J.J v Commonwealth of Australia as represented by Commissioner of Police T/A Australian Federal Police
[2019] FWCFB 72
•23 JANUARY 2019
| [2019] FWCFB 72 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
J.J
v
Commonwealth of Australia as represented by Commissioner of Police T/A Australian Federal Police
(C2018/6196)
DEPUTY PRESIDENT SAMS | SYDNEY, 23 JANUARY 2019 |
Appeal against decision [[2018] FWC 6351] of Commissioner Platt at Adelaide on 15 October 2018 in matter number C2018/4244.
Introduction
[1] Ms J.J (Appellant) alleges that the termination of her employment by the Australian Federal Police (Respondent) on 18 September 2012 was adverse action taken by the Respondent against her, inter alia, in contravention of s.340 of the Fair Work Act 2009 (Act). The adverse action is said to be constituted by, inter alia, a “forced resignation”. 1 The Appellant contends the adverse action was taken by the Respondent because she had exercised a workplace right in that she had made one or more complaints or inquiries in relation to her employment.
[2] On 31 July 2018, the Appellant applied under s.365 of the Act for the Fair Work Commission (Commission) to deal with a general protections dismissal related dispute. Such an application must be made within 21 days after the dismissal took effect, or within such further period as the Commission allows. Section 366(2) provides that the Commission may allow a further period within which an application may be made if it is satisfied that there are exceptional circumstances taking into account the several matters set out therein.
[3] The question whether the Appellant should be allowed a further period within which to make the application was determined by Commissioner Platt in a decision published on 15 October 2018 2 (Decision). The Commissioner determined he was not satisfied that there were exceptional circumstances and he refused to allow a further period.3
[4] The Appellant lodged a Notice of Appeal on 5 November 2018 by which she applies for permission to appeal and appeals against the Decision. This decision is concerned only with whether permission to appeal should be granted.
Consideration
[5] An appeal under s.604 of the 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. 4 There is no right to appeal and an appeal may only be made with the permission of the Commission. Section 604(2) of Act requires the Commission to grant permission to appeal if 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.5 Other than the special case in s.604(2), the grounds for granting permission to appeal are not specified. Considerations which would usually justify the grant of permission to appeal include that the decision is attended with sufficient doubt to warrant its reconsideration or that substantial injustice may result if leave is refused.6
[6] By her Notice of Appeal, the Appellant alleges that the public interest is invoked because:
• the need for there to be proper application and consideration of the test of "exceptional circumstances" in s.366(2) of the Act that affects all parties to such proceedings;
• the need for the Full Bench of the Commission to provide guidance and direction to single members of the Commission having regard to the impractical and unreasonable approach of the Commissioner in an Appellant being able to realistically satisfy the test of "exceptional circumstances" and the failure of the Commissioner to determine the existence or otherwise of "exceptional circumstances";
• the need for correction of errors arising from the Decision having regard to the fact that the Decision manifests an injustice having regard to the unreasonable requirements imposed to achieve the threshold of "exceptional circumstances"; and
• as a consequence there isdisharmony with other decisions of the Commission.
[7] Granting permission to appeal will rarely be appropriate unless an arguable case of appealable error is demonstrated. In the absence of appealable error an appeal cannot succeed. 7 The fact that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.8
[8] These proceedings are restricted to permission to appeal considerations. The Appellant is not required to present a full or developed argument about her appeal grounds. Our task is to determine whether it is in the public interest that permission to appeal against the Decision should be granted and if not whether there is another basis on which permission to appeal should be granted. In doing so, it is relevant to consider whether an arguable case of appealable error has been made out.
[9] In O’Sullivan v Farrer 9, the High Court said:
“… the expression “in the public interest”, when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only “in so far as the subject matter and the scope and purpose of the statutory enactments may enable … given reasons to be [pronounced] definitely extraneous to any objects the legislature could have had in view. . .” 10 [Citations omitted, editing in original]
[10] In GlaxoSmithKline Australia Pty Ltd v Makin 11, 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.” 12
[11] It is unnecessary for us to delve into the minutiae of the appeal grounds. It is sufficient for the purposes of considering the application for permission to appeal to identify two of the grounds which we consider raise an arguable case of appealable error when regard is had to the Decision. The first of these is ground 9 of the Notice of Appeal by which the Appellant contends:
“In assessing the reason for the delay [the Commissioner] effectively determined that all parts of the delay had to in effect be explained contrary to such decisions as Stogiannidis v. Victorian Frozen Foods Distributors Pty Ltd trading as Richmond Oysters 13and Long v. Keolis Downer trading as Yarra Trams14.”
[12] In Stogiannidis, which concerned an appeal from a decision to refuse to allow a further period under s.366(2), a Full Bench of the Commission reaffirmed that an assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional. 15
[13] In Stogiannidis the Full Bench also said:
“The individual matters might not, viewed in isolation, be particularly significant, so it is necessary to consider the matters collectively and to ask whether collectively the matters disclose exceptional circumstances. The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly a credible explanation for the entirety of the delay, will usually weigh in the applicant’s favour, though, as we mention later, it is a question of degree and insight. However the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the relevant matters and the assignment of appropriate weight to each.
. . . It is not a pre-condition to the grant of an extension of time that the applicant provide a credible explanation for the entire period of the delay. Indeed, depending on the circumstances, an extension of time may be granted where the application has not provided any explanation for any part of the delay.
. . .
As mentioned earlier, the ‘reasons for the delay’ is a factor to be taken into account in deciding whether there are exceptional circumstances. There is no statutory basis for the adoption of a decision rule whereby if the applicant does not provide a credible explanation for the entire period of the delay then the matter in s.366(2)(a) tells against the finding of exceptional circumstances. Common sense would suggest otherwise, it is plainly a question of degree and weight. 16
What if the period of the delay was 30 days and the applicant had a credible explanation for 29 of those days? It seems to us that such circumstances may weigh in favour of a finding of exceptional circumstances. Of course, as mentioned earlier if there was a credible explanation for the entirety of the delay that would weigh more heavily in favour of such a finding. Conversely, if the applicant failed to provide a credible explanation for any part of the delay that would tend to weigh against a finding of exceptional circumstances.” [Underlining added]
[14] At [10] of the Decision the Commissioner sets out the reasons proffered by the Applicant explaining the delay. At [26]-[33] the Commissioner gives consideration to the reasons and at [34] he concludes:
“I find parts of the delay have not been explained. The failure of the Applicant to provide a credible explanation for any part of the delay tends to weigh against a finding of exceptional circumstances: Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd T/A Richmond Oysters.” [Endnote omitted](my emphasis)
[15] The Commissioner’s reference to the passage from Stogiannidis as to the possible consequence of the failure to provide a credible “explanation for any part of the delay” read in conjunction with his finding in the first sentence that “parts of the delay have not been explained” discloses an arguable case of appealable error. This is because on one view, the reasoning in [34] suggests the Commissioner misunderstood the passage in Stogiannidis and consequently did the very thing that Stogiannidis held was not permissible. Alternatively, it discloses that the Commissioner may have concluded (arguably wrongly) that the Appellant did not provide any explanation for any part of the delay. This appears inconsistent with the Commissioner’s apparent acceptance of the Appellant’s explanation for parts of the delay at [30] and at [32] of the Decision.
[16] By stating that a “failure of the Applicant to provide a credible explanation for any part of the delay tends to weigh against a finding of exceptional circumstances”, the Full Bench in Stogiannidis was not saying that a failure to explain some part of the delay would have the consequence suggested. Rather, the Full Bench was making the point that if an Applicant fails to provide an explanation for the entire period of the delay, then this may have the consequence suggested. So much is clear from the last paragraph of the extracted passages of Stogiannidis reproduced earlier.
[17] We are therefore persuaded there is an arguable case of appealable error established in respect of ground 9 of the Notice of Appeal.
[18] The second arguable case of error is identified in ground 13 of the Notice of Appeal by which the Appellant contends:
“At [39] of the Decision [the Commissioner] has taken into account an irrelevant consideration in describing the delay in the matter as "extreme" and given the combination of circumstances that presented themselves no one would be in a similar position to the Appellant such that issues of fairness relative to other persons in similar positions do not arise.”
[19] In respect of the matter concerning fairness as between the person and other persons in a similar position, the Commissioner concluded that the “delay in this matter is extreme, and consideration of fairness relative to other persons in similar positions is a factor which weighs against the extension of time.” 17
[20] It is not apparent on the face of the Decision, who the “other persons” are or how such persons are “in similar positions”. On the face of the Decision, the Commissioner appears to have compared the Appellant’s position to that of hypothetical persons in hypothetically similar positions. We therefore agree that the Commissioner has arguably erred by taking into account and giving weight to an irrelevant consideration and so we are persuaded that an arguable case of appealable error is established in respect of ground 13 of the Notice of Appeal.
[21] As is evident from the Decision, both these matters were weighed in the balance against a conclusion that there were exceptional circumstances. The Decision disclosed an arguable case that the Commissioner’s application of legal principles applicable to considering whether an additional period within which an application under s.365 may be made is disharmonious with other comparable Commission decisions and inconsistent with Stogiannidis. Given the Commissioner’s ultimate finding and the nature of the arguable appealable errors identified, if made good on appeal, it cannot be said that success on appeal would not lead to a different outcome. It is also relevant that the dismissal of the application had the consequence of depriving the Appellant not only of the exercise of the Commission’s dispute resolution powers in relation to the dispute, but also of the possibility of pursuing an application in relation to the alleged contravention elsewhere. In these circumstances, we consider the public interest to be enlivened and so permission to appeal must be granted.
Conclusion
[22] In these circumstances, we are satisfied that it would be in the public interest to grant permission to appeal. Therefore permission to appeal is granted. The parties will separately be advised about the filing of submissions and a date for the hearing of the appeal.
DEPUTY PRESIDENT
Submissions:
For the appellant – 14 January 2019.
For the respondent – 6 December 2019.
Determined on the papers without a hearing by consent of the parties to the Appeal.
Printed by authority of the Commonwealth Government Printer
<PR703644>
1 The Appellant also contends contraventions of ss.343 and 351 of the Act
2 [2018] FWC 6351
3 Ibid at [40]
4 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
5 GlaxoSmithKline Australia Pty Ltd v Making[2010] FWAFB 5343 at [26]-[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] FCAFC 54; Ferrymen Pty Ltd v Maritime Union of Australia[2013] FWCFB 8025; and NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663.
6 See CFMEU v AIRC (1998) 89 FCR 200; and Wan v AIRC (2001) 116 FCR 481. Also see the Explanatory Memorandum to the Fair Work Bill 2008 (in respect of what is now s.604) at [2328].
7 Wan v AIRC (2001) 116 FCR 481 at [30]
8 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 388, 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]
9 (1989) 168 CLR 210
10 Ibid at 216
11 [2010] FWAFB 5343, 197 IR 266
12 Ibid at [27]
13 [2018] FWCFB 901
14 [2018] FWCFB 4109
15 [2018] FWCFB 901 at [38]
16 Ibid at [39]-[45]
17 [2018] FWC 6351 at [39]
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