ISS Facility Services Australia Limited t/a ISS Facility Services v Helen Baltas

[2017] FWC 3816

[2017] FWC 3816

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

ISS Facility Services Australia Limited t/a ISS Facility Services
v
Helen Baltas
(C2017/3441)

VICE PRESIDENT HATCHER SYDNEY, 2 AUGUST 2017

Permission to appeal against decision [[2017] FWC 3045] of Commissioner Bissett at Melbourne on 5 June 2017 in matter number U2017/2860.

[1] This is an edited version of the decision given on transcript at the conclusion of the hearing of this matter on 19 July 2017.

[2] ISS Facility Services Limited Australia t/a ISS Facility Services (ISS Facility Services) has lodged an appeal, for which permission to appeal is required, under s.604 of the Fair Work Act 2009 (FW Act) against a decision of Commissioner Bissett on 5 June 2017 1 (Decision). In the Decision, the Commissioner granted an extension of time to the order of two days for Ms Helen Baltas to file an application for an unfair dismissal remedy with respect to her former employment with ISS Facility Services. The dismissal the subject of the application took effect on 20 February 2017 and Ms Baltas lodged her application on 15 March 2017, two days out of time.

[3] In the Decision under appeal, the Commissioner addressed the matters that were required to be addressed pursuant to s.394(3) of the FW Act, made certain findings and inferences of fact and concluded that exceptional circumstances existed such as to justify the grant of an extension of time. That Decision having being issued on the 5 June 2017 as earlier indicated, ISS Facility Services lodged its appeal on 26 June 2017, the last date permissible under the Commission’s rules. 2 In the intervening period between the Decision and the lodging of the appeal, on 9 June 2017 the Commission issued directions for the determination of Ms Baltas’ unfair dismissal remedy application. Those directions among other things required ISS Facility Services to lodge its outline of argument, statements of evidence and documents list by noon on 24 July 2017, and the matter was listed for conference or hearing before the Commission in Melbourne commencing on 14-16 August 2017.

[4] In its appeal, ISS Facility Services has sought a stay of the Decision under appeal pending the determination of the appeal. The purpose of the stay is to put on hold, in effect, the requirement for ISS Facility Services to lodge its case materials on the 24 July 2017, although it appears to me that a further practical effect of the stay will also mean that the hearing on 14-16 August 2017 could not proceed. The appeal has been listed with respect for permission to appeal on 8 August 2017 before a Full Bench on which I am the presiding member.

[5] The principles applying to the determination of stay applications are well established, and the practice of the Commission is to adopt the two-part test is enunciated in a decision of the Australian Industrial Relations Commission in Edghill v Kellow-Falkiner Motors Pty Ltd 3 This decision has been followed in a number of cases decided under theFW Act. Paragraph [5] of that decision states:

“[5] In determining whether to grant a stay application the Commission must be satisfied that there is an arguable case with some reasonable prospects of success, in respect of both the question of leave to appeal and the substantive merits of the appeal. In addition, the balance of convenience must weigh in favour of the order subject to appeal being stayed. Each of the two elements referred to must be established before a stay order will be granted.”

[6] In assessing whether the purpose of a stay application in an appeal has the requisite prospects of success, the Commission necessarily engages in an assessment of the merits of a preliminary nature, since the Commission will not have had the benefit of hearing the appellant’s full argument and usually will not have had the opportunity to properly peruse the case materials. 4

[7] In respect of the first limb of the test for the grant of a stay, that is that there is an arguable case with some reasonable prospects of success, it is necessary to bear in mind that this is an appeal to which s.400(1) of the FW Act applies. That provision states that the Commission must not grant permission to appeal from a decision made by the Commission under Part 3.2 of the FW Act unless the Commission considers that it in the public interest to do so. That is a stringent test and a number of cases have illustrated the sort of considerations which will need to rise in order for the public interest test to be satisfied. In that respect, I refer to the Full Bench decision in GlaxoSmithKline Australia Pty Ltd v Makin 5where 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.” 6

[8] The notice of appeal which was supplemented by the oral submissions of the appellant has set out five grounds of appeal which include that the Commissioner made a significant error in drawing particular factual inferences, that the appellant was denied procedural fairness by not being advised that certain inferences might be drawn, that the Decision was unreasonable and plainly unjust, that the Decision was influenced by irrelevant factors and that the Decision failed to have regard to material considerations. Some of the submissions have given great particularity to those grounds.

[9] In respect of permission to appeal, the appeal notice contends that the Decision raises issues of importance of general application in relation to extensions of time in unfair dismissal remedy applications, that the Decision manifests an injustice as a result of errors made by the Commissioner, and that the Decision was counter-intuitive given the evidence of Ms Baltas regarding her awareness of the Fair Work Commission, ignorance of the time frame and a lack of evidence regarding the reason for the delay.

[10] Having perused the Decision and listened carefully to the submissions advanced by Mr Moore on behalf of the appellant, I am not satisfied that it has been demonstrated at this stage that the appellant has an arguable case with reasonable prospects of success of obtaining permission to appeal under s.400(1). The Decision appears to me to have been made on the basis of the particular facts of this case and inferences which have been drawn from the primary facts. As earlier indicated, the Commissioner took into account the matters she was required to take into account under s.394(3) and made a conclusion about the matter which involved the exercise of a discretion.

[11] I am not presently satisfied that an arguable case has been demonstrated that the granting of permission to appeal would be in the public interest. I cannot identify any issue of general importance or application that arises in this appeal. Mr Moore on behalf of the appellant put that the Commissioner’s drawing of inferences from the facts raised an issue in respect to extension of time applications of general application. This is difficult to accept. The drawing of inferences from the primary facts is a normal function of the Commission and it does not appear to me that the Commissioner has engaged in anything unusual or novel in that respect. The complaint made by the appellant that the outcome is counter-intuitive or manifests an injustice I do not consider to have been established in a way which would attract the public interest at this stage. In all the circumstances of the case, which are set out in the Decision, and having regard to the extension, which was only in the order of two days, I consider at this stage that this amounts to no more than a complaint about the outcome rather an identification of any real injustice or counter-intuitive decision.

[12] That conclusion would be sufficient to dispose of the stay application. However I indicate that I would also not be satisfied if it was necessary for me to decide that the balance of convenience favours the granting of a stay. It is true, as Mr Moore submitted, that if a stay is not granted, the appellant would be required to undertake the work and associated expense necessary to file materials on accordance with the directions. However given the passage of time it seems to me, as I think Mr Moore partly conceded, that a lot of that effort must have occurred already given that the materials are due to be filed next Monday at noon 24 July 2017. Also balanced against that in consideration of the balance of convenience are two matters. Firstly, as earlier indicated, the appellant waited until the last day to file its appeal, meaning that the directions have run for a considerable period before the appeal was filed which has partly led to the result about which the appellant complains that it needs to prepare its materials in the case. Secondly, as earlier indicated, the practical effect of the stay would mean that the hearing scheduled for the 14-16 August 2017 would have to be vacated. I consider that would potentially cause prejudice to Ms Baltas, particularly as she has indicated that the remedy she seeks in the proceedings is reinstatement. In those circumstances the earlier the case is determined the better it is for her in terms of the practicability of obtaining reinstatement as a remedy should her dismissal be found to be unfair.

[13] For those reasons the stay application made by the appellant is dismissed. I confirm that the appeal insofar as permission to appeal is concerned has been listed for hearing before the Full Bench on 9am Tuesday 8 August 2017 and that directions have been made for the filing of submissions by the appellant in that respect by 31 July 2017. 7

VICE PRESIDENT

Appearances:

J. Moore on behalf of ISS Facility Services Australia Limited t/a ISS Facility Services.

H. Baltas on her own behalf with T. Vlachopoulos.

Hearing details:

2017.

Sydney:

19 July.

 1   [2017] FWC 3045

 2   Fair Work Commission Rules 2013, r.56(2)(a)

 3   [2000] AIRC 785, Print S2639

 4  Supreme Caravans Pty Ltd v Hung Pham [2013] FWC 4766 at [9]

 5   [2010] FWAFB 5343, 197 IR 266 at [26]-[27]

 6   Ibid at [27]

 7   Shortly after the hearing of the stay application, the appeal was discontinued.

Printed by authority of the Commonwealth Government Printer

<Price code A, PR594700>