James Amos v Legend Holding Group (Aust) Pty Ltd T/A the Manly Greenhouse
[2019] FWCFB 8413
•17 DECEMBER 2019
| [2019] FWCFB 8413 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
James Amos
v
Legend Holding Group (Aust) Pty Ltd T/A The Manly Greenhouse
(C2019/6911)
DEPUTY PRESIDENT GOSTENCNIK | MELBOURNE, 17 DECEMBER 2019 |
Appeal against decision [[2019] FWC 7359] of Deputy President Mansini at Melbourne on 24 October 2019 in matter number C2019/3061.
[1] Mr James Amos has applied for permission to appeal against a decision of Deputy President Mansini issued on 24 October 2019 1 (Decision) in which the Deputy President declined to extend time for the lodgement of a general protections claim involving dismissal. The Deputy President determined that there were not exceptional circumstances warranting an extension of time under s.366 of the Fair Work Act 2009 (FW Act).
[2] Mr Amos worked for Legend Holding Group (Aust) Pty Ltd t/a The Manly Greenhouse (Respondent). Mr Amos was employed on a casual basis although had an expectation that he would work up to 25 hours per week. The Respondent’s written reasons for ending the casual employment were a need to reduce shifts due to tightening of operations and, relatedly, a decision to make the ground floor bartender position redundant and have all bar staff function as waiters. Given some previous unhappiness of Mr Amos in having his hours reduced the Respondent assumed that Mr Amos would not be happy with a further reduction so he was removed from the roster. 2 Mr Amos was advised of this by text message on 11 April 2019.
[3] Mr Amos initially made an application for relief from unfair dismissal. On being advised that the Fair Work Commission (Commission) did not have jurisdiction to deal with that application he then made a general protections application involving dismissal. That application was made on 13 May 2019, 32 days after the date of dismissal.
[4] Section 366 of the FW Act provides a standard time limit of 21 days after the date the dismissal took effect within which to make an application. However, s.366(2) allows the Commission to permit a further period for lodgement. Section 366(2) provides as follows:
366 Time for application
(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) any action taken by the person 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 the person and other persons in a like position.
[5] The effect of the Decision was that Mr Amos’ application was not properly made in that it was not made within the time period specified in the FW Act and could not proceed any further.
The Decision
[6] In the Decision the Deputy President considered each of the factors in s.366(2). In considering the explanation for the delay the Deputy President noted that Mr Amos:
• acknowledged that there was nothing “exceptional” or “unusual” about his circumstances but maintained they should be considered “just” reasons for granting an extension of the time; 3
• said the delay was because he did not plan on challenging his dismissal but changed his mind after receiving new information that the Respondent had hired two new staff including a bartender; 4
• became aware of the 21-day time limit for making an application at around the time he made the application; 5 and
• was suffering from a general state of unhappiness and that this along with his mental state meant he was not thinking clearly so as to understand his options.
[7] The Deputy President found:
• Mr Amos did not file any medical evidence in support of his mental state; 6
• it is not unusual or uncommon for a person to experience difficulties [following a dismissal]; 7
• Mr Amos became aware of the new hires on 5 May 2019 but waited a further eight days before making his application and the information of the new hires was not so compelling as to explain the delay; 8and
• ignorance of the statutory requirements for making an application is not an acceptable explanation for the delay. 9
[8] The Deputy President considered that the absence of an “acceptable, reasonable or credible explanation for the delay weighs against a conclusion that there were exceptional circumstances in this case.” 10
[9] The Deputy President found that the actions of Mr Amos in disputing his dismissal (although not until 5 May 2019) weighed slightly in favour of a finding of exceptional circumstances. 11
[10] The Deputy President did not consider there was any prejudice to the Respondent and considered this a neutral factor.
[11] The Deputy President noted that Mr Amos’ true complaint “appears to be that his dismissal was unfair” although Mr Amos did assert that the Respondent took adverse action against him because he had complained about having his hours reduced. The Deputy President noted that the Respondent denied this. 12 She considered this matter weighed “slightly in favour of a finding of exceptional circumstances.”13
[12] The Deputy President concluded that:
“[36] Having regard to all of the matters that I am required to take into account under s.366(2), I am not satisfied that the requisite exceptional circumstances exist. That there is no acceptable, reasonable or credible explanation for the delay in filing the application weighs against the grant of an extension in this case. The steps taken to dispute the dismissal and merits of the substantive application together weigh slightly in favour of the grant of an extension, whereas the remaining factors weigh neutrally. In my view, the circumstances of this case are not exceptional, either individually or when considered together.”
Appeal grounds
[13] Mr Amos relied on the following grounds of appeal:
• the 21-day timeframe within which an application is required to be made is logically flawed and open to abuse by employers;
• it was inappropriate for the Commission to determine his health status which is a matter that should be left to doctors;
• the Respondent showed disrespect to the Commission by not attending the hearing for an extension of time; and
• employers should be held to account for their actions.
[14] In his submission on permission to appeal Mr Amos relied on a letter from his treating psychologist dated 27 November 2019 which indicated that he was suffering from a depressive disorder. He reiterated his view that members of the Commission should not make decisions in relation to health matters and that the 21-day time limit is oppressive.
Consideration
[15] 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. 14 There is no right to appeal and an appeal may only be made with the permission of the Commission.
[16] Section 604 of the FW Act states:
(1) A person who is aggrieved by a decision:
(a) made by the FWC (other than a decision of a Full Bench or an Expert Panel); or
(b) made by the General Manager (including a delegate of the General Manager) under the Registered Organisations Act;
may appeal the decision, with the permission of the FWC.
(2) Without limiting when the FWC may grant permission, the FWC must grant permission if the FWC is satisfied that it is in the public interest to do so.
Note: Subsection (2) does not apply in relation to an application for an unfair dismissal (see section 400). (2) A person may appeal the decision by applying to the FWC.
[17] Subsection 604(2) 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. 15 The public interest is not satisfied simply by the identification of error,16 or a preference for a different result.17 In GlaxoSmithKline Australia Pty Ltd v Makin18 a Full Bench of Fair Work Australia identified some of the considerations that may attract the public interest:
“... the public interest might be attracted where a matter raises issue 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...” 19
[18] Other than the special case in s.604(2), the grounds for granting permission to appeal are not specified. Considerations which have traditionally been adopted in granting leave, and which would therefore usually be treated as justifying the grant of permission to appeal, include:
• that the decision is attended with sufficient doubt to warrant its reconsideration; and
• that substantial injustice may result if leave is refused. 20
[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. 21 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.22
[20] The test of “exceptional circumstances” establishes a “high hurdle“ for an applicant for an extension. 23 A decision as to whether to extend time under s.366(2) involves the exercise of a discretion.24 Usually such a decision can only be successfully challenged on appeal if it is shown that the discretion was not exercised correctly.25
[21] 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. 26
[22] We can identify no arguable case of appealable error in the Decision of the Deputy President. Her consideration of the evidence before her as to whether there were exceptional circumstances such that an extension of time was warranted was orthodox. She properly took into account each of the matters under subsection 366(2) of the FW Act, balanced each of these and concluded that there were no exceptional circumstances that warranted an extension of time.
[23] To the extent that Mr Amos claims that the 21-day period for lodgement of an application such as his is “logically flawed” there is no error in the Deputy President determining if his application was made within the requisite 21-day time frame. That Mr Amos does not support the legislative framework does not identify any error on the part of the Deputy President in assessing Mr Amos’ application against the requirement of the legislation as determined by the Parliament.
[24] To the extent Mr Amos suggests the Deputy President made an error in concluding that what he experienced was not uncommon or unusual (or ‘‘normal’’ as Mr Amos puts it) does not demonstrate any error on her part. The Deputy President took into account the claims made by Mr Amos of his feelings of unhappiness and his mental state but properly could take these claims of Mr Amos no further in light of the lack of any medical or other evidence to support his claims. That Mr Amos had a referral from his general practitioner is not evidence of any particular illness that adversely effected his capacity to make his application within the required timeframe. Whilst Mr Amos did provide the Full Bench with a copy of a brief statement from his (now) treating psychologist dated 27 November 2019 this indicates that Mr Amos did not see the psychologist until 28 June 2019 – after the date of the hearing leading to the Decision which he now seeks to appeal. In the general course this is not evidence of any illness at or in the period following 11 April 2019 when the delay occurred. The letter does not provide any evidence that Mr Amos was unwell such that he could not have made his application within the required timeframe or that he was unable to do so sooner than he did or at least earlier than his aborted unfair dismissal application lodged on 10 May 2019. The subsequent delay may be explicable because he had lodged the earlier erroneous application and appears to have acted promptly, after being advised of the absence of jurisdiction, to lodge the general protections application.
[25] The Deputy President’s conclusion that Mr Amos’ difficulties in the period after 11 April 2019 were not uncommon or unusual made on the basis of the information before her and Mr Amos does not point to any probative material before the Deputy President which might suggest an arguable error in her conclusion or the decision making process.
[26] The failure of the Respondent to appear at the hearing before the Deputy President is not identification of any error in the decision making of the Deputy President. The Respondent, having chosen that course, could not complain, whatever the outcome may have been. Had Mr Amos’ application for an extension of time succeeded the Respondent would have been required to engage in the next stages of his application and, to the extent Mr Amos pursued his application, would have remained accountable for its action.
[27] We are not persuaded that any of the matters raised by Mr Amos on appeal enliven the public interest or would otherwise justify the grant of permission on discretionary grounds. The consideration of the application of Mr Amos turned on its own facts. The Decision dealt with the requirement for Mr Amos to be granted an extension of time within which to make his application. The appeal does not raise any issue of importance or general application and does not raise any public interest considerations.
[28] Accordingly, we are not satisfied that it would be in the public interest to grant permission to appeal, nor do we consider that we should exercise our discretion in favour of the grant of permission. Permission to appeal is refused.
DEPUTY PRESIDENT
Appearances:
J Amos on his own behalf.
C Hemmings and J Sun on behalf of the Respondent.
Hearing details:
2019.
Melbourne with video link to Sydney and Adelaide.
11 December.
Printed by authority of the Commonwealth Government Printer
<PR715211>
1 [2019] FWC 7359.
2 Ibid at [27]-[28].
3 Ibid at [11].
4 Ibid at [12].
5 Ibid at [14].
6 Ibid at [15].
7 Ibid at [16].
8 Ibid at [17].
9 Ibid at [18].
10 Ibid at [19].
11 Ibid at [22].
12 Ibid at [30]-[31].
13 Ibid at [32].
14 This is so because on appeal the Commission has power to receive further evidence, pursuant to s.607(2); see Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47, 203 CLR 194 at [17] per Gleeson CJ, Gaudron, Kirby, Hayne and Callinan JJ.
15 O’Sullivan v Farrer [1989] HCA 61; 168 CLR 210 per Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ: applied in Hogan v Hinch [2011] HCA 4; 243 CLR 506 at [69] per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54; 192 FCR 78 at [44]-[46].
16 GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343, 197 IR 266 at [24]-[27].
17 Ibid at [26]-[27], Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089, 202 IR 388 at [28], affirmed on judicial review; Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54;192 FCR 78; New South Wales Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663, 241 IR 177 at [28].
18 GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343, 197 IR 266 at 16.
19 Ibid at [24] - [27].
20 Also see The Construction, Forestry, Mining & Energy Union & Ors v The Full Bench of the Australian Industrial Relations Comm & Ors [1998] FCA 1404, 89 FCR 200 at 220; and Wan v Australian Industrial Relations Commission [2001] FCA 1803, 116 FCR 481 at [26].
21 Wan v Australian Industrial Relations Commission [2001] FCA 1803, 116 FCR 481 at [30].
22 Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth[2010] FWAFB 10089, 202 IR 388 at [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54, 192 FCR 78; New South Wales Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office[2014] FWCFB 1663, 241 IR 177 at [28].
23 Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21].
24 Halls v Halls v KR & MA McArdle & Sons Pty Ltd [2014] FCCA 316.
25 House v The King [1936] HCA 40, 55 CLR 499 at [504]-[505] per Starke, Dixon, Evatt and McTiernan JJ.
26 Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82].
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