Israel Mofalesi v Chemist 2U Australia Pty Ltd
[2024] FWCFB 399
•21 OCTOBER 2024
| [2024] FWCFB 399 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Israel Mofalesi
v
Chemist 2U Australia Pty Ltd
(C2024/5872)
| DEPUTY PRESIDENT MILLHOUSE | MELBOURNE, 21 OCTOBER 2024 |
Appeal against decision [2024] FWC 1940 and order PR777435 of Deputy President Bell at Melbourne on 6 August 2024 in matter number C2024/3080 – permission to appeal refused.
Mr Israel Mofalesi has lodged an appeal under s 604 of the Fair Work Act 2009 (Cth) (Act) against a decision[1] and order[2] of Deputy President Bell issued on 6 August 2024, for which permission to appeal is required. The decision concerned a refusal by the Deputy President to grant an extension of time in respect of Mr Mofalesi’s general protections application made pursuant to s 365 of the Act against Chemist 2U Australia Pty Ltd.
For the reasons that follow, permission to appeal is refused.
Decision under appeal
Under section 366(2) of the Act, the Deputy President was required to exercise a discretion concerning whether to allow a further period for Mr Mofalesi’s application to be made if he was satisfied that there were exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) any action taken by the applicant 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 Mr Mofalesi and other persons in a similar position.
Being satisfied that Mr Mofalesi’s dismissal took effect on 18 April 2024 (the date recorded in the termination letter issued to him by the respondent), the Deputy President turned to consider the above matters. Noting that the delay was “not lengthy – one day,” the Deputy President considered each of the reasons advanced by Mr Mofalesi to explain the delay. These matters concerned Mr Mofalesi’s emotional and financial hardship, his mental health, the side effects of the medication taken to treat his mental health, and a lack of funds for legal assistance. While accepting Mr Mofalesi’s personal circumstances indicated a difficult period, the Deputy President was not satisfied that the evidence of the impact of the dismissal rose to such a level as to adequately explain the delay. Recording the evidence as “far from comprehensive,” the Deputy President concluded as follows:
“[17] What is not clear to me, however, is whether those matters explain the delay before the applicant filed his application with the Commission. While I am prepared to accept that the applicant’s condition and medications (such as I understand them based on the material before me) has made it more challenging to commence a general protections claim, I do not accept it explains the delay or any part of it. I note that no evidence from any medical practitioner was led.”
Further, the Deputy President noted that the material demonstrated that Mr Mofalesi had taken other action to dispute the dismissal within the 21-day period, supporting the conclusion that the delay was not adequately explained by Mr Mofalesi’s mental health challenges.
As to the consideration in s 366(2)(b), the Deputy President concluded:
“[24] Mr Mofalesi’s initial challenge to his dismissal is a factor that points slightly in his favour, although it is not a factor that I consider supports a finding of exceptional circumstances, whether on its own or with any other factor.”
The balance of considerations in s 366(2)(c), (d) and (e) are not challenged by Mr Mofalesi in the appeal. Accordingly, it is sufficient for us to record that they either weighed neutrally or did not give rise to any matters to weigh in the assessment of exceptional circumstances. The Deputy President concluded that he was not satisfied that there were exceptional circumstances and accordingly, there was no basis to allow an extension of time.
Grounds of appeal
In his Form F7 Notice of Appeal, Mr Mofalesi raises two grounds of appeal, concerning the Deputy President’s findings at paragraphs [17] and [24] of the decision and extracted above. By appeal ground (1), Mr Mofalesi contends that the Deputy President was “not open to facts.” Mr Mofalesi submits that in the first instance proceedings, he produced a script for medication, and a medical certificate. Despite this, at paragraph [17] of the decision, Mr Mofalesi says that the Deputy President made a factual error and concluded that “no evidence from any medical practitioner was led.”
By appeal ground (2), Mr Mofalesi contends that the Deputy President made a significant error at paragraph [24] of the decision. Mr Mofalesi says that the medical certificate he relied upon specified that he has a “medical condition” and is “unfit for usual occupation” from 17 April to 21 April 2024 inclusive. Accordingly, Mr Mofalesi’s position is that he “had 3 days less” to lodge his application. Mr Mofalesi further submits that he provided “comprehensive evidence” that the respondent had terminated his employment while he was suffering from a medical condition, and this suggests that the Deputy President considers it is “ordinary” for employers to dismiss their employees “on their final day of probation while they are mentally unwell.”
Mr Mofalesi contends that the appeal is in the public interest because a failure to consider the evidence in his application means that employers can take adverse action against medically unfit employees without a fair outcome from the Commission.
Permission to appeal – principles
There is no right to appeal, and an appeal may only be made with the permission of the Commission. Without limiting when the Commission might grant permission, s 604(2) of the Act provides that the Commission must 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.[3] The public interest is not satisfied simply by the identification of error or a preference for a different result.[4] Considerations that may attract the public interest include that the matter raises issues of importance and general application, that the decision manifests an injustice or that the result is counterintuitive.[5]
It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. However, that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal. An application for permission to appeal is not a preliminary hearing of the appeal. In determining whether to grant permission to appeal, it is unnecessary and inappropriate to conduct a detailed examination of the appeal grounds.[6] However, it is necessary to engage with the grounds to consider whether they raise an arguable case of appealable error.
Consideration
We are not satisfied that the grounds of appeal disclose an arguable case of appealable error.
As to appeal ground (1), the medical evidence produced by Mr Mofalesi comprised two of the four documents attached to his witness statement titled Extension of time affidavit. It comprised of a script for medication, and a medical certificate which simply described Mr Mofalesi as having a “medical condition” and “unfit for usual occupation” from 17 April to 21 April 2024 inclusive. This evidence was not comprehensive, as Mr Mofalesi contends. There is no written explanation from Mr Mofalesi’s treating medical practitioner about his condition or diagnosis, the symptoms, or how these matters may have impacted upon Mr Mofalesi and his capacity to file his application within time. Nor was there any information explaining the medication and its effects, by reference to the script produced. In the absence of explanatory medical evidence of this kind, the conclusion at [15] of the decision that “no evidence from any medical practitioner was led” discloses no arguable error and is, in our view, correct.
Nevertheless, it is apparent from the decision that the Deputy President took into account the medical certificate and the medication script. The Deputy President recorded that Mr Mofalesi filed a witness statement with supporting documents (decision at [7]), but given the personal nature of those matters, did not describe them in detail in the decision although he had regard to them (decision at [16]). Further, the Deputy President was prepared to accept that Mr Mofalesi’s “condition and medications” such as they were understood based on the materials, had made it more challenging for Mr Mofalesi to commence his application (decision at [17]). The contention that the Deputy President disregarded this evidence is not arguable in light of these considerations.
Appeal ground (2) does not raise an arguable appealable error. The Deputy President concluded at [24] of the decision that the consideration in s 366(2)(b), which is focussed upon the action taken by Mr Mofalesi to dispute his dismissal, pointed slightly in Mr Mofalesi’s favour. This is because the Deputy President accepted that Mr Mofalesi took steps to challenge his dismissal by an email exchange over 22 April to 24 April 2024. The contention that Mr Mofalesi had three less days to take this action (noting the medical certificate) does not demonstrate any arguable error in the decision.
We have considered whether this appeal attracts the public interest. We are not satisfied, for the purposes of s 604(2), that there is a diversity of decisions at first instance so that guidance from an appellate body is required of this kind; the appeal raises issues of importance and/or general application; the decision manifests an injustice, or the result is counter intuitive; or the legal principles applied by the Deputy President were disharmonious when compared with other decisions dealing with similar matters.
Order and disposition
We are not satisfied that the grant of permission would be in the public interest or that there are any other grounds that would support the grant of permission to appeal. Accordingly, permission to appeal is refused under s 604(1) of the Act.
DEPUTY PRESIDENT
Appearances:
I Mofalesi, on his own behalf.
E Colman and K Hameed, on behalf of the respondent.
Hearing details:
2024.
Sydney (by video link):
October 9.
[1] [2024] FWC 1940
[2] PR777435
[3] O’Sullivan v Farrer (1989) 168 CLR 210 at 216-217 per Mason CJ, Brennan, Dawson and Gaudron JJ: applied in Hogan v Hinch (2011) 243 CLR 506 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]
[4] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343; 197 IR 266 at [24]-[27]; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/ Warkworth[2010] FWAFB 10089 at [28], affirmed on judicial review; Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 178; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663; 241 IR 177 at [28]
[5] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343, 197 IR 266 at [24]-[27]
[6] Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]
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