Emily Jane Di Pretoro v Christian Schools Tasmania
[2023] FWCFB 59
•17 MARCH 2023
| [2023] FWCFB 59 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Emily Jane Di Pretoro
v
Christian Schools Tasmania
(C2023/397)
| VICE PRESIDENT CATANZARITI | SYDNEY, 17 MARCH 2023 |
Appeal against decision [2023] FWC 51 of Deputy President Bell at Melbourne on 10 January 2023 in matter number U2022/11427 – permission to appeal refused.
Background
Ms Emily Jane Di Pretoro (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 a decision of Deputy President Bell issued on 10 January 2023 (the Decision).[1] The Decision concerned an application brought by the Appellant for an unfair dismissal remedy from her employment with Christian Schools Tasmania (the Respondent) under s.394 of the Act.
The Appellant’s original application was filed 43 days out of time, which necessitated that the Appellant ask the Commission to grant her a further period for the application to be made, pursuant to s.394(2) of the Act. The Deputy President was not satisfied that there were exceptional circumstances to grant an extension of time in which to file the application. Accordingly, he dismissed the Appellant’s application.
Directions were set for the filing of material by the Appellant, and the matter was listed for hearing on 6 March 2023. As this matter was listed for permission to appeal only, the Respondent was not required to file any material and did not do so. On 2 March 2023, the Appellant consented for the matter to be determined on the papers without the need for a formal hearing or oral submissions, and the hearing was subsequently vacated. We are satisfied this matter can be adequately determined based on the materials before the Commission, pursuant to s.607(1) of the Act.
For the reasons that follow, permission to appeal is refused.
The Decision under appeal
The Appellant was employed as a schoolteacher by the Respondent, a school in Hobart, Tasmania. There was no substantial dispute before the Deputy President that the Appellant was dismissed on 28 September 2022. For her application to have been made within the 21-day period after dismissal took effect, it needed to have been lodged by midnight on 19 October 2022. The Appellant lodged her unfair dismissal claim on 1 December 2022, 43 days out of time.
The Deputy President subsequently considered each of the factors in s.394(3) of the Act to determine whether ‘exceptional circumstances’ existed to allow a further period for an unfair dismissal application to be made.
The Deputy President first considered the reason for the delay under s.394(3)(a). The Appellant’s reasons for the delay were that she had spent time dealing with the serious illness of her mother, and that she was suffering from circumstances related to her own personal health and emotional state. The Deputy President accepted at [15] of the Decision that the Appellant was likely ‘extremely busy’ and stressed during the surgery and recovery of her mother. The Deputy President also considered the Appellant’s evidence at [16]-[18] that she suffered from head pains and depression around the time of her dismissal.
However, the Deputy President found at [24] of the Decision that the primary reason for the Appellant’s delay for bringing the application was because she was prioritising the commencement and prosecution of her discrimination complaint with Equal Opportunity Tasmania. The Appellant lodged a complaint with Equal Opportunity Tasmania on 21 October 2022, after receiving advice from a union agent that she should not lodge both a complaint and an unfair dismissal application simultaneously. The Deputy President was satisfied that the Appellant could not have lodged an unfair dismissal application until the withdrawal or failure for want of jurisdiction of her complaint to Equal Opportunity Tasmania, pursuant to s.725 and s.732 of the Act, which occurred on 25 November 2022.
Ultimately, the Deputy President concluded at [29] that while “the personal circumstances of the Applicant indicated a difficult period between early-to-mid September 2022 and late November 2022, I am not satisfied they rise to such a level as to explain the delay in commencing an unfair dismissal application.”
Subsequently, in his assessment of s.394(3)(b), the Deputy President noted that it was not in dispute that the Appellant was notified of the dismissal the same day it took effect.
Turning to the factor in s.394(3)(c), the Deputy President found that the Appellant did not take any substantive actions to dispute her dismissal prior to making her discrimination complaint to Equal Opportunity Australia. The Deputy President also observed that the day on which the Appellant filed her discrimination complaint was already outside of the 21-day period required to file an unfair dismissal application.
The Deputy President did not find that the Respondent would suffer any material prejudice if an extension of time were to be granted for the Appellant, having regard to s.394(3)(d).
The Deputy President briefly considered the merits of the application pursuant to s.394(3)(e) and found that this was a neutral factor owing to the existence of several contested facts about which he could not make an assessment at the time of the hearing.
Finally, given that neither party led any submissions at first instance regarding s.394(3)(f), the Deputy President found that the fairness as between the Applicant and other persons in a similar position was also a neutral factor.
The Deputy President subsequently recited the relevantly applicable legal principles to the question of whether there exist exceptional circumstances to justify the granting of a time extension to make an unfair dismissal application. Relevantly, the Deputy President noted that the stress that accompanies a dismissal will not, without more, favour a finding of exceptional circumstances, and that evidence of hardship and misfortune will not, in and of itself, necessarily weigh in favour of a finding of exceptional circumstances.
In weighing up all the factors listed in s.394(3) of the Act, the Deputy President came to the following conclusion:
“[46] The delay in the present case is significant – approximately 43 days. The reasons for delay are in large part due to the Applicant’s pursuit of her discrimination claim. The Applicant’s evidence indicates a sustained period of genuine personal hardship. However, I am not satisfied that evidence rises to such a level to properly explain such a delay or, indeed, any specific parts of it other than at a general level. I am not satisfied that the reasons for dismissal, on their own or in combination with any other supportive matter establish exceptional circumstances.
[47] The Applicant has taken steps to challenge her dismissal, namely before Equal Opportunity Tasmania. I accept that the Applicant made continual efforts to agitate her claims, which is arguably a matter in her favour. Although as that claim itself was commenced after the 21-day period under s.394 had passed, I do not consider it assists.
[48] I acknowledge that there is no prejudice to the Respondent, a matter which is at least neutral if not in the Applicant’s favour. The merits of the application and the fairness between the Applicant and other persons in a similar position neither add nor detract from my consideration.
[49] While I acknowledge the genuine challenges and difficulties that Ms Di Pretoro has faced since her dismissal, when having regard to all of the matters listed at s.394(3) of the Act, I am not satisfied that there are exceptional circumstances of the kind required by the statute.”
Grounds of appeal
The Appellant advances three grounds of appeal, as set out in her Form F7 Application and expanded in her written submissions, which we briefly summarise below.
Ground 1
The Appellant submits that the Deputy President generally erred in his weighing-up of the factors under s.394(3) of the Act, because he:
a)Erred in his assessment of the reason for the delay under s.394(3)(a);
b)Erred in his assessment of the merits of her application under s.394(3)(e);
c)Failed to consider all aspects of her case; and
d)Weighted one factor in his assessment of the reason for the delay more heavily than other factors.
Ground 2
The Appellant submits that the Deputy President made significant errors of fact in relation to her discrimination complaint to Equal Opportunity Tasmania, which ultimately affected his assessment of the reason for the delay. Broadly, the Appellant submits that the Deputy President erred in finding:
a)That she prioritised her discrimination complaint before Equal Opportunity Tasmania because she thought it was the ‘stronger case’ in law, and that the primary reason for the delay was to await the outcome of that discrimination complaint.
b)That she should have been able to lodge a complaint with the Fair Work Commission on 21 October 2022, despite the stressors and personal challenges she faced at the time including her mother’s critical health issue.
Ground 3
The Appellant also submits that the Deputy President erred in his assessment of the reason for the delay, insofar as he did not understand the Medical Reports tendered as evidence by the Appellant and thereby failed to give them adequate weight as a factor explaining the delay. Moreover, the Appellant submits that her mother’s ill health impacted her own incapacitation such that they were not mutually exclusive events.
Public interest grounds
The Appellant submits that permission to appeal should be granted in this instance as the matter has implications for other members of the public, particularly teachers and people working with children. The Appellant further submits that the matter relates to many issues facing teachers today, such as the frequency of vexatious claims by students against teachers that can threaten their career.
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 only exercisable if there is error on the part of the primary decision maker.[2] There is no right to appeal. An appeal may only be made with the permission of the Commission.
Section 400 of the FW Act applies to this appeal. It provides that:
(1)Despite subsection 604(2), the FWC must not grant permission to appeal from a decision made by the FWC under this Part unless the FWC considers that it is in the public interest to do so.
(2)Despite subsection 604(1), an appeal from a decision made by the FWC in relation to a matter arising under this Part can only, to the extent that it is an appeal on a question of fact, be made on the ground that the decision involved a significant error of fact
Subsection 604(2) requires the Commission to grant permission to appeal if satisfied that it is “in the public interest to do so.” The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[3] The public interest is not satisfied simply by the identification of error,[4] or a preference for a different result.[5] 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 issue 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...”[6]
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.[7] However, 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.[8] However, it is necessary to engage with the appeal grounds to consider whether they raise an arguable case of appealable error.
Consideration
Ground 1
Ground 1 is no more than a disagreement in general terms with various aspects of the Deputy President’s assessment of the factors under s.394 of the Act, and we are not satisfied that the Appellant has identified any appealable error in the Decision. We consider that the Deputy President properly applied the correct legal principles in his assessment of the reason for the delay under s.394(3)(a). We also agree that, in light of the many contested facts in the evidence put before him by both parties, the Deputy President’s assessment of the merits of the Appellant’s application under s.394(3)(e) as a neutral factor was the orthodox and correct approach.
Further, we are satisfied that the Deputy President did consider all aspects of the Appellant’s case, as the Deputy President individually and comprehensively addressed each factor under s.394(3) of the Act from [11] – [39] of the Decision before subsequently weighing them up.
Finally, as for Ground 1(d), although the Appellant does not specify which factor the Deputy President gave undue weight towards, taken in the context of the totality of the Appellant’s written submissions, we understand it to mean that the Deputy President afforded too much significance to her discrimination complaint to Equal Opportunity Tasmania when assessing the reason for the delay under s.394(3)(a). We consider that the Deputy President did not give undue weight to any one factor in his assessment of s.394(3)(a), though as this contention contains significant overlap with Grounds 2 and 3, we will consider it further below. Accordingly, we reject Ground 1.
Ground 2
Ground 2 asserts that the Deputy President made significant errors of fact in relation to the Appellant’s complaint to Equal Opportunity Tasmania, which impacted his assessment of the reason for the delay under s.394(3)(a). For an error of fact to be ‘significant’ it must vitiate the ultimate exercise of discretion.[9] Particularly, the Appellant takes issue with the finding the Deputy President makes at [24] of the Decision:
“[24] I find that the reasons for the delay were primarily due to the Applicant prioritising the commencement and prosecution of her discrimination complaint with Equal Opportunity Tasmania. After receiving advice to the effect that she should not lodge both claims at once, she determined to lodge the discrimination claim first on the basis that it was the strongest claim. To my mind, this is tolerably clear from the chronology of events set out above.”
The Appellant submits in Ground 2(a) that there is “no basis upon which the Deputy President could reach this conclusion.”[10] We disagree. The Appellant herself stated, as reflected in the Decision at [22], that she was advised by a union official to not lodge both a discrimination complaint and unfair dismissal application simultaneously. We consider that the Appellant therefore had a choice as to which claim to lodge first, and the Appellant chose to work on and lodge the discrimination complaint first. It was therefore reasonably open on the evidence for the Deputy President to find that there was some advantage to the Appellant that rendered the discrimination complaint the more attractive claim to complete first.
We also consider that this aligns with the Appellant’s own written Outline of Submissions at [3.4], in which she asserts that her “priority was to address the discrimination and differential treatment” and that her discrimination complaint “had been substantially completed before her mother was rushed into theatre for open heart surgery with consequent health crises.” Furthermore, even if the Deputy President was in error that the Appellant prioritised her discrimination claim as she believed it was stronger in law, it is not clear to us how this would change the outcome of the first instance proceeding.
We also disagree with the Appellant’s contention in Ground 2(b) that the Deputy President erred by finding that “since the Appellant was able to commence her claim with the Equal Opportunity Tasmania, on the 20 October 2022, despite the stressors and personal challenges, (namely her ill health and that of her mother), then she should have been able to lodge a complaint with the Fair Work Commission within the stated deadline the 19 October” (sic).[11] Although the Deputy President does not use the Appellant’s wording in the Decision, we are satisfied that it was reasonably open to him on the evidence to find at [29] that:
“…While there may have been particular points in time where the Applicant was materially delayed or impacted due to her health issues or her mother’s health difficulties, those matters do not explain the delay. Despite those stresses and personal challenges, the Applicant was in a position to have commenced her claim with Equal Opportunity Tasmania.”
Since Ground 2 discloses no appealable error, we reject it.
Ground 3
Ground 3 is similar in content to Ground 2(b) insofar as the Appellant submits that the Deputy President failed to adequately weight or understand the evidence she put regarding her own personal incapacitation and her mother’s surgery. We disagree. We consider that the Deputy President not only understood the evidence put before him, but also explicitly acknowledged at [46] of the Decision that it “indicates a sustained period of genuine personal hardship.” We agree with the Deputy President’s ultimate assessment, however, that the evidence does not rise to such a level to properly explain the delay in the lodgement of the Appellant’s unfair dismissal application. We therefore reject Ground 3 as it discloses no appealable error.
Conclusion
The issue for this Full Bench is whether, in all the circumstances and having regard to the matters set out above in the context of the necessary principles, an appeal should be granted. We are satisfied that the Deputy President has not erred in the application of the principles to the facts and evidence as presented to him.
Further, we have considered whether this appeal attracts the public interest, and we are not satisfied, for the purposes of s.604(2) that:
· there is a diversity of decisions at first instance so that guidance from an appellate body is required;
· the appeal raises issues of importance and/or general application;
· the Decision at first instance manifests an injustice, or the result is counter intuitive; or
· the legal principles applied by the Deputy President were disharmonious when compared with other decisions dealing with similar matters.
Accordingly, permission to appeal is refused.
VICE PRESIDENT
Appearances:
Matter determined on the papers.
Final written submissions:
20 February 2023, for the Appellant.
[1] [2023] FWC 51 (‘the Decision’).
[2] Coal and Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 [17] per Gleeson CJ, Gaudron and Hayne JJ. (Coal and Allied Operations Pty Ltd).
[3] O’Sullivan v Farrer (1989) 168 CLR 210 at 216-217 per Mason CJ, Brennan, Dawson and Gaudron JJ: applied in Hogan v Hinch (2011) 243 CLR 506 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [44] – [46].
[4] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343, 197 IR 266 at [24]-[27].
[5] Ibid 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; Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 178; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663, 241 IR 177 at [28].
[6] [2010] FWAFB 5343, 197 IR 266 at [24] – [27].
[7] Wan v AIRC (2001) 116 FCR 481 at [30].
[8] Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82].
[9] Helensbugh Coal Pty Ltd v Bartley & Ors[2022] FWCFB 166 at [77].
[10] Appellant’s Written Outline of Submissions at [3.1].
[11] Ibid at [3.3].
Printed by authority of the Commonwealth Government Printer
<PR760357>
9
0