Dr Hudson Birden v University of Western Sydney School of Medicine
[2015] FWCFB 388
•23 JANUARY 2015
| [2015] FWCFB 388 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
University of Western Sydney School of Medicine
(C2014/7143)
JUSTICE ROSS, PRESIDENT |
|
Appeal against an order of Senior Deputy President Drake at Sydney on 12 November 2014 in matter number U2014/13398 - public interest not enlivened - permission to appeal refused.
[1] The employment of Dr Hudson Birden (the appellant) with the University of Western Sydney School of Medicine (the respondent) terminated on 26 March 2014. He subsequently lodged an application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Cth) (the FW Act). The application was lodged on 22 October 2014.
[2] Under s.394(2) of the FW Act, an unfair dismissal remedy application must be made within 21 days after the dismissal took effect or within such further time as the Commission allows under s.394(3). Section 394(3) allows the Commission to allow a further period for the application to be made where it is satisfied that there are “exceptional circumstances” taking into account a number of specified matters. The appellant’s application was lodged 93 days outside the 21-day time limit, and accordingly it was necessary for him to obtain an extension of time under s.394(3).
[3] On 24 October 2014 Senior Deputy President Drake, to whom the appellant’s application had been allocated, caused a letter to be sent to the appellant notifying him that it was necessary for him to seek an extension of time if he wished his application to proceed, listing the matters which, under s.394(3), the Commission was required to consider in determining any such application, and requesting him to supply a written statement within 14 days explaining why an extension of time should be granted and addressing the listed matters. The appellant provided such a statement to the Senior Deputy President on 6 November 2014.
[4] On 12 November 2014 the Senior Deputy President issued an order dismissing the appellant’s application. 1 On 28 November 2014 the Senior Deputy President issued the reasons for her decision to dismiss the appellant’s application.2 In her reasons, the Senior Deputy President indicated that she had refused to grant the appellant an extension of time and had dismissed his application on that basis. The appellant has appealed the Senior Deputy President’s decision and order, and that is the matter before us.
[5] The decision subject to appeal was made under Part 3-2 – Unfair Dismissal – of the FW Act. Section 400(1) provides that permission to appeal must not be granted from such a decision unless the Commission considers that it is in the public interest to do so. Further, in such matters appeals on a question of fact may only be made on the ground that the decision involved a “significant error of fact” (s.400(2)). 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”. 3 The Commission must not grant permission to appeal unless it considers that it is “in the public interest to do so”.
[6] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment 4. 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.” 5
[7] 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. 6 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.7
[8] The Senior Deputy President’s reasons for decision disclose that she found that there were no exceptional circumstances justifying an extension of time. In reaching that conclusion, the Senior Deputy President considered all the matters she was required to consider under s.394(3).
[9] The appellant’s notice of appeal was filed on 19 November 2014, before the Senior Deputy President’s reasons for decision were issued. His grounds of appeal note that fact, and add that his dismissal was unjust and retaliatory. The public interest grounds justifying the grant of permission to appeal are that “Employers should not allow bullying in the workplace” and that “Employers should not be allowed to take adverse action against an employee without just cause”.
[10] In accordance with the Commission’s directions, the appellant lodged a written submission setting out the basis on which he contended that permission to appeal should be granted on 13 January 2015. In that submission, the appellant contended that:
● the public interest was attracted because the respondent’s action were in breach of the enterprise agreement applicable to his employment and binding upon the respondent;
● the respondent’s conduct was unfair and should not be allowed to stand;
● the respondent’s non-renewal of his contract was a punitive response to him filing a bullying complaint against his supervisor;
● he should have been offered the new position which replaced his when the preferred candidate declined it;
● his application was not filed because he was given to believe that he would be re-hired in the recruitment process for the new position;
● he felt filing an unfair dismissal remedy application would jeopardise his chances of winning back the position;
● he did not file when he learned he had not been re-hired because he believed the respondent had found someone better suited to its needs;
● he only decided to file the application when he found out that the position had not been filled; and
● distress, demoralisation and an inability to focus, resulting from the consequences of his dismissal, affected his ability to make sound choices concerning the filing of his application.
[11] The appellant stated in his submission that he found no error of fact in the Senior Deputy President’s decision.
[12] The appellant did not attend the hearing of his application for permission to appeal on 20 January 2015, despite being properly notified in advance of the hearing. Attempts by the Commission to contact the appellant that day at his home and mobile telephone numbers were unsuccessful. The hearing proceeded in the absence of the appellant, and the respondent made submissions opposing the grant of permission to appeal.
[13] In the circumstances described, it has been necessary for us to determine the matter on the basis of the appellant’s notice of appeal and his written submission of 13 January 2015.
[14] We do not consider that the appellant has advanced any arguable case of error in the Senior Deputy President’s decision. We consider that it was reasonably open to the Senior Deputy President to conclude, on the basis of the appellant’s explanation for his significant delay in lodging his application, that the appellant had not demonstrated exceptional circumstances such as to permit the grant of an extension of time under s.394(3). The appellant’s submissions amounted to an invitation for us to re-determine the extension of time application ourselves rather than an attempt to identify error in the decision. In any event, we agree with the Senior Deputy President’s conclusion. The decision was not counter-intuitive, did not manifest an injustice, and raised no wider issue of law or principle.
[15] For these reasons, we are not satisfied that the grant of permission to appeal would be in the public interest. Accordingly, consistent with s.400(1) of the FW Act, permission to appeal is refused.
PRESIDENT
Appearances:
The Appellant: No appearance
The Respondent: Ms N. Maiolo and Ms C. Williams
Hearing details:
Sydney
20 January 2015
1 PR557688
2 [2014] FWC 8525
3 (2011) 192 FCR 78 at [43]
4 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, Crennon, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54 at [44] -[46].
5 (2010) 197 IR 266 at [27]
6 Wan v AIRC [2001] FCA 1803 at [30]
7 GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343 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 in Coal & Allied Mining Services Pty Ltd v Lawler; [2011] FCAFC 54; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663 at [28]
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