Fraser Macauley v Sydney Trains - [2023] FWCFB 83

PR761610

The attached document replaces the document previously issued with the above code on {insert date}.

Changed ‘PN’ to ‘PR’ to accurately reflect document number

John Cullen
Associate to Deputy President Cross

Dated 4 May 2023

[2023] FWCFB 83

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.604—Appeal of decision

Fraser Macauley
v

Sydney Trains

(C2023/1373)

DEPUTY PRESIDENT CROSS
DEPUTY PRESIDENT EASTON
COMMISSIONER MCKINNON

SYDNEY, 26 APRIL 2023

Appeal against decision [2023] FWC 413 of Commissioner Platt at Adelaide on 20 February 2023 in matter number U2022/11993.

Mr Fraser Macauley was employed by Sydney Trains for exactly 6 months and was dismissed on 26 October 2022.[1] On 19 December 2022, Mr Macauley applied for an unfair dismissal remedy under s.394 of the Fair Work Act 2009. His application was filed 33 days after the expiry of the 21‑day filing period prescribed by section 394(2). On 20 February 2023, Commissioner Platt decided not to extend the time for Mr Macauley to make his unfair dismissal application[2] (the Decision).

On 15 March 2023, Mr Macauley lodged a notice of appeal in relation to the Decision, which was also required to be filed within 21 days. The question in this decision is whether additional time should be allowed for Mr Macauley to lodge his notice of appeal.

We have decided not to allow additional time for the lodgement of Mr Macauley’s notice of appeal. These are our reasons.

Extension of time

A notice of appeal must be lodged within 21 days after the decision was issued.[3] Rule 56(2) of the Fair Work Commission Rules 2013 (the Rules) relevantly provides that a notice of appeal under s.604 must be lodged within 21 calendar days after the date of the decision under appeal, or within such further time allowed by the Commission on application.

Mr Macauley’s notice of appeal was lodged 2 days after the prescribed 21-day time limit had expired. Accordingly, it is necessary for Mr Macauley to be granted an extension of time for lodgement of his notice of appeal.

Principles relevant to consideration of an application to extend time to lodge a notice of appeal were summarised in the Full Bench decision in Jobs Australia v Eland[4] as follows (footnotes omitted):

“[5] Time limits of the kind in Rule 56 should not simply be extended as a matter of course. There are sound administrative and industrial reasons for setting a limit to the time for bringing an appeal and it should only be extended where there are good reasons for doing so. The authorities indicate that the following matters are relevant to the exercise of the Tribunal’s discretion under Rule 56(2)(c):

· whether there is a satisfactory reason for the delay;
· the length of the delay;
· the nature of the grounds of appeal and the likelihood that one or more of those grounds being upheld if time was extended; and
· any prejudice to the respondent if time were extended.”

Reason for delay: There are a number of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] FWCFB 83
Decision Date: 26 APRIL 2023

CaseChat Overview and Summary

Fraser Macauley has appealed the decision of Commissioner Platt that dismissed his application to extend the time for him to lodge his unfair dismissal application against Sydney Trains. Macauley was dismissed by Sydney Trains on 26 October 2022. He lodged his unfair dismissal application on 19 December 2022, 33 days after the 21-day period prescribed by section 394(2) of the Fair Work Act 2009 had expired. Commissioner Platt dismissed Macauley’s application for an extension of time. Macauley subsequently lodged a notice of appeal, two days after the 21-day period for lodging the notice of appeal under Rule 56(2) of the Fair Work Commission Rules 2013 had expired. Macauley’s grounds of appeal rely on the proposition that his dismissal was not effective until 12 January 2023, when he finally received payment in lieu of notice of termination from Sydney Trains. However, the Court found that this proposition was not argued at first instance, and that even if it was, there was no arguable case of error apparent on the face of the Decision. The Court also found that the delay was not significant, and that there was no apparent prejudice to Sydney Trains if additional time were allowed. Accordingly, the Court declined to grant an extension of time for Macauley to lodge his notice of appeal.

The Fair Work Commission was required to decide whether to grant an extension of time for Macauley to lodge his notice of appeal. The Court considered the principles relevant to the exercise of the Commission’s discretion under Rule 56(2)(c) of the Fair Work Commission Rules 2013. These principles include whether there is a satisfactory reason for the delay, the length of the delay, the nature of the grounds of appeal and the likelihood that one or more of those grounds being upheld if time was extended, and any prejudice to the respondent if time were extended. The Court found that none of the reasons provided by Macauley for the delay in lodging the notice of appeal were satisfactory. The length of delay was only two days, and there was no apparent prejudice to Sydney Trains if additional time were allowed. The Court also found that there was no arguable case of error apparent on the face of the Decision, and that there was no evident public interest in revisiting the questions that were before the Commissioner. Accordingly, the Court declined to grant an extension of time for Macauley to lodge his notice of appeal.

In summary, the Court declined to grant an extension of time for Macauley to lodge his notice of appeal against the decision of Commissioner Platt that dismissed his application to extend the time for him to lodge his unfair dismissal application against Sydney Trains. The Court found that none of the reasons provided by Macauley for the delay in lodging the notice of appeal were satisfactory, the length of delay was only two days, and there was no apparent prejudice to Sydney Trains if additional time were allowed. The Court also found that there was no arguable case of error apparent on the face of the Decision, and that there was no evident public interest in revisiting the questions that were before the Commissioner.

The application for permission to appeal and appeal filed by Macauley on 15 March 2023 is dismissed.

Orders