Jeffrie Trika v Home@Scope Pty Ltd
[2022] FWCFB 98
•10 JUNE 2022
| [2022] FWCFB 98 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Jeffrie Trika
v
Home@Scope Pty Ltd
(C2022/2592)
| VICE PRESIDENT HATCHER DEPUTY PRESIDENT YOUNG COMMISSIONER CIRKOVIC | SYDNEY, 10 JUNE 2022 |
Appeal against decision [2022] FWC 749 and order PR740017 of Deputy President Masson at Melbourne on 6 April 2022 in matter number U2021/10291.
Mr Jeffrie Trika has lodged an appeal against a decision[1] by Deputy President Masson on 6 April 2022 (Decision) to dismiss his application for relief from unfair dismissal pursuant to section 394 of the Fair Work Act 2009 (FW Act) and the accompanying order (Order).[2]
In his notice of appeal Mr Trika seeks permission to appeal the Decision, and, if granted, appeals the Decision and the Order. The notice of appeal was filed outside the 21-day timeframe for lodging an appeal required by rule 56(2) of the Fair Work Commission Rules 2013 (Rules). For Mr Trika’s appeal to have been instituted within time it must have been lodged on or before 27 April 2022. Mr Trika’s appeal was filed on 28 April 2022, therefore one day outside this timeframe. The appeal cannot proceed unless the Commission grants Mr Trika an extension of time.
For the reasons that follow, we decline to allow a further period of time for the lodgment of Mr Trika’s notice of appeal. The application for permission to appeal is dismissed.
Background
The background to this matter is as follows.
Mr Trika was employed by the Respondent in the position of Disability Support Worker. He was covered in his employment by the Disability Services Enterprise Agreement Victoria 2018-2022 (Agreement). At the time of his dismissal Mr Trika was employed at the Keystone group home in Kew East. The Keystone group home is a Supported Independent Living house, which at that time had five residents each of whom had Down syndrome. One of the residents suffered from dementia and required one-to-one care at times because of his deteriorating health. On 5 March 2021, a letter of allegations containing three allegations was sent to Mr Trika. Those allegations, were, in brief, that:
on 10 February 2021, Mr Trika left the group home shortly after arriving for work without authorisation or notification, resulting in the remaining staff member being responsible for the 5 residents, one of whom required one-on-one care (Allegation 1);
Mr Trika, on numerous occasions, breached the Disability Act, the Respondent’s policies and the Victorian Charter of Human Rights by engaging in inappropriate conduct and/or restrictive practices including directing residents to go to bed at 10 pm, not play music or turn it down, not watch television, to be quiet and not come out of their respective bedrooms (Allegation 2); and
Mr Trika breached the Respondent’s Code of Conduct and policies by engaging in inappropriate conduct including yelling or speaking inappropriately to a resident, gesturing to the resident with his middle finger in an inappropriate way and telling residents not to speak (Allegation 3).
Following an investigation conducted by an external investigator, it was determined by the Respondent that Allegations 1, 2 and 3 were substantiated (other than in relation to the allegation contained in Allegation 3 that Mr Trika gestured inappropriately with his middle finger).
Mr Trika’s employment was terminated summarily, effective 27 October 2021.
The Decision
The Deputy President found that Mr Trika’s dismissal was not harsh, unjust or unreasonable. In so doing, the Deputy President found:
· Mr Trika engaged in the conduct alleged in Allegation 1;[3]
· Mr Trika’s conduct in leaving the Keystone house without authorisation on the evening of 10 February 2021 was a valid reason for his dismissal;[4] and
· the conduct alleged against Mr Trika in Allegations 2 and 3 was not made out on the evidence before him.[5]
Appeal grounds
On 5 May 2022 Mr Trika filed an amended notice of appeal. The notice of appeal is lengthy, to a large extent involves no more than a restatement of the case Mr Trika advanced below, and does not clearly articulate any grounds of appeal. Mr Trika’s written and oral submissions on the questions of whether he should be granted an extension of time to institute his appeal and whether permission to appeal should be granted did not improve the position in this respect. As best we can discern, Mr Trika’s notice of appeal and submissions advance the following principal contentions:
the Deputy President erred in finding that when residents are at home generally two employees are rostered on at Keystone and did not take into account that the house had one employee at times (first contention);
the Deputy President erred in failing to consider that “peak periods” which required two employees to be present were not limited to the evening dinner period (second contention);
in all the circumstances Mr Trika’s conduct in leaving his shift early on 10 February 2021 should not be considered serious misconduct warranting dismissal (third contention); and
Mr Trika’s dismissal should have been found unfair given that the Deputy President found that Allegations 2 and 3 were not substantiated (fourth contention).
Extension of time
Rule 56(2) of the Rules requires that an appeal must be filed within 21 calendar days after the date of the decision appealed against, or such time as is allowed by the Commission on application.
In Snyder v Helena College Council, Inc. t/a Helena College,[6] a Full Bench of this Commission held that time limits of the kind in rule 56(2) of the Rules should not simply be extended as a matter of course. There are sound administrative and industrial reasons for setting a limit to the time for bringing an appeal and it should only be extended where there are good reasons for doing so.
The usual principles applying to consideration of an application to extend time to lodge an appeal were summarised in the Full Bench decision in Jobs Australia v Eland[7] as follows (footnote omitted):
“[5] Time limits of the kind in Rule 56 should not simply be extended as a matter of course. There are sound administrative and industrial reasons for setting a limit to the time for bringing an appeal and it should only be extended where there are good reasons for doing so. The authorities indicate that the following matters are relevant to the exercise of the Tribunal’s discretion under Rule 56(2)(c):
·whether there is a satisfactory reason for the delay;
·the length of the delay;
·the nature of the grounds of appeal and the likelihood that one or more of those grounds being upheld if time was extended; and
·any prejudice to the respondent if time were extended.”
Taking these matters into account, the exercise of discretion will be guided by a consideration of whether, in all the circumstances, the interests of justice favour Mr Trika being granted an extension of time within which to lodge his notice of appeal.[8]
Consideration
Reason for the delay
As to the reasons for the delay in lodgment, Mr Trika says they are manifold. First, he says that due to financial and time constraints arising from the Easter and Anzac Day public holidays he was unable to obtain legal advice. Secondly, he says that he has work commitments. Thirdly, he says that he is setting up a business which requires his attention and time. Fourthly, he says that he has “personal challenges”, being his marriage, family and mental health.
Whilst we accept that Mr Trika may have preferred to have legal advice and representation, we do not accept that the absence of legal representation provides a satisfactory explanation for the delay in lodgment. The Commission is well versed in matters conducted by self-represented litigants and, as observed by the High Court in Neil v Nott and Anor[9] in such circumstances “the court must assume the burden of endeavouring to ascertain the rights of parties which are obfuscated by their own advocacy.” Further, the Easter and Anzac Day public holidays were known and entirely foreseeable, and it is not explained why these holidays constituted “time constraints”. These public holidays do not provide an acceptable explanation for the delay in lodgment.
We also do not consider that either Mr Trika’s work commitments or the setting up of a new business provides a satisfactory explanation for the delay. These are ordinary matters that do not provide a satisfactory explanation for the delay in lodgment.
Finally, as to Mr Trika’s personal challenges, he has not provided any probative evidence of these matters nor any evidence that they precluded him from lodging the appeal on time. In particular, there is no probative medical evidence that Mr Trika’s mental health precluded him from lodging the appeal on time. Mr Trika’s personal challenges do not provide a satisfactory explanation for the delay.
Mr Trika has not provided a satisfactory explanation for the delay in lodgment. The absence of a satisfactory reason for the delay weighs against the grant of an extension of time to lodge the appeal.
Length of delay
The appeal was filed on 28 April 2022 and was therefore filed one day out of time. Accordingly, the delay in lodgment is short.
This weighs in favour of the grant of an extension of time to lodge the appeal.
Nature of appeal grounds and likelihood that one or more would be upheld if time were extended
In the assessment of whether to extend time, it is necessary to consider the nature of the grounds of appeal and the likelihood that one or more of those grounds would be upheld if time was extended. It is also necessary to consider whether, if the extension were granted, the appellant would be likely to obtain permission to appeal.
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.[10] There is no right to appeal and an appeal may only be made with the permission of the Commission.
The Decision is one to which s 400 of the FW Act applies. Therefore, permission to appeal must not be granted unless the Commission considers it is in the public interest to do so (s 400(1)). Further, appeals on a question of fact can only be made on the ground that the decision involved a significant error of fact (s 400(2)).
This test in s 400(1) a stringent one.[11] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[12] Some of the considerations that may attract the public interest are where a matter raises issues of importance and general application, or there is a diversity of decisions at first instance so that appellate guidance is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters.[13] It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated.[14] 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.[15]
As earlier stated, Mr Trika’s notice of appeal did not clearly articulate any appeal grounds, so it is necessary to assess his appeal’s prospect of success by reference to his four principal contentions as we have identified them above. By his first contention, Mr Trika contends that the Deputy President erred in finding that, when residents were at home, generally two employees were rostered on and did not take into account that the house had one employee at times. At paragraph [25] of the Decision, the Deputy President found as follows:
“When the residents are at home at Keystone that are generally two staff rostered on. During peak periods (e.g. dinner) two staff are required.”
At paragraph [107] of the Decision the Deputy President said:
“The Applicant makes the point that two staff are not always rostered on and points to the Core Roster which shows ‘gaps’ in the roster each day where only one staff member is rostered. That is true and Ms Wright confirmed that the staffing levels were set according to resident needs which ordinarily fluctuate during the day, including because of external activities undertaken by residents such as work and education. She also made the point that the Core Roster was the minimum and could be supplemented if required, as occurred with the rostering of active night staff at Keystone. The Core Roster for Keystone did however have one consistent feature, that being the rostering of two staff in the early evening period each day between 5.00-7.30pm, that again reflecting the premium placed by the Respondent on providing greater support to Residents during that period of the day.”
We consider it is clear from the above that the Deputy President did, contrary to Mr Trika’s contention, take into account that the house had only one employee rostered at certain times. First, it is to be noted that the Deputy President’s finding at paragraph [25] of the Decision is that “generally” there are two staff rostered on. Secondly, that proposition is limited to times “when residents are at home”. Accordingly, the Deputy President’s findings regarding two staff members being rostered are qualified and clearly indicates that he is alive to the fact that it is not always the case that two staff members are rostered at the house. Thirdly, at paragraph [107] of the Decision the Deputy President specifically addresses the point raised on appeal, finding that it “is true” that there are times when only one staff member was rostered.
Accordingly, the first contention discloses no reasonably arguable case of appealable error and would be unlikely to attract the public interest such as to allow the grant of permission to appeal.
By the second contention, Mr Trika contends that the Deputy President erred in failing to consider that “peak periods” which require two staff members to be present were not limited to the evening dinner period. That contention is not reasonably arguably because it is clear from the Deputy President’s comments at paragraph [25] of the Decision set out above that he includes “dinner” as an example of a peak period when two staff members are rostered. Additionally, the contention has little relevance to the Decision since what was at issue before the Deputy President was whether Mr Trika’s conduct in leaving Keystone without authorisation on 10 February 2021 shortly after arriving for his sleepover shift at 5.00 pm was a valid reason for his dismissal. Accordingly, it was the early evening dinner peak period that was relevant to the Deputy President’s consideration of this conduct, not any other time of day. In this regard the Deputy President said:
“The Applicant’s sudden departure left Ms Miles to look after the residents by herself, including the resident who required one-on-one care, at the busiest time of the day due to meal preparation, meal serving and evening showers.[16]
…
…I am satisfied on the evidence that it is not for no good reason that two staff are rostered for the period 5.00-7.30 pm each evening. The fact that two staff are rostered in that period speaks to the acknowledged risk and resident support requirements. The fact that one of the residents had deteriorating health and higher care needs magnified the importance of the rostered staffing levels being present on shift.”[17]
For these reasons, the second contention would also be unlikely to attract the public interest such as to permit permission to appeal to be granted.
By his third contention, Mr Trika contends that in all the circumstances his conduct in leaving his shift early on 10 February 2021 without authorisation does not constitute serious misconduct warranting dismissal. This appeal ground again would be unlikely to attract the grant of permission to appeal. The Deputy President found that there was a valid reason for Mr Trika’s dismissal pursuant to s 387(a), and it is well established that the criterion for a valid reason for dismissal relating to an employee’s conduct is not whether there was “serious misconduct” either justifying summary dismissal at common law or within the meaning of reg 1.07 of the Fair Work Regulations 2009.[18] The issue of “serious misconduct” was only taken in to account in the Decision under s 387(h) because clause 8(viii) of Schedule C of the Agreement authorises summary dismissal in the case of serious misconduct as defined in reg 1.07 and Mr Trika submitted that his summary dismissal was harsh because his conduct did not meet this definition. The Deputy President rejected this submission, finding that Mr Trika’s conduct constituted serious misconduct as defined in reg 1.07 because it was wilful and deliberate and caused serious and imminent risk to the health and safety of the residents of Keystone.[19]
As to the wilful and deliberate nature of the conduct, the Deputy President found that Mr Trika acknowledged his understanding of his obligations under the respondent’s Code of Conduct and applicable policies and made several concessions as to his failure to comply with various obligations in those documents when he left the house on 10 February 2021. The Deputy President found Mr Trika’s explanation for his conduct to be either unconvincing or confected.[20] As to the risk to the health and safety of the residents of Keystone, the Deputy President found that although four of the residents were reasonably independent, they still required support particularly during the busy early evening period between 5.00 pm and 7.00 pm. Added to this was the high care needs of one resident with dementia who required one-on-one care at times, particularly in respect of toileting.[21] The Deputy President found it “unarguable” in his view that leaving five vulnerable residents in the house supported by one staff member at the busiest time of the day, when one of the residents required on-on-one care, posed a serious and imminent risk to the residents’ health and safety. Further, the Deputy President found that Mr Trika was well aware of that risk, having identified it himself in an email to the Operations Manager on 1 September 2021.[22]
The above findings upon which the Deputy President based his conclusion that Mr Trika had engaged in serious misconduct, as defined, were not the subject of any specific challenge in Mr Trika’s notice of appeal or submissions, as far as we can discern. We consider that those findings, on any reasonable view, justify the Deputy President’s conclusion, and we do not consider any contention otherwise to be reasonably arguable.
As to the circumstances surrounding Mr Trika’s conduct, at paragraph [108] of the Decision the Deputy President said:
“The Applicant seeks to justify his abrupt departure from Keystone based on a range of reasons including his having been tired from interrupted sleep on the previous sleep over shift, he was not mentally well, the absence of clear rules as to staff responsibilities on each shift and Ms Miles[’] constant bullying of him.”
The Deputy President then addressed each of these matters in paragraphs [108]-[114] of the Decision, concluding as follows:
“I am not persuaded that the reasons advanced by the Applicant justify his conduct on 10 February 2021. The Applicant was engaged to provide a service to vulnerable residents of Keystone and was required to attend shifts for which he was rostered. According to his own evidence he was a disability support worker of considerable experience. His departure from the shift shortly after arrival showed a lack of regard for the residents and for his colleague Ms Miles. In leaving abruptly without relief or approval he could not have been certain that shift replacement could have been deployed quickly. It placed the residents and Ms Miles at an increased health and safety risk in circumstances where one resident required one-on-one care at times, a point the Applicant was well aware of having specifically raised concerns with Ms Wright on 1 September 2020 regarding a fall of that resident.
The fact that residents of Keystone may have been upset by the Applicant’s hasty and unexplained departure, of which there was some evidence, appeared to have also played no part in the Applicant’s poor decision making on 10 February 2021. That he belatedly acknowledges that point seems more a matter of convenience for the purpose of these proceedings. His departure was unprofessional and inconsistent with a range of obligations he had under both the Code of Conduct and the SIL and STAA Services Practice Manual which are summarised above at [15]-[16] and relevantly includes minimising harm to residents, following safe work practices, avoid conduct that creates risk to residents, respect for colleagues and residents, working co-operatively with colleagues, attending at work for rostered hours and not being absent during rostered hours without approval.”[23]
Accordingly, the circumstances surrounding Mr Trika’s conduct on 10 February 2021 were considered by the Deputy President. He found they did not justify or excuse Mr Trika’s conduct. We consider that no contention of no error in respect of the Deputy President’s approach to this matter is reasonably arguable.
The fourth contention is likewise not reasonably arguable. Having regard to the Deputy President’s characterisation of the conduct which founded Allegation 1, as set out above, we do not consider that it is reasonably arguable that this allegation alone could not have sustained a finding that Mr Trika’s dismissal was not unfair.
There is nothing else in the appeal which satisfies us that it would be in the public interest to grant Mr Trika permission to appeal. The appeal does not raise any issue of importance or general application, was based on the particular factual circumstances before the Deputy President, and the Decision does not manifest any injustice.
Having regard to the nature of Mr Trika’s contentions in his appeal, we do not consider that would be likely to be upheld if time were extended and, indeed, would not permit satisfaction that the grant of permission to appeal would be in the public interest. This weighs against the grant of an extension of time to lodge the appeal.
Prejudice to the respondent
The grant of an extension of time would not cause forensic prejudice to the Respondent. We regard this in the circumstances as a neutral consideration.
Disposition
The absence of an acceptable explanation for the delay in lodging the appeal and the appeal’s lack of any reasonable prospects of success weigh heavily against allowing a further period of time within which to lodge the appeal. The fact that the delay was short does not outweigh this, since no purpose would be served by allowing an extension of time for an appeal which is doomed to failure.
We therefore conclude that, in all the circumstances, the interests of justice do not favour Mr Trika being granted an extension of time.
An extension of time to file the appeal is refused. Mr Trika’s appeal is therefore incompetent and is dismissed.
VICE PRESIDENT
Appearances:
J Trika, the Appellant, in person.
N Harrington of Counsel for the Respondent.
Hearing details:
2022.
Sydney and Melbourne via video link:
7 June.
[1] [2022] FWC 749
[2] PR740017
[3] [2022] FWC 749 at [102]
[4] Ibid at [117]
[5] Ibid at [128]
[6] [2019] FWCFB 815
[7] [2014] FWCFB 4822
[8] Brisbane South Regional Health Authority v Taylor [1996] HCA 25, 186 CLR 541
[9] [1994] HCA 23, 121 ALR 148 at p 150
[10] This is so because on appeal the Commission has the power to receive further evidence pursuant to s 607(2) of the FW Act; see Coal and Allied v AIRC [2000] HCA 47, 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ
[11] Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54, 192 FCR 78, 207 IR 177 at [43] per Buchanan J (with whom Marshall and Cowdroy JJ agreed)
[12] 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]
[13] GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, 197 IR 266 at [27]
[14] Wan v AIRC [2001] FCA 1803, 116 FCR 481 at [30]
[15] 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]
[16] [2022] FWC 749 at [43]
[17] Ibid at [106]
[18] Sydney Trains v Gary Hilder[2020] FWCFB 1373 at [26]; Gelagotis v Esso Australia Pty Ltd[2018] FWCFB 6092 at [117]; Titan Plant Hire v Van Malsen[2016] FWCFB 5520, 263 IR 1 at [28]; Sharp v BCS Infrastructure Support Pty Limited[2015] FWCFB 1033 at [25]-[35]
[19] [2022] FWC 749 at [158]
[20] Ibid at [155]
[21] Ibid at [156]
[22] Ibid at [157]
[23] Ibid at [115]-[116]
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