Dr Jan Zirk-Sadowski v The University of New South Wales T/A the University of New South Wales Sydney, the University of New South Wales Canberra at the Australian Defence Force Academy
[2022] FWCFB 211
•21 NOVEMBER 2022
| [2022] FWCFB 211 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Dr Jan Zirk-Sadowski
v
The University of New South Wales T/A The University of New South Wales Sydney, the University of New South Wales Canberra at the Australian Defence Force Academy
(C2022/5546)
| VICE PRESIDENT CATANZARITI | SYDNEY, 21 NOVEMBER 2022 |
Appeal against decision [2022] FWC 2086of Commissioner Yilmaz at Melbourne on 8 August 2022 in matter number C2022/3039 – permission to appeal refused
Dr Jan Zirk-Sadowski (the Appellant) has lodged an appeal under s.604 of the Fair Work Act 2009 (the Act) for which permission to appeal is required against the decision of Commissioner Yilmaz issued on 8 August 2022 (Decision) in which the Commissioner declined to grant an extension of time.
The matter was listed for permission to appeal only. On 12 August 2022, directions were issued for the filing of materials. As this matter was listed for permission to appeal only, the Respondent was not required to file any material and they did not do so. The Appellant consented to the appeal being determined on the papers without the need for oral submissions at a formal hearing. Accordingly, pursuant to s.607(1) of the Act, the appeal was conducted on the basis of written submissions only.
Background
On 19 May 2022, the Appellant lodged an application (GP Application) pursuant to s.365 of the Fair Work Act 2009 (the Act) against the University of New South Wales (Respondent). The GP Application was filed some 1400 days outside the statutory time limit provided in s.366(1) of the Act. The Appellant sought an extension of time for the filing of the GP Application in accordance s.366(2) of the Act (EOT Application).
The EOT Application was heard on 5 July 2022 and the Commissioner published her Decision on 8 August 2022. The Commissioner refused an extension of time, stating “Having considered all of the evidence and submissions against each of the factors set out in s.366(2), I am not satisfied that there are exceptional circumstances warranting a further period for the making of an application. Accordingly, the matter is dismissed.”[1]
During the hearing of the EOT Application on 5 July 2022 the Commissioner handed down an ex tempore decision (Ex Tempore Decision) declining to grant the application made by the Appellant pursuant to s.593 and s.594 of the Act for deidentification of the parties to the proceedings (Confidentiality Application). The Ex Tempore Decision was the subject of a previous appeal to this bench.[2] The Decision includes further reasons for the Commissioner’s decision to decline the Confidentiality Application.
For the reasons that follow, permission to appeal is refused.
Relevant legislative provisions
It is convenient to first set out the relevant provisions of the Act.
Section 366(1) provides that an application under s.365 (a general protections application) must be made:
“(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (2).”
The 21 day period prescribed in s.366(1)(a) does not include the day on which the dismissal took effect. If the final day of the 21 day period falls on a weekend or on a public holiday the prescribed time will be extended until the next business day.[3]
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.”
The meaning of “exceptional circumstances” in s.366(1) was considered by a Full Bench of the then Fair Work Australia in Nulty v Blue Star Group Pty Ltd[4] 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 circumstances”
Generally, the assessment of whether exceptional circumstances exist will require consideration of all the relevant circumstances, because even though no one factor may be exceptional, in combination the circumstances may be such as reasonably to be regarded as exceptional.[5]
In deciding whether there are exceptional circumstances such as to enliven the discretion to extend time, the Commission must take into account the matters specified in s.366(2)(a)-(e).
The Decision
In the Decision, the Commissioner gave consideration to each of the matters specified in s.366(2)(a) to (e) that were relevant to the matter before her and, as stated above, concluded that there were no exceptional circumstances such as to warrant an extension of time.
In relation to s.336(a), the reason for the delay, the Commissioner stated that the Appellant relied upon “another unrelated application in the State of New South Wales and the material contained therein”, contended that the delay was due to “ill health”, the conduct of his legal representatives in a personal injury claim, “the slowness of the Respondents to reply to his correspondence in relation to allegations of breach of the enterprise agreement” and in relation to other legal proceedings that he was allegedly encouraged to wait for a reply or for further information.[6] Additionally, the Appellant contended that he received advice from the Conciliator in his first general protections application in 2018 (2018 GP Application) that he could refile at a later date.[7] The Commissioner addressed the reasons for the delay at paragraphs [24]-[29] of the Decision as follows:
“[24] While many hundreds of pages of various documents and submissions were submitted, there was no evidence of the Applicant’s medical incapacity to file this application on time. In fact, the evidence demonstrates significant litigation by the Applicant against the Respondent in various jurisdictions on many fronts and this demonstrates that the Applicant was not only aware of the legal options open to him, but also his capacity to make decisions and action those decisions.
[25] I do not accept the Applicant’s argument that the Respondent contributed to the delay and the Applicant’s allegations of breach of enterprise agreement are unrelated to this general protection application. In respect to alleged representative error or contribution to delay, the Applicant confirmed that he did not receive advice from those legal representatives for a general protection application. Further, the Applicant was asked by the Commission to confirm the nature of the confidentiality agreement entered into, and he confirmed that no agreement was reached with the Respondent which would prohibit a general protections application, but rather his concern was whether his costs agreement limited his capacity to file other applications.
[26] The Applicant further contends that he received advice from the Conciliator in his first general protection application in 2018 that he may refile at a later date. No evidence was tendered to support this allegation, but nevertheless is highly implausible given the clear provisions concerning timeframe in the Act and Conciliators are well aware of the requirement as well as the high bar for a delayed application to be accepted.
[27] The Respondent submits the Applicant’s forum shopping is not an exceptional reason for the delay in the application. The Applicant denies he is forum shopping.
[28] There must be a credible reason for the delay.6 I do not agree that the reasons submitted, of which there were many are exceptional, unusual, out of the ordinary, uncommon or special to justify an extension. There is a complete absence of evidence and the Applicant asserts that because he makes his submissions under oath that it is evidence. The materials submitted in support of the Application were largely irrelevant and allegations contained within the submissions were unrestrained.
[29] I am not satisfied that the Applicant has demonstrated credible reasons regarding this consideration, and therefore do not weigh in his favour.”
The Commissioner dealt with the remaining matters specified in s.366(2)(b)-(e) at paragraphs [30] to [43] of the Decision as follows:
· the Commissioner identified the 2018 GP Application and noted that application was withdrawn on 21 September 2018 following a conciliation conference. The Commissioner also made reference to nine further applications filed by the Appellant in the 2018-2019 period and a further six applications made in the period 2020-2022, including the GP Application. The Commissioner found that the Respondent “in all reasonableness could not have expected a reagitation of the same application that was withdrawn in 2018” (s.366(2)(b));[8]
· the Respondent was prejudiced by the GP Application due to the significant time that has passed and the change of staff since the dismissal, making defending the application now problematic. Further, the Commissioner found it unreasonable and unjustified to reagitate an application that has already been dealt with and withdrawn almost four years ago (s.366(2)(c));[9]
· having considered the submissions and evidence tendered, the Commissioner could not conclude that the Appellant’s application was meritorious, noting the limited success of the Appellant’s multiple proceedings against the Respondent (s.366(2)(d));[10]
· in light of the numerous applications before the Commission in which an extension of time has been declined, the reasons for the delay and the length of the delay, together with the 2018 GP Application, the Commissioner found that fairness as between the Appellant and other persons in a like position did not weigh in favour of the Appellant (s.366(2)(e)).[11]
Having considered the factors in s.366(2), insofar as they were relevant, the Commissioner concluded that she was not satisfied that there were the requisite exceptional circumstances warranting the grant of a further period of time for the making of an application. On that basis, the Appellant’s application was dismissed.[12]
Appeal grounds and submissions
The grounds upon which the Appellant appeals the Decision, as contained in his Notice of Appeal, are not entirely clear. As best we are able to ascertain, the Appellant appeals the Decision on the following grounds:
(a) the decision is silent as to the Appellant having been found by the New South Wales Commissioner of Victims Rights to be a victim of a criminal offence. The Appellant contends that this is a relevant matter for the purposes of Regulation 1.07 of the Fair Work Regulations and s.343 of the Act (Appeal Ground 1);[13]
(b) the Appellant was not able to lodge the GP Application earlier due to his health and legal obstacles (Appeal Ground 2);[14]
(c) The Commissioner “omitted” the Appellant’s reliance on the Ovenden v Fortezza Pty Ltd t/a High Country Automotive Group [2010] FWA 3863 (Overden) and Robinson v Interstate Transport Pty Ltd[2011] FWA 696 (Robinson) (Appeal Ground 3);
(d) the Decision contains further reasons for the Ex Tempore Decision which is in contravention of Rule 56(3) of the Fair Work Commission Rules 2013 (Rules) (Appeal Ground 4);[15]
(e) the Commissioner “omitted the fact” that the 2018 GP Application was made within 21 days of dismissal [16] (Appeal Ground 5);
(f) the Appellant incorrectly referenced s.20 rather than s.22 of the Public Interest Disclosure Act 2013 (Cth) (PID) in his materials and the Commissioner failed to consider the interaction between the protections under the PID Act and Part 3-1 of the Act, erroneously stating that “any matters concerning any proceedings, reports or queries that may or may not have been subject to the PID Act are not relevant” (Appeal Ground 6);
(g) consequent on Appeal Ground 6 above, the Commissioner seems to be involved in advocacy to the benefit of the Respondent and/or the Commonwealth, noting that the interaction of the PID Act was determined by the Federal Court of Australia, the Australian Federal Police and the Australian Government Solicitor, as relevant to the GP Application (Appeal Ground 7).
In the Notice of Appeal, the Appellant also refers to other “significant errors” identified in the appeal lodged against the Ex Tempore Decision[17] and reiterates the submission made in that appeal that by refusing the Confidentiality Application the Commissioner has breached a non-publication order[18] and various other laws, including laws of the European Union.[19] The Appellant submits that the Full Bench ought determine that the Decision and any further decisions be subject to orders that the parties be de-identified. These matters were considered by this bench and rejected in the appeal against the Ex Tempore Decision[20] (First Appeal Decision). We refer to and repeat our comments in relation to those matters contained in the First Appeal Decision. We do not propose to further address those matters in this decision.
In his Outline of Submissions, the Appellant says that he “wishes to extend” the matters raised in his Notice of Appeal “with the following identified errors of facts and errors of legal interpretation.”[21] Some of those matters repeat matters already referred to, albeit in varying forms, in the Notice of Appeal, whilst others appear to be repeated throughout the Outline of Submissions but expressed in varying ways. As best we are able to ascertain, the additional matters raised appear to be as follows:
(a)the Commissioner failed to address s.366(2)(e)[22] (Appeal Ground 8);
(b)the Commissioner failed to act consistently with previous decisions, and that such a failure is a contravention of article 118 of the Constitution[23] (Appeal Ground 9);
(c)the Commissioner reached a mistaken conclusion because she failed to take into account “points of the outline of argumentation of the Applicant”[24] (Appeal Ground 10);
(d)the Commissioner erred in describing the database and the document in the manner in which she did[25] and using the phrase “security data”[26] (Appeal Ground 11);
(e)the Decision is inconsistent with the decision in Hempel v Northern Territory Air Service Pty Ltd [2021] FWCFB 3707[27] (Appeal Ground 12); and
(f)the Commissioner erred in suggesting that the Appellant relied upon the “slowness of the Respondent” as a reason for the delay[28] (Appeal Ground 13).
Further, in his Outline of Submissions the Appellant submits that the Confidentiality Application ought to be granted so as to enable him to submit, ex parte, further newly acquired confidential material to enable a “fair conclusion” to be reached in this matter[29] (Appeal Ground 14).
We proceed on the basis that the above matters are also raised as appeal grounds.
Principles on appeal
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.[30] There is no right to appeal and an appeal may only be made with the permission of the Commission.
Section 604(2) requires the Commission to grant permission to appeal if it is satisfied that it is “in the public interest to do so”. In GlaxoSmithKline Australia Pty Ltd v Makin,[31] a Full Bench 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.”[32]
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.[33] That the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.
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.[34] However, it is necessary to engage with the appeal grounds to consider whether they raise an arguable case of appealable error.
Consideration
The decision under appeal is of a discretionary nature. Such a decision can be successfully challenged on appeal only if it is shown that the discretion was not exercised correctly.[35] It is not open to an appeal bench to substitute its view on the matters that fell for determination before the Commissioner in the absence of error of an appealable nature in the decision at first instance. As the High Court said in House v The King:[36]
“The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.”
Appeal Ground 1
As to Appeal Ground 1, the matter before the Commissioner was whether, pursuant to s.366(2) of the Act, the Appellant ought to be granted an extension of time of some 1400 days for the lodgement of the GP Application. The matters the Commissioner was required to take into account are set out in s.366(2)(a)-(e). In the Decision, the Commissioner gave consideration to each of those matters. In that context, we are unable to see the relevance of the Decision being silent as to the Appellant having been found by the New South Wales Commissioner of Victims Rights to be a victim of a criminal offence. As to the Appellant’s submissions regarding Regulation 1.07 of the Fair Work Regulations and s.343 of the Act, these matters can only, potentially, go to the merits of the GP Application in accordance with s.366(2)(d), although the relevance of Regulations 1.07 in the present circumstances is entirely unclear to us. The Commissioner considered the submissions and evidence tendered by the Appellant and in light of those materials found that the GP Application lacked merit. Not only do we see no error in the approach taken by the Commissioner in this regard, we agree with her assessment of the merits of the GP Application. Further, we note that at first instance the Appellant did not rely on s.343 of the Act.
Appeal Ground 1 discloses no arguable case of appealable error.
Appeal Ground 2
As to Appeal Ground 2, it is clear that the Commissioner considered the Appellant’s submissions regarding his asserted “ill health” and “legal obstacles”. These matters are expressly dealt with at paragraphs [24] and [25] of the Decision.
Accordingly, Appeal Ground 2 discloses no arguable case of appealable error.
Appeal Ground 3
In his Form F8 the Appellant submitted that the “first” reason for the delay in lodging the GP Application “is similar to the reason given in the case Ovenden v Fortezza Pty Ltd”. He said that he suffered from psychological injury associated with a diagnosis of Post Traumatic Stress Disorder (PTSD) and that this precluded him from making the GP application earlier.[37] The Appellant also submitted that another reason for the delay was “similar to the reason given in the case Robinson v Interstate Transport Pty Ltd”. That submission appears to contend that the delay was due to his legal representatives in a personal injuries claim overlooking the ability to lodge a general protections claim and/or failing to advise him that such a claim may be more suitable. The Appellant also submitted that in a further personal injuries claim his legal representatives omitted an important evidentiary matter related to his visa sponsorship.[38]
We accept that the Commissioner did not specifically refer to either Ovenden or Robinson in the Decision. However, at paragraph [23] of the Decision the Commissioner summarises the Appellant’s submissions as to the reasons for the delay, saying, relevantly:
“[23] The Applicant submitted another unrelated application in the state of New South Wales and relied on material contained therein. The Applicant contends that the delay in his application was due to his ill health which was found in a medical report that he suffers a 22% impairment. He further states that he had legal representatives in a personal injury claim, and because of their conduct his application in this matter was delayed.…”
The Commissioner considered the Appellant’s submissions in relation to his asserted medical conditions at paragraph [24] of the Decision as follows:
“[24] While many hundreds of pages of various documents and submissions were submitted, there was no evidence of the Applicant’s medical incapacity to file this application on time. In fact, the evidence demonstrates significant litigation by the Applicant against the Respondent in various jurisdictions on many fronts and this demonstrates that the Applicant was not only aware of the legal options open to him, but also his capacity to make decisions and action those decisions.”
At paragraph [25] the Commissioner addressed the Appellant’s contention that a reason for the delay was error on behalf of his legal representatives and said:
“[25] I do not accept the Applicant’s argument that the Respondent contributed to the delay and the Applicant’s allegations of breach of enterprise agreement are unrelated to this general protection application. In respect to alleged representative error or contribution to delay, the Applicant confirmed that he did not receive advice from those legal representatives for a general protection application. Further, the Applicant was asked by the Commission to confirm the nature of the confidentiality agreement entered into, and he confirmed that no agreement was reached with the Respondent which would prohibit a general protections application, but rather his concern was whether his costs agreement limited his capacity to file other applications.”
Accordingly, the Appellant’s submissions on these matters were considered by the Commissioner and we consider nothing turns on the absence of an express reference to either Ovenden or Robinson.
For completeness, in any event, we do not consider either decision to be analogous to the circumstances which were before the Commissioner or to provide any support that exceptional circumstances existed in the case of the Appellant such that the Commissioner miscarried her discretion in declining to grant an extension of time. In Overden the application was filed 26 days out of time. In that case, the applicant filed medical evidence that he was suffering from depression and anxiety exacerbated by work stress, showing signs of PTSD and suffered from an intellectual impairment. The Commissioner accepted that this precluded the applicant from filing the application at any earlier time. In the present matter, the Appellant filed the GP Application some 1400 days out of time and whilst certain medical documentation was filed at first instance in relation to a historical diagnosis of PTSD and other medical matters and treatment, there was no evidence before the Commissioner at first instance that the Appellant’s prior diagnosis of PTSD or any other medical condition precluded or incapacitated him to such an extent that he could not file the GP Application at any time prior to the 19 May 2022. Indeed, as identified by the Commissioner, the Appellant’s ability to prosecute numerous litigations against the Respondent and engage with numerous authorities and external bodies in that time is entirely inconsistent with such a conclusion. In addition, we note that the Appellant did in fact file the 2018 GP Application in time. As to the decision in Robinson, in that matter the application was filed 3 days out of time. The reason asserted for the delay was representative error. However, the Commissioner found on the facts of that matter that representative error was not established and, ultimately, declined to grant an extension of time. Accordingly, it is difficult to see how on any view the decision in Robinson is of any assistance to the Appellant. Further, the evidence before the Commissioner in the present case was that the Appellant did not receive any legal advice in relation to the GP Application. Therefore, there can be no issue of representative error.
It follows that Appeal Ground 3 discloses no arguable case of appealable error.
Appeal Ground 4
As to Appeal Ground 4, this ground is misconceived. Rule 56 of the Rules is contained in Part 10 of the Rules which deals with appeals and reviews.
Rule 56 provides as follows:
“56 Appeals
(1) A person seeking to institute an appeal under section 604 of the Act against a decision of:
(a) a single Commission Member; or
(b) the General Manager; or
(c) a person exercising a delegation from the President or the General Manager;
must do so by lodging a notice of appeal.
(2) The notice of appeal must be lodged:
(a) within 21 calendar days after the date of the decision being appealed against; or
(b) if the decision was issued in the form of an order—within 21 calendar days after the date of the order; or
(c) within such further time allowed by the Commission on application by the appellant.
(3) The appellant must, within 7 calendar days after lodging the notice of appeal, lodge the following with the Commission:
(a) 3 copies of the notice of appeal;
(b) 3 copies of a paginated appeal book containing:
(i) any order made by the Commission to which the appeal relates; and
(ii) the statement of the reasons for the decision being appealed against; and
(iii) the transcript of the evidence and argument in the matter from which the appeal is brought, or the relevant extract from the transcript; and
(iv) each document that was an exhibit or written submission in the matter from which the appeal is brought that relates to the grounds of appeal set out in the notice of appeal.
….”
Accordingly, Rule 56 deals with the time frame within which a notice of appeal must be lodged and the material that must be lodged with the Commission by an appellant. It does not, in any way, limit the time by which a Commissioner must provide reasons for an ex tempore decision nor does it address matters which may be contained in a written decision.
By notice of appeal dated 25 July 2022, the Appellant sought permission to appeal the Ex Tempore Decision. The Commissioner’s reasons for declining to grant the Confidentiality Application were further articulated in the Decision (Further Articulation).[39] The First Appeal Decision considered both the reasons given in the Ex Tempore Decision and the Further Articulation. Whilst we consider it would have been desirable for the Commissioner to have provided more fulsome reasons in the Ex Tempore Decision, to avoid the inclusion of the Further Articulation in the Decision, such an approach does not give rise to any contravention of Rule 56 of the Rules. Further, even if the Commissioner erred by taking such an approach, we see no error in the conclusion reached by the Commissioner nor in her reasoning.
It follows that Appeal Ground 4 discloses no arguable case of appealable error.
Appeal Ground 5
As to Appeal Ground 5, at paragraph [26], [30] and [32] of the Decision the Commissioner makes reference to the 2018 GP Application. It is clear from those references that the Commissioner was aware of the prior application and that it was filed within time.[40] We infer from Appeal Ground 5 that the Appellant considers that because the 2018 GP Application was made within 21 days of his dismissal this supports a conclusion that an extension of time ought to be granted. We disagree. The matter to be determined by the Commissioner was whether there were exceptional circumstances such that an extension of time ought to be granted for the filing of the GP Application (our emphasis). As already set out, that application was made on 19 May 2022 and was some 1400 days out of time. That a prior general protections application had been made in time and discontinued is not relevant to that matter. Further, as already set out at paragraph [37] above, we do not consider the making of the 2018 GP Application to assist the Appellant or weigh in favour of a conclusion that exceptional circumstances exist.
It follows that Appeal Ground 5 discloses no arguable case of appealable error.
Appeal Ground 6
We have addressed matters to do with the PID Act in the First Appeal Decision[41] and refer to and repeat our comments in relation to those matters. Otherwise, we do not propose to further address those matters, other than to note that irrespective of the Appellant’s incorrect reference to s.20 of the PID Act, we consider the Appellant’s reliance on the PID Act in the matter before the Commissioner to be entirely misconceived.
Accordingly, Appeal Ground 6 discloses no arguable case of appealable error.
Appeal Ground 7
It follows from the above, that Appeal Ground 7 also discloses no arguable case of appealable error.
Appeal Ground 8
By Appeal Ground 8 the Appellant submits that the Commissioner erroneously took into account matters relevant to s.366(2)(c) of the Act in her consideration of s.366(2)(e).
As to s.366(2), the Decision provides as follows:
“[41] The Applicant submits that the delay has not caused any disadvantage or unfairness to the Respondent given that the Respondent was previously privy to the documentation submitted with his Form F8 when he made a personal injury claim. In his submissions, the Applicant referred to the lengthy wait times and delays that he experienced while pursuing other claims against the Respondent.
[42] The Respondent asks the Commission to consider the numerous applications before the Commission where extensions of time have been denied. It submits it would be grossly unfair to grant an extension of time given the length of the delay and what appears to be evidence of forum shopping by the Applicant.
[43] The Respondent is correct to refer to matters before the Commission as guidance. Taking into account the reasons and the length of delay together with the previous application in 2018, I find this consideration does not weigh in favour of the Applicant.”
Section 366(2)(e) of the Act is directed at ensuring that the Commission adopts a consistent approach to matters of a similar kind which are either currently before the Commission or which have previously been decided.[42] Further, the comparison is limited to a comparison of persons who have also had their employment terminated and are capable of making an application under s.365.[43]
In coming to the conclusion that the criteria under s.366(2)(e) did not weigh in favour of the Appellant, in addition to properly considering analogous case law, the Commissioner also considered the reasons for and length of the delay and the making of the 2018 Application. Such matters are not relevant to s.366(2)(e) and in taking them into consideration, we consider that the Commissioner erred. However, that the Commissioner erred at first instance does not, in our view, found a basis for the grant of permission to appeal. Notwithstanding the error, and with reference to the Appellant’s extremely lengthy submissions as to s.366(2)(e), most of which did not, properly considered, go to matters relevant to s.366(2)(e), we consider the conclusion ultimately reached by the Commissioner to nonetheless be correct.
Appeal Ground 9
As to Appeal Ground 9, we infer that the “previous decisions” referred to are the non publication order made by the New South Wales Personal Injury Commission (PIC) pursuant to s.132 of the PIC Rules and the fact that the Appellant asserts that in Europe the full names of parties are not published. These matters therefore appear to go to the decision of the Commissioner to decline to grant the Confidentiality Application. These matters were addressed in the First Appeal Decision. We refer to and repeat our comments in that Decision in relation to those matters[44] and do not propose to further address those matters in this decision.
Appeal Ground 10
As to Appeal Ground 10, the Appellant has not identified any specific matters contained in the Outline of Argument which he says the Commissioner failed to consider.
Appeal Ground 10 discloses no arguable case of appealable error.
Appeal Ground 11
As to Appeal Ground 11, the matter before the Commissioner was whether, pursuant to s.366(2) of the Act, the Appellant ought to be granted an extension of time for the lodgement of the GP Application. In that context, we are unable to see how the description of the database or the document used by the Commissioner is relevant to that matter.
Accordingly, Appeal Ground 11 discloses no arguable case of appealable error.
Appeal Ground 12
In Hempel v Northern Territory Air Service Pty Ltd [2021] FWCFB 3707 (Hempel), Mr Hempel sought permission to appeal a decision dismissing his application for an unfair dismissal remedy on the basis that he was not a person protected from unfair dismissal. At issue was whether Mr Hempel had met the minimum employment period pursuant to s.382 of the Act, which in turn required the Commissioner to determine whether or not the Respondent was a small business employer as defined by s.23 of the Act.
At first instance, the Commissioner determined that the Respondent was a small business employer pursuant to s.23 of the Act and that Mr Hempel had therefore not met the minimum employment period under s.382 of the Act. Accordingly, the Commissioner dismissed Mr Hempel’s application as he was not a person protected from unfair dismissal.
On appeal, the Full Bench concluded otherwise, finding that the Respondent was not a small business employer as defined in s.23 of the Act and that Mr Hempel had therefore met the minimum employment period under s.382 of the Act. Mr Hempel was therefore protected from unfair dismissal.[45]
The matters for determination in Hempel are therefore irrelevant to the matters at issue in the GP Application and no question of inconsistency of decisions arises.
Appeal Ground 12 discloses no arguable case of appealable error.
Appeal Ground 13
As to Appeal Ground 13, at paragraph [23] of the Decision the Commissioner said:
“[23] The Applicant submitted another unrelated application in the state of New South Wales and relied on material contained therein. The Applicant contends that the delay in his application was due to his ill health which was found in a medical report that he suffers a 22% impairment. He further states that he had legal representatives in a personal injury claim, and because of their conduct his application in this matter was delayed. Other contributing reasons for the delay included the slowness of the Respondent to reply to his correspondence concerning his allegations of breach of the enterprise agreement and in other legal proceedings he submits that he was allegedly encouraged to wait for a reply or for further information.”
Accordingly, at paragraph [23] of the Decision the Commissioner summarises the submissions of the Appellant in relation to the reasons for delay. As already set out, the Appellant filed many hundreds of pages of material and his submissions were, in our view, confused, convoluted and somewhat difficult to discern. In relation to the reasons for the delay, at various points in his Outline of Argument the Appellant makes reference to the Respondent’s breach of the relevant enterprise agreement and filed salary and other documentation in support of this.[46]
We accept that the Commissioner’s summary of the Appellant’s submissions on this point may not have been entirely accurate. However, even if the Commissioner erred in this regard, we do not consider that permission to appeal ought be granted on this basis. We concur with the view of the Commissioner that neither the asserted breach of the enterprise agreement nor the asserted slowness of the New South Wales authorities in relation to Appellant’s personal injuries matters provides a reasonable or acceptable explanation for the delay in lodgement of the GP Application.
Appeal Ground 14
Appeal Ground 14 further seeks to appeal the refusal by the Commissioner to grant the Confidentiality Application. That matter was the subject of the First Appeal Decision and our reasons are contained therein. We do not propose to reconsider that matter further.
Appeal Ground 14 discloses no arguable case of appealable error.
Public Interest
The Appellant contends that the grant of permission to appeal would be in the public interest as he suffered adverse action as a result of making, inter alia, public interest disclosures. The Appellant also contends that it would be in the public interest to grant permission to appeal because, in summary, the Commissioner reached a wrong conclusion in refusing to grant an extension of time and at various points in the Decision the Commissioner fell into error. The Appellant also repeated a number of grounds of appeal as being matters that enlivened the public interest.
We are not satisfied that any of the matters raised by the Appellant enliven the public interest and justify the grant of permission to appeal. We do not consider that the appeal raises any issue of importance or general application. Nor do we consider that it is arguable that the Decision manifests an injustice, or that the result is counterintuitive or unjust.
Conclusion
We are not satisfied that it would be in the public interest to grant permission to appeal and we are not persuaded that it is otherwise appropriate to exercise our discretion to grant permission to appeal.
Permission to appeal is refused.
VICE PRESIDENT
Appearances:
Matter decided on the papers.
Final written submissions:
Appellant, 31 August 2022
[1] [2022] FWC 2086 at [46].
[2] [2022] FWCFB 188
[3] See s.36 of the Acts Interpretation Act 1901 (Cth) as in force on 25 June 2009, see s.40A of the FW Act; Cahill v Bstore Pty Ltd T/A Bstore for Birkenstock[2015] FWCFB 103; Stedman v Transdev NSW Pty Ltd T/A Transdev Buses[2015] FWCFB 1877; Hemi v BMD Constructions Pty Ltd [2013] FWC 3593.
[4] [2011] FWAFB 975
[5] (Also see Griffiths v The Queen (1989) 167 CLR 372 at 379 (Brennan and Dawson JJ); Ho v Professional Services Review Committee No 295 (No 2) [2007] FCA 388 at [23]-[26] (Rares J); Hasim v Attorney-General of the Commonwealth [2013] FCA 1433, (2013) 218 FCR 25 at [65] (Greenwood J)).
[6] [2022] FWC 2086 at [23]
[7] Ibid at [26]
[8] Ibid at [32]
[9] Ibid at [35]
[10] Ibid at [39]
[11] Ibid at [43]
[12] Ibid at [40]
[13] Form F7 at [1]
[14] Ibid at [2]
[15] Ibid at [2]
[16] Ibid at [3]
[17] Ibid at [6],
[18] Ibid at [7]
[19] Appellant’s Outline of Submissions, line 190-206
[20] See [2022] FWCFB 188 at [7] and [23]
[21] Ibid, line 122
[22] Ibid, line 124
[23] Ibid, line 134-135
[24] Ibid, line 162-163
[25] Ibid, line 180-181
[26] Ibid, line 189, line 248-249
[27] Ibid, line 273
[28] Ibid, line 105
[29] Appellant’s Outline of Submissions, line 293 - 299
[30] Coal and Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 [17] per Gleeson CJ, Gaudron and Hayne JJ.
[31] [2010] FWAFB 5343 [27]; (2010) 197 IR 266.
[32] Ibid [24]-[27].
[33] Wan v AIRC (2001) 116 FCR 481 at [30]].
[34] Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82].
[35] Wingate v Monadelphous[2014] FWCFB 5913.
[36] House v King (1936) 55 CLR 499 at [504]-[505] per Dixon, Evatt and McTiernan JJ.
[37] Form F8, q.1d.
[38] Ibid.
[39] [2022] FWCFB 188 at [5]-[12]
[40] Ibid see [26], [30]
[41] Ibid, at [35]-[38]
[42] Wilson v Woolworths [2010] WA 2480 at [24-29]
[43] Ballarat Truck Centre Pty Ltd v Kerr[2011] FWAFB 5645 at [26]
[44] [2022] FWCFB 188 see [35]-[38], [45].
[45] Hempel v Northern Territory Air Services Pty Ltd[2021] FWCFB 3707 at [46]
[46] Applicant’s Outline of Argument, q.1d.
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