Edison Musoni v Canberra Construction Recyclers Pty Ltd
[2024] FWCFB 230
•21 MAY 2024
| [2024] FWCFB 230 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
Edison Musoni
v
Canberra Construction Recyclers Pty Ltd
(C2024/935)
| DEPUTY PRESIDENT GOSTENCNIK | MELBOURNE, 21 MAY 2024 |
Appeal against decision [2024 FWC 291] of Deputy President Roberts at Sydney on 5 February 2024 in matter number U2023/11939
Edison Musoni seeks permission to appeal and to appeal the decision (Decision) of Deputy President Roberts made on 5 February 2024 rejecting his application to be allowed a further period within which to make an application for an unfair dismissal remedy against Canberra Construction Recyclers Pty Ltd (Respondent) under s 394 of the Fair Work Act 2009 (Cth) (Act) and dismissing the application.[1]
We have decided to refuse permission to appeal. Our reasons follow.
Background
Mr Musoni commenced employment with the Respondent on 7 December 2016.[2] Mr Musoni worked as a labourer for the Respondent in the recycling construction materials industry.[3] Although there was some dispute about the date the employment ended,[4] the Deputy President found that the dismissal took effect on 9 October 2023.[5] Mr Musoni applied under s 394 of the Act for an unfair dismissal remedy on 30 November 2023. He did so 31 days outside of the time prescribed by s 394(2)(a).[6]
On 5 February 2024, Deputy President Roberts conducted a hearing to deal with the question of whether Mr Musoni should be permitted a further period within which to lodge his unfair dismissal application.
Consideration
The decision below
Section 394(2) of the Act requires an application for an unfair dismissal remedy to be made within 21 days after the dismissal took effect, or within such further period as the Commission may allow.
As already noted, Deputy President found Mr Musoni’s dismissal took effect on 9 October 2023.[7] To fall within the 21-day timeframe prescribed by s 394(2) of the Act, the Deputy President correctly concluded that Mr Musoni’s unfair dismissal remedy application should have been made by 30 October 2023,[8] and that as it was made on 30 November 2023, the application was made 31 days outside the time prescribed by the Act.[9]
After setting out that an extension of time to make an unfair dismissal remedy application may be granted if satisfied there are ‘exceptional circumstances’ and reproducing the mandatory considerations in making that assessment,[10] the Deputy President proceeded to consider those matters.
First, the Deputy President considered the various reasons for the delay advanced by Mr Musoni. In summary, Mr Musoni’s reasons for delay were that he:
Ø remained affected by the injury to his finger;
Ø was not thinking clearly due to the shock of the unexpected dismissal and was emotionally overwhelmed;
Ø had limited spoken and written English communication skills, which made seeking assistance and advice more difficult;
Ø sought documentation from the Respondent, which was not provided;
Ø was not able to obtain assistance from a lawyer to whom he was referred because the lawyer was away overseas; and
Ø was not aware of the 21-day time limit.[11]
The Deputy President considered, based on the medical certificate dated 2 October 2023, that Mr Musoni would have fully recovered from his physical injury before the 21-day time limit expired.[12] The Deputy President acknowledged that Mr Musoni’s dismissal after almost 7 years of employment would have been very upsetting and had some impact on his capacity to act quickly to seek advice and file his unfair dismissal remedy application.[13] Additionally, the Deputy President accepted that Mr Musoni’s limited command of English would have created some difficulties for him to obtain advice and prepare his application.[14]
The Deputy President also accepted that Mr Musoni requested copies of written warnings from the Respondent shortly after the dismissal took effect, and that the Respondent did not provide these to him. The Deputy President reasoned that while this would have been a source of frustration to Mr Musoni, it did not account for the period of delay.[15]
The Deputy President noted that a reason for the delay is not in itself required to be an exceptional circumstance but it is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[16] Altogether, the Deputy President determined that the reasons proffered by Mr Musoni did not satisfactorily explain the delay.[17] He concluded this factor weighed against a conclusion there were exceptional circumstances.[18]
The Deputy President next considered whether Mr Musoni first became aware of the dismissal after it had taken effect. The Deputy President concluded that as Mr Musoni was made aware of his dismissal on 9 October 2023, the day the dismissal took effect, Mr Musoni had the benefit of the full 21-day period within which to make the application.[19] He concluded this factor to be a neutral consideration.[20]
Next, the Deputy President considered whether Mr Musoni took any action to dispute the dismissal and he found that Mr Musoni challenged his dismissal on 9 and 10 October 2023. Accordingly, the Deputy President weighed this factor in Mr Musoni’s favour in determining whether there were exceptional circumstances.[21]
As to prejudice, the Deputy President noted the Respondent accepted there was no relevant prejudice to it caused by the delay and regarded the prejudice consideration as a neutral factor.[22]
Turning to the merits of the application, the Deputy President noted that many facts were contested[23] and he acknowledged that resolving all contested facts would be a matter for a full hearing.[24] The Deputy President set out some of the controversy surrounding the production of medical certificates supporting Mr Musoni’s absences and the timing of the warning letter.[25] The Deputy President was satisfied that Mr Musoni provided the Respondent with medical certification for the period until 29 September 2023, but noted that there was insufficient evidence to allow a conclusion that Mr Musoni provided a medical certificate for the period from 2 October 2023.[26] The Deputy President took the “most generous view” of Mr Musoni’s case, concluding the case was “at best arguable”, and he weighed this factor in Mr Musoni’s favour in determining whether there were exceptional circumstances.[27]
Finally, as to fairness as between Mr Musoni and other persons in a similar position, the Deputy President noted that neither party brought any relevant matter to his attention, and he concluded there was nothing here to weigh in assessing whether there were exceptional circumstances.[28]
In concluding that there were no exceptional circumstances warranting an extension of time,[29] the Deputy President noted that exceptional circumstances are circumstances that:
Ø are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare; and
Ø may 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 can be considered exceptional.[30]
Appeal principles
An appeal under s 604 of the Act is an appeal by way of rehearing. The Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision-maker.[31] There is no right to appeal. Permission is required. As this is an appeal from a decision made under Part 3-2 of the Act, the grant of permission to appeal is conditioned by s 400(1), which provides that, despite s 604(2), the Commission must not grant permission to appeal unless the Commission considers that it is in the public interest to do so. Although not an exhaustive indication, the grant of permission to appeal may be in the public interest if the appeal raises issues of importance and general application, or if there is a diversity of decisions at first instance for which guidance from an appellate Full Bench is required, or if the decision at first instance manifests an injustice, or the result is counter-intuitive, or the legal principles applied appear disharmonious.[32] Assessing whether it is in the public interest to grant permission to appeal involves a broad value judgment.[33]
Permission to appeal is rarely granted if an arguable case of appealable error is not shown, because appeals cannot succeed in the absence of appealable error. [34] However, that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.
Although an application for permission to appeal is not a de facto or preliminary hearing of the appeal and it is unnecessary to conduct a detailed examination of the grounds of appeal to determine whether permission to appeal should be granted,[35] in the instant case, we have had the benefit of arguments directed to both permission to appeal and the merits of the appeal.
When an appeal from a decision made under Part 3-2 of the Act concerns a question of fact, s 400(2) also narrows the scope of appeal by providing that such an appeal can only be made on the ground that the decision involved a “significant error of fact”.
Discussion of the appeal grounds
Mr Musoni’s notice of appeal raises 17 grounds of appeal. We do not propose to set out the appeal grounds seriatim, but we note they are presented in a discursive fashion akin to submissions and several grounds allege error on multiple bases. The complaints raised by the appeal grounds may be condensed to the following themes. Mr Musoni complains the Decision is attended by error because there are significant errors of fact, there was a failure to take material considerations or submissions into account and there was a failure to attribute certain factors appropriate weight or to consider the factors in combination. We deal with these grounds below by reference to the matters in s 394(3) of the Act in respect of which each ground was raised.
Reason for the delay
Section 394(3)(a) of the Act required the Deputy President to take into account Mr Musoni’s “reason for the delay”. Several of the appeal grounds are directed to the manner in which the Deputy President dealt with this consideration.
First, grounds 1 and 14 assert error in failing to consider Mr Musoni’s lack of knowledge of the 21-day limitation.[36] Mr Musoni’s contention is baseless. The Deputy President:
Ønoted that Mr Musoni “said he was not aware of the 21-day time limit”;[37]
Ønoted the Respondent’s contention that ignorance of the time limit in the Act, together with other factors raised by Mr Musoni, would not amount to exceptional circumstances;[38] and
Øconcluded that “the reasons proffered by [Mr Musoni] [did not] satisfactorily explain the period of the delay”,[39] which plainly included Mr Musoni’s lack of knowledge of the 21-day time limit.
It follows that no appealable error is thereby disclosed.
Second, grounds 1, 3 and 13 assert error in failing to consider travel overseas by Mr Musoni’s intended lawyer due to a bereavement.[40] This contention is without substance as the Deputy President:
Ønoted Mr Musoni was not able to get assistance from the lawyer to whom he had been referred as the lawyer was away overseas;[41]
Ønoted the Respondent’s contention that difficulty in obtaining legal advice did not amount to exceptional circumstances;[42]
Øaccepted that Mr Musoni’s limited command of English would have “created some difficulties for him in obtaining advice and preparing an unfair dismissal application” including difficulties in “providing instructions to a lawyer about his situation”; and
Øconcluded that “the reasons proffered by [Mr Musoni] [did not] satisfactorily explain the period of the delay.”[43] The reasons proffered included that Mr Musoni was unable to get assistance from a lawyer because the lawyer was overseas.
During oral argument before us, Mr Musoni’s representative contended that “a representative error” occurred when “the intended lawyer went overseas”.[44] The contention is misconceived since Mr Musoni had not engaged the intended lawyer. Accordingly, the absent lawyer could on no measure be regarded as Mr Musoni’s representative.
No appealable error is disclosed.
Third, ground 5 asserts error in failing to consider the impact of the termination on Mr Musoni’s capacity.[45] The contention cannot be accepted. The Deputy President:
Ønoted Mr Musoni’s contention that he was not thinking clearly due to the shock of the unexpected dismissal and being emotionally overwhelmed;[46]
Øaccepted that dismissal after almost seven years would have been very upsetting to Mr Musoni and had some impact on his capacity to quickly seek advice and file an unfair dismissal application;[47]
Øwas “not satisfied on the evidence that the impact was so severe as to impede any efforts that [Mr Musoni] might have made to pursue an application”;[48] and
Øconcluded that “the reasons proffered by [Mr Musoni] [did not] satisfactorily explain the period of the delay.”[49] The reasons included the impact of the dismissal on Mr Musoni’s capacity.
No appealable error is disclosed.
Fourth, grounds 6, 7 and 12 contend error in failing to consider the impact of the Respondent’s refusal to provide requested documents including warning letters to Mr Musoni and the effect of the frustration caused to Mr Musoni which led to the delay.[50] This contention is not accepted. The Deputy President:
Ønoted that Mr Musoni sought documentation from the Respondent, which was not provided;[51]
Ønoted Mr Musoni’s contention that this impeded his capacity to respond to the termination;[52]
Øaccepted Mr Musoni requested copies of written warnings shortly after his termination took effect because he did not have copies of those letters and that they were not provided;[53]
Øaccepted that Mr Musoni would have been a source of frustration to the Applicant at a time when he was questioning his dismissal;[54]
Øassessed that the frustration did not go very far to account for the period of the delay;[55] and
Øconcluded that “the reasons proffered by [Mr Musoni] [did not] satisfactorily explain the period of the delay.”[56] The reasons plainly included the matters about which Mr Musoni now complains.
No appealable error is disclosed.
Fifth, grounds 8, 9 and 13 contend error in relation to the Deputy President’s consideration of Mr Musoni’s medical evidence. By ground 8, Mr Musoni contends the Deputy President failed to determine that Mr Musoni provided notice and an explanation for his absence from work to the Respondent.[57] By ground 9, Mr Musoni claimed that the Deputy President erred in not considering that the Respondent refused to grant Mr Musoni light work on 25 September 2023.[58] By ground 13 he claimed that the Deputy President did not consider Mr Musoni’s contentions below that he attended a medical review, was placed on medication that continued to affect his wellbeing and that he provided notice of his accident and a medical certificate to the Respondent on 25 September 2023.[59] These contentions cannot be accepted.
The Deputy President relevantly considered the material before him in assessing Mr Musoni’s reason for delay by reference to the “medical evidence” available and concluded that Mr Musoni’s most recent medical certificate dated 2 October 2023 certified that he was fit for limited work duties and his injury would require 2-3 weeks to completely heal.[60] From this, the Deputy President reasoned that Mr Musoni would have fully recovered from his injury before the time for filing an unfair dismissal application expired.[61] The Deputy President later concluded that there was insufficient evidence to support a finding that Mr Musoni provided to the Respondent a further medical certificate for absences from 2 October 2023 onwards.[62] This was a finding available to the Deputy President on the evidence. This point was accepted by Mr Musoni on appeal.[63] No appealable error is disclosed.
Sixth, grounds 1, 2, 15 and 17 assert error in failing to consider the combination of the matters[64] we have discussed at [24]-[34] above. This also cannot be accepted. The Deputy President acknowledged that Mr Musoni gave evidence about the “various reasons” for the delay.[65] As noted in our discussion above, the Deputy President considered each reason proffered and stated why each reason did not provide an acceptable explanation for the delay. Having done so, the Deputy President concluded that he did not think “the reasons proffered by [Mr Musoni] satisfactorily explain the period of the delay . . .”[66] [underlining added]. Plainly, the Deputy President considered the combination of the reasons given by Mr Musoni. No appealable error is disclosed.
Mr Musoni also raised his age in ground 1[67] and his race during oral argument,[68] contending the Deputy President did not take these matters into account, but he did not explain how these characteristics amounted to a reason for or explanation of the delay. Accordingly, no appealable error is disclosed.
Prejudice to the employer (including prejudice caused by the delay)
Section 394(3)(d) of the Act required the Deputy President to take into account “prejudice to the employer (including prejudice caused by the delay)” (emphasis added).
Some of Mr Musoni’s grounds of appeal directed to this consideration are misplaced because they contend prejudice to Mr Musoni rather than the Respondent and a failure to accord weight to that prejudice.
By way of example, by ground 16 Mr Musoni contends that the Deputy President erred in giving less weight to prejudice. During oral argument, Mr Musoni’s representative contended that we are to consider “the balance of prejudice”,[69] that Mr Musoni “is the one that is prejudiced”,[70] that prejudice to Mr Musoni stems from the inclusion of misconduct on his medical certificate,[71] and that Mr Musoni faced difficulties relating to this inclusion based on his appearance and on his limited capacity to speak English.[72] By ground 11, he contends that the Deputy President failed to give appropriate weight to Mr Musoni’s future employment due to the insertion of misconduct in his termination letter.[73]
These grounds do not disclose any appealable error.
As earlier noted, the Respondent accepted below that there was no relevant prejudice to it caused by Mr Musoni’s delay in filing the unfair dismissal application[74] and regarded prejudice as a neutral consideration.[75] In some circumstances, the absence of prejudice variably weighs in favour of a conclusion that there are exceptional circumstances, but Mr Musoni does not advance any basis (other than the misconceived basis just discussed) why that should have been the result here. No appealable error is disclosed.
Merits of the application
Section 394(3)(e) of the Act required the Deputy President to take into account the merits of Mr Musoni’s application.
Ground 10 contends that there was no valid reason available for the Respondent to have terminated Mr Musoni’s employment. This is a matter for final hearing and the Deputy President acknowledged resolving contested facts will also be a matter for a full hearing.[76] On the contested but untested material before the Deputy President, that is plainly correct. The Deputy President took the “most generous view” of Mr Musoni’s case and then found it to be “at best arguable”, weighing this factor in Mr Musoni’s favour in determining whether exceptional circumstances exist.[77] In the circumstances, that conclusion was one open to the Deputy President. Mr Musoni’s contention that there was no valid reason is grounded on an argument that he provided a certificate covering his absence on 25 September 2023, and that the Respondent’s reason for dismissal set out in the letter relying on the absence of such a certificate was not a valid reason.[78]
But this contention wrongly assumes that a valid reason must be the reason the employer articulates at the time of the dismissal. Whether there is a valid reason for dismissal is determined objectively. Although the Deputy President was satisfied that Mr Musoni provided a certificate for 25 September 2023, with the consequence that the reason for dismissal in the letter of termination was not justified, a valid reason may nevertheless be made out if Mr Musoni was absent without explanation for the period 2 October 2023 and following. In this regard, the Deputy President noted that “there [was] insufficient evidence for [him] to be satisfied here that [Mr Musoni] provided to the Respondent the further certificate for the absence for the period from 2 October”.[79] If Mr Musoni was absent without a certificate on 2 October 2023 and beyond, this might provide a valid reason for the dismissal. The Deputy President balanced his findings and concluded that Mr Musoni's case was at best arguable.
The Deputy President took the merits of the application into account and his assessment was open on the material before him. No appealable error is disclosed.
Fairness
Section 394(3)(f) of the Act required the Deputy President to take into account fairness as between Mr Musoni and other persons in a similar position.
Grounds 1, 3 and 12 assert error in failing to consider fairness, which Mr Musoni contends was only raised by him at paragraphs 16 to 36 of his submissions.[80] In those submissions, Mr Musoni:
Øsubmitted that “the Act gives the Commission a broad discretion to … accept an application made out of time, “if fairness so demands”;”[81]
Øsubmitted that “fairness in this case can only be achieved if time is extended to accept [his] application in light of the circumstances of [his] dismissal”;[82]
Øcited various cases relating to the necessity for the Commission to consider an applicant’s lack of knowledge of the 21-day time limitation,[83] assess all relevant factors[84] and consider whether it is satisfied there is ‘sufficient reason’ to accept a late unfair dismissal application;[85] and
Øcited case law when contending a refusal to extend time would be unjust.[86]
Much of Mr Musoni’s contentions as to the test that is applied in assessing whether further time should be allowed to a person to make an unfair dismissal remedy application are simply wrong. The only test is whether the Commission is satisfied there are exceptional circumstances taking into account the mandatory considerations in s 394(3) of the Act. The remainder of Mr Musoni’s contentions under this head are in substance a plea for the application of subjective fairness assessed in the abstract. That is not the kind of fairness assessment to which s 394(3)(f) directs attention. Section 394(3)(f) requires a comparison between Mr Musoni and another person or other people in similar circumstances or a similar position to Mr Musoni. The comparison is necessary to assess relative fairness. We have reviewed the materials before the Deputy President and conclude that he was plainly correct that “neither party brought to [his] attention any relevant matter concerning this consideration”. No appealable error is disclosed.
For these reasons, we are not persuaded that there is any sufficiently arguable case of appealable error to warrant a grant of permission to appeal. As earlier noted, an appeal cannot succeed without establishing error. Nor has Mr Musoni established that there is any diversity of decisions at first instance about any particular matter dealt with in the Decision so that guidance from a Full Bench is required. The appeal grounds do not raise any issues of general importance or of general application. Although Mr Musoni is dissatisfied with the outcome below, the Decision manifests no injustice, nor is the result counterintuitive. The result was arrived at by the correct application of the statutory considerations to the evidence before the Deputy President. Each of the factual findings made was available on the evidence and the discretion did not miscarry. The legal principles applied by the Deputy President were uncontroversial and were not disharmonious when compared with other decisions dealing with extensions of time in dismissal related applications before the Commission.
For these reasons, we do not consider that it is in the public interest to grant permission to appeal.
Disposition
Permission to appeal is refused.
DEPUTY PRESIDENT
Appearances:
E. Ezekiel-Hart, appearing for Edison Musoni
P. Bindon of counsel for Canberra Construction Recyclers Pty Ltd
Hearing details:
2024
Video using Microsoft Teams
16 April
Written submissions:
Appellant, 19 March 2024 and 15 April 2024
Respondent, 8 April 2024
[1] [2024] FWC 291
[2] Amended Appeal Book (AB) 25, AB32 and AB39
[3] AB48 at paragraph [1]; AB38
[4] [2024] FWC 291 at [3]; AB32, AB39-AB40 and AB47
[5] [2024] FWC 291 at [3]
[6] Ibid
[7] Ibid
[8] Ibid
[9] Ibid
[10] Ibid at [7]
[11] Ibid at [9]
[12] Ibid at [13]
[13] Ibid
[14] Ibid
[15] Ibid
[16] Ibid at [12]
[17] Ibid at [14]
[18] Ibid
[19] Ibid at [15]
[20] Ibid
[21] Ibid at [16]
[22] Ibid at [17]
[23] Ibid at [18]
[24] Ibid at [20]
[25] Ibid at [18]-[19]
[26] Ibid at [19]
[27] Ibid
[28] Ibid at [21]
[29] Ibid at [23]
[30] Ibid at [22]
[31] This is so because on appeal the Commission has power to receive further evidence, pursuant to s 607(2) of the Act; see Coal and Allied Operations Pty Ltd v AIRC [2000] HCA 47, 203 CLR 194, 74 ALJR 1348, 174 ALR 585, 99 IR 309, [17] per Gleeson CJ, Gaudron and Hayne JJ
[32] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343, 197 IR 266, [24]-[27]
[33] O’Sullivan v Farrer [1989] HCA 61, 168 CLR 210, [13] per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch [2011] HCA 4, 243 CLR 506, 85 ALJR 398, [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54, 192 FCR 78, 207 IR 177, [44]-[46]
[34] Wan v AIRC [2001] FCA 1803, (2001) 116 FCR 481, [30]
[35] Trustee for The MTGI Trust v Johnston [2016] FCAFC 140, [82]
[36] AB12-AB13
[37] [2024] FWC 291 at [9]
[38] Ibid at [10]
[39] Ibid at [14]
[40] AB12-AB13
[41] [2024] FWC 291 at [9]
[42] Ibid at [10]
[43] Ibid at [14]
[44] Transcript PN111
[45] AB12
[46] [2024] FWC 291 at [9]
[47] Ibid at [13]
[48] Ibid
[49] Ibid at [14]
[50] AB12-AB13
[51] [2024] FWC 291 at [9]
[52] Ibid
[53] Ibid at [13]
[54] Ibid
[55] Ibid
[56] Ibid at [14]
[57] AB12-AB13
[58] AB13
[59] Ibid
[60] [2024] FWC 291 at [13]
[61] Ibid; AB80
[62] Ibid at [19]; see discussion at Transcript PN43-PN44
[63] Transcript PN106
[64] AB12-AB13
[65] [2024] FWC 291 at [9]
[66] Ibid at [14]
[67] AB12
[68] Transcript PN24
[69] Ibid PN21
[70] Ibid PN23
[71] Ibid
[72] Ibid PN24
[73] AB13
[74] [2024] FWC 291 at [17]
[75] Ibid
[76] Ibid at [20]
[77] Ibid
[78] Transcript PN51
[79] [2024] FWC 291 at [19]
[80] AB60-AB62
[81] AB60 at paragraph [16]
[82] Ibid at paragraph [17]
[83] AB61 at paragraph [23]
[84] Ibid at paragraph [24]
[85] Ibid at paragraph [26]
[86] AB62 at paragraph [34]
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