Fouad Ramadan v WSI Logistics Pty Ltd
[2021] FWCFB 4145
•14 JULY 2021
| [2021] FWCFB 4145 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Fouad Ramadan
v
WSI Logistics Pty Ltd
(C2021/3016)
VICE PRESIDENT CATANZARITI | SYDNEY, 14 JULY 2021 |
Appeal against decision [2021] FWC 2984 of Deputy President Boyce at Sydney on 26 May 2021 in matter number U2021/3310 - permission to appeal refused.
Introduction
[1] Mr Fouad Ramadan (the Appellant) has appealed pursuant to s.604 of the Fair Work Act 2009 (the Act) against a decision 1 made by Deputy President Boyce on 20 May 2021 (the Decision), for which permission to appeal is required.
[2] The Decision concerned an application for an unfair dismissal remedy made under s.394 of the Act. The Decision dealt with an application for an extension of time sought by the Appellant to file his unfair dismissal application.
[3] Unfair dismissal applications, in accordance with s.394(2) of the Act, must be made within 21 days after the dismissal takes effect or in such further time that the Fair Work Commission (the Commission) allows. The Appellant’s termination of employment took effect on 25 January 2021, and his application for an unfair dismissal remedy should have been lodged by 15 February 2021. The application was filed on 16 April 2021, 61 days out of time. It was not in dispute that the Appellant’s application for an unfair dismissal remedy was filed outside the 21-day statutory timeframe.
[4] In the Decision, the Deputy President determined that having regard to all of the factors required to be taken into account under s.394(3) of the Act, he was not satisfied that the requisite ‘exceptional circumstances’ existed to grant an extension of time for the filing of the application. Therefore the s.394 application was dismissed.
[5] Directions in relation to the appeal were issued on 4 June 2021 which required the Appellant to file submissions by 28 June 2021. The same Directions advised the parties that the matter was listed before the Full Bench for permission to appeal only. In accordance with the regular protocol, the Respondent was not required to file submissions. At the hearing on 6 July 2021, the Appellant represented himself, and Mr A Costi, Managing Director, appeared for WSI Logistics Pty Ltd (the Respondent).
Background and Decision
[6] The Appellant commenced employment with the Respondent on 10 December 2018 and was dismissed from his employment on 25 January 2021. He lodged his unfair dismissal application on 16 April 2021, 61 days outside the 21-day statutory time limit.
[7] In seeking an extension of time in which to make his application for an unfair dismissal remedy the Appellant contended that representative error explained the delay in the filing of his application. He stated both in his Form F2 and in the proceedings before the Deputy President that he had contacted a lawyer (“Mona”) on 25 January 2021, explained the circumstances of his dismissal and was assured by the lawyer that his case would be handled by their office. The Appellant stated that he was subsequently advised on 22 March 2021 by the lawyer that she had more recently reviewed his matter and concluded he had “no case”. No evidence was produced or led by the Appellant in the proceedings before the Deputy President regarding his purported engagement of legal representation and communication with the lawyer identified as ‘Mona’.
[8] The Appellant also made submissions to the Deputy President in respect of the merits of his application and contended that the purported reasons for his dismissal, that being related to a combination of his attitude and unnotified work absences, were without merit. He contended that he was dismissed for taking sick leave.
[9] Turning now to the Decision, the Deputy President set out the relevant background and case law before considering the statutory criteria under s. 394(3) of the Act. He relevantly concluded in respect of the Appellant’s explanation for the delay in filing the application (s. 394(3)(a)) as follows;
“[12] The Applicant states that:
On 25 January 2021 I spoke to a lawyer and explained my situation and they said it would be handled by their office. Weeks and months went by of being ignored by the law firm. Then finally I get a message on 22 March 2021 stating that they just looked at the case again and are saying I don’t have a case but from the beginning after providing text messages between myself and my employer and doctors’ certificates they said it’s a very strong case. I’m concerned they forgot to lodge it and it’s the reason why I was ignored for so long and then to say I don’t have a case.”
[13] I highlight that the Applicant says that at 22 March 2021 he was purportedly made aware by his lawyer that they would not be preparing or filing an unfair dismissal application on his behalf. That said, the Applicant gives no reasons whatsoever as to any further reason for delay between 22 March 2021 and 16 April 2021.
[14] There is no evidence from the Applicant’s purported lawyer going to the matters that the Applicant asserts have occurred. Indeed, there is no evidence that the Applicant ever formally engage a lawyer to act on his behalf.
[15] When I asked the Applicant during the hearing as to the name of his lawyer, he could only tell me that his lawyer’s first name was “Mona”. I am informed by my Associate that during the course of issuing my ex tempe decision on 20 May 2021, the Applicant sent a further email to my Chambers indicating that the relevant law firm he had engaged was [email protected].
[16] Even if it be accepted that the Applicant found out on 22 March 2021 that his lawyer would not be preparing and filing an unfair dismissal application on his behalf on 22 March 2021, there is no evidence of the steps taken by the Applicant prior to the expiration of the 21-day time limit, and/or prior to 22 March 2021, that he took to chase up his lawyer as to the filing of his Unfair Dismissal Application.
[17] Having regard to the above factual findings, I am not satisfied that representative error or neglect has been visited upon the Applicant in terms of any delay in filing his Application. Given there are no other reasons proffered by the Applicant as to his delay, the Applicant’s reason for delay does not weigh in favour of satisfaction as to exceptional circumstances.” 2
[10] The Deputy President then turned to consider ss 394(3)(b), (c), (d) & (f) and concluded that each of those factors were neutral considerations 3.
[11] The Deputy President dealt with the merits of the Appellant’s application (s. 394(3)(e)). In doing so he found that criteria to be a neutral consideration, relevantly stating as follows;
“[26] The thrust of the Applicant’s Unfair Dismissal Application is that he was terminated by the Respondent for being on sick leave. I note that this argument is not without merit, however, that said, it appears as though there were repeated issues concerning the Applicant’s lateness and attitude, and there were also issues as to the method of communication by which the Applicant notified the Respondent of his repeated absences from work.
[27] Some of the conduct by the Applicant appears to be in clear contravention of s.107(2)(a) of the Act concerning the Applicant’s obligations to notify the Respondent of his absences from work as soon as practicable.
[28] All in all, whilst the fact that the Applicant’s Unfair Dismissal Application is not totally without merit, the Respondent’s case for his dismissal being fair (in all of the circumstances of the case), is equally not without merit. In my view, the merits of the Applicant’s Unfair Dismissal Applicant are a neutral consideration in this matter.” 4
[12] The Deputy President concluded that he was not satisfied as to the existence of exceptional circumstances warranting the grant of an extension of time and dismissed the application 5.
Grounds of appeal and submissions
[13] The Appellant contends in his Form F7 that he is in possession of text messages and emails between himself and a legal representative he says he engaged following his dismissal, which confirm that the representative failed to act on the Appellant’s clear instructions to file an unfair dismissal application within the 21-day statutory time period. The Appellant seeks leave of the Full Bench to admit that fresh evidence and that his application for an extension of time for the filing of his unfair dismissal application be reconsidered.
[14] In written submissions filed in this appeal, the Appellant also set out in further detail why he believed his dismissal by the Respondent was unfair. He variously claims that he was dismissed for being absent on sick leave, that in receiving warning letters regarding his conduct he was discriminated against and treated differently to other employees who engaged in workplace misconduct and that he was subject to bullying in the workplace. The Appellant also submits that he was dismissed without a proper investigation.
[15] The Appellant further submits that the public interest is enlivened by the following: the high incidence of unfair dismissals, that many employees do not know their rights and are taken advantage of by their employer, that he strongly believes his dismissal was unfair and that he is concerned to ensure that the treatment he received does not happen to other employees of the Respondent.
Principles governing an appeal under s.604 of the Act
[16] 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 6. There is no right to appeal, and an appeal may only be made with the permission of the Commission. Section 604 relevantly provides:
(1) A person who is aggrieved by a decision:
(a) made by the FWC (other than a decision of a Full Bench or the Minimum Wage 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).
[17] This appeal is one to which s 400 of the FW Act applies. Section 400 provides:
(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.
[18] In the Federal Court Full Court decision in Coal & Allied Mining Services Pty Ltd v Lawler and others, 7Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s.400 as “a stringent one”. The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment8. The public interest is not satisfied simply by the identification of error,9 or a preference for a different result10. 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 issues 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...” 11
[19] 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 12. However, the fact that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal13.
[20] 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 14. However it is necessary to engage with those grounds to consider whether they raise an arguable case of appealable error.
Consideration
Whether the Full Bench should receive further evidence in the appeal
[21] Before turning to consider the grounds of appeal advanced by the Appellant, we firstly deal with whether the Full Bench should receive new evidence that the Appellant seeks to adduce on appeal. Section 607(2) of the Act provides that the Commission may, on appeal, admit further evidence and take into account any other information or evidence, however it is by no means a matter of course that it will do so.
[22] It is uncontroversial that the exercise of discretion to admit new evidence or to consider further material is governed by the principles set down in Akins v National Australia Bank 15 (Akins) in which the New South Wales Supreme Court identified three conditions that it would need to be satisfied of before the discretion might be exercised to admit further evidence. Firstly, it must be established that the evidence could not have been obtained or adduced with reasonable diligence for use at first instance. Secondly, it must be evidence which is of such a high degree of probative value that there is a probability that there would have been a different result at first instance. Thirdly, the evidence must be credible16.
[23] The evidence the Appellant seeks to adduce on appeal is as follows:
• Medical certificates dated 19 & 25 January 2021 that state the Appellant was unfit for work on 19, 20 & 25 January 2021;
• Text messages exchanged with a “Mona” in the period from 8 – 22 March 2021 regarding the Appellants unfair dismissal application; and
• Text messages exchanged with an “Andrew” and “Michael” regarding the Appellant’s absences from the workplace.
[24] Having reviewed the additional material the Appellant seeks to adduce on appeal we decline to admit that evidence. Our reasons are as follows.
[25] Firstly, it is evidence that was clearly available to the Appellant and could have been adduced with reasonable diligence in the proceedings before the Deputy President.
[26] Secondly, we are not persuaded that the evidence is highly probative such that there is a probability a different outcome would have resulted at first instance. In respect of the Appellant’s submission of representative error which the text message exchange between the Appellant and “Mona” seeks to address, the purported legal representative “Mona” was not called to give evidence in the proceedings before the Deputy President and nor before us. Even were that evidence adduced at first instance it is unlikely it would have produced a different outcome given the Deputy President’s finding at [16] of the Decision that there was no explanation for the further 24 day delay between 22 March 2021 when “Mona” advised the Appellant he had no case and 16 April 2021 when the Appellant filed his unfair dismissal application.
[27] Finally, the evidence of the medical certificates and text message exchanges with “Andrew” and “Michael”, which go the merits of the Appellant’s dismissal, add little to the material that was before the Deputy President on which he found that the Appellant’s case was not without merit.
Grounds of appeal
[28] The Appellant’s grounds of appeal have not identified error, let alone significant error on the part of the Deputy President. Rather, the grounds of appeal are simply a plea by the Appellant for the Full Bench to re-determine his application for an extension of time in which to file his unfair dismissal application. Absent the identification of appealable error there is in our view no basis to grant permission to appeal.
[29] For the sake of completeness we would observe that the Deputy President approached the task of determining the extension of time application before him in an orthodox manner. He took into account and weighed each of the s.394(3) criteria, as he was required to, in arriving at his conclusion that he was not satisfied as to the existence of “exceptional circumstances” warranting an extension of time. No error is disclosed in the reasoning or conclusion reached by the Deputy President.
[30] We do not consider that the decision raises any issue of importance or general application that would enliven the public interest. It concerned the dismissal of an employee who was found by the Deputy President to have filed an application for an unfair dismissal remedy outside the 21-day statutory time period and that there were no exceptional circumstances that warranted an extension of time being granted. The case turned on its own facts. There is no diversity of decisions at first instance in relation to the issues raised on appeal, so that guidance from a Full Bench is required. We do not consider that the result of the decision is counter-intuitive or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters.
Conclusion
[31] In all the circumstances, we are not persuaded that it would be in the public interest to grant permission to appeal. Accordingly, as required by s.400(1) of the Act, permission to appeal is refused.
VICE PRESIDENT
Appearances:
Mr F Ramadan on his own behalf.
Mr A Costi for the Respondent.
Hearing details:
2021.
Telephone hearing.
6 July.
Printed by authority of the Commonwealth Government Printer
<PR731696>
1 [2021] FWC 2984
2 Decision at [12]-[17]
3 Ibid at [18]-[21]
4 Ibid at [26]-[28]
5 Ibid at [29-[30]
6 This is so because on appeal the Commission has power to receive further evidence, pursuant to s 607(2); see Coal and Allied Operations Pty Ltd v AIRC [2000] HCA 47, 203 CLR 194, 99 IR 309 at [17] per Gleeson CJ, Gaudron and Hayne JJ
7 [2011] FCAFC 54, 192 FCR 78, 207 IR 177 at [43]
8 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]
9 GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343, 197 IR 266 at [24]-[27]
10 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, 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]
11 [2010] FWAFB 5343, 197 IR 266 at [27]
12 Wan v AIRC [2001] FCA 1803, 116 FCR 481 at [30]
13 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]
14 Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]
15 (1994) 34 NSWLR 155
16 Cited in Perry v Rio Tinto Shipping Pty Ltd[2016] FWCFB 6936.
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