James Phelan v Electronics Boutique Australia Pty Ltd t/a EB Games
[2020] FWCFB 5292
•8 OCTOBER 2020
| [2020] FWCFB 5292 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
James Phelan
v
Electronics Boutique Australia Pty Ltd t/a EB Games
(C2020/4871)
VICE PRESIDENT HATCHER | SYDNEY, 8 OCTOBER 2020 |
Appeal against decision [2020] FWC 3218 of Commissioner Platt at Adelaide on 19 June 2020 in matter number U2020/8024
Introduction and background
[1] Mr James Phelan has lodged an appeal, for which permission to appeal is required, against a decision of Commissioner Platt issued on 19 June 2020 1 in which the Commissioner declined to extend time for Mr Phelan to make an application for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (FW Act).
[2] In circumstances where the current COVID-19 pandemic limits the capacity of the Commission from conducting in-person hearings, the Commission inquired of the parties whether they were prepared to have the question of permission to appeal determined on the basis of written submissions and without conducting a hearing. Both parties consented to this course. It was considered that the question of permission to appeal could be adequately determined without the parties making oral submissions for consideration. Accordingly, the appeal has been conducted without holding a hearing pursuant to s 607(1) of the FW Act.
[3] Section 394(2)(a) of the FW Act provides a standard time limit of 21 days after a dismissal takes effect for the lodgment of an unfair dismissal application. Section 394(2)(b) allows the Commission to permit a further period for lodgment under s 394(3), which provides as follows:
(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) whether the person first became aware of the dismissal after it had taken effect; and
(c) any action taken by the person to dispute the dismissal; and
(d) prejudice to the employer (including prejudice caused by the delay); and
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.
[4] The circumstances of the matter are as follows. Mr Phelan was employed on a casual basis by Electronics Boutique Australia Pty Ltd (EB Games) commencing in 2015. In January 2020, he travelled overseas to work with the expectation that he would be absent for 3 months or perhaps more. He returned to Australia earlier than expected because of the effects of the COVID-19 pandemic. After his return, on 5 April 2020, he contacted EB Games and advised that he was available for work. On 17 April 2020, EB Games advised Mr Phelan that it considered that he had resigned his employment when he travelled overseas (although it had not earlier communicated this position to Mr Phelan). Mr Phelan contested this with Human Resources at EB Games between 17 and 23 April 2020, without success. On 1 May 2020, with the facilitation of the Commission, Mr Phelan sought the advice of the Workplace Advice Service (WAS). The WAS was unable to assist Mr Phelan but twice reminded him on 1 May 2020 by email of the 21-day time limit for filing unfair dismissal claims. On 9 June 2020, Mr Phelan made an enquiry with a law firm about his matter. He filed his unfair dismissal application in the Commission on 11 June 2020.
The decision
[5] In his decision, the Commissioner proceeded on the basis that Mr Phelan’s employment ceased on 11 January 2020, which was his last day of work and that therefore Mr Phelan’s application was made 129 days outside of the 21-day time limit. He then gave specific consideration to each of the matters required to be taken into account under s 394(3) of the FW Act. In relation to s 394(3)(a) (the reason for the delay), the Commissioner said (footnotes omitted):
“[19] Mr Phelan said he was distressed by what he perceived to be a dismissal. It is common for employees to suffer shock and trauma as a result of a dismissal. This of itself is not an exceptional circumstance.
[20] As to acceptable explanations for a delay or part thereof, ignorance of the 21 day timeframe is not, of itself, an exceptional circumstance.
[21] Whilst Mr Phelan actively disputed his cessation of employment until 23 April 2020, he did little more until 1 May 2020 when he attempted to seek legal advice. On 1 May 2020 he was advised in writing on two occasions about the applicable time limit.
[22] Despite that he did not immediately lodge his claim.
[23] On 9 June 2020 Mr Phelan sought legal advice and filed his claim on 11 June 2020.
[24] In my view Mr Phelan has not provided a credible reason for the delay in filing his Application for the period 24 April to 11 June 2020, this factor weighs against the granting of an extension of time.”
[6] In relation to s 394(3)(b) (whether the person first became aware of the dismissal after it had taken effect), the Commissioner said that Mr Phelan did not become aware of the cessation of his employment until 17 April 2020 and that this weighed in favour of a finding of exceptional circumstances. In relation to s 394(3)(c) (any action taken by the person to dispute the dismissal), the Commissioner noted that Mr Phelan contested the cessation of his employment between 17 and 23 April 2020, and this weighed in favour of granting an extension of time. As to s 394(3)(d) (prejudice to the employer), the Commissioner found that because Mr Phelan’s store manager had left the employ of EB Games on 11 June 2020, EB Games may suffer prejudice in defending the application as a result of the delay. The Commissioner treated s 394(3)(e) (the merits of the application) as a neutral factor because an insufficiency of evidence did not make it possible to make an assessment as to the merits of the application. As to s 394(3)(f) (fairness as between the person and other persons in a similar position), the Commissioner found that this was not a relevant factor and treated it as a neutral consideration. The Commissioner concluded that, taking into account each of the above factors, he was not persuaded that there were exceptional circumstances warranting the grant of an extension of time and accordingly declined to exercise his discretion to grant an extension. The Commissioner said that: “In reaching this conclusion, I am particularly (but not solely) influenced by the fact that, in my evaluative assessment, the Applicant did not have an acceptable explanation for the delay.”
Appeal grounds and submissions
[7] In his notice of appeal, Mr Phelan set out 6 grounds of appeal which may best be summarised as follows:
(1) The effects of the COVID-19 pandemic on Mr Phelan were not fully taken into account. These included a dispute with his landlords in Germany over non-payment of rent arising from the loss of his job there, paying bills without income, having to move back home with his mother and the associated infection risks arising from her employment as a nurse, and the passing of the family pet.
(2) One of the main delays in bringing Mr Phelan’s application was his concern about retaliation by EB Games. He was concerned that employees known to be close to him would be targeted, and a friend of his who still worked for EB Games was now being treated unfairly.
(3) The Commissioner was “clearly thrown back” when informed that not notifying employees of their termination was a normal occurrence at EB Games.
(4) The Commissioner indicated that Mr Phelan had a high chance of success if his application proceeded to a full hearing.
(5) There were acceptable circumstances causing the 48-day delay in his application, but EB Games could not provide any acceptable reasoning why it took 96 days to inform Mr Phelan of his termination.
(6) It was “suspiciously convenient” that Mr Phelan’ store manager’s employment ceased employment on the same date as Mr Phelan filed his unfair dismissal application and that he was required to sign a non-disclosure agreement
[8] Mr Phelan also contended in his notice of appeal that the grant of permission to appeal would be in the public interest for the following reasons:
“As I mentioned earlier an individual associated with me is now being unfairly treated because of my claim and I see it likely that once others who are associated with me are identified they … could be targeted unfairly by the management team.
I also touched on earlier how the company representative stated termination without formal notice is a standard practise in the company, this is could be an indication that the company has unfairly dismissed employees in the past and will continue to do so unless held accountable here.
I would also add that should my claim be heard and found in my favour it would bring the claims made of bullying by the management team by several other employees to light and taken seriously. Concerns of our management team’s actions towards staff were raised with the HR department but no action was taken other that the individual essentially being told to handle it themselves.” (misspellings corrected)
[9] In his written submissions in support of the grant of permission to appeal, Mr Phelan reiterated that:
• fear of retaliation by EB Games was one of the main causes of the delay;
• an employee known to be friends with him was now being targeted and treated unfairly;
• the effects of the COVID-19 pandemic were not fully taken into account, including his rent dispute in Germany, the need to sort out how to pay his bills without income, moving home with his mother and the passing of the family pet; and
• EB Games had stated in the proceedings before the Commissioner that termination without notice was a standard practice, and this could be an indication that EB Games had unfairly dismissed employees in the past and would continue to do so in the future unless it was held accountable.
Consideration
[10] 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.2 There is no right to appeal and an appeal may only be made with the permission of the Commission.
[11] This appeal is one to which s 400 of the FW Act applies. Section 400 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.
(2) Despite subsection 604(1), an appeal from a decision made by the FWC in relation to a matter arising under this Part can only, to the extent that it is an appeal on a question of fact, be made on the ground that the decision involved a significant error of fact.
[12] In the Federal Court Full Court decision in Coal & Allied Mining Services Pty Ltd v Lawler and others, 3Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s 400 as “a stringent one”. The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.4 A Full Bench of the Commission, in GlaxoSmithKline Australia Pty Ltd v Makin, 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.” 5
[13] 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.6 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.7
[14] 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. 8 However it is necessary to engage with those grounds to consider whether they raise an arguable case of appealable error.
[15] The test of “exceptional circumstances”, in relation to extensions of time to lodge applications under s 394(3), establishes a “high hurdle” for an application for an extension, and a decision as to whether to extend time under s 394(3) involves the exercise of a broad discretion.9 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 and that there was appealable error in the exercise of the discretion. This will require the identification of error of the type described in House v The King10 – 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) remains.
[16] We do not consider that the grant of permission to appeal would be in the public interest, for the following reasons:
(1) Neither Mr Phelan’s notice of appeal nor his submissions contain any genuine contention of error on the part of the Commissioner.
(2) Mr Phelan’s appeal is founded upon a series of factual matters – principally, his fear of “retaliation” by EB Games, the alleged treatment of other employees and what were said to be the effects upon him of the COVID-19 pandemic – which he never raised as reasons for his delay in lodging his unfair dismissal application before the Commissioner. To the extent that Mr Phelan contends that the Commissioner erred by not taking these matters into account, that contention is not reasonably arguable in circumstances where these matters were not made known to the Commissioner. Permission to appeal will not usually be granted to allow an appellant to advance a new evidentiary case on appeal which they could have, but did not, advance at first instance.
(3) In any event, these matters provide no reasonable explanation as to why Mr Phelan was unable to lodge an unfair dismissal application at least within 21 days of him becoming aware on 17 April 2020 that EB Games considered his employment to have terminated.
(4) The Commissioner’s approach to the question of whether Mr Phelan should be granted an extension of time was orthodox, and he gave the requisite consideration to each of the matters required to be considered under s 394(3).
(5) The appeal does not raise any question of law or principle or any other matter of general application. Mr Phelan’s case turned on its own facts. The proposition that the circumstances of Mr Phelan’s matter reveal some potential to expose a wider pattern of improper conduct on the part of EB Games is purely speculative and has no basis beyond the assertions made by Mr Phelan in his notice of appeal. The Commissioner’s exercise of the discretion, on the facts presented to him, does not appear to us to be counter-intuitive or manifest any injustice.
[17] Because we are not satisfied that the grant of permission to appeal would be in the public interest, permission to appeal must be refused in accordance with s 400(1).
VICE PRESIDENT
Determined on the basis of written submissions.
Printed by authority of the Commonwealth Government Printer
<PR723276>
1 [2020] FWC 3218
2 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 AIRC [2000] HCA 47, 203 CLR 194, 99 IR 309 at [17] per Gleeson CJ, Gaudron and Hayne JJ
3 [2011] FCAFC 54, 192 FCR 78, 207 IR 177 at [43]
4 O’Sullivan v Farrer [1989] HCA 61, 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch [2011] HCA 4, 243 CLR 506 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54, 192 FCR 78, 207 IR 177 at [44]-[46]
5 [2010] FWAFB 5343, 197 IR 266 at [27]
6 Wan v AIRC [2001] FCA 1803, 116 FCR 481 at [30]
7 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, 207 IR 177; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office[2014] FWCFB 1663, 241 IR 177 at [28]
8 Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]
9 Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21]
10 [1936] HCA 40, 55 CLR 499
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