Gregory Gepp
[2010] FWA 10079
•24 DECEMBER 2010
[2010] FWA 10079 |
|
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Gregory Gepp
(C2010/5704)
DEPUTY PRESIDENT HAMILTON | MELBOURNE, 24 DECEMBER 2010 |
Regulation 3.07(7) - waiver of the application fee for unfair dismissal applications.
[1] On 30 November 2010 Mr.Gregory Gepp filed an application for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (‘the Act’). On 9 September 2010 he applied for a waiver of the application fee of $60.60.
[2] The application for a waiver was refused by Fair Work Australia. Mr.Gepp lodged a notice of appeal with respect to this refusal.
The History of the Matter
[3] In his 9 September application for a waiver, Mr.Gepp said that he had a dependent child, had a fixed term deposit of $26,660.68 and earned interest on the term deposit of $600 (period unknown), had two other bank accounts with amounts of $269.72, owned a car worth $1,000, and had weekly bills of rent and mortgage on a house and studio of $365, electricity $10, internet and telephone $20, mobile phone $4, gas or heating $10, groceries and food $40, childcare $6.80, spouses or child support $24.74, car expenses (petrol $120, maintenance $10), water $5, pets $7, and $12.50 payments weekly on credit cards. No income was recorded.
[4] On 10 September 2010 an employee of Fair Work Australia, acting under a written delegation from the President of Fair Work Australia 1, refused the application for a waiver.
[5] On 21 September 2010 Fair Work Australia advised Mr.Gepp that if the fee was not provided within 14 days the file would be closed.
[6] On 1 November 2010 Mr.Gepp provided Fair Work Australia with further details as to the alleged serious hardship that he would suffer if he was required to pay the fee. He provided further details of his weekly budget and bank accounts. This showed that his weekly budget of house rent, food, car fuel, credit card, bills, water, gas, electricity, telephone, pets, and storage unit was in excess of his weekly payments from Centrelink (centrelink payments $257.20 per week, expenses $349.75 per week). His bank account deposits were extremely small, and he owed a substantial amount on his credit card. He owed rent on his house and was in receipt of food parcels from St Vincent de Paul. He did have a term deposit, which however he was unable to access, and the interest from which would not be paid until the investment matured. This last detail was not apparent from the waiver application. The fact that Mr.Gepp was unable to access the term deposit meant that it was currently not available to meet expenses, and this was potentially a significant clarification.
[7] On 3 November 2010 an employee of Fair Work Australia advised Mr.Gepp that his email requesting a review of the decision to refuse the waiver request had been considered. He advised that Fair Work Australia was of the view that Mr.Gepp had sufficient funds to pay the fee, and that accordingly the filing fee would not be waived, and also advised Mr.Gepp that the refusal to grant a waiver was appealable pursuant to s.604 of the Act.
[8] On 11 November 2010 a federal member of Parliament, the Hon. Darren Chester MP, wrote to Fair Work Australia on behalf of Mr.Gepp, respectfully requesting that his application for a fee waiver be reviewed. An employee of Fair Work Australia replied on 30 November that Mr.Gepp had lodged an appeal.
[9] On 30 November 2010 Mr.Gepp filed an appeal under s.604 of the Act against the refusal to waive the filing fee. Mr.Gepp advised that the grounds for appeal were that his application for waiver of the filing fee was refused despite evidence supplied by him in the form of his personal budget including income and expenditure totals and bank account details. He said that the public interest in permitting the appeal was fair treatment of applicants who are genuinely suffering financial hardship and that this needs to be reinforced. He said that Fair Work Australia is in place to assist people such as himself.
[10] On 30 November 2010, and pursuant to s.613(2), the President directed me to hear the appeal pursuant to s.604. Section 604 of the Act provides:
‘604 Appeal of decisions
(1) A person who is aggrieved by a decision:
(a) made by FWA (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 Fair Work (Registered Organisations) Act 2009;
may appeal the decision, with the permission of FWA.
(2) Without limiting when FWA may grant permission, FWA must grant permission if FWA 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).
(3) A person may appeal the decision by applying to FWA.’
[11] Section 607 of the Act enables me to hear the appeal without holding a hearing if certain conditions are met. I am satisfied that I can adequately determine the appeal without persons making oral submissions, and that the appellant has consented to the appeal being heard without a hearing 2.
Extension of Time
[12] The appeal was lodged on 30 November 2010, which is outside the time provided by rule 12.3 of the Fair Work Australia Rules 2009, which provides:
‘12.3 An appeal must be instituted:
(a) within 21 days after the date of the award, order or decision appealed against; or
(b) on application—within such further time as is allowed.’
[13] In this matter the decision under appeal appears to be that of 21 September 2010. There is no record that a person holding the office of State Service Manager made the decision recorded in a Fair Work Australia email of 3 November. The appeal is therefore 7 weeks out of time. If the email of 3 November records the decision of a State Service Manager, the appeal may be four days out of time.
[14] The approach to be taken to applications for the extension of time for appeal applications was discussed by a Full Bench of the Australian Industrial Relations Commission in Reid v. Jeff Maney Air-Conditioning Pty Ltd 3, recently quoted and applied in Deva v.University of Western Sydney4 . I adopt the observations in that decision.
[15] In this matter the explanation for the delay given by Mr.Gepp is that there were ongoing discussions between Mr.Gepp and Fair Work Australia about the waiver. In fact there were such discussions by email, including an email from Mr.Gepp to Fair Work Australia on 1 November 2010, and an email in reply from Fair Work Australia on 3 November 2010 which claimed that Mr.Gepp’s email had been considered and rejecting what is said to be Mr.Gepp’s application to review the refusal to waive the filing fee. There were further discussions after that date, in particular a representation to Fair Work Australia on 11 November by the Hon.Darren Chester, requesting that Mr.Gepp’s application for waiver of the filing fee be reviewed. Fair Work Australia replied by letter of 30 November stating that Mr.Gepp had filed an appeal. I am satisfied that there was a satisfactory explanation for the delay.
[16] For the reasons set out below there is merit in the appeal. Having regard to all the circumstances it is appropriate that I order an extension of time.
The Appeal
[17] Regulation 3.07(7) provides:
‘If Fair Work Australia (FWA) is satisfied that the person making an application will suffer serious hardship if the person is required to pay the fee, no fee is payable for making the application.’
[18] The phrase ‘serious hardship’ was considered in Powell v Evreniades 5, where Hill J considered the discretion of a Tax Relief Board to waive payment of a taxation liability if satisfied that there was serious hardship:
‘There is no definition in s 265 of what is meant by ‘serious hardship’ nor would one expect there to be. Each of the words in the phrase is an ordinary English word having a well understood meaning... The context in which the words appear makes it clear that the Relief Board is to consider whether the exaction of the full amount of tax would involve the dependants of a deceased taxpayer in financial difficulty which in all the circumstances can be said to be serious... it is obvious enough that what will constitute either will depend upon the circumstances of a given case.
It is inappropriate to endeavour in the abstract to state tests of what will and what will not constitute ‘serious hardship’ within the context of s 265. Clearly there would be severe financial hardship if the dependants of a deceased person were left destitute without any means of support. That is not to say that in any particular case something less than that will not constitute ‘serious hardship’.
[19] Further, in applying those observations I need to have regard to the different statutory context, and to the policy and purpose of the enactment, the Fair Work Act 2009: Hill J in Powell at 263 citing Windeyer J in Giris Pty Ltd v. Commissioner of Taxation 6. The order of hardship considered in Powell is necessarily of a different order to that posed by the $60.60 application fee. Powell and similar matters involved taxation liabilities which can be very extensive. Actual destitution or bankruptcy will not be a consequence of payment of a $60.60 application fee except in the most unusual cases, and that order of hardship is of course not required for waiver under regulation 3.07(7).
[20] In any event, I adopt the observations of Hill J in seeking to apply the terms of regulation 3.07(7). The purpose and object of the Fair Work Act generally can be found in s.3 Object of this Act, and s.381 Object of this Part provides a specific object for the unfair dismissal part of the Act 7:
‘(1) The object of this Part is:
(a) to establish a framework for dealing with unfair dismissal that balances:
(i) the needs of business (including small business); and
(ii) the needs of employees; and
(b) to establish procedures for dealing with unfair dismissal that:
(i) are quick, flexible and informal; and
(ii) address the needs of employers and employees; and
(c) to provide remedies if a dismissal is found to be unfair, with an emphasis on reinstatement.
(2) The procedures and remedies referred to in paragraphs (1)(b) and (c), and the manner of deciding on and working out such remedies, are intended to ensure that a “fair go all round” is accorded to both the employer and employee concerned.
Note: The expression “fair go all round” was used by Sheldon J in in re Loty and Holloway v Australian Workers’ Union [1971] AR (NSW) 95.’
[21] The decision or decisions under appeal are discretionary decisions, and in House v King 8the High Court considered the issue of an appeal against a discretionary decision:
“The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.”
[22] This matter appears to be the first appeal under s.604 relating to waiver of the unfair dismissal application fee. It raises the question of how the discretion to waive should be exercised, and how to have regard to s.381 and balance the needs of employer and employee and accord a ‘fair go all round’ in applying a test of ‘serious hardship’. This is a question of public interest. The material before me demonstrates that Mr.Gepp’s expenses exceed his income by a substantial amount, he has other debts, and no available funds to cover his existing expenses, or an additional expense of $60.60. This is in my view a situation of genuine hardship. In my view decisions to the contrary are an error within House v. King, having regard to the ordinary meaning of the term ‘serious hardship’, or by reason of failure to have regard to a material consideration. I grant permission to appeal. I quash the decision under appeal and order that the application fee be waived. I might add that this decision relates to the particular facts before me, and it is unlikely that any other application will have identical factual circumstances. An order is contained in PR505534.
DEPUTY PRESIDENT
1 On 27 May 2010 the President delegated relevant powers and functions including those in subregulation 3.07(7) to employees of Fair Work Australia holding the offices of State or Territory Service Manager. The letter of 10 September 2010 does not name the person who wrote the letter or made the decision, but I am advised that it is signed by a person who holds the office of State or Territory Service Manager.
2 Mr.Gepp consented to his appeal being determined without a hearing in an email dated 20 December 2010
3 11 May 2001, Print T4628 at paragraph 8
4 1 November 2010, [2010] FWAB 8438 at 9
5 (1989) 21 FCR 252 at 258-260, followed by Conti J in Commissioner of Taxation v. Milne [2006] FCA 1005, 4 August 2006, at 23
6 (1969) 119 CLR 365 at 384
7 Which includes provision for an application or filing fee in s.395
8 (1936) 55 CLR 499 at 504
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