Dr Chris Lewis v The Australian National University
[2020] FWCFB 6848
•23 DECEMBER 2020
| [2020] FWCFB 6848 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Dr Chris Lewis
v
The Australian National University
(C2020/7380)
VICE PRESIDENT CATANZARITI | SYDNEY, 23 DECEMBER 2020 |
Appeal against decision [2015] FWC 2045 of Deputy President Kovacic at Melbourne on 25 March 2015 in matter number C2014/6429 - Section 365 application extension of time denied – Permission to appeal not granted.
Background to the appeal
[1] Dr Chris Lewis has lodged an appeal for which permission to appeal is required against a decision of Deputy President Kovacic issued on 25 March 2015. 1 This decision deals with an appeal under s.604 of the Fair Work Act 2009 (Cth) (the Act). The Deputy President declined (under s.366(2) of the Act) to extend time to Dr Lewis to file a general protections application made under s.365 of the Act.
[2] Dr Lewis filed his general protections dismissal application on 18 September 2014 alleging that he had been dismissed by The Australian National University (the ANU) in contravention of the general protections’ provisions of the Act. Section 365 of the Act requires that an application be made within 21 days after the dismissal took effect, or within a further period if the Fair Work Commission (the Commission) is satisfied that exceptional circumstances exist. 2
[3] The Deputy President dealt with two jurisdictional objections to Dr Lewis’ application under s.365; first that Dr Lewis was not dismissed and second, that if the Commission found that he had been dismissed, the dismissal was either 13 September 2013 or 16 July 2014, and that the application was outside the 21 day statutory time limit.
[4] The Deputy President found that Dr Lewis’ employment ceased on 11 September 2013 and noted that the application was filed 351 days out of time. In his Decision, the Deputy President was not satisfied having considered all of the factors in s.366(2) that there were exceptional circumstances warranting an extension of time to make the application under s.365. Accordingly, Dr Lewis’ application was dismissed.
[5] The test of “exceptional circumstances” establishes a “high hurdle” for an applicant in an extension of time application. 3 A decision whether to extend time under s.366(2) is discretionary and requires consideration of each of the matters in s.366(2) (a) to (e ).
[6] Rule 56(2) of the Fair Work Commission Rules 2013 relevantly provides that a notice of appeal under s.604 must be filed within 21 calendar days after the date of the decision being appealed against, or within such further time allowed by the Commission on application by the Appellant. Dr Lewis filed his notice of appeal on 1 October 2020, 2017 days after the decision was published.
[7] Accordingly, it is necessary for the Appellant to apply for an extension of time to file his appeal. This question must be addressed first before this Full Bench can address whether leave to appeal the decision in the first instance should be granted. Relevantly, the Full Bench noted in a recent decision in the Commission that:
“Time limits of the kind in Rule 56 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.” 4
[8] The Form F7 - Notice of Appeal (Application) filed by Dr Lewis ticked ‘no’ on the question regarding whether the Application had been filed within the prescribed timeframe. In addition to reasons outlined in his Application, he gave reasons in a written submission and in his oral submissions regarding why the Application was filed out of time and why permission to appeal should be granted.
[9] The relevant authorities 5 provide that the following matters are relevant to the exercise of the Commission’s discretion to extend time to file an appeal:
• 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.
[10] An appeal may only be made with the permission of the Commission. 6 Further, permission may be granted if the Commission is satisfied that it is in the public interest to do so7 and an appeal will only be successful if an appealable error can be made.8
[11] The issue for this Full Bench is whether, in all the circumstances and having regard to the matters set out above in the context of the necessary principles, an extension of the time within which to lodge the appeal should be granted.
[12] This matter was subject to a telephone hearing on 30 November 2020. The ANU sought permission to be legally represented. Dr Lewis opposed legal representation and the Full Bench refused the ANU permission to be represented by a lawyer as the matter was listed for permission to appeal only.
Extension of time for the appeal
Satisfactory Reason for the Delay
[13] Dr Lewis contends the reasons for the delay of filing his application to appeal is due to:
• the ANU obstructing him from accessing relevant documentation from 2015 to 2019, documentation that Dr Lewis says contradicts evidence relied on by the ANU at hearing and evidence that the Deputy President relied on in forming his decision;
• the critical evidence was only obtained after freedom of information requests were made and further material came to light in a separate Federal Circuit Court matter. 9 He says the evidence was ultimately received in 2016, 2018 and 2019;
• a matter before the Office of Australian Information Commissioner since May 2019 and an application to appeal at the same time would be too stressful;
• COVID-19 complicated matters with work and travel restrictions; and
• he put the Commission on notice of his intention to appeal when he contacted the President of the Commission in August 2019.
[14] In relation to the submission that the ANU obstructed Dr Lewis from appealing the decision, there was no evidence of the obstruction before us. Dr Lewis sought documentation through freedom of information requests, and he says he received material in 2016 and 2018. Even after receiving the documents in 2016 and 2018, Dr Lewis did not submit an appeal until 2020.
[15] Further, Dr Lewis submits that important material came to light during proceedings with the ANU in the Federal Circuit Court in 2019. Again, no application was made in 2019. While Dr Lewis contends that he had a matter before the Office of the Australian Information Commissioner in 2019 and could not cope with the stress of combining an appeal at that time, no compelling evidence was before the Commission to make any assessment of incapacity to file an appeal.
[16] No submissions concerning the impact of COVID-19 were made, other than the statement that it complicated matters with work and travel. In any event, the Commission processes enable the filing of an appeal without the need for travel. We can see no evidence from Dr Lewis in support of his reasons for the prevention of filing an appeal.
[17] Dr Lewis presented no compelling material to support his reasons to account for the whole period of 2017 days, and further, we are not persuaded that the reasons themselves are good reasons for the delay in filing the appeal.
Length of delay
[18] As mentioned earlier, the Application was lodged 2017 days outside the prescribed time limit.
Grounds of appeal and likelihood of one or more being upheld
[19] Dr Lewis contends that the new material he has obtained through freedom of information has the capacity to alter the decision of the Deputy President and warrant a rehearing. It is contended that the Deputy President relied on misleading information concerning the termination of the employment record in the human resource management system on 16 July 2014. Dr Lewis contends that the new material is evidence of a termination of the record on 25 July 2014. He states that the termination of the record had the practical effect of terminating Dr Lewis’ status in the casual pool. Dr Lewis contends it is in the public interest to accept that the termination date was 25 July 2014 and not the last day of his casual engagement on 11 September 2013.
[20] The documentation concerns ANU communications in 2014 which lead to the decision to terminate (“clean up”) the casual “active” file. Dr Lewis contends the ANU discussion coincided with his s.372 general protections application, his s.365 application or a complaint that he made about a work colleague at the ANU.
[21] Having reviewed the decision, the Deputy President observed that Dr Lewis’ last engagement in paid work was as a casual (non-ongoing) employee was on 11 September 2013, the position carried the title of Research Assistant.
[22] In considering the termination of employment date and the relevance of termination of employment record in the human resources management system, the Deputy President noted that Dr Lewis’ employment history with the ANU comprised various positions held since October 2008. The employment history included a mix of casual (non-ongoing) engagements, fixed term contracts and one continuing contract contingent on funding. The Deputy President discerned from an email by Dr Lewis on 13 September 2013, to the professor heading up the contract project that even though he was no longer working for the ANU, he requested access to university databases, which he contended was usual practice between positions.
[23] Further correspondence between the ANU and Dr Lewis in 2013 evidenced that the position of Research Assistant was subject to a freeze due to budgetary constraints. The ANU gave evidence that the status of the employment record did not prevent re-engagement by the ANU. In consideration of the evidence before him the Deputy President concluded that the termination of the employment record was not the event that terminated the employment of Dr Lewis. The casual engagement of Dr Lewis as Research Assistant came to an end due to financial constraints on 11 September 2013.
[24] Evidence of when and if necessary, the active employee records were changed to inactive or terminated (“cleaned up”) was contentious during proceedings before the Deputy President. Dr Lewis contended at the time, that the process of altering his active record to inactive or termination amounted to a termination of employment, adding that the practical effect was to clear him from the casual pool.
[25] The Deputy President’s finding that the date of termination was Dr Lewis’ last day of paid work is not in error. Dr Lewis was engaged on separate contracts of employment over the duration of his employment history with the ANU. The evidence tendered by Dr Lewis seeks to re-agitate proceedings which cannot produce a different result.
[26] We note that Dr Lewis submits in his application to appeal that:
• he accepts the 2015 decision where the Deputy President assessed that employment ended in September 2013 and that termination of the contract record was part of a clean-up and not a termination of employment,
• he accepts that the 2019 Federal Circuit Court decision that the new information would not have changed the Deputy President’s decision with respect to termination of employment that occurred in September 2013.
[27] On Dr Lewis’ submissions above, together with our assessment of the materials submitted in this application to appeal, we do not agree that the appeal grounds would materially alter the decision of the Deputy President in any way. No arguable case of appealable error in the Deputy President’s decision has been established.
[28] On a fair reading of the Decision as a whole, it is apparent that the Deputy President took into account all of the relevant evidence before him in determining the date of termination of employment, and the relevant considerations for an extension of time application.
Prejudice to the Respondent
[29] In this hearing, the ANU tendered written submissions that the Respondent would be unduly prejudiced if an extension of time was granted. The ANU further contended that should the appeal be permitted, it would be an abuse of process to effectively permit Mr Lewis to relitigate his application.
[30] The appeal was filed 2017 days after the 21 day time limit. This delay is an extraordinary lengthy delay giving rise to a general presumption of prejudice and requiring Dr Lewis to show that there was no material prejudice. 10
[31] We note the extensive litigation between the parties, the length of delay in filing the appeal and no satisfactory material to demonstrate an absence of prejudice.
Conclusion
[32] Having regard to all of the relevant considerations and applying the necessary legal principles, we are not persuaded that it is appropriate to extend time to file the appeal. There is no reason to conclude that the Deputy President made an error in exercising his discretion under s.366(2) or that he made an error of fact concerning the dismissal date. Nor are we satisfied that there is any public interest in granting an appeal. Accordingly, we have determined that an extension of time should not be granted, and we have concluded that this is not a case in which it would be appropriate to grant permission to appeal.
[33] Dr Lewis’ application for an extension to extend time to appeal is therefore dismissed and, as a result, the appeal proceedings are concluded.
VICE PRESIDENT
Appearances:
C. Lewis on his own behalf.
S. Galbraith for the Respondent.
Hearing details:
2020.
Telephone hearing:
30 November.
Printed by authority of the Commonwealth Government Printer
<PR725567>
1 Chris Lewis v The Australian National University[2015] FWC 2045.
2 S.366(2) of the Fair Work Act 2009 (the Act).
3 Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21].
4 Robert Gavin Tunsted v Busways North Coast Pty Ltd [2020] FWCFB 25 at [14].
5 Lesic v No 1 Riverside Quay Pty Ltd T/A BP Australia [2015] FWCFB 395; Tokoda v Westpac Banking Corporation T/A Westpac [2012] FWAFB 3995.
6 S.604(1) of the Act.
7 S.604(2).
8 Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; 99 IR 309; [2000] HCA 47.
9 Lewis v ANU [2019] FCCA 1949.
10 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541.
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