Dushanthi Wanninayake v State of Queensland (Department of Natural Resources and Mines (Simtars))
[2017] FWCFB 1906
•24 APRIL 2017
| [2017] FWCFB 1906 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
v
State of Queensland (Department of Natural Resources and Mines (SIMTARS))
(C2017/727)
VICE PRESIDENT CATANZARITI | SYDNEY, 24 APRIL 2017 |
Appeal against Decision [2017] FWC 321 and Order PR589506 of Deputy President Asbury at Brisbane on 19 January 2017 in matter number C2016/4305.
[1] On 19 January 2017, Deputy President Asbury issued a Decision 1 which found that there were not exceptional circumstances that would justify the Commission to exercise discretion to grant Ms Dushanthi Wanninayake (“the Appellant”) an extension of time pursuant to section 774 of the Fair Work Act 2009 (Cth) (“the Act”) in relation to the application for the Commission to deal with an unlawful termination dispute under section 773 of the Act. The Deputy President issued an Order2 to this effect on 19 January 2017.
[2] On 9 February 2017, the Appellant lodged a Notice of Appeal, appealing the Decision and Order of Deputy President Asbury. We heard the matter on 6 March 2017 in relation to permission to appeal only and reserved our Decision.
[3] By correspondence dated 8 March 2017, we informed the parties that permission to appeal was granted and, accordingly, set the matter down for hearing of the appeal on 5 April 2017. We outline our reasons for granting permission to appeal below.
[4] At the hearing on 5 April 2017, the Appellant appeared for herself and Ms P. Willoughby, legal practitioner and employee of the State of Queensland (“the Respondent”), appeared for the Respondent. We note the correspondence received from the Appellant on 12 April 2017 and 20 April 2017 opposing the Respondent being represented by Ms Willoughby. The Appellant asserted that Ms Willoughby is an employee of the State of Queensland. In this regard, the Appellant contended that her appeal is against the Department of Natural Resources (SIMTARS) and not the State of Queensland and, therefore, Ms Willoughby cannot be considered to be an employee of the Department. However, we note that the Department is a government body which is owned by the State of Queensland and, as such, the Respondent is the State of Queensland. Accordingly, as Ms Willoughby is an employee of the Respondent, she did not require permission to appear on behalf of the Respondent pursuant to section 596(4) of the Act. Thus, Ms Willoughby was entitled to appear for the Respondent at the hearing.
The Decision
[5] The Deputy President found that the application made by the Appellant under section 773 of the Act was made 904 days outside the time then allowed under section 774(1) of the Act. After weighing the considerations in section 774(2) of the Act, the Deputy President was not satisfied that there were exceptional circumstances that would justify the Commission exercising discretion to grant a further period for the application to be made.
[6] In relation to section 774(2)(a) of the Act, the Deputy President held that the Appellant did not receive misleading or incorrect advice about her options to pursue her dispute. In this regard, the Deputy President found there to be no reasons advanced by the Appellant for the considerable delay in making her application that constituted exceptional circumstances. In relation to section 774(2)(b) of the Act, although the Appellant disputed her dismissal, the Deputy President did not consider this to be a factor weighing in favour of the exercise of the discretion to grant a further period for the application to be made. In relation to section 774(2)(c) of the Act, the Deputy President noted there would be prejudice to the Respondent as the Respondent had expended considerable time, cost and effort in defending its position in response to the Queensland Industrial Relations Commission (“QIRC”) application at a full hearing and on appeal in circumstances where the same dispute as the Appellant sought to advance were dealt with to finality. Further, the Deputy President noted that witnesses for the Respondent were no longer employed and the period of time that has elapsed since the dismissal of the Appellant would prejudice the Respondent to an extent that is beyond the usual prejudice associated with defending an application. In relation to section 774(2)(d) of the Act, the Deputy President held that the merits of the case were at best neutral and did not outweigh the other factors. In relation to section 774(2)(e) of the Act, the Deputy President found there was no evidence that any employee of the Respondent was in a like position to that of the Appellant. Further, the Deputy President was not satisfied that the Appellant’s case may be used as an example for other employees
[7] Thus, the Deputy President dismissed the application to grant an extension of time.
The Appeal
[8] At the heart of the appeal was whether an extension of time should be granted to the Appellant pursuant to section 774 of the Act in relation to her application for the Commission to deal with an unlawful termination dispute under section 773 of the Act.
Consideration – Permission to Appeal
[9] The FWC will grant permission to appeal only if it is in the public interest to do so. 3 The test of assessing whether a matter is in the public interest is discretionary and involves a broad value judgement.4 In GlaxoSmithKline Australia Pty Ltd v Colin Makin,5 the Full Bench summarised the test for determining the public interest as follows:
“[26] Appeals have lain on the ground that it is in the public interest that leave should be granted in the predecessors to the Act for decades. It has not been considered useful or appropriate to define the concept in other than the most general terms and we do not intend to do so. The expression ‘in the public interest’, when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only by the objects of the legislation in question. [Comalco v O’Connor (1995) 131 AR 657 at p.681 per Wilcox CJ & Keely J, citing O’Sullivan v Farrer (1989) 168 CLR 210]
[27] Although 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, it seems to us that none of those elements is present in this case.”
[10] In determining whether permission to appeal should be granted we have reviewed and considered all material filed by the parties including all submissions, correspondence and relevant authorities.
[11] We find that permission to appeal should be granted in this matter. We note the Deputy President did not deal with the issue of permission for legal representation in her Decision at first instance. In Warrell v Walton 6 (“Warrell”),the Federal Court held that:
“A decision to grant or refuse ‘permission’ for a party to be represented by ‘a lawyer’ pursuant to s 596 cannot be properly characterised as a mere procedural decision. It is a decision which may fundamentally change the dynamics and manner in which a hearing is conducted.”
[12] We note that the Respondent was previously granted permission to be legally represented in the QIRC proceedings and this may have contributed to the Deputy President not explicitly dealing with this issue in her Decision regarding the proceedings before the Fair Work Commission. However, in accordance with Warrell, the Deputy President was required to deal with the issue of permission to be legally represented in her Decision. In failing to do so, this constituted a significant error. We consider this to be an important matter and, therefore, the dispute arising in this case is a matter of public interest. It is on this basis that permission to appeal is granted.
Consideration – The Appeal
[13] We note that a decision under appeal is of a discretionary nature and such a decision can only be successfully challenged on appeal if it is shown that the discretion was not exercised correctly. We note that it is not open for us to substitute our view on the matters that fell for determination before the Commissioner in the absence of error of an appellable nature in the Commissioner’s original Decision. As the High Court said in House v The King 7:
“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.”
[14] Section 577 of the Act states as follows:
“Performance of functions etc. by the FWC
The FWC must perform its functions and exercise its powers in a manner that:
(a) is fair and just; and
(b) is quick, informal and avoids unnecessary technicalities; and
(c) is open and transparent; and
(d) promotes harmonious and cooperative workplace relations.
Note: The President also is responsible for ensuring that the FWC performs its functions and exercises its powers efficiently etc. (see section 581).
[15] In Warrell, Mr Warrell contended that the hearing at first instance was not “fair and just” pursuant to section 577(a) of the Act due to the Commission’s failure to deal with the issue of permission for legal representation under section 596 of the Act. Having considered this submission in Warrell, Flick J held that:
“A decision which fails to properly address whether permission should be granted or refused in the present proceeding had the consequence that the hearing was not ‘fair and just’ as required by s 577(a).” 8
[16] In reaching this conclusion, the Federal Court quashed the orders of the Full Bench as the issue for permission for legal representation was not dealt with.
[17] As the Deputy President failed to deal with the issue of permission to be legally represented in her Decision, this constituted a significant error in accordance with Warrell. As such, we are not satisfied that the Deputy President exercised her power in a manner that was “fair and just” pursuant to section 577(a) of the Act.
[18] Accordingly, we are satisfied that the Deputy President made a House v The King error by failing to take into account some material consideration, namely, permission for legal representation. We are not required to identify an appellable error in every ground of appeal for there to be a quashing of a decision – quashing a decision is warranted upon an appeal bench identifying an error in accordance with House v The King. Having identified that the Commissioner, in our view, erred in exercising her discretion in accordance with House v The King by failing to deal with permission for legal representation, we are satisfied that Warrell must be followed, the appeal must be upheld and the Deputy President’s Decision must be quashed.
[19] Thus, it is not necessary for us to deal with the submissions made by the parties on appeal in relation to whether an extension of time should be granted under section 774 of the Act as the matter must be reheard in a “fair and just” manner pursuant to section 577 of the Act.
Conclusion
[20] Permission to appeal is granted.
[21] The appeal is upheld.
[22] The Decision of Deputy President is quashed.
[23] The matter is referred to Deputy President Gooley for rehearing.
VICE PRESIDENT
Appearances:
D. Wanninayake for herself.
P. Willoughby for the Respondent.
Hearing details:
2017
Melbourne via video link to Brisbane:
5 April.
1 [2017] FWC 321.
2 PR589506.
3 Fair Work Act 2009 (Cth) s 604(2).
4 Esso Australia Pty Ltd v AMWU; CEPU; AWU[2015] FWCFB 210, [6].
5 [2010] FWAFB 5343, [27].
6 [2013] 233 IR 335, 342.
7 [1936] 55 CLR 499.
8 [2013] 233 IR 335, 343.
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