George Anthony Lazcano v Metro Trains Melbourne Pty Ltd T/A Metro Trains Melbourne
[2022] FWCFB 216
•24 NOVEMBER 2022
| [2022] FWCFB 216 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
George Anthony Lazcano
v
Metro Trains Melbourne Pty Ltd T/A Metro Trains Melbourne
(C2022/6355)
| VICE PRESIDENT CATANZARITI | SYDNEY, 24 NOVEMBER 2022 |
Appeal against decision [2022] FWC 2222 of Commissioner Bissett at Melbourne on 25 August 2022 in matter number U2022/1384 – application filed late – whether extension of time should be granted
On 16 September 2022 Mr George Lazcano (Appellant) lodged a notice of appeal in which he sought permission to appeal and appealed a decision issued on 25 August 2022[1] by Commissioner Bissett (Decision). The Decision arose out of an unfair dismissal remedy application under s.394 of the Fair Work Act 2009 (Act) which Mr Lazcano had lodged in respect of his dismissal by Metro Trains Melbourne Pty Ltd (Metro Trains or Respondent). This decision is about whether Mr Lazcano should be granted an extension of time to seek permission to appeal against the Decision.
Rule 56(2) of the Fair Work Commission Rules 2013 relevantly provides that a notice of appeal under s.604 must be filed within 21 calendar days after the date of the decision the subject of the appeal or within such further time allowed by the Commission on application by the Appellant. Mr Lazcano’s notice of appeal was filed 1 day after the prescribed 21-day time period had expired. The appeal will only be competent if Mr Lazcano is granted an extension of time.
This matter was listed for hearing concerning the issues of the necessary extension of time to lodge the application and permission to appeal. Directions were set for the filing of material by the Appellant. The Respondent was not required to file material. On 15 November 2022, the Full Bench refused permission for the Respondent to be legally represented at the hearing, taking into account the factors in s.596 of the Act. Accordingly, the matter was heard on 17 November 2022.
For the reasons that follow, extension of time is refused.
Principles on Extension of Time
The principles that most commonly apply to consideration of an application to extend time to lodge an appeal were summarised in the Full Bench decision in Jobs Australia v Eland[2] 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.”
The question to be answered by reference to these considerations is whether, in all the circumstances, the interests of justice favour an extension of the time within which to lodge the appeal.
Consideration
Reason for the delay
The reasons given by Mr Lazcano for the delay are that he had a hernia operation on 13 September 2022 and was in recovery for two weeks after the operation in a great deal of pain. He suffers from depression and anxiety and was unable to focus on getting his documents together for the appeal process. He has never had to do this before and only had the help of his representative Laura Brockie, who is not a lawyer and shares the same postal address as Mr Lazcano.
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We have considered the reasons given for the delay and do not find them persuasive in support of an extension of time. The limited medical evidence filed by Mr Lazcano confirms that he had surgery on 13 September 2022 and was discharged from hospital the following day. By 13 September 2022, however, all but three of the 21 days to lodge his application had passed. And despite his being in recovery and in pain after surgery, Mr Lazcano was able to lodge his application two days later. While there is no evidence that Mr Lazcano suffers from depression and anxiety, we are prepared to accept that he does. Even so, it is not sufficient reason to allow an extension of time. The same can be said for unfamiliarity with Commission processes.
Length of the delay
The application for permission to appeal was lodged one day late. Mr Lazcano submits that as the period of delay was so short, it is “only fair” to extend the time. However, the 21-day lodgment period seeks to strike a balance between the interests of the parties and the obligation of the Commission to perform its functions in a way that both just and quick. The certainty inherent in this requirement would be undermined if an extension were to be allowed simply because the delay is only short.
Grounds of appeal and whether they are likely to be upheld if time is extended
Mr Lazcano submits that there are significant errors of fact in the first instance Decision. Specifically, Mr Lazcano submits that because he was protected from unfair dismissal, discrimination against him should have been taken into account. It is plain from the Decision that the Commissioner considered Mr Lazcano’s contentions in relation to discrimination in connection with unfair dismissal. She did not accept the contentions, but that does not mean she did not take them into account.
Secondly, Mr Lazcano submits that the Commissioner was wrong to find that he was due back at work on 4 January 2022 because he was on long service leave at half pay. Related to this contention, Mr Lazcano submits that the Commissioner was wrong to find that he was aware of his leave coming to an end and that there are contradictions in the Decision at paragraphs [51], [52] and [58] in relation to the sequence of events leading to his dismissal. These contentions are simply seeking to reagitate the findings of fact made on the evidence before the Commission at first instance, in some cases, in the absence of corroborating evidence. The Commissioner was best placed to evaluate the oral evidence at hearing and make findings of fact. The findings made by the Commissioner seem to us to be open on the evidence. The Commissioner may not have preferred Mr Lazcano’s evidence on certain matters, but that does not establish an arguable case of appealable error.
Mr Lazcano asserts error in paragraph [42] of the Decision on the basis that it was wrong to find that he did not put any argument that there was not a valid reason for his dismissal. However, this is a selective reading of paragraph [42]. In full, the Commissioner found that Mr Lazcano did not put any argument that there was not a valid reason for his dismissal “related to capacity.” In this sentence, the Commissioner was making the observation that Mr Lazcano’s arguments in relation to valid reason were about matters such as the lawfulness and reasonableness of the mandatory vaccination policy, and discrimination against him on religious grounds rather than whether he was able to comply with the policy and thus had the capacity to work as directed by Metro Trains. We see no arguable case of error in this characterisation of Mr Lazcano’s case.
Mr Lazcano submits that the Commissioner failed to mention in the Decision that he was not given the opportunity to finish his apprenticeship with Metro Trains because his dismissal meant he could not complete the necessary placement hours and was therefore unable to sit for his Grade A Electrical licence. Mr Lazcano submits that this was mentioned at the hearing. Transcript of the hearing has not been provided by Mr Lazcano as part of the appeal book. However, if reliance was placed on this issue by Mr Lazcano in relation to his unfair dismissal application, it can only have been in passing. It does not appear on the Form F2 application for an unfair dismissal remedy filed in the Commission on 1 February 2022 nor in the evidence and submissions filed by Mr Lazcano in support of his application. We find no arguable case of error in relation to this ground.
Mr Lazcano also seeks to reagitate arguments that were not accepted by the Commissioner at first instance in relation to the lawfulness and reasonableness of the mandatory vaccination policy and the legality of the Victorian’ Chief Health Officer’s Directions in relation to the COVID-19 pandemic. Reference in the Decision to “the law as it stands” was plainly a reference to the Chief Health Officer’s Direction. The observation made by the Commissioner, which was plainly correct, was simply that it is a matter for the courts rather than the Commission to determine the validity of such directions. No arguable case of error arises from the reasoning of the Commissioner in these respects.
Finally, Mr Lazcano submits that in paragraph [66] of the Decision, the Commissioner showed bias against those of Christian faith and discriminated against him on the basis of his religion. We cannot see how these arguments could properly be sustained. The Commissioner was simply observing that the evidence before her did not support a finding of discrimination, including because there was no evidence of the particular religious beliefs held by Mr Lazcano or the doctrine to which he adheres, and because the mere holding of personal beliefs is not enough to establish discrimination. These observations seem to us to have been available to the Commissioner on the materials before her. The final observation in paragraph [66] that Metro Trains did not require Mr Lazcano to be vaccinated appears to us to have been plainly correct. What Metro Trains required was that he provide evidence of vaccination so that it could permit him to attend for work in accordance with the Chief Health Officer’s Directions. In other words, while vaccination was a condition of his attendance at work for Metro Trains, Mr Lazcano had the right to decide whether to become vaccinated. This remains the case. It is the choice that Mr Lazcano made. Sadly, the consequence of this choice was that he no longer had the capacity to attend for work in accordance with the Chief Health Officer’s Directions and Metro Trains policy.
On the question of public interest, Mr Lazcano relies on the contentions discussed above in relation to discrimination on religious grounds and the unlawful and unreasonable nature of the mandatory vaccination policy. In our view, there is limited public interest in the application, which turns on its own facts and circumstances and takes issue with a Decision that is both consistent with the established principles and traverses subject matter about which there is limited diversity of decision.
Prejudice to the respondent
There is no evident prejudice to Metro Trains if the application is accepted one day late.
Conclusion
On balance, the interests of justice do not favour an extension of the time within which to lodge the appeal. The explanation for delay is unsatisfactory except in relation to the last three days of the 21-day lodgement period. The length of the delay, being only one day, is not long and there is no prejudice to Metro Trains if the application is allowed to proceed late, but even so, the lodgement period is established for reasons that seek to strike a balance between the interests of the parties and the obligation on the Commission to perform its functions in a way that both just and quick. We are not persuaded that if time is extended, any of the grounds of appeal are likely to be upheld, or even permission to appeal granted.
For these reasons, we refuse the application for an extension of time. As the appeal was filed beyond the time prescribed by r.56(2)(a), and the extension has been refused, the appeal is incompetent. The application is dismissed.
VICE PRESIDENT
Appearances:
L. Brockie for the Appellant.
D. Hexter for the Respondent.
Hearing details:
2022.
Sydney by Microsoft video:
November 17.
[1] [2022] FWC 2222.
[2] [2014] FWCFB 4822
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