David Drake v Coles Supermarket Australia Pty Ltd T/A Coles Supermarkets
[2014] FWCFB 6746
•25 SEPTEMBER 2014
| [2014] FWCFB 6746 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
v
Coles Supermarket Australia Pty Ltd T/A Coles Supermarkets
(C2014/1111)
| SENIOR DEPUTY PRESIDENT O’CALLAGHAN | ADELAIDE, 25 SEPTEMBER 2014 |
Appeal against decision [2012] FWA 3514] and order [PR551073] of Deputy President McCarthy at Perth on 4 June 2014 in matter number U2014/5642, extension of time, permission to appeal, Fair Work Act, ss.394, 400.
[1] This decision concerns an application for permission to appeal, by Mr Drake, against a Decision and Order 1 of Deputy President McCarthy on 4 June 2014. In that decision the Deputy President refused to extend the time for lodgement of Mr Drake’s unfair dismissal application, made with respect to the termination of his employment with Coles Supermarket Australia Pty Ltd T/A Coles Supermarkets (Coles).
[2] In this appeal Mr Drake was represented by Mr Fiocco, of counsel and Coles, by Mr Pollock, of counsel. Permission was granted in both instances pursuant to s.596(2)(a) of the Fair Work Act 2009 (the FW Act).
[3] The appeal relates to a decision made pursuant to s.394(3) of the FW Act which states:
“(3) FWA may allow a further period for the application to be made by a person under subsection (1) if FWA 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.”
The Decision under appeal
[4] Mr Drake’s employment was terminated on 21 February 2014. His application was lodged three days outside of the 21 day time limit specified in s.396(2) of the FW Act.
[5] Deputy President McCarthy considered the extension of time issue on the basis of written material provided to him by both parties. In his decision, he summarised the position of the parties in the following terms: 2
“[4] The Applicant was represented by Shop, Distributive and Allied Employees Association (the SDA) who lodged the Application on the Applicant’s behalf. The SDA submitted that:
● The reason for the delay was a combination of an injury to the Applicant and representative error. The injury to the Applicant restricted his mobility until about 12 March 2014. Having been earlier advised by the SDA that he had 28 days to lodge the Application he at that time believed that his Application did not need to be lodged until 21 March 2014. The Applicant contacted the SDA on 17 March 2014 and was obviously advised that the Application need to be lodged within 21 days not 28 days. Between the Applicant and the SDA actions were taken to ensure the Application was lodged that day i.e. 17 March 2014.
● The representative error was explained as errors made by new and inexperienced employees of the SDA who gave their opinion and advice in the belief that the time allowed for lodgement was 28 days, being the time allowed under the Industrial Relations Act (WA) 1979.
● The Applicant took action immediately after his dismissal by contacting an organiser for the SDA.
● The Employer will not be unfairly prejudiced.
● The conduct asserted giving rise to the dismissal related to the Applicant threatening customers. The conduct is disputed, or at least, the circumstances giving rise to it and gravity of it are disputed. The Applicant says further that he was not given adequate training and there was also inadequate security provided by the Respondent.
[5] The Respondent objected to the Application on the grounds that:
● The erroneous advice given by the SDA does not sufficiently create an exceptional circumstance and in any event insufficient evidence has been provided to establish the SDA’s contention. They also argue that the Applicant has provided no supporting documentation or evidence that supports his contention of having had limited mobility until 12 March 2014.
● The Applicant took insufficient action to progress his claim during the 21 days.
● The Respondent did not assert that they have not suffered significant prejudice as a result of the delay.
● A detailed examination of the merits of the Application is not required in consideration of an extension of time.
● Fairness between the Applicant and others was not raised and is not relevant.”
[6] The Deputy President then detailed his consideration of the matter in the following terms:
“[6] The reasons for the delay are outlined above. The Respondent’s objection to this consideration is that evidence should be provided in support of the contentions. Whilst evidence would be of assistance it is not necessary in my view. Firstly, the Applicant was not requested by me to provide any statements, but rather to give an explanation. He, and the SDA, responded to exactly what was asked of them. Secondly, I do not consider more formal evidence is necessary on this occasion for a number of reasons. The SDA is an employee organisation of long standing. It is highly unlikely, in my view, that the SDA would misrepresent or concoct an explanation. It is also quite a plausible explanation that inexperienced officials in the SDA which, I believe, has frequent dealings in the Western Australian Industrial Relations Commission would confuse the time limits. I also do not consider further evidence is necessary for the Applicant to provide medical evidence of his condition.
[7] Indeed it would be mightily foolish and improbable for the Applicant to give false explanations as his credibility would be subject to consideration and scrutiny in any proceedings.
[8] The delay here must also be considered in the context of the SDA having knowledge of a likely dismissal before it occurred and knowledge of the dismissal immediately or soon after it occurred. It seems the SDA took no action, nor apparently did the SDA staff involved seek advice or instruction from other more experienced officers of the SDA. I regard the reasons for the delay weigh against an exceptional circumstance existing.
[9] The Applicant became aware of the dismissal when it took effect. However, this element of my considerations was not relevant.
[10] The Applicant took action by involving his union. Indeed he involved the SDA in the discussions concerning his conduct that led to his dismissal. The Applicant also took the initiative of contacting the SDA before the 28 days he believed was the allowable time to lodge the Application. Whilst he may not have given explicit instructions before the 21 days allowed, that would likely have been for the reason that he believed he had until the 21 March 2014 to lodge the Application. Furthermore, upon becoming aware of the correct time allowed an Application was lodged forthwith. I do not consider the contention regarding limited mobility aids his contentions regarding the actions taken but overall the actions taken weigh in favour of the Application being allowed.
[11] It does not appear to me that the employer will be prejudiced.
[12] The Applicant gave plausible grounds regarding his contentions. The grounds give rise to what I consider to be an arguable case. I consider the Applicant’s explanations and grounds weight in favour of the Application being allowed.
[13] In circumstances where representative error is a significantly contributing factor in the Application being lodged out of time the FWC often allows the time for lodgement to be extended. However, representative error is given relevant weight depending on the facts and circumstances. It is appropriate to consider representation in the consideration of fairness between the Applicant and another person in a similar position. It would be unfair to persons who are represented to have an advantage when compared to those that are unrepresented.”
Conclusion and Decision
[14] Balancing the matters considered above I find that exceptional circumstances do not exist. The Application will not be allowed.”
The Appeal
[7] Mr Drake does not take issue with the facts set out by the Deputy President and does not assert that the Deputy President allowed any extraneous or irrelevant matters to guide or affect him. His appeal is made on the basis that the Deputy President erred in relation to the principles relevant to fairness and to representative error.
[8] In terms of fairness, Mr Drake asserts that, if fairness was a relevant consideration, the Deputy President was in error in not considering Mr Drake with reference to another person who had been dismissed and had the ability to file an unfair dismissal application rather than having regard to the issue of representational status.
[9] In terms of representative error, Mr Drake asserts that the Deputy President failed to apply the principles concerning representative error and that he had regard to the conduct of Mr Drake’s union rather than his conduct and that representative error in these circumstances should have weighed in favour of an extension of time.
Consideration of the Appeal
[10] An appeal under s.604 of the FW Act in a matter such as this must be considered by reference to s.400. This section states:
“(1) Despite subsection 604(2), FWA must not grant permission to appeal from a decision made by FWA under this Part unless FWA considers that it is in the public interest to do so.
(2) Despite subsection 604(1), an appeal from a decision made by FWA 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.”
[11] A Full Bench in GlaxoSmithKline Australia Pty Ltd v Makin 3 addressed this section in the following terms:
“[26] Appeals have lain on the ground that it is in the public interest that leave should be granted in the predecessors to the Act for decades. It has not been considered useful or appropriate to define the concept in other than the most general terms and we do not intend to do so. The expression ‘in the public interest’, when used in a statute, classically imports a discretionary value judgment to be made to be made by reference to undefined factual matters, confined only by the objects of the legislation in question.
[27] Although 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 seems to us that none of those elements is present in this case.”
[12] We agree with both the parties and numerous Full Benches and other decisions that this approach is apposite to the operation of s.400. In Coal & Allied Mining Services Pty Ltd v Lawler 4Buchanan J stated:
“However, different, more stringent, requirements are prescribed by s 400 of the Act in relation to appeals concerning applications alleging unfair dismissal.” 5
[13] Mr Drake asserted that the public interest requirement in s.400 was met in this situation. Firstly, Mr Drake submitted that permission to appeal should be granted as a consequence of the asserted errors. Additionally, Mr Drake asserts that the matter raises the extent to which s.394(3) does not permit considerations of fairness between represented and unrepresented applicants, and that this issue should be clarified. Further, Mr Drake asserted that the matter raises uncertainty about the operation of s.394(3)(f), that there is a diversity of decisions about this issue and that this uncertainty should be clarified. Mr Drake asserts that the decision manifests an injustice and that the result is counter intuitive.
[14] Coles assert that the matter does not enliven the public interest in that no error of principle or application of the factors specified in s.394(3) has been identified.
[15] Consideration of an extension of time issue pursuant to s.394(3) is a matter of discretion. Consequently, the principles in House v King 6apply in the following terms:
“.... It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred. ....”
[16] As there is no dispute about the facts of the matter which are detailed in the Deputy President’s decision s.400(2) does not become relevant.
Permission to Appeal
[17] Permission to appeal can only be granted if the FWC considers that it is in the public interest to do so.
[18] The Deputy President considered the factors specified in s.394(3). His conclusions disclose no error of approach.
[19] The Deputy President correctly identified that representative error may represent a factor which favours an extension of time but must be given weight depending on the circumstances. The mere existence of representative error cannot form the basis for an extension of time. 7 Representative error is simply one of a number of factors which may be taken into account.
[20] As a discretionary decision, the Deputy President’s conclusion does not purport to establish a compelling approach to recognition of representative error. He simply made a decision on the circumstances before him. To the extent that this decision took into account issues of fairness we think that the Deputy President expressed his conclusion about Mr Drake’s specific circumstances as distinct from other applications where extensions of time have been requested.
[21] We are not persuaded that this matter discloses issues associated with the application of s.394(3) which require clarification. In this respect we think that the diversity of decisions dealing with, amongst other things, issues of fairness between an applicant and other persons in similar positions, reflects the history of this consideration including its derivation detailed in Brodie-Hanns v MTV Publishing Limited and Telstra-Network Technology Group v Kornicki. 8 It also reflects the diversity of circumstances which the Commission is required to take into account.
[22] Consequently, we see no error of a nature which would enliven the public interest. Whilst the basis of Mr Drake’s objection to the Deputy President’s decision is clear, we are not satisfied that the decision establishes a conclusion which was, in the overall circumstances of this matter, so inherently unfair or inconsistent that it should be overturned.
[23] Permission to appeal is refused and the appeal is dismissed accordingly.
SENIOR DEPUTY PRESIDENT
Appearances:
J Fiocco for David Drake.
A Pollock for Coles Supermarket Australia Pty Ltd.
Hearing details:
2014.
Perth:
August 28.
1 [2014] FWC 3514 and PR551073
2 [2014] FWC 3514
3 [2010] FWAFB 5343
4 [2011] FCAFC 54
5 [2011] FCAFC 54, para 34
6 (1936) 55 CLR 499
7 See, for example Davidson v Aboriginal and Islander Child Care Agency, Print Q0784
8 (1995) 67 IR 298 and(1997) 140 IR 1
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