President was not persuaded that those deficiencies were such as to render the dismissal unfair.
Not being satisfied that Mr Kay was unfairly dismissed, the Deputy President dismissed his application.
The Notice of Appeal was filed outside the 21-day timeframe for lodging an appeal required by the Fair Work Commission Rules 2024 (FWC Rules). Accordingly, the matter was listed for permission to appeal and an extension of time. The parties consented to the application being determined without holding a hearing under s 607(1)(b) of the Act. We are satisfied, having regard to s 607(1)(a), that the question of permission to appeal and an extension of time can be adequately determined without the need for oral submissions.
For the reasons that follow, we decline to allow a further period of time for the lodgment of the appeal and the application for permission to appeal is dismissed on that basis.
Grounds of appeal and public interest
In his Form F7 Notice of Appeal, Mr Kay advances the following grounds of appeal, which are summarised below:
Mr Key was denied affordable legal representation.
All parties involved in the hearing except Mr Kay have studied workplace law.
Google search advised to seek legal advice.
Another employee’s expertise was completed therefore that employee was redundant.
An employee who was to attend as a witness for the respondent did not attend and is no longer employed.
Mr Kay submits that the evidence was given by the parties under oath in the proceeding and accordingly he answered all questions truthfully, while the respondent’s witness did not answer his questions or replied that he did not have knowledge.[2] Mr Kay submits that it is in the public interest to grant permission to appeal because his appeal is based on right and wrong, the process in the Commission has been difficult, and it appears employees need a law degree for fair work disputes.
Extension of time
Rule 128(2) of the FWC Rules requires that an appeal must be filed within 21 days after the date of the decision appealed against, or within such further time allowed by the Commission on application. In this case, the decision was issued on 6 February 2025 but the Notice of Appeal – while dated 12 March 2025 – was not lodged until 13 March 2025 (14 days out of time).
As is frequently noted,[3] time limits of the kind in rule 128(2) should not simply be extended as a matter of course. There are sound administrative and industrial reasons for setting a limit to the time for bringing an appeal and it should only be extended where there are good reasons for doing so. The usual principles applying to consideration of an application to extend time to lodge an appeal were summarised in the Full Bench in Jobs Australia v Eland[4] as follows:
·whether there is a satisfactory reason for the delay;
·the length of the delay;
·the nature of the grounds of appeal and the likelihood that one or more of those grounds being upheld if time was extended; and
·any prejudice to the respondent if time were extended.
Taking these matters into account, the exercise of discretion will be guided by a consideration of whether, in all the circumstances, the interests of justice favour Mr Kay being granted an extension of time within which to lodge the notice of appeal.[5]
Consideration
Mr Kay has not provided any submissions explaining the reason for the delay in filing the Notice of Appeal. While the respondent does not contend that it will be prejudiced by an extension of time, the absence of a reasonable or acceptable reason for the not insignificant delay weighs against the grant of an extension of time.
As to the assessment of the grounds of appeal it is noted that there is no right to appeal, and an appeal may only be made with the permission of the Commission. This appeal is from a decision made under Part 3-2 of the Act. Therefore, s 400 of the Act applies. By s 400(1), the Commission must not grant permission to appeal unless it is in the public interest to do so. Section 400(2) provides that an appeal on a question of fact can only be on the ground that the decision involved a significant error of fact. The test under s 400 is “a stringent one.”[6]
The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[7] The public interest is not satisfied simply by the identification of error or a preference for a different result.[8] Considerations that may attract the public interest include that the matter raises issues of importance and general application, that the decision manifests an injustice or that the result is counterintuitive.[9]
It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. However, that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.
Having regard to the Notice of Appeal and submissions, we do not consider that Mr Kay has alleged any matter that demonstrates an arguable case of appealable error. The purported denial of legal representation alleged by ground (1) is not attributable to any decision of the Deputy President. Rather, a Full Bench of the Commission declined to grant Mr Kay’s former paid agent permission to appear in respect of a number of applications in the Commission, including Mr Kay’s.[10] This pre-dated the matter being allocated to the Deputy President’s chambers.
Grounds (2), (3), (4) and (5) do not make any allegations of error in relation to the decision or the process adopted by the Deputy President in determining Mr Kay’s application. In the circumstances, we are not satisfied, for the purposes of s 400(1) of the Act, that the appeal attracts the public interest. The appeal does not raise any genuine issue of law, principle or wider application such that permission to appeal must be refused under the Act. This weighs against the grant of an extension of time to lodge the appeal.
Order and disposition
A satisfactory reason for the not insignificant delay has not been advanced and the likelihood of one or more of the appeal grounds being upheld if time were extended is weak. Accordingly, the interests of justice do not favour Mr Kay being granted an extension of time.
An extension of time to lodge the appeal is refused. Mr Kay’s application for permission to appeal is dismissed on that basis.
DEPUTY PRESIDENT
Appearances:
Matter determined on the papers.
[1] [2025] FWC 330
[2] Appellant’s submissions dated 2 April and 4 April 2025
[3] See Snyder v Helena College Council, Inc t/a Helena College[2019] FWCFB 815
[4] [2014] FWCFB 4822; see also Panayiotou v University of Adelaide[2020] FWCFB 1692 at [8] and the authorities cited therein; Andrew John Paul v Busways Pacific Pty Ltd & Others [2024] FWCFB 369 at [32]-[33]
[5] Brisbane South Regional Health Authority v Taylor [1996] HCA 25, 186 CLR 541
[6] Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54; 192 FCR 78; 207 IR 177 at [34] and [43]
[7] 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]
[8] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343; 197 IR 266 at [24]-[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]
[9] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343, 197 IR 266 at [24]-[27]
[10] Jane Massey & Ors v Brighter Access Ltd & Ors[2024] FWCFB 353
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