Emirates t/a Emirates Airline v David Powell
[2017] FWCFB 377
•19 JANUARY 2017
| [2017] FWCFB 377 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
David Powell
(C2016/6912)
VICE PRESIDENT HATCHER |
|
Permission to appeal against decision [2016] FWC 7965] of Deputy President Lawrence at Sydney on 3 November 2016 in matter number C2016/5079.
Introduction
[1] Emirates, which trades as Emirates Airline (Emirates), has lodged an appeal, for which permission to appeal is required, against a decision and order 1 of Deputy President Lawrence issued on 3 November 20162 (Decision). In the Decision, the Deputy President granted an extension of time to the Respondent, Mr David Powell, to file a general protections dismissal application under s.365 of the Fair Work Act 2009 (FW Act).
[2] At the hearing of the appeal before us, permission was granted, under s.596 of the FW Act, for Emirates to be represented by Mr N Harrington of counsel and for Mr Powell to be represented by Mr M Cleary of counsel.
[3] Mr Powell filed his general protections dismissal application in the Commission on 25 August 2016. In that application, he identified the date of the dismissal the subject of the application as being 2 August 2016.
[4] Section 366(1) requires a general protections dismissal application to be made within 21 days after the dismissal took effect or within such further period as the Commission allows under s.366(2). The application was filed 3 days after the 21-day time period, and it was therefore necessary for Mr Powell to obtain an extension of time under s.366(2) in order to make his application.
[5] 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.
[6] In the Decision, the Deputy President described the sequence of events leading up to the filing of Mr Powell’s s.365 application in the Commission. These may briefly be summarised as follows:
- On 27 June 2016, the applicant gave instructions to his solicitor, Mr Berry, over a month before the dismissal.
- In the couple of weeks after the dismissal, there was an exchange of correspondence between Mr Berry and the Respondent;
- On 25 August 2016, there was a conference with a barrister. It was Mr Berry’s evidence that it was only then that the Applicant provided information about the possible move of his position to Melbourne. The Applicant advised that he had been told this by his Manager on 28 June 2016;
- It then became apparent that a general protections claim was possible and it was lodged the same day. 3
[7] In the Decision, the Deputy President gave consideration to each of the matters he was required to take into account under s.366(2).
[8] In relation to s.366(2)(a), the reason for the delay, the Deputy President considered the reasons for the delay advanced by Mr Powell. He summarised the reasons as follows:
“[19]The reason for the delay in filing which is relied on is therefore legal representative error. Mr Berry received instructions well before the dismissal but did not ask the relevant question of the Applicant so that he could establish the total facts until after the time for lodgement. The Applicant’s evidence was that he focussed on the accusations against him when briefing Mr Berry. The Applicant’s submission is based on the failure of his legal representative to fully appraise himself of the relevant facts for the purpose of advising on the appropriate action to be taken.”
[9] The Deputy President made the following finding in relation to s.366(2)(a) as follows:
“[26]Applying the principles in these cases I am satisfied that the delay in filing can be attributed to representative error. The Applicant has obtained legal advice well before his dismissal. His representative should have obtained from him all relevant facts. The options for legal redress should have been explored much earlier. Time was wasted in correspondence between Mr Berry and the Respondent when it was clear that the dismissal would not be withdrawn. Once it was apparent to Mr Berry that a General Protections application was possible, it was promptly lodged. Whether that claim is successful is not the point. The Applicant is entitled to have his claim considered, notwithstanding that it was two days out of time.
[27]Accordingly the reason for the delay tends to indicate exceptional circumstances.”
[10] The Deputy President then went on to consider and made findings about the remaining matters specified in s.366(2) as follows:
● s.366(2)(b) - action taken by the person to dispute the dismissal:
“[28]The evidence was that the Applicant had taken action to dispute the dismissal by direct correspondence to the Respondent and then by correspondence by the solicitors.
[29]I am satisfied that the Applicant did take steps to challenge the dismissal.”
● s.366(2)(c) - prejudice to the employer (including prejudice caused by the delay):
“[30]I do not consider that the Respondent would be unduly prejudiced in having to deal with the substance of the Applicant’s claim.”
● s.366(2)(d) - merits of the application:
“[31] The Applicant denies the allegations against him and in any event, submits that they do not constitute grounds for dismissal. He argues that the proposed move of his position to Melbourne had been discussed for some time and he would have had an entitlement to redundancy payment.
[32]The existence of the alleged workplace right to redundancy pay is questionable. The claimed level of redundancy pay is contained in the Respondent’s policy manual. The Applicant was no longer covered by the relevant enterprise agreement. The Applicant’s argument is that his position had been made, or was definitely about to be made, redundant prior to his dismissal and that the allegations against him were designed to avoid the payment.
[33]The Respondent says that the allegations against the Applicant were serious and were the reason for the dismissal.
[34]I consider it appropriate for the Respondent to be required to demonstrate that the onus can be discharged and that the operative reason for the dismissal was the serious misconduct of the Applicant, as contained in the allegations against him.”
● s.366(2)(e) – fairness as between the person and other persons in a like position:
“[35] This factor was not addressed and has not been taken into account.”
[11] The Deputy President’s overall conclusion was that he was satisfied that there were exceptional circumstances justifying an extension of time.
[12] In its Notice of Appeal, Emirates contended that the Deputy President:
- committed a jurisdictional error in misconstruing the statutory concept of ‘exceptional circumstances’ and erred by finding that there was representational error (the Jurisdictional error);
- failed to adequately and directly address the absence of merit in the claim (the Merits error) and
- committed a jurisdictional error by conducting a telephone hearing where cross-examination was not permitted (the Hearing error).
[13] Emirates submitted that there was no representative error as it was not the representative’s fault that he did not become aware of the possible relocation of Mr Powell’s position until the meeting with the barrister on 25 August 2016. Rather, it was argued that it was Mr Powell’s responsibility to have communicated to his legal representative the possible re-structuring/relocation of his position to Melbourne. It was stated that this issue was on Mr Powell’s radar from 28 June 2016 when he was advised by the company of this possibility. The Deputy President was said to have therefore erred in finding that, as Mr Powell’s legal representative did not ask the relevant questions, there was representative error on the part of the legal representative.
[14] In the alternative, Emirates contended that Mr Powell was not blameless and should shoulder some responsibility for the error as he had failed to raise critical facts with his lawyers. It was argued that the Deputy President had erred in finding Mr Powell blameless which had, in turn, infected the ‘exceptional circumstances’ analysis. This was because, for representative error to be potentially regarded as an exceptional circumstance, an applicant cannot have been found to have contributed to the representative error.
[15] Emirates was also concerned that the question of representative error was only raised by Mr Powell late in the hearing, following the issue being raised by the Deputy President. It was argued that Mr Berry did not initially think that it was a case of representative error but later said that it was representative error, in response to a question from the Deputy President. Emirates stated that representative error had not been raised in the outline of submissions filed by the Mr Powell.
[16] In relation to the Merits error ground, Emirates submitted that the Deputy President erred by failing to find that there was no merit in the claim as framed before him. It was argued that Mr Powell has alleged that he was dismissed to avoid payment to him of a redundancy which he alleged he was entitled to on the basis of a workplace policy or contract of employment. It was stated that it is a jurisdictional question as neither a policy nor a contract of employment are a workplace right as defined in the FW Act. Emirates contended that the Deputy President erred by failing to deal directly with this jurisdictional question and by failing to find that there was no merit in the application.
[17] Finally, the appellant submitted that the Deputy President committed the Hearing error by precluding the parties from cross-examining in a case where there were factual issues in contest. It was argued that the Commission must act in accordance with s.577 of the FW Act and that the Deputy President had failed to provide a fair hearing and transparent process. This was because a key issue in the case was said to be the question of the apportioning of blame and the lack of a process of oral evidence and cross-examination had resulted in thin evidence and a degree of opaqueness in terms of the Deputy President’s reasoning.
[18] In the Notice of Appeal Emirates further contended that it was in the public interest for the Commission to grant permission to appeal because:
“a) The decision is attended with sufficient doubt such as to warrant its reconsideration where:
(1) there is a serious question to be determined in respect of the manner in which the “exceptional circumstances” concept in s.366 of the FW Act operates where and Applicant has failed to communicate the entire factual matrix to his legal representative and is thus, in part, to blame for any error by that representative; and
(2) the Commission erred in respect of its consideration of the merits of the application under Part 3-1 of the FW Act, where such consideration was not dependent upon contested facts, but rather upon a proper consideration of provisions of the FW Act (the nature of the workplace right) and the jurisdiction arising thereunder; and
(3) there is an arguable case of a denial of natural justice given a direction that the contested hearing take place by telephone and where it was determined that cross-examination would not be permitted.
b) The Commission fell into jurisdictional error in the manner in which he conducted the hearing and having regard to the proper construction and application of “exceptional circumstances” to the facts of the case.
c) Each of the areas set out above ought not stand unchallenged and ought to be corrected by way of appellate intervention.”
Consideration
[19] An appeal under s.604 of the FW Act is an appeal by way of rehearing and the Fair Work Commission’s (Commission) powers on appeal are only exercisable if there is error on the part of the primary decision maker. 4 There is no right to appeal and an appeal may only be made with the permission of the Commission. Section 604 provides:
(1) A person who is aggrieved by a decision:
(a) made by the FWC (other than a decision of a Full Bench or an Expert Panel); or
(b) made by the General Manager (including a delegate of the General Manager) under the Registered Organisations Act;
may appeal the decision, with the permission of the FWC.
(2) Without limiting when the FWC may grant permission, the FWC must grant permission if the FWC is satisfied that it is in the public interest to do so.
Note: Subsection (2) does not apply in relation to an application for an unfair dismissal (see section 400). (2) A person may appeal the decision by applying to the FWC.
[20] 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. 5 The public interest is not satisfied simply by the identification of error6, or a preference for a different result.7 In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of Fair Work Australia 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...” 8
[21] Other than the special case in s.604(2), the grounds for granting permission to appeal are not specified. Considerations which have traditionally been adopted in granting leave and which would therefore usually be treated as justifying the grant of permission to appeal include that the decision is attended with sufficient doubt to warrant its reconsideration and that substantial injustice may result if leave is refused. 9 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.10 However, the fact that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.11
[22] 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. 12
[23] The test of “exceptional circumstances” establishes a “high hurdle” for an applicant for an extension. 13 A decision as to whether to extend time under s.366(2) involves the exercise of a discretion.14
[24] We are not persuaded that any of the grounds of appeal on which Emirates relies raises an arguable case of error.
[25] In relation to the first appeal ground (the Jurisdictional error), we do not consider that the appellant has made out an arguable case that the Deputy President erred in finding that there was representative error on the part of Mr Berry. The Deputy President properly raised the question of representative error and then took account of the evidence before him from Mr Powell that he was focused on the reasons for his dismissal and the evidence of Mr Berry. During the hearing, Mr Berry admitted that he had not obtained all of the relevant facts and that it was an error on his part which had resulted in the delay in filing. The Deputy President also noted, at [26] of the Decision, that Mr Powell had obtained legal advice (from Mr Berry) well before his dismissal. We consider that the Deputy President was entitled to rely on Mr Berry's concession that he had not obtained all of the relevant facts from Mr Powell and therefore to apportion the responsibility for the delay to the legal representative’s error.
[26] With respect to the appellant's second ground of appeal (the Merits error), we do not consider that an arguable case of error has been made out. The Deputy President, in the Decision, set out the parties' opposing contention as to the operative reasons for the dismissal. The Deputy President noted that the existence of the alleged workplace right to redundancy pay is questionable. The Deputy President then concluded that it was appropriate for Mr Powell to be required to demonstrate his contention that the operative reason for the dismissal was serious misconduct. It is not uncommon that, as the case proceeds, what emerges during that hearing is a modification of the original claim or an alternative position. In addition, in reaching the conclusion he did, the Deputy President clearly formed the view that Mr Powell had an arguable case that he was dismissed by the Respondent to avoid the payment of a redundancy to him. We are not persuaded that it is arguable at that preliminary stage in the application process that the Deputy President erred in not making a finding that there was no merit in the application.
[27] The third ground of appeal concerned the conduct of the hearing (the Hearing error). The complaint concerned the inability of Emirates to cross-examine Mr Powell and Mr Berry. The Deputy President advised the parties ahead of the hearing that there would be no cross-examination of witnesses. This was confirmed by the Deputy President at the beginning of the hearing. There is no evidence that the appellant made a request to the Deputy President that cross-examination of the witnesses be allowed, either prior to the hearing or during the hearing. It is a discretionary decision of the individual Member as to how a particular matter will be dealt with. We do not consider that, in precluding the cross-examination of witnesses, the Deputy President acted in a manner contrary to s.577 of the FW Act. An arguable case of error has not been made out in this regard.
[28] On the material before us, we do not consider that the Deputy President’s conclusion was unreasonable, manifested any injustice, or was counter-intuitive. Nor are we persuaded that the appeal raises issues of importance and general application, or that there is a diversity of decisions at first instance so that guidance for a Full Bench of the Commission is required. Therefore, we do not consider that there is any basis that would justify the grant of permission to appeal in the public interest or otherwise.
[29] For these reasons, we do not consider that it would be in the public interest to grant permission to appeal. In accordance with s.400(1) of the FW Act, permission to appeal must therefore be refused.
VICE PRESIDENT
Appearances:
N. Harrington of counsel with N. Ruskin solicitor for Emirates t/a Emirates Airline.
M. P. Cleary of counsel with S. Berry solicitor for D. Powell
Hearing details:
2016.
Melbourne:
13 December.
1 PR587215
2 [2016] FWC 7965
3 Decision at [16]-[17]
4 This is so because on appeal the Commission has power to receive further evidence, pursuant to s.607(2); see Coal and Allied v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ
5 O’Sullivan v Farrer (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ: applied in Hogan v Hinch (2011) 85 ALJR 398 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Alllied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [44]-[46]
6 GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343, 197 IR 266 at [24]-[27]
7 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, 197 IR 266 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]
8 [2010] FWAFB 5343, 197 IR 266 at [24] – [27]
9 Also see CFMEU v AIRC (1998) 89 FCR 200 at 220; and Wan v AIRC (2001) 116 FCR 481 at [26]
10 Wan v AIRC (2001) 116 FCR 481 at [30]
11 Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth[2010] FWAFB 10089 at [28], 202 IR 288, affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office[2014] FWCFB 1663, 241 IR 177 at [28]
12 Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]
13 Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21]
14 Halls v McCardle and Ors [2014] FCCA 316
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