Harshit Desai v Novasense Pty Ltd as Trustee for the NovaSense Trust T/A Novasense Pty Ltd
[2024] FWCFB 400
•21 OCTOBER 2024
| [2024] FWCFB 400 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
Harshit Desai
v
Novasense Pty Ltd as Trustee for the NovaSense Trust T/A Novasense Pty Ltd
(C2024/6241)
| DEPUTY PRESIDENT WRIGHT | SYDNEY, 21 OCTOBER 2024 |
Appeal against decision [2024] FWC 2178 of Deputy President Boyce at Sydney on 16 August 2024 in C2024/2827 - application to deal with contraventions involving dismissal – application filed four days out of time – permission to appeal refused
Introduction and outcome
This is an appeal by Mr Harshit Desai pursuant to section 604 of the Fair Work Act 2009 (Cth) (FW Act) against a decision[1] by Deputy President Boyce (the Decision) to dismiss an application made under s.365 of the FW Act on 16 August 2024.
Mr Desai was employed by Novasense Pty Ltd as Trustee for the NovaSense Trust T/A Novasense Pty Ltd (Novasense) as Managing Partner - Asia and Middle East from 4 September 2023 until his dismissal on 9 April 2024.
Mr Desai’s application was listed for permission to appeal only. The parties consented to the application being determined without holding a hearing pursuant to s.607(1)(b) of the FW Act. We were satisfied, having regard to s.607(1)(a), that the question of permission to appeal could be adequately determined without the need for oral submissions.
For the reasons that follow, we have decided to refuse permission to appeal.
The Deputy President’s Decision
Mr Desai lives and works in India, where Novasense operated part of its business. Novasense claims that its business was sold, and as part of that sale, the buyer, UST Global, did not wish to purchase or continue the operation of the business in India. The operation of the business in India was shut down, and Mr Desai was dismissed.
Mr Desai says that his dismissal occurred in contravention of s.351 of the Act, namely, that he was dismissed for reasons of national extraction and that Novasense should have ensured that any prospective buyer of its business did not dismiss or otherwise discriminate against different employees based upon their national origin, extraction or nationality.[2]
Mr Desai was dismissed by email on 26 March 2024 and submitted during the hearing that his dismissal took effect at the end of a two week notice period on 9 April 2024 which was accepted by the Deputy President.[3]
Mr Desai made an application under s.365 of the FW Act on 4 May 2024, which was four days outside of the 21-day time limit under s.366(1)(a) of the FW Act. The Decision concerns whether Mr Desai’s application should be accepted in these circumstances.
Under s.366(2) of the FW Act, the Commission may allow a further period for a dismissal dispute application to be made if the Commission is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) any action taken by the person to dispute the dismissal; and
(c) prejudice to the employer (including prejudice caused by the delay); and
(d) the merits of the application; and
(e) fairness as between the person and other persons in a similar position.
The Deputy President set out each of these requirements in the Decision. In relation to the reasons for the delay, the Deputy President observed that these were:
(a)Mr Desai’s overseas location posing practical impediments to Mr Desai obtaining advice from the Fair Work Ombudsman (the Ombudsman);
(b)Mr Desai engaging in ongoing discussions with Novasense seeking reinstatement or alternative employment opportunities with UST Global, rather than formally challenging the dismissal;
(c)Mr Desai filing an incorrect form [Form F9, Unlawful Termination Application] on 1 May 2024, then being guided by the Fair Work Commission (the Commission) to file a Form F8 general protections application involving dismissal, which he did on 4 May 2024;
(d)personal distress; and
(e)misunderstanding and confusion as to whether Novasense was a ‘national system employer’ hence why he initially filed a Form F9 alleging that he had been unlawfully terminated with the Commission on 1 May 2024.[4]
The Deputy President noted the following submissions of Novasense:
· The alleged practical impediments posed by Mr Desai's overseas location did not appear to have prevented Mr Desai from obtaining advice within 21 days of the dismissal as his enquiries with the Ombudsman continued until 16 April 2024, coinciding with the filing deadline.
· After obtaining advice from the Ombudsman, Mr Desai did not proceed to formally challenge the dismissal in the Commission until 1 May 2024, when an application was filed for unlawful termination pursuant to s.773 of the FW Act. Mr Desai subsequently filed a Form F8 general protections application involving dismissal, seeking recourse based on discrimination in the Commission's general protections jurisdiction. Mr Desai did not provide an explanation as to why an application was not filed earlier than 1 May 2024.
· In relation to Mr Desai's reference to the personal distress occasioned by the dismissal, it is well established that it is common for employees to suffer shock as a result of dismissal from employment. Further, that responses of stress, shock, confusion and like conditions to a serious event like the loss of employment are not unusual and, importantly, are not exceptional circumstances in and of themselves.[5]
The Deputy President noted that during cross-examination, Mr Desai conceded that:
· He was told directly as early as 22 March 2024, that his employment was to be terminated and this was confirmed to him in writing on 26 March 2024 via email.
· Despite making the broad assertion that he was never told the reason(s) for his dismissal, Mr Desai was told as early as 22 March 2024 that the reason for his dismissal arose from the sale of his employer’s business.
· He was aware that he had only 21-days after his dismissal to dispute it by filing a relevant application with the Commission.[6]
The Deputy President did not accept that the delay was explained by Mr Desai engaging in ongoing discussions with Novasense to resolve the matter as the evidence disclosed that as early as 14 April 2024, Mr Desai was raising concerns as to alleged discrimination surrounding his dismissal and advised Novasense that ‘I should stand up for my right against an unfair dismissal like this one’. The Deputy President concluded that these are words used by a person who wishes to convey that they will be likely litigating their dismissal rather than attempting to resolve a dispute.[7]
The Deputy President concluded that the reasons for delay relied upon by Mr Desai do not, or do not sufficiently and specifically, explain his four-day delay in the filing of his Application. The Deputy President found that reasons for delay founded upon a misunderstanding of, or confusion around, the terms of the FW Act, are not extraordinary, and nor are they reasonable or credible reasons for delay in all of the facts and circumstances of Mr Desai’s case.[8]
In relation to action taken by Mr Desai to dispute the dismissal, the Deputy President stated that Mr Desai raised concerns about his dismissal with Novasense, including via email dated 4 April 2024, and via text messages on 11, 14 and 16 April 2024. The Deputy President took these actions into account, but treated this criterion as a neutral consideration, that weighs neither for, nor against, any finding as to the existence of exceptional circumstances.[9]
In relation to prejudice, the Deputy President stated that he is not aware of any prejudice to Novasense occasioned by the four-day delay and treated this criterion as a neutral consideration that weighs neither for, nor against, any finding as to the existence of exceptional circumstances.[10]
In relation to the merits of the application, the Deputy President acknowledged that all of the evidence as to the substantive merits of the Application, from both Mr Desai and the Novasense was not before the Commission. However, Mr Brad Meehan, the Managing Director of Novasense who was the relevant decision maker in relation to the dismissal, gave evidence that Novasense’s business was sold, and that the buyer did not wish to purchase or continue the operation of the business in India, resulting in the dismissal of Mr Desai. The Deputy President observed that this evidence was not undermined at the hearing during cross-examination and that Mr Meehan was a credible witness.
The Deputy President acknowledged that the Commission ‘should not embark on a detailed consideration of [a] substantive case’ for the purpose of determining whether to grant an extension of time but expressed the view that based on Mr Meehan’s evidence, the merits of the Application are extremely weak, and this weighs against any finding as to the existence of exceptional circumstances.[11]
In relation to fairness as between Mr Desai and other persons in a similar position, the Deputy President noted that neither party made relevant or substantive submissions in respect of this criterion, and he was not aware of similar cases or circumstances. The Deputy President treated this criterion as a neutral consideration that weighs neither for, nor against, any finding as to the existence of exceptional circumstances in this case.[12]
The Deputy President concluded by stating that he had taken into account and considered each of the criteria set out under s.366(2)(a)-(e) of the FW Act and that none of these criteria, considered individually or collectively, point towards there being any exceptional circumstances enlivening his power to grant an extension of time. The Deputy President dismissed the application.[13]
Grounds of Appeal
We understand from the matters raised by Mr Desai in the Notice of Appeal and submissions filed that the appeal grounds are that the Deputy President erred:
In considering the merits of the matter in circumstances where Mr Desai was dissuaded from examination of Novasense in relation to this issue and the hearing was restricted to the out of time issue.
In finding that Mr Meehan was credible and openly transparent, although his testimony ‘clearly substantiated a well-planned conspiracy to mislead Mr Desai who was naïve and gullible, lived overseas and not well versed in his rights.’
In failing to consider the special circumstances which prevented Mr Desai from filing the application in time, ‘especially considering the fact that [Novasense] had indulged in creating a soap bubble filled with false hopes and promises to the already shocked and distressed [Mr Desai] – an act that warranted special consideration and recording by the Deputy President.’
In failing to provide procedural fairness to Mr Desai, in circumstances where there were several instances during the hearing when Mr Desai was clearly at a disadvantage in the absence of a legal representative ‘fuelled by the repeated misdemeanour on the part of [Novasense].’
In failing to appreciate Mr Desai’s repeated attempts to resolve the matter amicably with Novasense in accordance with the advice of the Fair Work Ombudsman and insisting that Mr Desai initiate immediate litigation.
In ‘[seeking] to reward the manipulative acts of the guilty and unjust employers shielded under a mask of generosity and punish the employee applicant who exhibited patience and trust towards the employer oblivious of the criminal mens rea brewing in the mind of the employer’.
In failing to appreciate that the circumstances, which were apparent from the submissions of Mr Desai and Novasense, were qualified uncommon circumstances which were clearly out of the ordinary course and met the requirements envisaged in Section 366(2) of the Act.
In failing to appreciate that the acts of Mr Desai were in accordance with the Latin Maxim ‘Interest Republicae Ut Sit Finis Litium’ as he was constantly in touch with the employer to avoid any litigation and to resolve the matter amicably.
In failing to accord appropriate weight to the fact that the employment could not be regarded as having been terminated on 9 April 2024 as Mr Desai was assigned further work by Novasense after that date, and the payment in lieu of notice was not made by 9 April 2024.
10.In failing to appreciate that there are several admissions by Mr Meehan in his testimony about deliberate omissions on his part in order to evade any possible actions that would have been initiated by Mr Desai to assert his rights before the available forums. The Deputy President made comments about Mr Meehan’s conduct without giving Mr Desai an opportunity to cross-examine Mr Meehan about these matters. The Deputy President ventured out of his jurisdiction to consider the merits of the case when the hearing was only restricted to the application of condonation of delay in filing of the application.
11.In failing to appreciate that Mr Desai was dissuaded from examination of Mr Meehan on one of the very relevant aspects which could have substantiated his cogent reason for the delay being decided in the hearing.[14]
Mr Desai’s submissions in the appeal
In the submissions filed in the matter, Mr Desai repeated the grounds of appeal in the Notice of Appeal, extracted parts of the transcript, evidence and the Decision which he says are relevant to the appeal and listed 35 cases in support of the grounds of appeal under a heading ‘Precedence/Provision in law basis earlier case documents & abstracts related to those cases.’ Most of these cases do not deal with ss.365, 366 or 604 of the FW Act and do not assist in the determination of Mr Desai’s application for permission to appeal.
In broad terms, Mr Desai submitted that the Deputy President made procedural errors in the conduct of the hearing and legal errors in relation to the application of s. 366(2) including by failing to have regard to specific aspects of the submissions and evidence relied upon by the parties.
In relation to procedural matters, Mr Desai contended that the Deputy President failed to provide him with natural justice in circumstances where he was at a disadvantage in the absence of legal representation, including with respect to being dissuaded from cross-examining Mr Meehan about relevant matters (Grounds 4 and 11).
In relation to the s. 366(2) criteria, Mr Desai does not make any complaint about the Deputy President’s approach to subparagraphs (b), (c) and (e) which respectively deal with any action taken by the person to dispute the dismissal; prejudice to the employer; and fairness as between the person and other persons in a like position.
In relation to s. 366(d), Mr Desai contended that the Deputy President made errors in considering the merits of the case as part of his determination (Grounds 1 and 10)
Mr Desai claimed that in considering the reasons for the delay under s. 366(a), the Deputy President gave insufficient weight to the evidence that he was trying to negotiate a resolution of the matter with Novasense to avoid commencing proceedings (Grounds 5 and 8) and that Novasense had given him false hope that he would be provided with alternative employment (Grounds 3 and 6). Mr Desai submitted that the Deputy President failed to accept that there were exceptional circumstances justifying the extension of time in circumstances where it was apparent that this was the case based on the submissions of the parties. (Ground 7).
More generally, Mr Desai submitted that the Deputy President incorrectly found that Mr Meehan was a credible and transparent witness (Ground 2). Mr Desai contended that the Deputy President failed to have regard to admissions by Mr Meehan during the hearing that he made deliberate omissions to evade any possible actions that would have been initiated by Mr Desai to assert his rights (Ground 10). Mr Desai contended that the Deputy President made errors in not finding that the employment had continued beyond 9 April 2024 as Mr Desai continued to perform work for Novasense beyond that date (Ground 9).
In relation to public interest considerations, Mr Desai submitted that the Deputy President’s decision was manifestly unjust in that he accorded substantial weight to procedure rather than the conduct of Novasense. Mr Desai submitted that the Decision was inconsistent with the International Covenant on Civil and Political Rights and the Universal Declaration of Human Rights. Mr Desai referred to his claims that he had experienced discrimination on the basis of his race and national origin and that this affected his human dignity and repeated his concerns that he was constrained in his cross examination of Mr Meehan.
Novasense’s submissions in the appeal
Novasense opposes the application for permission to appeal on the basis that:
(a) The Decision is not affected by appealable error.
(b) It is not in the public interest for the Commission to grant permission to appeal the Decision.[15]
Novasense submitted that there is no evidence on the transcript of proceedings that Mr Desai was dissuaded from cross-examining Mr Meehan on any issues and that such dissuasion amounted to procedural unfairness. Mr Desai was given the opportunity to cross-examine Mr Meehan and question Mr Meehan on relevant issues.[16]
Novasense submitted that the Deputy President was not persuaded by the evidence that the communications exchanged between the parties prior to 30 April 2024 explained the delay in filing between 1 and 4 May 2024, nor that the communications represented exceptional circumstances.[17]
Novasense submitted that Mr Desai was, at all times, at liberty to engage the representation of a lawyer or paid agent. It is not apparent from the conduct of the hearing before the Deputy President that Novasense engaged in conduct that disadvantaged Mr Desai because he was not represented by a lawyer or paid agent.[18]
Novasense submitted that the Deputy President correctly concluded, based on the evidence before him and the issues ventilated at the hearing, that Mr Desai’s employment ended on 9 April 2024.[19]
Novasense submitted that in considering the merits of Mr Desai’s substantive general protections claim involving dismissal, the Deputy President took into account the factors required by s.366(2)(d) of the FW Act in accordance with principles expounded by applicable case authorities. The Deputy President acted within the scope of his jurisdiction in considering the merits of the substantive claim.[20]
Novasense submitted that the Deputy President determined and substantively considered the period of Mr Desai's delay in filing the general protections application involving dismissal by the reasons set out at [1]-[4] of the Decision.[21]
Novasense submitted that the Deputy President’s finding with respect to the effective date of termination were correct.[22]
Novasense submitted that having determined the period of delay, the Deputy President considered the action taken by Novasense to connect Mr Desai with UST Global to discuss potential employment opportunities as part of the factual circumstances arising after Novasense gave notice of termination. Mr Desai contended that Novasense's actions to connect him with UST Global to explore employment opportunities were taken deliberately, to deter Mr Desai from commencing legal proceedings. Novasense submitted that this issue was given due consideration and was reasoned to conclusion in the Decision. Novasense submitted that this consideration was given as part of Mr Desai's reasons for delay notwithstanding that Mr Desai narrowed the reasons to his uncertainty about whether Novasense was a national system employer.[23]
Principles – permission to appeal
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.[24] There is no right to appeal, and an appeal may only be made with the permission of the Commission. Section 604(1) requires the Commission to grant permission if the Commission is satisfied that it is in the public interest to do so.
The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[25] In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of the Commission 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.[26]
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 an appealable error.[27] However, the fact that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.[28]
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.[29]
It is well established that an appellate body will not interfere with the factual findings of a first instance decision-maker unless it is concluded that a finding cannot stand because it was contrary to incontrovertible facts or uncontradicted testimony, glaringly improbable, or contrary to compelling inferences.[30]
Where a finding or conclusion involves the exercise of a discretion, where some latitude is afforded, an appellate body will also generally not interfere with the conclusions of the decision-maker. As stated by the High Court in Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission:[31]
“Discretion” is a notion that “signifies a number of different legal concepts”. In general terms, it refers to a decision-making process in which “no one [consideration] and no combination of [considerations] is necessarily determinative of the result.” Rather, the decision-maker is allowed some latitude as to the choice of the decision to be made. The latitude may be considerable as, for example, where the relevant considerations are confined only by the subject-matter and object of the legislation which confers the discretion. On the other hand, it may be quite narrow where, for example, the decision-maker is required to make a particular decision if he or she forms a particular opinion or value judgment.
(citations omitted)
For there to be legal error, it would need to be shown that the Deputy President acted on a wrong principle, took into account irrelevant matters, mistook facts, or that the outcome unreasonable or plainly unjust.[32] It is not enough that a different member or an appellant body might have reached a different conclusion.
Consideration
After considering all of the material before us, we are not persuaded that it is appropriate to grant permission to appeal. The appeal grounds advanced by Mr Desai do not give rise to an arguable contention of appealable error. The basis for this conclusion is explained briefly as follows, by reference to each appeal ground.
Appeal grounds 1 and 10
Appeal grounds 1 and 10 are related in that they are based upon Mr Desai’s contention that the hearing was limited to considering whether the Commission should extend time for Mr Desai to make the application and should not have considered the merits of the case. Further, Mr Desai was dissuaded from cross-examining Mr Meehan about this matter and Mr Meehan admitted that he made deliberate omissions to evade any possible actions that would have been initiated by Mr Desai to assert his rights.
The Deputy President was required by s.366(2)(d) of the FW Act to take into account the merits of the matter in considering whether there were exceptional circumstances justifying allowing a further period for Mr Desai to make the application beyond the 21-day time limit prescribed by s.366(1)(a). In the Decision, the Deputy President reviewed the relevant authorities and noted the decision of Kornicki v Telstra-Network Technology Group,[33] in which the Full Bench of the Australian Industrial Relations Commission said that a detailed analysis of the substantive merits is not required in an extension of time application but that it is sufficient for the applicant to establish that the substantive application is not without merit.[34]
The transcript of the hearing shows that the Deputy President questioned Mr Desai about the basis upon which he alleges that his dismissal occurred in contravention of s.351 of the FW Act and that Mr Desai had the opportunity to explain his claim.[35] The Deputy President noted in the Decision that Mr Desai had not specified how any alleged discrimination has occurred by reference to an actual or hypothetical comparator. The Deputy President observed that Mr Desai had not identified any statutory or contractual obligation applying to Novasense that would give rise to Novasense being obliged to find him another job with another employer.[36]
The transcript shows that Mr Desai asked the Deputy President whether he could ask Mr Meehan only questions about why his application was delayed. The Deputy President’s response is:
THE DEPUTY PRESIDENT: Well, again, those things are wholly within your knowledge. I can't tell you what to cross-examine him about. You've got to make forensic decision as to what you want to cross-examine him about, but that cross-examination still has to be relevant to a, you know, fact in issue in the proceedings because all I'm really doing is consolidating the facts as presented by both parties, and then coming to a determination as to whether that's exceptional circumstances having regard to the criteria under section 366(2) of the Act.
You know, it's your application to extend time, and you've got to come up with the reasons, and you've got to at least put some argument on the merit, but we're not really here to resolve, in any final sense, the merit. If you think you've got enough material to say, well, this is my allegation and this is how the facts fit into that on the material that's filed, then it's a matter for you how far you want to go beyond that.[37]
The transcript shows that Mr Desai was permitted to ask Mr Meehan questions about whether he was informed about the reasons for the dismissal, and that the Deputy President assisted Mr Desai to frame these questions with reference to specific dates and documents so that they could be understood by Mr Meehan.[38] The Deputy President did not allow Mr Desai to ask Mr Meehan two questions because he determined that these were in relation to issues which were not relevant to the matters which he was required to determine. These questions were in relation to the timing of Mr Desai being put in touch with UST Global in relation to possible job opportunities and Mr Desai’s name remaining on Novasense’s website after Mr Desai was advised of the dismissal.[39] This approach was available to the Deputy President. Accordingly, no arguable appealable error is disclosed.
Mr Desai does not point to the part of the transcript which he claims shows that Mr Meehan made deliberate omissions to evade any possible actions that would have been initiated by Mr Desai to assert his rights. We were not able to identify any part of the transcript where Mr Meehan made such admissions. Accordingly, no arguable appealable error is disclosed.
The Deputy President was required by s.366(2)(d) of the FW Act to take into account the merits of the matter. We are of the view that the Deputy President applied the correct approach in considering this matter by noting that the Commission should not embark on a detailed consideration of a substantive case and that all of the evidence about the substantive case is not before the Commission. It was open to the Deputy President to find that Mr Meehan was a credible witness and that the merits of the Application are extremely weak based on the evidence before him, for the purpose of considering whether to extend time for the making of the Application. The transcript discloses that Mr Desai was not deprived of an opportunity to cross-examine Mr Meehan about matters which were relevant to the proceedings including the merits of the case. Accordingly, no arguable appealable error is disclosed.
Appeal grounds 2, 3 and 6
Appeal ground 2 deals with the Deputy President’s finding that Mr Meehan’s evidence was credible and openly transparent. We have already found that this conclusion was open to the Deputy President.
Appeal ground 2 is related to appeal grounds 3 and 6 in that all three grounds appear to be in relation to Mr Desai’s contention that the Deputy President failed to take into account that Mr Desai delayed filing the application because Novasense had given him false hope that he would be provided with alternative employment. This matter was not referred to in the Deputy President’s Decision. However, there is no evidence before the Deputy President that supports a conclusion that Mr Desai delayed filing the application for this reason. Further Mr Desai has produced ‘WhatApp messages’ exchanged on 27 April 2024 as part of his submission in the Appeal. These messages were not before the Deputy President. However, in any event, they do not establish that Mr Desai was discouraged from taking action. Accordingly, no arguable appealable error is disclosed.
Appeal grounds 4 and 11
Appeal grounds 4 and 11 are related in that they are about the Deputy President failing to provide procedural fairness to Mr Desai, in circumstances where there were several instances during the hearing when Mr Desai was clearly at a disadvantage in the absence of a legal representative. Mr Desai has not pointed to any specific aspect of the transcript where he alleges that he was deprived of procedural fairness. The transcript shows that the Deputy President permitted Mr Desai to cross-examine Mr Meehan, and to provide explanations and submissions supporting the extension of time application. The Deputy President asked Mr Desai questions in relation to the matters he was required to consider in the proceedings and Mr Desai was provided with an opportunity to respond to these matters. Mr Desai explicitly addressed the Deputy President in relation to the reasons for the delay and the merits but declined to address the other criteria in s. 366(2).[40] We have been unable to identify any aspect of the hearing in which the Deputy President failed to provide procedural fairness to Mr Desai. Accordingly, no arguable appealable error is disclosed.
Appeal grounds 5 and 8
Appeal grounds 5 and 8 are in relation to the Deputy President giving insufficient weight to the evidence that Mr Desai was trying to negotiate a resolution of the matter with Novasense to avoid commencing proceedings.
The Deputy President considered this matter in detail and concluded that there was no evidentiary basis which supported Mr Desai’s contention that his discussions with Novasense about resolving the matter explained the delay.[41] This conclusion was available on the material before the Deputy President. Accordingly, no arguable appealable error is disclosed.
Appeal ground 7
Appeal ground 7 is in relation to the Deputy President failing to accept that there were exceptional circumstances justifying the extension of time in circumstances where it was apparent that this was the case based on the submissions of the parties.
The Deputy President considered each of the five criteria in s. 366(2) in detail having regard to the evidence and submissions before him and concluded that none of these criteria, considered individually or collectively, pointed towards there being any exceptional circumstances enlivening his power to grant an extension of time.[42] This conclusion involved the exercise of discretion and was available on the material before the Deputy President. Accordingly, no arguable appealable error is disclosed.
Appeal ground 9
Appeal ground 9 is in relation to the Deputy President erring in not finding that the employment had continued beyond 9 April 2024 as Mr Desai continued to perform work for Novasense beyond that date.
In his written submissions in the proceedings before the Deputy President, Mr Desai said that his last working day was 9 April 2024.[43] There was evidence from Mr Meehan that following the termination, an Indian company owed Novasense a refund, and Mr Meehan said to Mr Desai that if he could manage the process to get the refund, Mr Meehan would be happy to give Mr Desai half of the refund which was equivalent to about $A4000, as a thank you.[44] Mr Desai did not submit during the hearing that this work resulted in the dismissal taking effect later than 9 April 2024.
The Deputy President found that Mr Desai was dismissed by way of email on 26 March 2024 and that the dismissal took effect at the end of the two week notice period, being 9 April 2024.[45] This conclusion was available on the material before the Deputy President. Accordingly, no arguable appealable error is disclosed.
Conclusion and disposition
We are not persuaded that permission to appeal should be granted. We do not consider that an arguable case has been advanced that the decision of the Deputy President was attended by appealable error.
We have considered whether this appeal attracts the public interest, and we are not satisfied, for the purposes of s 602(2), the appeal raises any legal or factual issue of significance or general application, there is diversity of decisions at first instance, or that the legal principles applied by the Deputy President are disharmonious when compared with other decisions. Further, we do not consider that the Deputy President’s decision is counter intuitive or manifests an injustice.
We order that permission to appeal is refused.
DEPUTY PRESIDENT
Hearing details:
Determined on the Papers
Final written submissions:
1 October 2024, for the Appellant
7 October 2024, for the Respondent
[1] [2024] FWC 2178
[2] Ibid, [27].
[3] Ibid, [3].
[4] Ibid, [15]; [18].
[5] Ibid, [15].
[6] Ibid, [16].
[7] Ibid, [21].
[8] Ibid, [20].
[9] Ibid, [23].
[10] Ibid, [24].
[11] Ibid, [30].
[12] Ibid, [31]-[32].
[13] Ibid, [33]-[34].
[14] Paragraph 2.1 of the Form F7 – Notice of Appeal
[15] Respondent’s Submissions Opposing Application for Permission to Appeal, [7]
[16] Ibid, [19].
[17] Ibid, [20].
[18] Ibid, [21].
[19] Ibid, [22].
[20] Ibid, [23].
[21] Ibid, [24].
[22] Ibid, [25].
[23] Ibid, [27]-[28].
[24] This is so because on appeal the Commission has power to receive further evidence, pursuant to s.607(2); see Coal and Allied v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ
[25] O’Sullivan v Farrer (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch (2011) 85 ALJR 398, [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78, [44] -[46]
[26] [2010] FWAFB 5343, 197 IR 266 at [27].
[27] Wan v AIRC (2001) 116 FCR 481 at [30].
[28] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343 at [26]-[27], 197 IR 266; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth[2010] FWAFB 10089 at [28], 202 IR 388, affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663, [28].
[29] Trustee for The MTGI Trust v Johnston [2016] FCAFC 140, [82].
[30] Fox v Percy (2003) 214 CLR 118; [2003] HCA 22, [27]-[29].
[31] [2000] HCA 47; 203 CLR 194, [19].
[32] House v The King (1936) 55 CLR 499, 505
[33] Kornicki v Telstra-Network Technology Group Print PR3168, 22 July 1997 (Ross VP, Watson SDP, Gay C).
[34] [2024] FWC 2430, [26].
[35] Transcript, PN189-PN253.
[36] [2024] FWC 2430, [27].
[37] Transcript, PN54-PN55.
[38] Transcript, PN81-PN88; PN92-PN97.
[39] Transcript, PN102-PN121; PN122-PN133.
[40] Transcript, PN263-PN264.
[41] [2024] FWC 2430, [21].
[42] Ibid, [33]-[34].
[43] Appeal Book, 38.
[44] Transcript, PN285-PN286.
[45] [2024] FWC 2430, [3].
Printed by authority of the Commonwealth Government Printer
<PR780432>
0