Enrique Aquino v Hypostyle Pty Ltd

[2024] FWCFB 448

[2024] FWCFB 448

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.604—Appeal of decision

Enrique Aquino
v

Hypostyle Pty Ltd

(C2024/7574)

DEPUTY PRESIDENT MILLHOUSE
DEPUTY PRESIDENT EASTON
COMMISSIONER SLOAN MELBOURNE, 6 DECEMBER 2024

Appeal against decision [2024] FWC 2790 and order PR780075 of Deputy President Boyce at Sydney on 9 October 2024 in matter number U2024/7952

1. Enrique Aquino has lodged an appeal under s 604 of the Fair Work Act 2009 (Cth) (“Act”) against a decision[1] and order[2] of Deputy President Boyce issued on 9 October 2024. In the decision, the Deputy President declined to grant an extension of time for the filing of Mr Aquino’s application for an unfair dismissal remedy against Hypostyle Australia Pty Ltd (“Hypostyle”). Mr Aquino requires permission to appeal.

1. The matter was listed before the Full Bench for permission to appeal only. The parties consented to the application being determined without holding a hearing under s 607(1)(b) of the Act. We were satisfied, having regard to s 607(1)(a), that the question of permission to appeal could be adequately determined without the need for oral submissions. For the reasons that follow, permission to appeal is refused.

Decision under appeal

1. At the outset of his decision, the Deputy President observed that s 394(2)[3] of the Act provides that an unfair dismissal application must be made within 21 days after a dismissal takes effect, or within such further period as the Commission may allow. Relevant to that requirement, the Deputy President noted three things: first, that Mr Aquino’s dismissal took effect on 31 May 2024; second, to have made the application within the 21-day time limit Mr Aquino needed to have filed his unfair dismissal application by 21 June 2024; and third, Mr Aquino filed the application on 9 July 2024, 19 days outside of that time limit.

1. The Deputy President proceeded to consider whether to allow a further period for Mr Aquino’s application to be made, under s 394(3). To do so would require him to have found that there were exceptional circumstances, taking into account the criteria in that subsection.

1. The Deputy President found that two of those criteria weighed against there being exceptional circumstances in this case. These were Mr Aquino’s reasons for the delay (s 394(3)(a)) and the merits of the application (s 394(3)(e)).

1. Mr Aquino’s contentions before the Deputy President as to the reason for the delay can be summarised in short order. He submitted to the Deputy President that at the time of his dismissal, he had been told by Hypostyle that its business was closing down at the end of May 2024 and that he and all of the other employees in the business were to be made redundant. He was subsequently dismissed by Hypostyle, purportedly on that basis. However, in or about the first week of July 2024 he discovered that the Hypostyle business was still operational and trading. This led him to form the view that his dismissal was not a genuine redundancy, prompting him to file the unfair dismissal application.

1. The Deputy President did not accept those submissions. He preferred Hypostyle’s evidence that Mr Aquino was told that only that part of its business in which he was employed was closing down, not the whole of the business. The Deputy President also found that Mr Aquino had not explained why it took him until early July 2024 to discover that Hypostyle continued to trade. The Deputy President concluded that he did not accept that Mr Aquino’s reasons for the delay were credible or reasonable.

1. On the merits of the application, the Deputy President determined that Hypostyle’s case that Mr Aquino’s dismissal was a case of genuine redundancy was “verifiable”. He found no evidence to support Mr Aquino’s claim that he had been subjected to age-based discrimination. The Deputy President concluded that the merits of Mr Aquino’s substantive application were weak.

1. The Deputy President found that the other criteria in s 394(3) were “neutral” in that they did not weigh for or against a finding as to the existence of exceptional circumstances. In short, the Deputy President concluded that Mr Aquino was aware on 8 May 2024 that his employment would come to an end on 31 May 2024 (s 394(3)(b)); Mr Aquino did not take any action to dispute his dismissal (s 394(3)(c)); there was no prejudice caused to Hypostyle by the delay (s 394(3)(d)); and, the Deputy President was not aware of any employees in a similar position to Mr Aquino such as to give rise to questions of fairness between them (s 394(3)(f)).

1. Having regard to his findings in relation to the relevant criteria, the Deputy President concluded that he was not satisfied as to the existence of exceptional circumstances, and so could not exercise his discretion to extend time to apply. He dismissed Mr Aquino’s application.

Permission to appeal – principles

1. There is no right to appeal. Section 604(1) of the Act provides that an appeal may only be made with the permission of the Commission. Under s 400(1) of the Act,[4] the Commission must not grant permission to appeal unless it is in the public interest to do so. Section 400(2) provides that an appeal on a question of fact can only be on the ground that the decision involved a significant error of fact. The test under s 400 is “a stringent one”.[5]

1. The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[6] The public interest is not satisfied simply by the identification of error or a preference for a different result.[7] Considerations that may attract the public interest include that the matter raises issues of importance and general application, that the decision manifests an injustice or that the result is counterintuitive.[8]

1. It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. However, an error by the Member at first instance is not necessarily a sufficient basis for the grant of permission to appeal.

1. An application for permission to appeal is not a preliminary hearing of the appeal. In determining whether to grant permission to appeal, it is unnecessary and inappropriate to conduct a detailed examination of the appeal grounds.[9] However, it is necessary to engage with the grounds to consider whether they raise an arguable case of appealable error.

Grounds of appeal

1. In his Notice of Appeal, Mr Aquino set out the grounds of appeal in these terms (reproduced verbatim):

-     Time we found out the situation was outside the timeframe. Therefore, we cannot lodge it on time as explained from the beginning.

-     Our witness is willing to supply information but reluctant to give a statement, The witness is very scared to provide a testament due to work. Witness advised that if he does that he could lose the job.

-     We have photo evidence that showing that same people are still working in the department/area. Unfortunately, it was only provided to us after the deadline.

-     My wellbeing was not considered (my mother was very ill and almost lost her)

-     Health and financial issue were not considered

-     I believe that it was not a genuine redundancy because some of my workmates that were on the meeting on the 9^th May 2024, were still working with the same company.

-     I also believe that its due to age, when Ryan told my daughter Hazel Rindfleish that I am not fast enough to do my job because I’m old.

Consideration

1. Our consideration as to whether to grant Mr Aquino permission to appeal is confined to the Notice of Appeal. Mr Aquino did not comply with directions to file submissions and an appeal book, despite being granted an extension of time in which to do so.

1. It is difficult to discern from the Notice of Appeal how Mr Aquino alleges error on the Deputy President’s part. The only grounds that might suggest an arguable error are those which contend that the Deputy President “did not consider” Mr Aquino’s wellbeing (in the context of his mother being ill), his health or his financial position. It is true that none of those matters are referred to in the decision. However, there is nothing to suggest that these were matters that were put before the Deputy President. He cannot be said to have erred in failing to consider an issue that was not raised.

1. Further, even were we to assume that Mr Aquino had put those matters to the Deputy President, there is no basis on which we could determine how material they could have been to the outcome of the matter. A decision to extend time under s 394(3) involves the exercise of a broad discretion.12 These grounds in the Notice of Appeal do not demonstrate that the Deputy President erred in the exercise of that discretion.

1. The balance of the grounds in the Notice of Appeal amount to an attempt by Mr Aquino to re-litigate the case he ran before the Deputy President. They do not identify any arguable appealable error by the Deputy President. Rather, they reflect Mr Aquino’s disagreement with the decision and a preference for a different result.

1. As to the evidence to which the grounds of appeal refer, we make two observations. First, we cannot give weight to the (uncorroborated) assertion that a witness is “willing to supply information but reluctant to provide a statement”. There is an implication that the witness might somehow provide confidential or anonymous assistance to the Commission. There are obvious difficulties with that proposition. Further, we have no way of knowing what, if any, evidence the person might provide that would be relevant to the appeal.

1. Second, the Notice of Appeal does not make clear whether the other evidence to which it refers was before the Deputy President or not. If it is fresh evidence, Mr Aquino was required to apply for leave to rely on it and to provide it to the Commission in the proper form.

1. In conclusion, Mr Aquino’s unfair dismissal application was filed out of time. The Deputy President had to determine whether to grant him an extension of time. Without it, Mr Aquino’s unfair dismissal application could not proceed. The Deputy President considered each of the matters to which he was required to have regard under s 394(3) of the Act. There is nothing before us to suggest that his findings of fact were not reasonably open to him on the evidence. In short, the Deputy President’s approach to determining the extension of time application was both legally correct and entirely orthodox.

1. We find that Mr Aquino’s grounds of appeal do not demonstrate an arguable case of error in the exercise of the Deputy President’s discretion. Nor do we consider that the appeal attracts the public interest. Specifically, we are not persuaded for the purposes of s 400 of the Act that the appeal raises any genuine issue of law, principle or wider application. It follows that we must refuse permission to appeal in accordance with the stringent test in s 400(1) of the Act.

Order and disposition

1. For the reasons given, permission to appeal is refused.

DEPUTY PRESIDENT

Hearing details:

Matter determined on the papers.

[1] [2024] FWC 2790

[2] PR780075

[3] The Deputy President cited s 394(3) of the Act. We can safely assume that this was a typographical error

[4] Section 400 of the Act applies to this appeal, as it is from a decision made under Part 3-2 of the Act

[5] Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54; 192 FCR 78; 207 IR 177 at [34] and [43]

[6] 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]

[7] GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343; 197 IR 266 at [24]-[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] GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, 197 IR 266 at [24]-[27]

[9] Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]

Printed by authority of the Commonwealth Government Printer

<PR781963>