Dr Gang (Henry) Wu v The University of Melbourne
[2015] FWCFB 8261
•9 DECEMBER 2015
| [2015] FWCFB 8261 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
The University of Melbourne
(C2015/6985)
VICE PRESIDENT HATCHER | SYDNEY, 9 DECEMBER 2015 |
Permission to appeal against a certificate issued by Deputy President Gostencnik in Melbourne on 27 June 2014 in matter number C2014/4431.
Introduction and background
[1] On 19 October 2015 Dr Gang (Henry) Wu lodged a notice of appeal in which he sought permission to appeal and appealed a “decision” which he identified as having been made on 27 June 2014 by Deputy President Gostencnik. That decision was said to relate to a general protections application which Dr Wu had lodged pursuant to s.365 of the Fair Work Act 2009 (FW Act) on 13 May 2014 relating to his dismissal from his employment with the University of Melbourne on 2 May 2014. The Deputy President conducted a conciliation conference in relation to the matter on 23 June 2014. That conference did not result in any settlement being reached. On 27 June 2014 the Deputy President issued a certificate under s.368(3)(a) of the FW Act (Certificate) in which he certified that he was satisfied that all reasonable attempts to resolve Dr Wu’s dispute with the University had been, or were likely to be, unsuccessful. He also issued a statement the same day in which he expressed the opinion, pursuant to s.368(3)(b) of the FW Act 1 that, taking into account all the matters before him, a general protections court application in relation to Dr Wu’s dispute with the University would not have a reasonable prospect of success. It appears that the “decision” which Dr Wu seeks to appeal is that involved in issuing the Certificate. Dr Wu did not subsequent to this “decision” file any general protections court application in the Federal Court or the Federal Circuit Court.
[2] Rule 56(2) relevantly provides that a notice of appeal under s.604 must be filed within 21 calendar days after the date of the decision the subject of the appeal or within such further time allowed by the Commission on application by the Appellant. Assuming for present purposes that there was a decision issued on 27 June 2014 capable of being appealed, Dr Wu’s notice of appeal was filed 458 days after the prescribed 21-day time period had expired. Accordingly, on that assumption, it is necessary for the Appellant to be granted an extension of time in order for the appeal to be competent.
[3] The usual principles applying to consideration of an application to extend time to lodge an appeal were summarised in the Full Bench decision in Jobs Australia v Eland2as follows (footnotes omitted):
- 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.”
“[5]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. The authorities indicate that the following matters are relevant to the exercise of the Tribunal’s discretion under Rule 56(2)(c):
Grounds of appeal and submissions
[4] In his notice of appeal, Dr Wu gave the following reasons for his delay in filing his appeal:
“Related regulators and government bodies repeatedly advised that FWC should be contacted and timing would not be not an issue, given that information supplied was not examined, no effective decision was made, and FWC staff kept on declining requests to deal with the matter. The applicant approached FWC in a number of occasions for an effective opinion. In prior conversations, FWC directly suggested the applicant should communicate in other ways rather than fill in an appeal form.”
[5] This was barely elaborated upon in Dr Wu’s written or oral submissions. In his written submissions, Dr Wu said:
“The applicant contacted the FWC office in Melbourne on a continual basis after the chamber stopped proceeding with the application in mid 2014. The FWC office was unwilling to review its procedures and persistently denied the applicant’s requests for a fair resolution. The applicant also contacted some regulatory authorities which unanimously suggested that the FWC should be a place to protect employment and legitimate entitlements of employees.”
[6] In relation to the merits of the appeal, Dr Wu submitted:
“… the general protections application lodged in 2014 was not processed with adequate communication and participation from the employer. The employer’s respondents did not understand the matters well and made incorrect remarks. The FWC chamber, at that time, did not make reasonable efforts to evaluate the matters adequately or to come with an effective decision or solution that safeguards the applicant from infringements of various work-related rights by the employer.”
Consideration
[7] We have considerable doubt whether there was any decision in connection with Dr Wu’s general protections application capable of being appealed. Section 604(1) permits a person who is “aggrieved by a decision” of the Commission or the General Manager to appeal the decision, with permission. “Decision” is defined in s.598 as follows:
598 Decisions of the FWC
(1) A reference in this Part to a decision of the FWC includes any decision of the FWC however described. However, to avoid doubt, a reference to a decision of the FWC does not include an outcome of a process carried out in accordance with subsection 595(2) (which deals with the FWC’s power to deal with disputes).
Note: Examples of decisions that the FWC makes include making modern awards, approving or refusing to approve enterprise agreements, decisions as to how, when and where a matter is to be dealt with, deciding whether to grant permission to hear an appeal, and decisions in relation to appeals.
(2) If the FWC makes a decision that makes or varies an instrument, a reference in this Part to a decision of the FWC includes the FWC’s decision to make or vary the instrument in the particular terms decided.
(3) A decision of the FWC that is described as an order must be made by order.
Note: An example of a decision that is described as an order is a bargaining order.
(4) A decision of the FWC that is not described as an order may be made by order.
[8] It was emphasised by the Full Bench in Hewitt v Topero Nominees Pty Ltd 3 that, except where a consent arbitration is conducted pursuant to s.369 of the FW Act, the role of the Commission in dealing with a general protections application lodged pursuant to s.365 is only to facilitate a resolution of the dispute, is not determinative, and does not involve the hearing of evidence or the undertaking of a hearing.4 If the Commission in the conduct of its dispute resolution function reaches a state of satisfaction that “all reasonable attempts to resolve the dispute (other than by arbitration) have been, or are likely to be, unsuccessful”, then it is required by s.368(3)(a) to issue a certificate to that effect. It does not seem likely to us that reaching that state of satisfaction during the conduct of a non-determinative dispute resolution process constitutes an appealable “decision” for the purpose of s.604(1).
[9] We note that in Bartosiewicz v Monash University 5 a Full Bench refused permission to appeal against a decision to issue a certificate issued pursuant to s.368(3)(a) on the basis that no error was identifiable in the decision. The Full Bench did not consider whether there was an appealable decision in the first place, and the point does not appear to have been argued.
[10] We have come to the view that it is not necessary for us to reach a final view on this issue because, even assuming that there was an appealable decision, we do not consider that there is a proper basis to extend time for Dr Wu to appeal. He provided no coherent explanation for the delay. The delay involved here (458 days) was extremely lengthy. The University is entitled to the protection of the time limit, and to have matters dealt with to finality within that time limit, unless there is a proper case for an extension of time. This is particularly the case when there is such a substantial period of delay as there is in this case. We do not consider, even assuming there was an appealable decision, that the appeal has any reasonable prospect of success. Dr Wu appears to be operating under the belief that, in respect of his s.365 application, the Commission had the power to determine it or to require the University to settle the matter on terms acceptable to Dr Wu. For the reasons already explained, that is incorrect. All we can glean from the file is that the Deputy President conducted a conference, that no settlement was reached, and subsequently that the Certificate was issued. We see no reason to suggest that there was not a proper basis for the Deputy President to form the view that all reasonable attempts to settle Dr Wu’s dispute had been or would likely to be unsuccessful. The grant of an extension after such a lengthy delay would cause prejudice to the University, since it would then be necessary for it to respond to an appeal that is without merit long after it was entitled to regard the matter as having come to an end.
[11] It is of concern that Dr Wu displayed no comprehension of the Commission’s limited role in relation to general protections applications under s.365 or of the need to make an application to a relevant court in order to have his general protections dispute with the University determined. However it must be noted that the Certificate (in accordance with the Commission’s standard form) contained an “Important Note” advising Dr Wu that he had 14 days from the date of the Certificate to make a general protections court application or to make an application to the Commission for a consent arbitration of his dispute. There was no suggestion that Dr Wu had any difficulty comprehending the English language. Therefore we are fully satisfied that Dr Wu was properly advised of the actions he needed to take in order to obtain a determination of his dismissal dispute with the University.
[12] An extension of time to file the appeal is refused. The appeal is therefore incompetent and is dismissed.
VICE PRESIDENT
Appearances:
G. Wu on his own behalf.
M. King and P. Clarke for the University of Melbourne.
Hearing details:
2015.
Sydney:
26 November.
1 The statement as initially issued stated that the opinion was expressed pursuant to s.370(1) of the FW Act, but this was subsequently corrected.
2 [2014] FWCFB 4822
3 [2013] FWCFB 6321; (2013) 238 IR 42
4 Ibid at [32]-[36]
5 [2014] FWCFB 2745
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