Dawn Evans v Scope (Vic) Ltd
[2015] FWCFB 8364
•18 DECEMBER 2015
| [2015] FWCFB 8364 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
Scope (Vic) Ltd
(C2015/6422)
VICE PRESIDENT HATCHER | SYDNEY, 18 DECEMBER 2015 |
Permission to appeal against a decision in transcript and order [PR572527] of Commissioner Bissett at Melbourne on 1 October 2015 in matter number U2015/10103.
Introduction and background
[1] On 27 July 2015, Ms Dawn Evans (the appellant) was dismissed from her employment with Scope (Vic) Ltd. Ms Evans subsequently lodged an application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Cth) (FW Act) on 18 August 2015.
[2] Section 396 of the FW Act provides that before the Commission determines the merits of an unfair dismissal application, it must first decide a number of jurisdictional matters, one of which relates to the 21 day period which an employee has to file their application:
396 Initial matters to be considered before merits
The FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:
(a) whether the application was made within the period required in subsection 394(2);
...
[3] Subsection 394(2) of the FW Act provides that an unfair dismissal application must be made within 21days after the dismissal took effect:
394 Application for unfair dismissal remedy
...
(2) The application must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (3).
[4] If an unfair dismissal application is filed out of time, the Commission is able to extend the time for filing where it is satisfied that “exceptional circumstances” exist, having taken into account a number of factors listed in s.394(3) of the FW Act. Subsection 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.
[5] Ms Evans’ unfair dismissal remedy application was filed on the 22nd day after the dismissal took effect albeit in the early hours of the 22nd day. The appellant acknowledged the late filing and stated at question 1.4 of the Form F2 - Unfair Dismissal Application:
“1 day late. I went through the wrong government department and applied for an interview through Fairwork Australia and was called today by Fairwork Ombudsman and told I had to go through Fairwork Commission for Unfair Dismissal Claims. When I rang the number I was given to talk to someone and was placed in a queue and was told I could be waiting for 25 – 30 mins and my phone battery went dead while I was on hold. Now I am having trouble with the formatting of my report document. It can only be viewed properly using web layout options for some reason. I have been trying for hours to reformat it before I uploaded it but it’s just not working.”
[6] Commissioner Bissett, having been allocated Ms Evans’ matter, was therefore required to consider whether to grant an extension of time for Ms Evans to make her application before proceeding with the matter any further. On 1 October 2015 the Commissioner handed down her decision on this issue on transcript having received written submissions and hearing from the parties. The Commissioner was not satisfied that the reasons for the late filing evidenced anything that would qualify as amounting to “exceptional circumstances” under s.394(3). The matters that the Commission must take into account under s.394(3) of the FW Act were canvassed in the Commissioner’s decision.
[7] In considering the matters required to be taken into account under s.394(3), the Commissioner concluded that the totality of the period of delay must be considered, not just the delay post the 21 days. The Commissioner was not satisfied that the computer problems encountered by Ms Evans were of such an impact that the appellant could not have filed her application on time.
[8] Ms Evans seeks permission to appeal and appeals the Commissioner’s decision.
Consideration
[9] This matter was listed for hearing before us for the purpose of determining whether permission to appeal should be granted.
[10] 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. 1 There is no right to appeal and an appeal may only be made with the permission of the Commission.
[11] As the decision was made under Part 3-2, Unfair Dismissal of the FW Act, the right to appeal is further qualified by s.400 (underlining added):
(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.
[12] In the Federal Court Full Court decision in Coal & Allied Mining Services Pty Ltd v Lawler and others, Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s.400 as “a stringent one”. 2 The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment3. In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of the Commission 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.” 4
[13] 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. 5 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.6
[14] In relation to extensions of time to lodge applications under s.394(3), the test of “exceptional circumstances” establishes a “high hurdle” for an applicant for an extension to be granted, and a decision as to whether to extend time under s.394(3) involves the exercise of a broad discretion. 7 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 of appealable error in the exercise of the discretion. This will require the identification of an error of the type described in House v The King8. 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) always remains.
[15] Ms Evans has listed a number of appeal grounds, none of which allege or point to the Commissioner having made an error in her decision. The appeal grounds appear simply to restate the reasons as to why the application was filed out of time.
[16] The written and oral submissions of the appellant however allege a legal and factual error was made by the Commissioner. The Commissioner, it is contended, held that Ms Evans had not made an attempt to file her application within the 21 day period allowed. On the basis that the Fair Work Commission website does not say it is a requirement to “attempt” to file an application prior to the 21 day period, it is submitted by the appellant that the Commissioner fell into error.
[17] This submission does not identify any legal or factual error, let alone a “significant” error. What the Commissioner correctly stated was that Ms Evans had not attempted prior to 17 August 2015 (the 21st day) to file her application, and took this into consideration as to the reason for the delay. In doing so, the Commissioner was correctly assessing the reason given by Ms Evans for the delay by reference to the whole of the period between the dismissal and the lodgement of the application, not just the period from when Ms Evans first attempted to lodge the application in the late hours of the 21st day.
[18] Ms Evans further submitted that the public interest is enlivened on the basis that the respondent employer “needs to be held accountable”. We do not accept this submission.
[19] An appeal is not an opportunity to simply re-argue the merits of the original application. An arguable case of appealable error has not been demonstrated by the appellant. On this basis, there being no other matters that might enliven the public interest, we must decline to grant permission to appeal because we are not satisfied that the grant of permission to appeal would be in the public interest.
Conclusion
[20] The application for permission to appeal is dismissed.
VICE PRESIDENT
Appearances:
D. Evans on her own behalf.
G. Chambers on behalf of Scope (Vic) Ltd.
Hearing details:
2015.
Sydney:
27 November.
Printed by authority of the Commonwealth Government Printer
<Price code C, PR574666>
1 Coal and Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ
2 (2011) 192 FCR 78 at [43]
3 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]
4 [2010] FWAFB 5343 at [27], 197 IR 266
5 Wan v AIRC (2001) 116 FCR 481 at [30]
6 GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343 at [26]-[27], 197 IR 266; 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 at [28]
7 Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288 at [21]
8 (1936) 55 CLR 499
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