Horacio Gomes Malho v Craig Mostyn Group Food and Agribusiness t/a Craig Mostyn Group
[2017] FWCFB 3903
•1 SEPTEMBER 2017
| [2017] FWCFB 3903 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
Craig Mostyn Group Food & Agribusiness t/a Craig Mostyn Group
(C2017/3297)
VICE PRESIDENT HATCHER |
|
Permission to appeal against decision [2017] FWC 3003 of Commissioner Platt at Adelaide on 1 June 2017 in matter number U2017/2561.
[1] This is an appeal, for which permission to appeal is required, against a decision of Commissioner Platt issued on 1 June 2017 (Decision) 1 in which he declined under s.394(3) of the Fair Work Act 2009 (Cth) (FW Act) to extend time to the appellant, Mr Horacio Gomes Malho, to file an unfair dismissal remedy application under s.394(1) of the FW Act. The Commissioner issued an order giving effect to the Decision to dismiss the application (Order).2 Mr Malho lodged his appeal on 19 June 2017.
[2] Section 394(2) of the FW Act requires an unfair dismissal remedy application to be lodged within 21 days after the dismissal took effect or within such further period as the Commission allows under s.394(3). Section 394(3) provides:
(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) whether the person first became aware of the dismissal after it had taken effect; and
(c) any action taken by the person to dispute the dismissal; and
(d) prejudice to the employer (including prejudice caused by the delay); and
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.
[3] Mr Malho’s termination of employment with Craig Mostyn Group Food & Agriculture t/a Craig Mostyn Group (CMG) took effect on 6 January 2017. He filed his unfair dismissal remedy application on 8 March 2017, which was 40 days out of time. Commissioner Platt summarised Mr Malho’s reasons for his failure to lodge his application in 21 days as follows:
“[3] Mr Malho’s application explained the failure to lodge the application within 21
days from the dismissal as follows:
“- Meeting with Ron Penn the general manager at Linley Valley Park.
- Please find attached a letter re delay
- Also when I attended meeting with Ron Penn he asked me to contact him after I took the cast of my arm that they may of given my job back.”
[4] Attached to the application was a commendation letter dated 1 May 2014, a warning dated 29 November 2016, the dismissal letter dated 5 January 2017 and a letter from Dr Gleave dated 14 February 2017 concerning Mr Malho’s fracturing his wrist.”
[4] On the 20 March 2017 CMG, in its Form F3 Employer response and Form F4 Objection to unfair dismissal application raised a jurisdiction objection to Mr Malho’s application on the basis that it was lodged out of time. After a failed conciliation conference conducted on 10 April 2017, the Commissioner conducted a hearing by telephone concerning whether Mr Malho should be granted an extension of time on 29 May 2017.
[5] In the Decision, the Commissioner’s reasoning concerning whether an extension of time should be granted was as follows (footnotes omitted):
“[23] It appears that the applicant took active steps to challenge the dismissal soon after
and met with Mr Penn on 2 February 2017. The delay in the conduct of this meeting was due to Mr Penn’s availability. I accept Mr Malho’s explanation for this part of the delay.
[24] However, Mr Malho was not able to satisfactorily explain the reason why he waited over a month after the meeting with Mr Penn before lodging his application.
[25] At the conference, Mr Malho stated he lodged the application because Mr Penn did not guarantee him employment after his arm had healed.
[26] I accept that Mr Malho was not aware of the 21 day limit but this of itself is not an exceptional circumstance. 2
[27] Mr Malho has not satisfactorily explained why he waited more than one month after that meeting to lodge his application.
[28] The applicant needs to provide a credible explanation for the entire period of the delay, 3 but has not done so.
[29] There is no submission that the granting of an extension of time represents prejudice to CMG.
[30] Consideration of fairness relative to other persons in similar positions is a neutral factor.
[31] In terms of the merits of the application, there is insufficient evidence before me to make an assessment and, accordingly, I have regarded the merits as a neutral factor.
Conclusion:
[32] For the reasons I have set out above, I am not satisfied that Mr Malho’s circumstances can be regarded as exceptional so as to support an extension of time. The request for an extension of time is refused and, accordingly, the application will be dismissed. An Order reflecting this decision will be issued.”
[6] In Mr Malho’s notice of appeal, he stated that his grounds for appeal were:
“ Language barrier I don’t speak or write any English
- My daughter Michelle who has helped me with this hasn’t been well please find doctor certificates attached
- As I have not gone through an unfair dismissal case before I wasn’t aware of the 21 day time frame
- Medical history please find copy attached of medical history”
[7] In his notice of appeal, Mr Malho said that permission to appeal should be granted in the public interest because he was an “asset to the community/new employees in general” and passed onto other individuals general skills.
[8] On 3 July 2017 Mr Malho was advised that his application for permission to appeal was listed for hearing (in Sydney with a video-link to Perth) on 7 August 2017, and he was directed to file and serve a three-page outline of submissions identifying why it was in the public interest to grant permission to appeal and, if the appeal was on a question of fact, what was the significant error of fact involved in the decision under appeal. Mr Mahlo did not file any submissions in accordance with this direction or at all. Nor did he seek any extension of time to file the submissions or provide any explanation for his failure to do so. On 2 August 2017 the Commission’s staff sent the following letter to both Mr Malho and his daughter Ms Michelle Malho, who had acted on Mr Malho’s behalf in the telephone hearing before the Commissioner (formal parts omitted):
“I write in relation to the directions issued on 3 July 2017 in the above matter.
In relation to your appeal, you were directed on 3 July 2017 to file an ‘an outline of submissions not exceeding three A4 pages in length addressing the requirement of permission to appeal in s.604 of the Fair Work Act 2009.’
This submission was required to be filed by 4.00pm Monday 31 July 2017.
As a matter of urgency could you please advise the Commission with regards to the above.
If you would like to discontinue your matter, you may do so by completing the attached Form F50 Notice of Discontinuance and either emailing or posting to the address below.”
[9] There was no response received to this letter.
[10] When the permission to appeal hearing commenced on 7 August 2017, Mr Malho appeared in Perth. It was apparent that he was unable to communicate his case in English and was reliant upon his daughter to present his case. He stated that he could not proceed as his representative, his daughter, Ms Michelle Malho, was unable to attend due to illness. Ms Malho was telephoned into the hearing, but she indicated that she was too unwell and was not in a position to advance Mr Malho’s case. After some discussion, Ms Malho, on behalf of Mr Malho, and CMG agreed, for the purpose of s.607(1)(b) of the FW Act, that the application should be determined “on the papers” by the filing of written submissions without the need for any further formal hearing.
[11] Pursuant to that agreement, we issued directions to the parties on 8 August 2017 for the filing of written submissions. The direction to Mr Malho was as follows:
1) Horacio Gomes Malho (the Appellant) shall file in the Commission and serve on the other party an outline of submissions not exceeding three A4 pages in length addressing the requirement for permission to appeal in s.604 of the Fair Work Act 2009 (Act) only by 4.00pm Thursday 17 August 2017. In the case of an appeal from an unfair dismissal decision, the outline of submissions must specifically address the requirements of s.400 of the Act by identifying:
(a) why it is in the public interest to grant permission to appeal; and
(b) if the appeal is on a question of fact, what is the significant error of fact involved in the decision.
[12] The directions appended the following note:
1) Any failure to comply with the above directions and/or to attend the hearing date scheduled may lead to the appeal being dismissed.
[13] Mr Malho did not file any submissions in accordance with the directions or at all. Four attempts to contact Ms Malho (as Mr Malho’s representative) were made by telephone and were unsuccessful. On 18 August 2017 CMG filed its submissions. Those submissions included the following:
“We question how this appeal could still be considered after that many extensions and opportunities, and how this consideration would be in the public interest having closely read up on cases that were lodged outside the permitted period for an unfair dismissal cases.”
[14] On 24 August 2017 the following correspondence was sent by the Commission’s staff to both Mr Malho and Ms Malho (formal parts omitted):
“In relation to your appeal, you were directed on 8 August 2017 to file an ‘an outline of submissions not exceeding three A4 pages in length addressing the requirement of permission to appeal in s.604 of the Fair Work Act 2009.’
This submission was required to be filed by 4.00pm Thursday 17 August 2017. To date, we have received no submissions from you and have received no application for an extension of time.
The Full Bench will decide the matter on the materials before them.
If you would like to discontinue your matter, you may do so by completing the attached Form F50 Notice of Discontinuance and either emailing or posting to the address below.”
[15] There was no response to this correspondence. Accordingly this matter will be decided on the materials before us, which is confined on Mr Malho’s part to his notice of appeal.
Consideration
[16] An appeal under s.604 of the FW 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.3 There is no right to appeal and an appeal may only be made with the permission of the Commission.
[17] This appeal is one to which s.400 of the FW Act applies. Section 400 provides:
(1) Despite subsection 604(2), the FWC must not grant permission to appeal from a decision made by the FWC under this Part unless the FWC considers that it is in the public interest to do so.
(2) Despite subsection 604(1), an appeal from a decision made by the FWC in relation to a matter arising under this Part can only, to the extent that it is an appeal on a question of fact, be made on the ground that the decision involved a significant error of fact.
[18] In the Federal Court Full Court decision in Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [43], Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s.400 as “a stringent one”. The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.4 A Full Bench of the Commission, in GlaxoSmithKline Australia Pty Ltd v Makin, 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.” 5
[19] 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 appealable error.6 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.7
[20] 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. 8
[21] The test of “exceptional circumstances”, in relation to extensions of time to lodge applications under s.394(3), establishes a “high hurdle” for an application for an extension, and a decision as to whether to extend time under s.394(3) involves the exercise of a broad discretion.9 Therefore it will be necessary, in an application for permission to appeal against a decision made under s.394(3) to demonstrate that there is an arguable case that there was appealable error in the exercise of the discretion. This will require the identification of error of the type described in House v The King10 – that is, that the decision-maker has acted on a wrong principle, has mistaken the facts, has taken into account an irrelevant consideration or failed to take into account a relevant consideration, or has made a decision which is unreasonable or manifestly unjust. Additionally, where an error of fact is alleged, s.400(2) requires that it must be a significant error of fact. The overriding public interest requirement of s.400(1) remains.
[22] Mr Malho’s notice of appeal does not identify any intelligible reason why permission to appeal should be granted in the public interest nor any proper contention of appealable error in the Decision. The principal reason given by Mr Malho for the delay in filing his application was that he did not realise that there was a 21-day statutory time limit on an unfair dismissal application, never having run one before. The Commissioner, unsurprisingly, determined that the stringent test of “exceptional circumstances” was not met. On the limited material before us, we do not consider that this conclusion was unreasonable, manifested any injustice, or was counter-intuitive. Nor does the Decision raise any issue of broader application or general importance.
[23] We are not satisfied that the grant of permission to appeal would be in the public interest. Accordingly, as required by s.400(1), permission to appeal is refused.
VICE PRESIDENT
Appearances:
H. Malho on his own behalf.
P. Joubert for Craig Mostyn Group Food & Agribusiness t/a Craig Mostyn Group.
Hearing details:
2017.
Sydney:
7 August.
1 [2017] FWC 3003
2 PR593397
3 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
4 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 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [44]-[46]
5 [2010] FWAFB 5343, 197 IR 266 at [24] – [27]
6 Wan v AIRC (2001) 116 FCR 481 at [30]
7 Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth[2010] FWAFB 10089 at [28], 202 IR 288, 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, 241 IR 177 at [28]
8 Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]
9 Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21]
10 (1936) 55 CLR 499
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