Filippa Jensen v Coronation BurwoodClub/Coro88 Club Burwood T/A Coro 88
[2022] FWCFB 157
•18 AUGUST 2022
| [2022] FWCFB 157 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Filippa Jensen
v
Coronation BurwoodClub/Coro88 Club Burwood T/A Coro 88
(C2022/3751)
| VICE PRESIDENT CATANZARITI | SYDNEY, 18 AUGUST 2022 |
Appeal against decision [2022] FWC 1606 of Commissioner Bissett at Melbourne on 23 June 2022 in matter number U2022/5814 – permission to appeal refused.
Background
Filippa Jensen (the Appellant) has lodged an appeal under s.604 of the Fair Work Act 2009 (Cth) (the Act) against a decision[1] (the Decision) of Commissioner Bissett (Commissioner) issued on 23 June 2022, for which permission to appeal is required. The Decision concerned an application, brought by the Appellant, for an unfair dismissal remedy against Coronation BurwoodClub/Coro88 Club Burwood T/A Coro 88 (the Respondent), pursuant to s.394 of the Act.
The Appellant’s unfair dismissal application was incomplete in that the Appellant had not paid the required fee or filed a completed waiver form. The Commission made multiple attempts to contact the Appellant and her representative regarding her incomplete application, however they received no response. The Commissioner dismissed the application as the prescribed fee had not been paid and the application was therefore not made in accordance with the Act.
Directions were set for the filing of material by the Appellant. As this matter was listed for permission to appeal only, the Respondent was not required to file any material and it did not do so. The Appellant filed written submissions and made further oral submissions at the hearing on 9 August 2022. During the hearing, the Appellant was granted leave to file additional evidence, specifically a fee waiver form allegedly filed with the Commission at the time of the original application. After the hearing, the Appellant sent a copy of a completed fee waiver form to the Vice President’s chambers.
For the reasons that follow, permission to appeal is refused.
Decision under appeal
On 28 May 2022, the Appellant made an application pursuant to s.394 of the Act for a remedy for unfair dismissal. The application indicated that the Appellant wanted to apply for a fee waiver. However, the application was incomplete in that the Appellant had not paid the required fee or filed a completed waiver form.
The Commission made multiple attempts to contact the Appellant to regarding her incomplete application:
·On 30 May 2022, the Commission attempted to contact the Appellant on her nominated telephone number, however she did not answer the call and a voicemail message was left requesting that she provide a completed waiver to the Commission.
·Later that day, the Commission emailed correspondence to the Appellant’s nominated email address, advising that her application required payment of the filing fee or a completed waiver form. That correspondence also warned that if payment was not made or a waiver form was not received within 14 days, the application may be dismissed.
·An attempt was made to contact the Appellant’s authorised representative on 3 June 2022, after multiple copies of the amended application form were provided to the Commission, but not a fee waiver application. A voicemail message was left with the authorised representative requesting that the waiver form be provided by 11 June 2022.
·On 14 June 2022, a final attempt to contact the Appellant and her authorised representative was made by the Commission to obtain payment or a completed waiver form. Neither call was answered, and a voicemail message was left advising both the Appellant and her authorised representative that payment of the required fee or a completed waiver application was still outstanding.
As of 23 June 2022, the date of the Decision, the Commission had not received any response from the Appellant, the required fee had not been paid and a completed waiver form had not been received.
The Commissioner was satisfied that the application was not made in accordance with the Act as the application was not accompanied by the prescribed fee. Therefore, the Commissioner dismissed the application pursuant to s.587(1)(a) of the Act.
Grounds of appeal and submissions
The Appellant submits that the Commissioner made a significant error of fact in finding that the Appellant did not file the fee waiver form with the Commission. The Appellant submits that she did file the fee waiver form with the Commission via email. The Appellant submits the only plausible explanation for why the Commission has not received the form is that there was an error in Commission’s system which was out of her control. In support of this submission, the Appellant filed a copy of a completed fee waiver form which she says was signed on 27 June 2022 and allegedly filed with the Commission on 29 June 2022.
The Appellant submits that she and her representative did receive the Commissions calls and emails following up about the waiver form but says that they were unable to respond because the Appellant was working, and her representative was ill.
Principles on appeal
An appeal against a decision to dismiss an unfair dismissal remedy application under s.587 of the Act is one to which s.400(1) of the FW Act applies.[2] Section 400(1) requires that permission to appeal must not be granted unless the Commission considers it is in the public interest to do so. This test is a stringent one.[3] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[4] Some of the considerations that may attract the public interest are where a matter raises issues of importance and general application, or there is a diversity of decisions at first instance so that appellate guidance is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters.[5] It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated.[6] 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.[7]
Consideration
We have considered the Appellant’s ground of appeal and submissions and find that there is no appealable error in the Decision. While the Appellant says that she filed the fee waiver form we are satisfied that no such form was filed with the Commission.
Having reviewed the completed waiver form submitted by the Appellant after the hearing, we are satisfied that the waiver was not filed with the Commission before the Decision was published on 23 June 2022. The Appellant submits the waiver was signed on 27 June 2022 and filed with the Commission on 29 June 2022. Given the fee waiver form was filed after the Decision was published, the Commissioner did not err by finding that the required fee had not been paid and a completed waiver form had not been received as of 23 June 2022. It follows that the Commissioner similarly made no mistake in dismissing the Appellant’s application as it was not made in accordance with the Act.
Additionally, the Appellant submitted that if the waiver form had not been received by the Commission, it must be the result of the Commission’s own error or a failing in their system. The Commission takes allegations of error very seriously and therefore conducted extensive searches to attempt to locate the waiver form to no avail. Further, we note the Appellant has not provided any evidence of the fee waiver being filed with the Commission, by for example providing the original email that the Appellant sent to the Commission filing the waiver form or a confirmation email receipt from the Commission’s registry. Accordingly, we reject that the Appellant filed the fee waiver form before 23 June 2022 and therefore find no appealable error in relation to this submission. In making these findings, we note that the Appellant was given multiple opportunities between 30 May 2022 and 23 June 2022 to keep the matter alive before it was dismissed. The Appellant conceded that she received the Commission’s correspondence and was unable to respond due to work commitments and her representative being unwell. Notably, during this time the Appellant made no attempt to contact the Commission about the fee waiver form supposedly filed.
We do not consider it would be in the public interest for permission to appeal to be granted because none of the appeal grounds or submissions is reasonably arguable. No injustice or counter-intuitive result is manifest. The Commissioner’s findings and conclusion were open to her.
Conclusion
As we are not satisfied that the grant of permission to appeal would be in the public interest, permission to appeal must be refused in accordance with s.400(1) of the FW Act.
Although we have not granted permission to appeal, it is possible for a fresh unfair dismissal application to be lodged by the Appellant seeking and extension of time to file her original application and for the Commission to then consider whether to grant an extension of time having regard to the underlying circumstances of this matter.
VICE PRESIDENT
Appearances:
Ms R Marland for the Appellant.
Ms N Shaw for the Respondent.
Hearing details:
2022.
Microsoft Teams (Video).
9 August.
[1] [2022] FWC 1606 (‘the Decision’).
[2] Australian Postal Corporation v Gorman [2011] FCA 975, 196 FCR 126 at [37].
[3] Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54, 192 FCR 78, 207 IR 177 at [43] per Buchanan J (with whom Marshall and Cowdroy JJ agreed).
[4] O’Sullivan v Farrer [1989] HCA 61, 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch [2011] HCA 4, 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] FCAFC 54, 192 FCR 78, 207 IR 177 at [44]-[46].
[5] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343, 197 IR 266 at [27].
[6] Wan v AIRC [2001] FCA 1803, 116 FCR 481 at [30].
[7] Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089, 202 IR 388 at [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54, 192 FCR 78, 207 IR 177; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office[2014] FWCFB 1663, 241 IR 177 at [28].
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