James Hatton v Sort Recycling Limited T/A Sort Recycling
[2016] FWCFB 5136
•28 JULY 2016
| [2016] FWCFB 5136 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
Sort Recycling Limited T/A Sort Recycling
(C2016/3927)
DEPUTY PRESIDENT SAMS | SYDNEY, 28 JULY 2016 |
Appeal against decision [[2016] FWC 3036] of Senior Deputy President Drake at Sydney on 16 May 2016 in matter number U2016/6459; no arguable case of appellable error established; public interest not enlivened; permission to appeal refused.
[1] James Hatton (Appellant) had been employed by Sort Recycling Limited (Respondent) between 2 April 2015 and 22 March 2016, the day on which his employment with the Respondent ended. There appears to be an issue as to whether the Appellant was dismissed or whether he resigned, but for present purposes this is not a matter about which we need to be concerned.
[2] The Appellant lodged an unfair dismissal remedy application under s.394 of the Fair Work Act 2009 (Act) with the Fair Work Commission (Commission) on 19 April 2016. In order for the application to be progressed, the Appellant required the Commission to exercise its discretion under s.394(3) of the Act to allow a further period within which the application could be lodged. That matter was determined by Senior Deputy President Drake on 11 May 2016 and reasons for her decision were published on 16 May 2016.
[3] The Senior Deputy President refused to allow a further period within which the application could be lodged and dismissed the application. The Appellant has lodged a Notice of Appeal, for which permission is necessary, against the Senior Deputy President’s decision 1 and order.2 The question whether permission to appeal should be granted is the matter before us.
[4] The decision, the subject of the appeal was made under Part 3-2 – Unfair Dismissal of the Act. Section 400(1) provides that permission to appeal must not be granted from such a decision unless the Commission considers that it is in the public interest to do so. Further, in such matters, appeals on a question of fact may only be made on the ground that the decision involved a ‘significant error of fact’ (s.400(2)). In Coal & Allied Mining Services Pty Ltd v Lawler and others, 3 Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s.400 as ‘a stringent one’.4 The Commission must not grant permission to appeal unless it considers that it is ‘in the public interest to do so’.
[5] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment. 5 In GlaxoSmithKline Australia Pty Ltd v Makin6 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
[6] It will rarely be appropriate to grant permission to appeal unless an arguable case of appellable error is demonstrated. This is so, because an appeal cannot succeed in the absence of appellable 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
[7] In relation to extensions of time to lodge applications under s.394(3), the test of “exceptional circumstances” establishes a “high hurdle” for an applicant for an extension to be granted, and a decision as to whether to extend time under s.394(3) involves the exercise of a broad discretion. 10 Therefore it will be necessary, in an application for permission to appeal against a decision made under s.394(3) to demonstrate that there is an arguable case of appellable error in the exercise of the discretion. This will require the identification of an error of the type described in House v The King11. That is that the decision-maker has acted on a wrong principle, has mistaken the facts, has taken into account an irrelevant consideration or failed to take into account a relevant consideration, or has made a decision which is unreasonable or manifestly unjust. Additionally, where an error of fact is alleged, s.400(2) requires that it must be a significant error of fact. The overriding public interest requirement of s.400(1) always remains.
[8] The Notice of Appeal lodged by the Appellant attaches a document setting out the grounds of appeal. In essence, the Appellant contends that the Senior Deputy President erred in refusing to allow a further period within which the Appellant’s unfair dismissal application could be brought because she did not take into account matters explaining the delay in lodgement; that she failed to appropriately weigh the combination of considerations in s.394(3) and that she erred in attributing to the merits consideration a neutral weighting.
[9] We are not persuaded that the Appellant has made out an arguable case that the Senior Deputy President erred in the manner suggested or otherwise.
[10] During the hearing of the permission to appeal application it quickly became apparent that the matters the Appellant says the Senior Deputy President did not take into account were not put to her or that the Appellant failed to bring sufficient material before the Senior Deputy President in order for her to assess the significance of any particular matter on which the Appellant relied to explain the delay. That this is the case is clearly borne out in the transcript extracted below:
“DEPUTY PRESIDENT GOSTENCNIK: You see, Mr Wolkmann, one of the difficulties that we have is you're criticising the Member at first instance for not giving appropriate weight to the difficulties that he experienced with the Ombudsman, yet in the written submission that was filed there is no date or dates from which it can be discerned whether or not that advice was given within time, out of time.
MR WOLKMANN: Of course, sir, we're going on our client's allegations, so we have to go by what he tells us.
DEPUTY PRESIDENT SAMS: Yes, I understand that. But even what he told you, assuming that what he told you is what you've told me now, that information wasn't in the written submissions. There's nothing in the written submissions which indicates when he received this advice from the Fair Work Ombudsman.
MR WOLKMANN: We believed that we were going to be dealing with that matter in the appeal, so that's why we did not add that timeline to our submissions.
DEPUTY PRESIDENT GOSTENCNIK: You can't criticise a Member of the Commission at first instance for not taking into account certain matters when you didn't put those matters to the Member at first instance. Your application seems to amount to no more than wanting to run a better case than you ran in the first place.
MR WOLKMANN: That's a fair point, sir. Again, I don't really know what happened in the first instance because I wasn't handling the matter at the time. So when I was asked to take over this matter at the second instance I was under the assumption that we were going just for the permission to appeal.
DEPUTY PRESIDENT GOSTENCNIK: Yes. But one of the factors that we take into account in assessing whether or not to grant permission is whether or not an arguable case of error at first instance had been made out. As you'll see from the relevant authorities that it's rarely the case that permission will be granted in circumstances where no arguable case of error is established. Now, you criticised the Member at first instance for making an error in not taking into account relevantly the difficulties that your client had in respect of his dealings with the Fair Work Ombudsman, yet there's precious little information from which it can be discerned that it had any impact.
MR WOLKMANN: Again, even if it had little impact, if you combine it with minor combination of events, like, say, feeling dejected, rejected, not wanting to submit, not knowing where to go, and even if - - -
DEPUTY PRESIDENT GOSTENCNIK: Well, is there any medical evidence for that?
MR WOLKMANN: Yes, we do. Again, it's - - -
DEPUTY PRESIDENT GOSTENCNIK: And they were put in evidence, were they, in the first instance?
MR WOLKMANN: No. No, they were not. It was just in the statement. If you see the exhibits where our client mentions that he increased his narcolepsy medicine, that he did get sick leave.
DEPUTY PRESIDENT GOSTENCNIK: Sure.
MR WOLKMANN: If you see the exhibit - - -
DEPUTY PRESIDENT GOSTENCNIK: I accept that, but that doesn't tell me or the Member at first instance anything about what impact that had on his capacity to function such as to provide an acceptable explanation for the delay.
MR WOLKMANN: Well, if you look at the original application as well that had some reasons behind the delay.
DEPUTY PRESIDENT GOSTENCNIK: Yes. So in answer to question 1.4 it said that the application was only a few days late, sincerely apologise.
The reason for the small delay was due to complications I encountered in obtaining advice regarding the process. One issue I encountered was unpaid super. And then when trying to determine where to make my unfair ... I was transferred to a number of different departments –
which are unspecified. It doesn't indicate when those communications occurred:
After speaking to a number of different bodies I was finally referred to the right department.
It doesn't say when that occurred. So that's no more illuminating than the submission that was filed on 5 May.
MR WOLKMANN: Again, yes, our client sadly did not write down dates. He wasn't thinking with the legal aspect in mind. He's been fired from previous jobs and he's never considered that he'd have to write down dates and things of this matter. And, again, that's why I'm representing him in this matter.
DEPUTY PRESIDENT GOSTENCNIK: Yes.
MR WOLKMANN: He doesn't have that foresight.
DEPUTY PRESIDENT GOSTENCNIK: Accepting all of that, but the difficulty on appeal is that it's generally not a ground of appeal to say, "Well, had we brought to the Member's attention in the first place this material that we now want to bring to the attention of the Full Bench, there would've been a different result." You're kind of stuck with the case that you advanced at first instance.
MR WOLKMANN: Okay. Sorry, I don't think I clearly understand. What do you mean by when we didn't bring it to the attention of the Commission in the first instance?
DEPUTY PRESIDENT GOSTENCNIK: Well, the matters that you now – you say that you now have a timeline, for example. You say that you now have, or can bring, some medical evidence, for example. None of that was put to the Member at first instance.
MR WOLKMANN: Because, again, we just figured that this would be for the appeal matter.
DEPUTY PRESIDENT GOSTENCNIK: Yes. But my point is that in order to demonstrate error you've got to show, amongst other things, as I ascertain or understand your claim, you say that the Member at first instance failed to take into account a number of matters. What I'm putting to you is that matters that you now want to agitate were not put to her in those terms; a timeline wasn't put to her; medical evidence wasn't put to her. So all of these factors you say she should have taken into account weren't before her to take into account.
MR WOLKMANN: According to the previous Deputy President she stated that it was a neutral issue, the Ombudsman and the multiple minor factors, so that's why we're bringing it forward on the claim that it is not - - -
DEPUTY PRESIDENT SAMS: Well, of course it was neutral because she didn't have any of the material before her. That's exactly the point his Honour is trying to make to you, Mr Wolkmann.
MR WOLKMANN: That's a fair point.
DEPUTY PRESIDENT SAMS: Well, it's not a question of being a fair point. An appeal has been brought, a Full Bench has been established or assembled to hear the appeal, and you're seeking to agitate now matters that were not brought to the attention of her Honour. That is not permissible.
MR WOLKMANN: Again, the reason for delay was well, we don't have the certificate and we don't have this timeline of events. It was more under the guise of the understanding that there was an Ombudsman delay, and that it was with this medical – it was taken on face value.
DEPUTY PRESIDENT SAMS: Did your client tell you that he accessed the website of the Fair Work Ombudsman?
MR WOLKMANN: Yes. Yes.
DEPUTY PRESIDENT SAMS: And you've quoted from it. That expressly refers to working closely with the Fair Work Commission.
MR WOLKMANN: Yes.
DEPUTY PRESIDENT SAMS: So how can you say that he didn't know anything about where he was to go when it was expressly said that the Fair Work Commission is involved.
MR WOLKMANN: I was - - -
DEPUTY PRESIDENT SAMS: Don't interrupt. When it was said that the Fair Work Commission closely works with the Ombudsman.
MR WOLKMANN: I was just making that point that he saw these quotes.
DEPUTY PRESIDENT SAMS: Yes.
MR WOLKMANN: And that they're not advertising themselves as they should. If they're not to do with my client's knowledge about where to apply or where to go, because, again, he has no legal knowledge. He does not know where to go in the process. And that's why he was depending on the Ombudsman to give him the right information. And when we found out that he was given the wrong information regarding his superannuation, again, that delayed him.
DEPUTY PRESIDENT SAMS: Does your client have English language difficulties?
MR WOLKMANN: No, he does not.
DEPUTY PRESIDENT SAMS: No, I didn't think so. Do you have anything further?
MR WOLKMANN: Just one moment. I need to speak with my counsel. Sir, just to make a final submission, is just we understand the medical leave was not put into the first submission, and that the Ombudsman timeline was not put in the first submission. We're just drawing attention to that we believe the minor circumstances in total which, in combination with these factors, should have been given more attention in consideration in the previous matter.” 12
[11] The Senior Deputy President cannot be criticised for failing to take into account matters that were not put to her or in evidence before her at first instance. It also follows that the Appellant’s ground that the Senior Deputy President did not take into account the fact that multiple minor combinations of events might result in exceptional circumstances, is also not made out, even on an arguable basis in circumstances where probative evidence of those minor multiple circumstances were not before the Senior Deputy President.
[12] As to the Senior Deputy President’s conclusion that the merits of the case were a neutral factor in her consideration, it seems to us unremarkable in the circumstances given the absence of contested evidentiary hearing being conducted from which relative merit might be discerned. The complaint is in substance one of the attribution of weight by the Senior Deputy President, to a particular factor without the Appellant identifying any arguable error of fact, law or principle made in attributing to the merits consideration such weight as was accorded.
[13] For these reasons we are not persuaded that any case of arguable appellable error has been made out.
[14] The public interest grounds upon which it is said that permission should be granted relied on by the Appellant are, with respect, misguided and do not bear repeating. We are not persuaded that any of the matters raised enliven the public interest. Furthermore, we are not persuaded that the appeal raises any issues of importance or general application, nor does it identify any relevant diversity of decisions at first instance. We do not consider that it is arguable that the decision of the Senior Deputy President manifests an injustice, or that the result is counterintuitive. The legal principles applied do not appear to us to be disharmonious when compared with other recent decisions dealing with similar matters.
[15] In our view this was a most unmeritorious application for permission to appeal.
[16] We are not satisfied that it is in the public interest to grant permission to appeal.
[17] Permission to appeal is refused.
DEPUTY PRESIDENT
Appearances:
Mr B Wolkmann, unpaid law clerk for the Appellant.
Hearing details:
2016.
Sydney/Brisbane:
July 13.
1 [2016] FWC 3036.
2 PR580227.
3 (2011) 192 FCR 78.
4 Ibid at [43].
5 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, Crennon, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54 at [44] – [46].
6 (2010) 197 IR 266.
7 Ibid at [27].
8 Wan v AIRC [2001] FCA 1803 at [30].
9 GlaxoSmithKline Australia Pty Ltd v Makin[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 in Coal & Allied Mining Services Pty Ltd v Lawler; [2011] FCAFC 54; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663 at [28].
10 Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21].
11 (1936) 55 CLR 499.
12 PN69 – PN116.
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