ISS Security Pty Ltd t/a ISS Facility Services v Arthur Kaparos
[2015] FWCFB 3927
•1 JULY 2015
| [2015] FWCFB 3927 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
Arthur Kaparos
(C2015/2815)
VICE PRESIDENT HATCHER |
|
Appeal against Order [PR563446] and decision of Commissioner Cribb given in transcript in Melbourne on 24 April 2015 in matter number U2015/3486.
[1] On 14 May 2015 ISS Security Pty Ltd t/a ISS Facility Services (ISS – the Appellant) filed a notice of appeal against a decision given in transcript (Decision) on 24 April 2015 by Commissioner Cribb in which she granted an extension of time to 26 February 2015 for Mr Arthur Kaparos to file his unfair dismissal remedy application against ISS. The Commissioner later that day issued an Order1 giving effect to the Decision.
[2] The background to this matter may briefly be stated. Mr Kaparos was employed by ISS as an Aviation Protection Officer in checked bag screening at Melbourne Airport. On 23 October 2014 near the end of his night shift Mr Kaparos was advised that his father had died in hospital. Mr Kaparos left work and went to the hospital in an endeavour to see his father. An incident occurred at the hospital which ultimately resulted in Mr Kaparos’ security licence being suspended on 19 November 2014. ISS issued Mr Kaparos a show cause letter on 19 November 2014 seeking a response within seven days as to why his employment should not be terminated. The relevant enterprise agreement, the ISS Security and United Voice Security Union Tullamarine Agreement 20122, requires that Aviation Protection Officers maintain a valid security licence at all times. Mr Kaparos responded on 21 November 2014 and a meeting was arranged for 10 December 2014 to discuss the outcome of the review of Mr Kaparos’ licence suspension. At that meeting, Mr Kaparos was advised that due to the continuing suspension of his licence his employment was being terminated with immediate effect. Mr Kaparos’ unfair dismissal application was lodged with the Fair Work Commission (the Commission) on 26 February 2015, some 78 days after his dismissal.
[3] Under s.394(2) of the Fair Work Act 2009 (the FW Act), an unfair dismissal remedy application must be made within 21 days after the dismissal took effect or within such further time as the Commission allows under s.394(3). Section 394(3) allows the Commission to allow a further period for the application to be made where it is satisfied that there are “exceptional circumstances” taking into account a number of specified matters. Mr Kaparos’ application was filed 57 days outside the 21 day time limit, and accordingly it was necessary for him to obtain an extension of time under s.394(3).
[4] In the proceedings before the Commissioner, Mr Kaparos submitted that he was so distressed and distraught about his father’s sudden passing that he was not capable of doing anything essentially and that he was not aware of the possibility of lodging an unfair dismissal claim. Mr Kaparos further submitted that following the lifting of the suspension of his security licence on 13 February 2015 he made a number of attempts to contact ISS to discuss the possibility of a return to work and also provided an application letter and resume to ISS.
[5] ISS contended in the proceedings below, inter alia, that the only substantive reason for the delay appeared to be Mr Kaparos’ lack of knowledge of the 21 day time limit and that on that basis there were no exceptional circumstances that would warrant the Commission extending the timeframe for the application.
[6] In the Decision, the Commissioner dealt with the considerations set out in s.394(3) of the FW Act except for the consideration set out at s.394(3)(d) which relates to prejudice to the employer (including prejudice caused by the delay). In respect of the reason for the delay, the Commissioner found that for a number of reasons Mr Kaparos was incapable of lodging an application until he did, while in respect of the merits of the application, the Commissioner concluded that given the parties had “completely different takes” on the matter she was unable to make a finding that the application would have little prospect of success if it proceeded.
[7] Having considered the factors set out in s.394(3) of the FW Act, the Commissioner then turned her mind as to whether or not taken together those considerations amounted to exceptional circumstances. In doing so, the Commissioner attached considerable weight to the evidence of Mr Kaparos as is clear from the following extract from the Decision:
“… Mr Kaparos gave evidence on oath and there is no reason that I can see why I should not accept that he was telling the truth.
… It is an advantage, of actually seeing Mr Kaparos in person and, on the basis of the way he conducted himself at the beginning of his evidence when he started to talk about the reasons for the delay, I accept that it is most probable that he was in no fit state to have made an application prior to when he did.”3
[8] The Commissioner’s conclusion was as follows:
“Taking everything into account I am prepared to exercise my discretion and to grant an extension of time. My view is that all of the circumstances, and particularly the things that happened, and also the merits, it is out of the ordinary course. It is unusual. It is uncommon, and so I am satisfied about that and so therefore I will extend the time for lodgement of Mr Kaparos’ application to 26 February 2015.”4
Consideration
[9] This appeal is one to which s.400(1) of the FW Act applies. Section 400(1) 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.
[10] In the Federal Court Full Court decision in Coal & Allied Mining Services Pty Ltd v Lawler and others, Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s.400 as “a stringent one”.5 The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment6. 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.”7
[11] 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.8 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.9
[12] ISS cited three grounds for its appeal – first that the Commissioner’s decision was guided by irrelevant factors, second that the Commissioner mistook the facts, and third that the Commissioner failed to take a material consideration into account. In respect of these grounds, ISS submitted that:
1. the Commissioner was overly guided by the emotional reaction (crying) of Mr Kaparos when discussing the unexpected death of his father;
2. Mr Kaparos’ evidence below was that he was unaware of the existence of the Commission or his ability to file an unfair dismissal application until the time that his application was lodged; and
3. the Commissioner failed to focus on the whole period of the delay in Mr Kaparos lodging his application, for instance the period from 13 February 2015 when the suspension of Mr Kaparos’ security licence was lifted until 26 February 2015 when he lodged his unfair dismissal application.
[13] As to the public interest considerations involved in the matter, ISS pointed to what it considered to be a number of such considerations. These included that there is a diversity of decisions regarding the issue of the granting of an extension of time for making an unfair dismissal application which would benefit from guidance from a Full Bench.
[14] Mr Kaparos submitted that no case had been made out that the public interest requires that permission to appeal ought to be granted, adding that the Commissioner’s finding was one that was open to her on the evidence. Accordingly, Mr Kaparos submitted that the Commission should refuse permission to appeal.
[15] We are not satisfied that ISS has demonstrated any arguable case of appealable error with respect to the Decision. As earlier stated, the Commissioner took into account all but one of the matters she was required to under s.394(3), i.e. the issue of prejudice to the employer. It is worth noting that on this issue, ISS submitted before the Commissioner that “there’s no significant prejudice that the respondent would allege other than that which results from the passing of time in that … the application is some three months past the date of termination and the recollection of witnesses and the like will have faded to an extent during that time. But beyond that there is no particular prejudice that is pressed.”10 In our view, the fact that the Commissioner did not explicitly address that consideration in the Decision is not material in circumstances where ISS did not press the issue in the proceedings before the Commissioner.
[16] In this case the Commissioner was required to balance a number of factors which were submitted by the parties as reasons for the delay in Mr Kaparos lodging his application. Those factors were the continuing impact which the death of Mr Kaparos’ father had on his emotional state and Mr Kaparos’ capacity to make enquiries as to what action may be available to him in respect of his dismissal, whether before or after the lifting of the suspension of his security licence. Ultimately the Commissioner concluded that Mr Kaparos was both incapable of lodging an application and incapable of undertaking the necessary research regarding his application within the 21 day timeframe. The following extracts from the Decision set out the Commissioner’s consideration in this regard:
“… Mr Kaparos was so emotionally and mentally incapacitated as in distressed and distraught regarding the unexpected passing away of his father, and then on top of that there was the whole stuff about suspension of his licence, the whole Victoria Police stuff, and that all of that put together meant that Mr Kaparos was incapable of lodging an application …
But the difference between the submissions of both parties is that Ms Sapun wove those two together and said that because of Mr Kaparos’ mental state he was not actually in a space whereby he could make the relevant inquiries. And so therefore the lack of knowledge about what to do was not a pure lack of knowledge, it was more he was incapable of actually doing the research within the time and finding out what he had to do.”11
[17] The above extract from the Decision clearly shows that the Commissioner did take into account both the evidence before her that Mr Kaparos was not aware of his ability to make an unfair dismissal application until shortly before he did so and the entire period of the delay in Mr Kaparos lodging his application.
[18] The test of “exceptional circumstances” establishes a “high hurdle” for an applicant for an extension, and a decision as to whether to extend time under s.394(3) involves the exercise of a broad discretion.12 Although individual members of the Full Bench may not necessarily have made the same decision as the Commissioner had they decided the matter themselves at first instance, nonetheless we do not consider that, in determining that the high hurdle of exceptional circumstances had been overcome, the Commissioner made any error in the exercise of her discretion. As is noted above, the Commissioner attached considerable weight to Mr Kaparos’ evidence. Unlike the Commissioner, the Full Bench did not have the benefit of observing Mr Kaparos’ evidence first hand. In those circumstances, given the discretion available to the Commissioner, it would be inappropriate for the Full Bench to effectively second-guess the Commissioner as to the weight that should be attached to that evidence.
[19] Finally, we do not consider that there is any issue raised by this appeal which is of a nature that would attract the public interest. In particular, we do not consider that there is a diversity of decisions regarding the issue of exceptional circumstances which requires guidance from a Full Bench. The reality is that the issue of whether or not there are exceptional circumstances warranting the Commission granting a further period for the making of an unfair dismissal application is a discretionary decision which, having regard to the relevant statutory considerations, will invariably turn on the particular facts of the matter before the Commission.
[20] For all of the above reasons, we are not satisfied that it would be in the public interest to grant permission to appeal. Therefore, in accordance with s.400(1), we must refuse permission to appeal.
VICE PRESIDENT
Appearances:
J. Moore on behalf of ISS Security Pty Ltd t/a ISS Facility Services.
G. Dircks on behalf of Arthur Kaparos.
Hearing details:
2015.
Sydney:
17 June.
1 PR563446
2 AE898561
3 Transcript 24 April 2015 at PN378-379
4 Ibid at PN380
5 (2011) 192 FCR 78 at [43]
6 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]
7 [2010] FWAFB 5343 at [27], 197 IR 266
8 Wan v AIRC (2001) 116 FCR 481 at [30]
9 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 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 at [28]
10 Transcript 24 April 2015 at PN362
11 Ibid at PN374-375
12 Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21]
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