Fraser Macauley v Sydney Trains
[2023] FWCFB 83
•26 APRIL 2023
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 | 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 reasons given by Mr Macauley for the delay in lodgement of the notice of appeal. Mr Macauley submits that he was “in two minds” about making the application. His union, the Australian Rail Tram and Bus Industry Union, did not look further into the matter for him. Attempts were made without success to clarify the breakdown of his final pay after 12 January 2023. His subsequent representative, Mr David Burbidge, only “came to it” quite late and is a full‑time carer with limited availability. Mr Burbidge also submits that there was representative error on his behalf, on the basis that he made a request for information on the Adelaide Cup Day public holiday without realising it was a public holiday and subsequently only received a copy of the Digital Court Book in the matter below on 14 March 2023, one day before the notice of appeal was lodged. Mr Burbidge separately submits that he had been away on a cruise, had a full mailbox and no access to internet or a computer until the morning of 5 April 2023 (the day of the hearing of this extension of time to appeal).
None of these are satisfactory reasons for Mr Macauley’s delay in filing his notice of appeal. Mr Macauley was hesitant about lodging an appeal and did not take reasonable steps to preserve his position. The reasons also suggest that Mr Burbidge was only engaged on the last day available to Mr Macauley to lodge his notice of appeal, in circumstances where Mr Burbidge may not have had the capacity to take on the status of representative while also being a full-time carer who was either about to embark on a holiday or was already on one. As to the Digital Court Book, this was provided to the parties in the matter at first instance on 8 February 2023. Further, it is not apparent why even in its absence, the notice of appeal could not have been lodged on time.
Length of delay: The length of delay is only 2 days. It is not a significant period of delay.
Grounds of appeal: Mr Macauley seeks permission to appeal a discretionary decision about whether to allow him additional time to file his unfair dismissal application. He relies on five grounds in support of his appeal:
That the Commissioner failed to consider when Mr Macauley received payment in lieu of notice of termination;
That the Commissioner failed to request supporting documentation from Sydney Trains about when and in what circumstances Mr Macauley’s final payment was made;
That Sydney Trains thought the delay in payment was due to Mr Macauley requesting leave, but did not know, and could not support, this view;
That the Commissioner made an error on transcript when he stated that Mr Macauley was terminated “and paid” on a single day, despite the final payslip for Mr Macauley being dated 12 January 2023; and
That the Commissioner erred in accepting Sydney Trains’ submission that Mr Macauley was dismissed on 26 October 2022 and was paid in lieu of notice, without considering his final payslip dated 12 January 2023.
Each of these grounds centre on the single premise that the Commissioner erred in fact when he concluded that the dismissal of Mr Macauley took effect on 26 October 2022. Mr Macauley instead urges a finding that his termination took effect on 12 January 2023, when he finally received payment in lieu of notice of termination from Sydney Trains. This is a new and different argument on behalf of Mr Macauley to that relied upon in the proceeding below. At first instance, Mr Macauley contended that his dismissal took effect on 9 December 2022, when Sydney Trains communicated the outcome of a review of his dismissal and confirmed its original decision to dismiss.
An appellant will generally be bound by the case they advanced at first instance. We see no reason to depart from that approach in this case. Further, even if additional time was allowed to Mr Macauley, it is unlikely that permission to appeal would be granted. This is because there is no evident public interest in revisiting the questions that were before the Commissioner, and no obvious arguable case of error apparent on the face of the Decision.
The Commissioner considered the contentions put before him by the parties at first instance, made the necessary findings of fact and applied those facts in an orthodox way to the applicable legal principles. The decisions relied upon by Mr Macauley in support of his appeal take the matter no further: Melbourne Stadiums Ltd v Sautner[5] dealt with the termination of a contract which was specific (and different) in relation to the giving of effective notice of termination. It did not engage with the statutory meaning of when an employee is “dismissed” for the purposes of s.386 of the Act, which requires consideration of whether there has been a termination of the employment relationship. Cerin v ACI Operations Pty Ltd & Ors[6] dealt with the consequences of failing to give notice under s.117 of the Act in connection with the termination of employment. It is not authority for the proposition that a dismissal in breach of s.117 is ineffective. There is also a question of utility in circumstances where Mr Macauley does not appear to have completed the minimum employment period as noted above.
Prejudice to Sydney Trains: There is no apparent prejudice to Sydney Trains if additional time were allowed to Mr Macauley to lodge his notice of appeal, particularly in circumstances where it was only 2 days late.
Conclusion
On balance, the relevant considerations do not weigh in favour of additional time being granted to Mr Macauley to lodge his notice of appeal. We decline to grant an extension of time.
In the result, it is not necessary to deal with permission to appeal.
Disposition
The application for permission to appeal and appeal filed by Mr Macauley on 15 March 2023 is dismissed.
DEPUTY PRESIDENT
Appearances:
Mr D Burbridge for the Applicant
Ms S Moten of Lander & Rogers for the Respondent
Hearing details:
2023.
Sydney (By Video using Microsoft Teams)
April 5.
[1] Macauley v Sydney Trains [2023] FWC 413
[2] [2023] FWC 413
[3] Rule 56(2) of the Fair Work Commission Rules 2013 (Rules)
[4] [2014] FWCFB 4822. See also Fox v Kangan TAFE Print S0253, 25 October 1999 at [36]; Stevenson-Helmer v Epworth Hospital Print T2277, 19 October 2000; Dundovich v P&O Ports Print PR923358, 8 October 2002; SPC Ardmona Operations Ltd v Esam and Organ (2005) 141 IR 338; Farnhill v Australian Business Academy Pty Ltd [2016] FWFBC 3410 and Logan City Electrical Services Division Pty Ltd t/as Logan City Electrical v Christopher Antonarkis [2018] FWCFB 3815.
[5] [2015] FCAFC 20
[6] [2015] FCCA 1654
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