Dennis Obel v Central Desert Regional Council

[2021] FWCFB 167

[2021] FWCFB 167

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Mr Dennis Obel
v
Central Desert Regional Council
(C2020/7100)

VICE PRESIDENT CATANZARITI
DEPUTY PRESIDENT CROSS
COMMISSIONER LEE SYDNEY, 14 JANUARY 2021

Appeal against decision [2020] FWC 4740 of Commissioner Yilmaz at Melbourne on 3 September 2020 in matter number C2020/3745. Section 365 application, extension of time refused to file application. Permission to appeal refused.

[1] Mr Dennis Obel (the Appellant) has lodged an appeal, for which permission to appeal is required under s.604 of the Fair Work Act 2009 (Cth) (the Act), against a Decision 1 of Commissioner Yilmaz issued on 3 September 2020. In the Decision, the Commissioner declined to extend time for lodgement of a general protections dismissal application (the Application) made by the Appellant pursuant to s.365 of the Act. The respondent in this matter is the Central Desert Regional Council (the Respondent).

[2] Section 366(1) requires an application to be made within 21 days after the dismissal took effect or within such further period as the Commission allows under s.366(2) of the Act. Given the effective date of the dismissal was 28 April 2020, the latest date by which the Appellant could have lodged his Application within time was 19 May 2020. In lodging the application on 20 May 2020, the Appellant’s Application was one day late. It was therefore necessary for the Appellant to obtain an extension of time under s.366(2) of the Act in order to progress his Application to the s.368 conference phase.

[3] This matter was listed for hearing in respect of permission to appeal only. On 3 November 2020, the Chambers of Vice President Hatcher issued directions for the filing of submissions by the Appellant regarding the requirement for permission to appeal, and submissions were subsequently received from the Appellant. The matter was subject to a hearing on 30 November 2020.

Legislative provisions and permission to appeal principles

[4] Section 366(2) of the Act sets out the circumstances in which the Commission may grant an extension of time as follows:

“(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) any action taken by the person to dispute the dismissal; and

(c) prejudice to the employer (including prejudice caused by the delay); and

(d) the merits of the application; and

(e) fairness as between the person and other persons in a like position.”

[5] The test of “exceptional circumstances” establishes a “high hurdle” for an application for an extension. 2 A decision as to whether to extend time under s.366(2) involves the exercise of discretion.3

[6] The meaning of “exceptional circumstances” in s.366(2) was considered by a Full Bench of the then-named Fair Work Australia in Nulty v Blue Star Group Pty Ltd  4(Nulty) as follows:

“[13] In summary, the expression “exceptional circumstances” has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.

[14] Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance.”

[7] An appeal under s.604 of the Act is an appeal by way of rehearing, and the Commission’s powers on appeal are exercisable only if there is error on the part of the primary decision maker. 5 There is no right to appeal and an appeal may be made only with the permission of the Commission.

[8] Section 604(2) of the Act requires the Commission to grant permission to appeal if satisfied that it is “in the public interest to do so”. The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgement. 6 The public interest is not satisfied simply by the identification of error, or a preference for a different result.7 In GlaxoSmithKline 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.”  8

[9] 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. 9 However, that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.

The Decision

[10] In the Decision, the Commissioner considered each of the matters she was required to take into account under s.366(2) of the Act and concluded that there were no exceptional circumstances to warrant an extension of time.

[11] In respect of s.366(2)(a) of the Act, the Commissioner concluded that the Appellant’s reason for delay weighed against any finding as to exceptional circumstances. The Commissioner addressed the reason for delay at paragraphs including [29], [30] and [31]:

“[29] Mr Obel’s submissions concerning the unreliability of internet access and lack of access can be characterised in two periods. Firstly, Mr Obel had access to internet and phone services for the two weeks while still in Willowra. Secondly, Mr Obel had access to internet services when he returned to Alice Springs. He had organised accommodation before returning to Alice Springs and he submits for the period of 14 - 15 May 2020 he stayed at the Mercure Hotel. Mr Obel makes reference to driving 420 kilometres to pick up keys from a friend to gain access to his friend’s unit, and I accept it is reasonable that he did not have access to the internet on 15 May 2020. However, I do not accept the explanations as reasonable for the period Mr Obel relies on to explain his delay.

[30] Mr Obel submits he experienced a technical error when filing his application on 19 May 2020. He does not provide any evidence of this error message being received. Mr Obel bears the onus to demonstrate a credible explanation for the delay.

[31] Further I observe that Mr Obel admits to taking his first steps in filing his application on the deadline. Evidence in this matter concerning Mr Obel’s failure to comply with deadlines includes his responding to the show cause letter (5 days late) and complying with the Commission’s directions (two days late) and then submitting further unapproved materials after the deadline (19 days late). Mr Obel provided no credible explanations nor regret for failure to comply with any of the abovementioned deadlines..”

[12] In respect of action taken by the Appellant to dispute the dismissal, the Commissioner noted that the Appellant relied on two emails sent to the Respondent on 22 and 28 April 2020, but found that those emails, and other correspondence, related to challenging a show cause letter rather than challenging the termination of employment decision. The Commissioner made the following observations in relation to s.366(2)(b)-related considerations:

“[37] Not only do these submissions confirm that no action was taken by Mr Obel to challenge his termination of employment when he became aware of it until he filed this application, it is also inconsistent with his submissions concerning delay where he states the dismissal was abrupt and immediate, causing significant inconvenience to meet the statutory timeframe.

[38] No action, other than filing an application under the Act goes against the granting of an extension 12.

[39] This consideration does not weigh in Mr Obel’s favour.”

[13] In respect of the other matters specified in s.366(2)(c) of the Act, the Commissioner noted she was not satisfied the Respondent had demonstrated prejudice and as such it was a neutral consideration. 10

[14] Regarding the merits of the Application (s.366(2)(d)), the Commissioner found:

“[49] While the evidence tendered is contested, it is not tested at an extension of time hearing, nevertheless I cannot conclude that on balance that Mr Obel demonstrated a meritorious application. The evidence of the existence of policies, emails and correspondence provided weighs in favour of the submission that Mr Obel failed to comply with reasonable and lawful management directions.

[50] In relation to merit I do not find in Mr Obel’s favour.”

[15] In relation to the final consideration (s.366(2)(e)), the Commissioner found neither party addressed the consideration adequately in respect to the circumstances of the case, and consequently, she found the consideration neutral.

Consideration

[16] As the matter before us concerns only permission to appeal, we will be determining solely that question notwithstanding the fact that the Appellant’s submissions addressed a range of other substantive-type matters.

[17] We understand the Appellant’s grounds of appeal to be that the Commissioner made two significant errors which misguided the ultimate Decision; this matter was elaborated in the Appellant’s written submissions together with some other matters. We understand that the matters said to enliven the public interest to grant permission for the appeal were:

•  A denial of procedural fairness involving prejudicially allowing the Respondent to introduce late evidence, and failing to respond to the Appellant’s case;

•  Misconstruction and misapplication of s.366(2) of the Act, principally relating to the Commissioner referring to the Appellant failing to comply with deadlines as indicative of his approach to time deadlines; and

•  Significant errors of fact involving making findings of fact that did not reflect the evidence before her, and failing to consider the Appellant’s evidence.

[18] In broad summary, the Respondent disputes the contention that there is an arguable error of fact or law in the Decision and submits that none of the purported errors gives rise to a manifest injustice in the requisite sense.

[19] We do not accept the proposition that the Appellant was denied procedural fairness. While the Commissioner was initially not disposed of receiving materials filed at a late stage by the Appellant in the proceedings at first instance, the Commissioner noted, and the Appellant accepted 11, that the Appellant was nonetheless able to make oral submissions that addressed the additional materials. The Appellant was further, on the second day of hearing, allowed to address further material relied upon by the Respondent. The Commissioner did not fail to address the Appellant’s case. The Commissioner summarised the key elements of the case advanced by the Appellant but in conclusion found it without merit.

[20] The Commissioner did not misconstrue or mis-apply s.366(2) of the Act. It was open to the Commissioner to note other examples of the Appellant failing to comply with deadlines as indicative of his approach to time deadlines, particularly where the Appellant conceded to taking his first steps in filing the Application on the 21 day deadline.

[21] Finally, we do not consider in the context of what has been advanced by the Appellant in relation to permission to appeal that there is an arguable appellate case that the Decision contained significant errors of fact. The Appellant’s submissions elaborate upon certain matters which had already been considered in the Decision at first instance.

[22] The public interest is not enlivened where an Appellant expresses a preference for a different result. That the Commissioner took a different view to the Appellant on determination of various facts, and their application to the considerations of s.366(2), is not a factor that enlivens the public interest.

[23] Having considered all the matters raised by the Appellant with respect to permission to appeal, we are not persuaded that the public interest is enlivened. More specifically, we are not satisfied that:

•  there is a diversity of decisions at first instance so that guidance from an appellate body is required of this kind;

•  the appeal raises issues of importance and/or general application;

•  the decision at first instance manifests an injustice, or the result is counter intuitive; or

•  the legal principles applied by the Commissioner were disharmonious when compared with other decisions dealing with similar matters.

Conclusion

[24] For the reasons set out above, we are not satisfied that the Appellant has established that there is an arguable case of error in relation to any relevant aspect of the Decision or that the conclusion reached by the Commissioner was attended with sufficient doubt to warrant its reconsideration in an appeal.

[25] Accordingly, permission to appeal is refused.

VICE PRESIDENT

Appearances:

Mr D Obel, the Appellant on his own behalf
Ms I McCreevy, for the Respondent

Hearing details:

2020
Sydney
November 30.

Printed by authority of the Commonwealth Government Printer

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 1   Dennis Obel v Central Desert Regional Council[2020] FWC 4740 (the Decision).

 2   Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace

Relations [2014] FWCFB 2288 at [21].

 3   Halls v McCardle and Ors [2014] FCCA 316.

 4   [2011] FWAFB 975.

 5   Coal and Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.

 6   O’Sullivan v Farrer and another (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; (2011) 207 IR 177 at [44]-[46].

 7   GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343 [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 388, 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].

 8   GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343 at [27]; (2010) 197 IR 266.

 9   Wan v AIRC (2001) 116 FCR 481 at [30].

 10   Decision at [43]

 11   Transcript 9 July 2020, at PN 148.