Derek Storey v Aristocrat Leisure Limited t/a Aristocrat Technologies Australia
[2016] FWCFB 8735
•23 DECEMBER 2016
| [2016] FWCFB 8735 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
Aristocrat Leisure Limited t/a Aristocrat Technologies Australia
(C2016/6944)
VICE PRESIDENT HATCHER |
|
Permission to appeal against decision [2016] FWC 8464 of Deputy President Lawrence at Sydney on 25 November 2016 in matter number C2016/5240.
Introduction and background
[1] Derek Storey, the appellant, has lodged an appeal, for which permission to appeal is required, against a decision and order of Deputy President Lawrence issued on 25 November 2016 1 (Decision) in which the Deputy President declined, under s.366 of the Fair Work Act 2009 (FW Act), to allow a further period with which Mr Storey could make a general protections dismissal dispute application under s.365 of the FW Act.
[2] At the hearing of the application for permission to appeal before us, Mr Storey represented himself. Permission was granted, under s.596 of the FW Act, for Aristocrat Leisure Limited, the Respondent, to be represented by Mr Bruce Heddle.
[3] Mr Storey made a general protections dismissal dispute application to the Fair Work Commission (Commission) on 1 September 2016. In that application he identified the date of the dismissal the subject of the application as being 28 July 2016.
[4] Section 366(1) requires a general protections dismissal dispute 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). The application was filed 14 days after the 21-day time period, and it was therefore necessary for Mr Storey to obtain an extension of time under s.366(2) in order to make the application.
[5] Section 366(2) 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.”
[6] In his Decision, the Deputy President described the sequence of events between the dismissal and the filing of Mr Storey’s application. These may briefly be summarised as follows:
- Mr Storey commenced employment with the Respondent on 26 March 2012;
- On 28 July 2016, Mr Storey was dismissed from his employment by the Respondent and was paid 30 days’ pay in lieu of notice (consequently he had until 18 August 2016 to file an application under s.365 that was within time); and
- On 1 September 2016, Mr Storey made a general protections dismissal dispute application, which was made 13 days 2 outside of the time prescribed by s.366(1)(a).3
[7] It is also common ground that on 29 July 2016, Mr Storey made a complaint to the Anti-Discrimination Board of New South Wales under the Anti-Discrimination Act 1977 (NSW). That complaint is inter alia in relation to Mr Storey’s dismissal and it has not been withdrawn nor failed for want of jurisdiction.
[8] In the Decision, after setting out the alleged contravention the subject of the general protections dismissal dispute application and the relevant provisions of the FW Act, the Deputy President gives consideration to each of the matters he was required to take into account under s.366(2) as follows:
“[14] In deciding whether to allow a further period for an application to be made the Commission must take into account the matters set out in s.366(2) above. I will deal with each of those matters separately.
The reason for the delay
[15] The Applicant’s main explanation for the delay in lodging the application was his medical condition. Medical certificates and details of doctors’ appointments and medication were provided by the Applicant. However, no evidence is provided of incapacity or hospitalisation. Indeed, the WorkCover certificates tendered state that the Applicant was “fit for pre-injury duties”.
[16] The Respondent notes that the Applicant lodged a claim with the Anti-Discrimination Board of New South Wales during the lodgement period. The Respondent submits that pursuant to s.725 of the Act, the Applicant is statutorily barred from making this application.
[17] In the circumstances, I do not need to deal with this additional objection. However, it is evidence of the Applicant’s ability to file the claim. In addition, he filed a Workers’ Compensation claim during this period.
[18] Accordingly, the reasons for delay cited by the Applicant fall short of establishing exceptional circumstances.
Any action taken by the person to dispute the dismissal
[19] As noted, the Applicant did lodge other proceedings challenging his dismissal.
[20] However, I am not satisfied that this is a matter of significance in the circumstances of this case.
Prejudice to the employer (including prejudice caused by the delay)
[21] I consider that this factor is neutral in this case.
Merits of the application
[22] The Applicant alleges that the redundancy payment to him was a device to terminate him. The Respondent says that the decision to make the Applicant’s role redundant was made prior to the Applicant making his formal complaint on 28 July 2016. The Respondent says that it was a genuine redundancy and that redeployment options were not practical.
[23] There was clearly a history of disagreement between the Applicant and the Respondent about his position and performance. It may be that redundancy was felt by the Respondent to be an “easy way out”. Argument about the genuineness of the redundancy does not mean, however, that the Respondent would not be able to show that the operative reasons for the dismissal were not in breach of ss.340 and 351.
[24] On balance, I do not consider that the merits of the application give weight to the existence of exceptional circumstances.
Fairness as between the person and other persons in a like position
[25] This factor was not addressed and has not been taken into account.” 4
[9] The Deputy President’s overall conclusion was that he was not satisfied that there were exceptional circumstances warranting allowing a further period within which the application could be made.
[10] Mr Storey’s Notice of Appeal raises a number of matters said to form the grounds of appeal which may be summarised as follows:
- the Decision contained several inconsistencies in detail;
- during the hearing of the application to allow a further period for lodgement, the Deputy President granted a significantly longer period to the respondent to raise matters not relevant to the extension of time issue and that he was not given an opportunity to respond to or speak to the matters raised;
- he was not given a sufficient opportunity to respond to issues raised by the Respondent concerning the circumstances of his dismissal and performance; and
- the Deputy President did not accept but should have accepted that his medical condition provided an acceptable explanation for the delay in lodging the general protections dismissal dispute application.
[11] Mr Storey was particularly aggrieved that the Deputy President did not take into account, or was not persuaded by, the medical evidence supplied by Mr Storey which accompanied his application, namely evidence that he had been visiting his doctor twice weekly, WorkCover certificates, a letter from his treating Doctor referring Mr Storey for psychiatric assessment in respect of the management of anxiety and depression that was unresponsive to psychotherapy and anti-depressants, and a letter to the Commission which sets out Mr Storey’s diagnosis and contains an opinion that it has had a significant impact on his functioning. Mr Storey also explained to us during the hearing that a side effect of the course of medication prescribed was irritable bowel syndrome, which he said caused him difficulty in leaving his home other than to attend medical appointments.
[12] In the Notice of Appeal, Mr Storey also contended that it was in the public interest for the Commission to grant permission to the appeal because:
“. . . This matter is important to Public Interest, as People with mental illness may not seek Legal Advice or be fully aware of their Legal Rights.
Hence a person with a mental illness this due to no fault of theirs, may be outside of the 21 days time to submit an Adverse Action Complaint to Fair Work Commission.”
Consideration
[13] 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. 5 There is no right to appeal, and an appeal may only be made with the permission of the Commission. Section 604 provides:
“(1) A person who is aggrieved by a decision:
(a) made by the FWC (other than a decision of a Full Bench or an Expert Panel); or
(b) made by the General Manager (including a delegate of the General Manager) under the Registered Organisations Act;
may appeal the decision, with the permission of the FWC.
(2) Without limiting when the FWC may grant permission, the FWC must grant permission if the FWC is satisfied that it is in the public interest to do so.
Note: Subsection (2) does not apply in relation to an application for an unfair dismissal (see section 400). (2) A person may appeal the decision by applying to the FWC.”
[14] Subsection 604(2) 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 judgment. 6 The public interest is not satisfied simply by the identification of error,7 or a preference for a different result.8 In GlaxoSmithKline Australia Pty Ltd v Makin, a Full Bench of Fair Work Australia identified some of the considerations that may attract the public interest:
“... the public interest might be attracted where a matter raises issue 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...” 9
[15] Other than the special case in s.604(2), the grounds for granting permission to appeal are not specified. Considerations which have traditionally been adopted in granting leave and which would therefore usually be treated as justifying the grant of permission to appeal include that the decision is attended with sufficient doubt to warrant its reconsideration and that substantial injustice may result if leave is refused. 10 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.11 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.12
[16] 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. 13
[17] The test of “exceptional circumstances” establishes a “high hurdle” for an applicant for an extension. 14 A decision as to whether to extend time under s.366(2) involves the exercise of a discretion.15 Therefore, it will usually be necessary, in an application for permission to appeal against a decision made under s.366(2) to demonstrate that there is an arguable case that there was appealable error in the exercise of the discretion. This will require the identification of error of the type described in House v The King16 - namely, 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.
[18] We are not persuaded that any of the grounds of appeal upon which Mr Storey relies, or the matters raised during the hearing, raise an arguable case of error. His complaints about the conduct of the hearing and the opportunity given to him by the Deputy President to respond to the matters raised by the Respondent are simply not made out on a review of the transcript. In particular, on the occasion that Mr Storey sought to interrupt the Respondent’s solicitor in order to, from his perspective, correct matters the subject of the Respondent’s submissions, he was advised by the Deputy President that he will have an opportunity to respond later in the hearing. 17 Furthermore, when the Respondent’s solicitor had concluded his submissions, the Deputy President invited Mr Storey to respond,18 and during that response the Deputy President sought to focus Mr Storey’s attention on matters in reply relevant to the matters the Deputy President was required to take into account in determining whether there were exceptional circumstances.19 We do not consider there to be anything irregular in the Deputy President’s conduct of the hearing, and an arguable case of error has not been made out in this regard.
[19] As to Mr Storey’s medical condition as an explanation for the delay, the Deputy President clearly took such medical evidence as was provided into account, as is apparent from paragraph [15] of the Decision. However, it is apparent that the Deputy President was not satisfied that the medical evidence established any sufficient impediment to Mr Storey in making his application within the time prescribed or as explaining the period of delay. Therefore, we are not persuaded that an arguable case of error has been made out in this regard.
[20] During the hearing of the application for permission to appeal, Mr Storey sought to rely upon further medical evidence from his treating psychologist, Mr Marcus Whelan, dated 28 November 2016. However, even if that report were admitted as evidence it would provide little assistance to Mr Storey since it is apparent on the face of the report that Mr Whelan last saw and treated Mr Storey before the date of his dismissal and they did not see or treat Mr Storey until 31 October 2016, almost two months after Mr Storey’s application was made. Mr Whelan therefore did not consult with or treat Mr Storey for the entire period that would be relevant to any consideration to allow a further period under s.366(2) of the FW Act.
[21] On the material before us, we do not consider that the Deputy President’s conclusion was unreasonable, manifested any injustice, or was counter-intuitive. Nor are we persuaded that the appeal raises issues of importance and general application, or that there is a diversity of decisions at first instance so that guidance from a Full Bench of the Commission is required. Therefore, we do not consider that there is any basis that would justify the grant of permission to appeal in the public interest or otherwise.
[22] There is a further basis on which permission to appeal should be refused. Mr Storey’s general protections dismissal dispute application is prohibited by s.725 of the FW Act. That section provides that a person who has been dismissed must not make an application or complaint of a kind referred to in any one of ss.726 to 732 in relation to the dismissal if any other of those sections applies.
[23] Mr Storey’s general protections dismissal dispute application is an application of the kind referred to in s.727 of the FW Act, and the complaint to which reference is made in paragraph [7] above is an application of the kind referred to in s.732. That section applies. As we observe above, the complaint has not been discontinued nor failed for want of jurisdiction.
[24] Permission to appeal is refused.
VICE PRESIDENT
Appearances:
D. Storey on his own behalf.
B. Heddle solicitor for Aristocrat Leisure Limited.
Hearing details:
2016.
Melbourne:
13 December.
1 [2016] FWC 8464
2 The application was actually made 14 days outside of the time prescribed.
3 Ibid at [1] – [3]
4 Ibid at [14]-[25]
5 This is so because on appeal the Commission has 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.
6 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 & Alllied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [44]-[46]
7 GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343, 197 IR 266 at [24]-[27]
8 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, 197 IR 266 at [26]-[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 [2010] FWAFB 5343, 197 IR 266 at [24] – [27]
10 Also see CFMEU v AIRC (1998) 89 FCR 200 at 220; and Wan v AIRC (2001) 116 FCR 481 at [26].
11 Wan v AIRC (2001) 116 FCR 481 at [30]
12 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, 241 IR 177 at [28]
13 Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]
14 Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21]
15 Halls v McCardle and Ors [2014] FCCA 316
16 (1936) 55 CLR 499
17 Transcript of hearing, 2 November 2016, PN79 - PN80
18 Ibid at PN124
19 Ibid at PN137
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