Haytham M J Remawi v Virgin Australia Airlines Pty Ltd
[2024] FWCFB 119
•14 MARCH 2024
| [2024] FWCFB 119 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Haytham M J Remawi
v
Virgin Australia Airlines Pty Ltd
(C2024/361)
| DEPUTY PRESIDENT BELL | MELBOURNE, 14 MARCH 2024 |
Appeal against decision [2024] FWC 108 of Deputy President Cross at Sydney on 18 January 2024 in matter number C2023/5680 – permission to appeal refused.
Haytham Remawi lodged an appeal under s 604 of the Fair Work Act 2009 (Cth) against the decision of Deputy President Cross in Remawi v Virgin Australia Airlines Pty Ltd[2024] FWC 108, delivered on 18 January 2024, in which the Deputy President did not allow further time for the filing of a ‘general protections’ application under s 365 of the Act.
The matter was listed for permission to appeal only. We refuse permission to appeal. Our detailed reasons follow.
Background
Mr Remawi was employed by Virgin Australia Airlines (the Respondent) on 26 February 2018. On 8 December 2022, the Respondent dismissed Mr Remawi and provided a termination letter that included reasons in relation to his conduct.
On 14 December 2022, Mr Remawi applied to the Commission for an unfair dismissal remedy in relation to the above dismissal (the unfair dismissal application). That application was heard on 27, 28 and 29 March 2023, and was dismissed on 23 June 2023 by Commissioner McKinnon in Remawi v Virgin Australia Airlines Pty Ltd[2023] FWC 1501 (the unfair dismissal decision).
Mr Remawi lodged an appeal against the unfair dismissal decision. A different Full Bench in Remawi v Virgin Australia Airlines Pty Ltd T/A Virgin Australia[2023] FWCFB 141 (the first appeal decision) refused permission to appeal. The appeal was heard on 8 August 2023 and the decision was delivered on 21 August 2023.
On 17 September 2023, Mr Remawi lodged the s 365 application, which is the subject of the decision to which this appeal relates (the general protections application). The general protections application related to the Respondent’s dismissal of Mr Remawi, which had been the subject of the unfair dismissal application, the unfair dismissal decision and the first appeal decision. The parties agreed that the dismissal took effect on 8 December 2022.
Mr Remawi’s general protections application was therefore 262 days after the end of the 21-day period within which his application should have been made (29 December 2022). The Deputy President heard the application on 15 January 2024 and published his decision on 18 January 2024, which was to refuse an extension of time and dismiss the general protections application (the extension of time decision).
In relation to his employment with the Respondent, Mr Remawi also lodged the following applications in the Fair Work Commission:
· An application for the Commission to deal with a non-dismissal general protections dispute on 10 November 2022 in Matter C2022/7465; this matter was allocated to Deputy President Easton who conducted a conference on 21 November 2022;
· An application for a Stop Bullying Order on 16 November 2022 in Matter SO2022/575; this matter was dismissed on 12 December 2023 by Commissioner McKenna as Mr Remawi’s employment ended; and
· Appeals against procedural decisions of Commissioner McKinnon in the unfair dismissal application on 9 and 20 March 2023; Mr Remawi withdrew these appeals during the hearing in the unfair dismissal application.[1]
Mr Remawi also commenced the following proceedings against the Respondent, representatives of the Respondent or former colleagues employed by the Respondent:
· A privacy complaint to the Office of the Australian Information Commissioner on 4 January 2023;
· Three proceedings in New South Wales Civil and Administrative Tribunal against the representative of the Respondent on 11, 13 and 18 January 2023 respectively;
· An Apprehended Personal Violence Order against a former colleague on 19 January 2023;
· A workers compensation proceeding against the Respondent on 22 January 2023;
· A complaint to the Office of the Legal Services Commission (NSW) in relation to a representative of the Respondent on 1 February 2023;
· A complaint to the Australian Human Rights Commission on 1 February 2023;
· A further workers compensation proceeding against the Respondent on 10 March 2023;
· A proceeding in the Federal Circuit and Family Court of Australia on 24 May 2023; and
· Application for judicial review against the Australian Information Commissioner on 17 October 2023, regarding a privacy complaint made on 4 January 2023 to the Office of the Australian Information Commissioner.
Principles – Permission to appeal
An appeal under s 604 of the Act is an appeal by way of rehearing because the Commission has power to receive further evidence under s 607(2). However, the Commission’s powers are only exercisable if there is error on the part of the primary decision maker.[2] There is no right of appeal and an appeal may only be made with the permission of the Commission.
Section 604(2) provides that the Commission must grant permission if it is satisfied that it is in the public interest to do so.
The Full Bench in GlaxoSmithKline Australia Pty Ltd v Makin[3] said that determining whether a matter attracts the public interest is a discretionary value judgment and, without defining, specifying or limiting what is in the public interest, the following considerations are relevant:
· Where a matter raises issues of importance and general application;
· Where there is a diversity of decisions at first instances so that guidance from an appellate court is required;
· Where the decision at first instance manifests an injustice or the result is counter intuitive; or
· Where the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters.
An appellant should also show that there is an arguable case of appealable error in the original decision because an appeal cannot succeed without an appealable error. However, that an error was made in the original decision is not necessarily a sufficient basis for granting permission to appeal.
Decision under appeal
In the extension of time decision, the Deputy President was satisfied that the matter did not give rise to ‘exceptional circumstances’ under s 366(2) and separately addressed each of the factors that he was required to consider, assigning them appropriate weight.
The Deputy President found the factors relating to merits of the application and fairness as between the applicant and other persons in a similar position to be neutral in his determination.
The Deputy President found the following factors to weigh in favour of the Respondent, that is against an extension:
· Absence of an acceptable reason for the delay;
· Absence of action taken to dispute the dismissal; and
· Prejudice to the Respondent.
In relation to the reason for the delay, the Deputy President noted that Mr Remawi did not initially provide any reason for the delay, although he considered Mr Remawi’s answer to the questions in the relevant application form that detailed the unfair dismissal application and the first appeal. The Deputy President also considered submissions made by Mr Remawi that related to the delay coinciding with him experiencing mental health issues as supported by medical reports and certificates of injury. In relation to these reasons, the Deputy President found that, “[n]one of the medical reports relied upon by [Mr Remawi] support a diagnosis of an inability to pursue the Application,” and took into account proceedings that Mr Remawi commenced or participated in during the period of the delay.
In relation to action taken to dispute the dismissal, the Deputy President took into account that Mr Remawi had made and pursued the unfair dismissal application. The Deputy President also noted that this consideration enquires as to whether the Respondent was forewarned of the general protections application and found that it was not. This is because Mr Remawi challenged the dismissal as an unfair dismissal and appeared to cease agitating about the dismissal after the first appeal decision. The Deputy President noted that the general protections application was made 27 days after the first appeal decision.
In relation to prejudice to the Respondent, the Deputy President noted that Mr Remawi did not make submissions about this factor and was persuaded by the Respondent’s submissions that it had already devoted “significant resources” in defending the unfair dismissal application and the first appeal, and that Mr Remawi was impermissibly challenging both matters in making the general protections application.
Grounds of appeal
Mr Remawi provided voluminous material in support of his appeal, including:
· His Notice of Appeal, which comprised 95 pages;
· An outline of submissions;
· An initial unnumbered appeal book, which comprised 147 pages;
· A revised appeal book, which comprised 1,500 pages;
· A document named, ‘DP Cross Factual Errors’, which comprised 74 pages; and
· A letter from Safework NSW to the Applicant dated 15 December 2023.
We held a permission to appeal hearing on 5 March 2024. Mr Remawi attended and made oral submissions in support of his appeal.
The Respondent was represented by Ms Khan, senior legal counsel. We did not require, and Ms Khan did not make any submissions of substance.
We summarise Mr Remawi’s grounds of appeal, which were lengthy, repetitive and often overlapped, as follows:
(a) Errors of law
Mr Remawi asserted that the Deputy President had made errors of law. Many of his assertions related to the initial unfair dismissal application and not the Deputy President’s extension of time decision, the decision which is the subject of this appeal. The only discernible error of law asserted by Mr Remawi was that the Deputy President did not properly take into account the impact of s 725 of the Act (which does not allow for multiple actions to be made regarding the same dismissal) in relation to the delay in lodging his general protections application.
(b) Factual errors
Mr Remawi said that the Deputy President made factual errors in relation to
· Stating that he was stood down in paragraph [6] of the extension of time decision;
· The allegations that the Respondent said were its reasons for dismissing Mr Remawi in paragraph [9] of the extension of time decision; and
· The dates of or in relation to the other applications that he had made against the Respondent, its representatives and his former colleagues detailed in in paragraphs [11]- [25] of the extension of time decision.
Mr Remawi also challenged the Deputy President’s reliance on medical evidence that he had tendered.
Mr Remawi further argued that the Deputy President failed to properly inform himself as he had relied on evidence provided in earlier matters before the Commission.
(c) Failure to take into account relevant considerations
The considerations that Mr Remawi said the Deputy President failed to take into account were:
· The NSW District Court decision in his favour;
· That he had returned to work after he recovered from his psychological and shoulder injuries;
· That he was self-represented and unable to get advice; and
· That he had lodged his unfair dismissal application within required timeframe.
Mr Remawi also said that the Deputy President erred by not taking into account and discounting the time taken by the Commission in determining his unfair dismissal application and in delivering the first appeal decision from the period of the delay in filing his general protections application.
(d) Took into account irrelevant considerations
Mr Remawi argued that the Deputy President erred when he took into consideration the Respondent’s evidence regarding other claims made by him, particularly an insurance claim and unpaid entitlements claim.
(e) Other matters
Mr Remawi also raised numerous grounds which, in effect, were a re-agitation of his initial unfair dismissal application or related to matters that were the subject of earlier, concluded Commission proceedings. In particular, Mr Remawi raised grounds that there were legal and factual errors in the unfair dismissal application and asserted that this was a relevant consideration in the general protections’ application.
(f) Public Interest
In relation to grounds that might attract the public interest, Mr Remawi’s arguments can be summarised as relating to the need for the Fair Work Act and the Commission to protect employees and to deal effectively with psychosocial hazards in the workplace.
Consideration
In determining whether to grant permission to appeal, the Full Bench’s task is not to conduct a detailed examination of the grounds of appeal, but to identify whether the appellant has demonstrated an arguable case of appealable error.[4]
The decision that Mr Remawi has lodged an appeal against was a decision to not allow further time for the filing of a general protections’ application under s 365 and 366 of the Act. The test for ‘exceptional circumstances’ under s 366 of the Act establishes a high hurdle for an application for extension and involves the exercise of broad discretion.[5]
An appealable error in relation to a discretionary decision is an error in the decision-making process.[6] Therefore for there to be appealable errors, it must be shown that the decision maker:
· Acted on a wrong principle;
· Took into account irrelevant matters;
· Mistook facts; or
· Did not take into account a material consideration.[7]
The was no relevant error of law or wrong principle that Mr Remawi identified that we consider is arguable.
The factual errors that Mr Remawi asserted do not give rise to an arguable case of appealable error. In relation to the Respondent’s process and reasons for dismissing Mr Remawi, these were contained in letters that he tendered, and which were before the Commission, as well as in the decision in the unfair dismissal application. The impugned paragraph is part of the Deputy President’s recitation of relevant background facts, but do not form part of the reasons for refusing the extension of time.
The factual errors that Mr Remawi asserted relating to the dates or details of the other complaints, applications and proceedings commenced by him listed in paragraphs [11] – [24] of the extension of time decision were all dates that the Deputy President provided Mr Remawi an opportunity to comment upon following the hearing. Mr Remawi took that opportunity to note his disagreement with the outcomes of some of the included list of complaints, applications and proceedings but did not correct any of the dates listed. In any event, the Deputy President’s extension of time decision does not rely upon the precise date of the complaints, applications and proceedings made by Mr Remawi but that the fact of his having made them during the delay period was relevant to whether he could have made the general protections application within time. Those proceedings were also raised in the context that Mr Remawi advanced medical grounds as a reason for delay. The Deputy President did not accept Mr Remawi’s primary medical evidence; the consideration of the separate legal proceedings was a secondary issue. We do not consider that this gives rise to an arguable case of appealable error.
In relation to failure to take into account relevant considerations, Mr Remawi did not make any cogent arguments about how the considerations were relevant to the Deputy President’s extension of time decision. In relation to irrelevant considerations of the claim and proceedings that Mr Remawi says the Deputy President took into account, we are of the view that the Deputy President properly took them into account, and no arguable case of appealable error arises in relation to this ground of appeal.
The balance of the matters raised by Mr Remawi relate significantly to his initial unfair dismissal application, are expressions of his disagreement with the outcome of that application and the first appeal. We acknowledge that those matters remain matters of importance to Mr Remawi but they do not give rise to any arguable error in the decision made by Deputy President Cross.
We do not consider that this appeal attracts the public interest as none of the considerations outlined in GlaxoSmithKline are enlivened by this matter.
Conclusion
As we have not found that the appeal raises any arguable case of appealable error and nor does it attract the public interest, we refuse permission to appeal.
We note that this is a further application made by Mr Remawi in relation to the ending of his employment with the Respondent. We draw Mr Remawi’s attention to earlier statements of a Full Bench of the Commission regarding an applicant seeking to re-run in the Commission an application, the substance of which has already been heard and determined:
“The finite resources of the Commonwealth are not to be unreasonably diverted by parties who cannot accept that their claims have been unsuccessful and who seek to resubmit them to the Commission. It is unfair for their opponents to be entangled in repetitive litigation. And parties in other matters deserve their turn to be heard.”[8]
Such further applications may be considered to enliven the matters within s 587, which empowers the Commission to dismiss applications that are frivolous, vexatious or have no reasonable prospects of success. That power may be exercised on the Commission’s own initiative, or on application. Similarly, applications made to the Commission without reasonable cause or where it is apparent the application has no reasonable prospects of success may lead to an order to pay legal costs under s 607.
DEPUTY PRESIDENT
Appearances:
H. Remawi on his own behalf
L. Khan from the Respondent
Hearing details:
2024.
Melbourne (by video via Microsoft Teams):
March 5.
[1] Transcript in U2023/11839 at PN7954.
[2] see Coal and Allied Operations Pty Ltd v AIRC [2000] HCA 47; 203 CLR 194; 99 IR 309 at [17].
[3] [2010] FWAFB 5343 at [26]-[27].
[4] Wan v AIRC [2001] FCA 1803 as referred to in Liao v Canberra Grammar School[2023] FWC 2790 at [17]-[18].
[5] Yang v Mukhi Real Estate Pty Ltd[2023] FWCFB 115 at [26].
[6] Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission and Others [2000] HCA 47; 203 CLR 194; 99 IR 309 at [21].
[7] House v The King as quoted in Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission and Others [2000] HCA 47; 203 CLR 194; 99 IR 309 at [21] and recently regarding decisions under s 366, Liao v Canberra Grammar School[2023] FWC 2790 at [19].
[8] Grabovsky v United Protestant Association NSW Ltd T/A UPA [2019] FWCFB 1964 at [26].
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