Jeneille Harris v Westpac Banking Corporation t/as Westpac
[2016] FWCFB 4894
•27 JULY 2016
| [2016] FWCFB 4894 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s 604—Appeal of decision
v
Westpac Banking Corporation t/as Westpac
(C2016/3668)
DEPUTY PRESIDENT SAMS | SYDNEY, 27 JULY 2016 |
Appeal against decision [[2016] FWC 2370] of Deputy President Kovacic at Melbourne on 14 April 2016 in matter number U2015/13838 – medical evidence – no arguable case of appellable error – public interest not enlivened – permission to appeal refused.
BACKGROUND
[1] This decision will determine an application for permission to appeal in relation to a Notice of Appeal, filed by Ms Jeneille Harris (the ‘appellant’) against a decision of Deputy President Kovacic on 14 April, 2016; see: Jeneille Harris v Westpac Banking Corporation [2016] FWC 2370 (the ‘Decision’). The effect of the Deputy President’s Decision was to refuse the appellant an extension of time to lodge an unfair dismissal application, pursuant to s 394 of the Fair Work Act 2009 (the ‘Act’). Shortly stated, the appellant contends that the termination of her employment by Westpac Banking Corporation (‘Westpac’ or the ‘respondent’) on 23 September 2015 was unfair. Westpac maintains that the appellant was dismissed for a valid reason relating to her poor performance as a Bank Manager.
[2] The appeal was listed before the Full Bench, for permission to appeal only, on 12 July 2016. Both parties were represented by lawyers, with permission being granted, by the Full Bench, pursuant to s 596 of the Act. Mr S Banovich represented Ms Harris and Ms S Bowman represented Westpac.
[3] Section 394(2) of the FW Act requires an unfair dismissal remedy application to be lodged within 21 days after the dismissal took effect, or within such further period as the Commission allows under s 394(3). Section 394(3) provides:
(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] There is no dispute that the appellant was dismissed on 23 September 2015 and that she lodged her application for an unfair dismissal remedy on 23 October 2015. Consequently her application was filed nine days out of time. Accordingly, this required the Commission to consider whether there were ‘exceptional circumstances’, taking into account the matters in s.394(3) of the FW Act, warranting the exercise of the discretion to allow a further period under s.394(2) within which the application could be made.
DECISION UNDER APPEAL
[5] The appellant’s reasons for the delay in filing her application were as follows:
- her bad fortune in not being able to obtain the assistance of her preferred legal advisor despite her various efforts to contact him;
- her lack of knowledge of the 21 day time limit for making an unfair dismissal application; and
- having to care for her ill granddaughter for the period 9 to 17 October 2015 [endnotes omitted].’
‘ her poor health as a result of depression and anxiety from the time of her dismissal to 23 October 2015 and beyond;
[6] The Deputy President recorded key aspects of Ms Harris’ oral evidence and Westpac’s response at paras [13] and [14] of his Decision as follows:
- she could not get anything done while she was looking after her granddaughter;
- she agreed that there was nothing in the clinical notes from her doctor saying that she could not file her application;
- she similarly agreed that the medical certificate she provided did not say that she was not able to seek legal advice or visit the Commission;
- during the period 23 September to 23 October 2015 she only used the internet to access her emails, adding that she would become nauseous when she tried to do research;
- she had problems with her computer during this period; and
- no one advised her of the 21 day timeframe for making an unfair dismissal application.
- Ms Harris had not provided any compelling medical evidence which would support her assertion that she could not make her application within the statutory timeframe as a result of her illness, adding that the WorkCover Progress certificate provided did not certify that Ms Harris’ illness prevented her from preparing and filing her application within 21 day timeframe;
- Ms Harris’ evidence established that her illness did not prevent her from attempting to contact lawyers regarding her dismissal and that as such she would also have not been prevented from making enquiries with the Commission and/or lodging her application;
- Ms Harris could not rely on her ignorance of the rights available to her to contest her dismissal as a valid reason for the delay in lodging her application;
- there was no evidence that Ms Harris had received advice from her solicitor that an unfair dismissal application could be filed and that there was a strict time limit;
- there was no evidence that Ms Harris had instructed her solicitor to make an application;
- it appears that Ms Harris merely made attempts to arrange a consultation with her solicitor; and
- Ms Harris had not provided any medical or other evidence to support her assertion that she was required to care for her granddaughter between 9 and 17 October 2015, adding that even if this period was accepted it did not provide an explanation for the entire period of the delay in lodging her application [endnotes omitted].’
‘ she did not seek a doctor’s advice regarding her granddaughter’s illness;
Westpac submitted that:
[7] The Deputy President then analysed the evidentiary material filed by the appellant as follows:
- the medical certificate and consultation notes provided and/or prepared by Dr Farquhar similarly gave no indication as to the extent, if any, of Ms Harris’s incapacity;
- Ms Harris contacted her preferred legal advisor, Mr Steve Heathcote – a barrister and solicitor, on 23 September 2015 seeking advice and was advised later that day that he was unable to take any more work at that time;
- in responding, Mr Heathcote provided Ms Harris with several names of other legal practitioners who she may wish to contact to seek advice;
- following a further exchange of emails with Mr Heathcote on 23 September 2015, Ms Harris responded that she was willing to wait until Mr Heathcote could represent her unless there was a time limit on filing a case on her behalf; and
- Mr Heathcote did not advise Ms Harris of the 21 day timeframe [endnotes omitted].’
‘ the correspondence from Ms Harris’ treating doctor, Dr Graham Farquhar, does not express a view as to what, if any, extent Ms Harris was incapacitated over the period 23 September to 23 October 2015, though the letter does state “She admitted feeling quite incapacitated by her Depression especially as she was accustomed to living on a daily basis in a High Functioning Profession”;
[8] From this analysis, it is clear that the Deputy President did not accept the medical evidence relied upon by the appellant, in particular a letter from Ms Harris’ treating doctor, dated 7 December 2015(Exhibit B2) and the Doctor’s consultation notes of 23 October 2015 (Exhibit 4), because the evidence did not explain the extent of the appellant’s incapacity or that her illness precluded her from lodging her unfair dismissal application within 21 days. His Honour also rejected the appellant’s explanations concerning the care of her granddaughter and her lack of knowledge of the 21 day time period. The Deputy President said:
‘Taken together, the above considerations do not point to the existence of exceptional circumstances.’
[9] As to the other factors to be considered by the Commission under s 394(3) of the Act, the Deputy President found ss (b) (d) (e) and (f) were neutral considerations and that the only action taken by the appellant to dispute her dismissal (sub-section (c)) was to arrange a meeting with a solicitor before the late filing of her unfair dismissal application.
[10] After citing the decision of the Full Bench in Cheyne Leanne Nulty v Blue Star Group (2011) 203 IR 1 (Nulty), the Deputy President concluded:
‘Having considered all of the factors set out in s.394(3) of the Act, and drawing on the decision in Nulty, I am not satisfied that there are exceptional circumstances warranting the granting of further period for the making of an application for an unfair dismissal remedy.’
SUBMISSIONS ON APPEAL
[11] In written submissions, Mr Banovich put that the Deputy President inadvertently fell into error by concluding that the medical evidence, being Dr Farquar’s letter of 7 December 2015 and his consultation notes of 23 October 2015, did not express a view, or give an indication, as to the extent of the appellant’s incapacity due to illness between 23 September to 23 October 2015. It was also submitted that the Deputy President did not consider the appellant’s evidence as to her own incapacity. It was said that, when viewed cumulatively, these errors of fact were significant.
[12] When citing the apposite authorities in relation to permission to appeal, Mr Banovich submitted that:
- the Deputy President’s analysis of the medical evidence was attended by sufficient doubt as to warrant reconsideration;
- the appellant will suffer a substantial injustice because of these errors of fact and by the Deputy President not giving greater weight to her own evidence of incapacity;
- the evidence of the severity of the appellant’s depression and anxiety required an inference to be drawn as to her incapacity;
- the Deputy President’s discretion miscarried as he mistook the facts and did not take material considerations into account; and
- the significant errors as to the acceptance of medical evidence has general application, in other similar matters where medical evidence is relied on, to demonstrate an explanation for not filing an unfair dismissal application within time.
[13] In oral submissions, Mr Banovich highlighted the significance of the medical evidence. The appellant had seen Dr Farquhar on three occasions during the relevant period – between 23 September and 23 October 2015 (25 September, 5 and 23 October). He highlighted the Doctor’s letter of 7 December 2015, which said, inter alia:
‘From 24/09/2015 she suffered a feeling of devastation and felt quiet (sic) overwhelmed by her situation.
She suffered constant low mood and was unable to focus with flitting thought process resulting in poor concentration. She became very anxious and overwhelmed. She was sleeping poorly with early morning awakening. She suffered Anergia and Anhedonia.
Biophysical effects included chronic headaches, bruxism, nausea and hot flushes.
Her only enjoyment during this period from 23/09/15 to 23/10/2015 was to look after her grandchild. This was engineered by her son in supportive way to act as an enjoyable distraction as he was very concerned at the state of her mental health.
She admitted feeling quiet incapacitated by her Depression especially as she was accustomed to living on a daily basis in a High Functioning Profession.’
[14] Mr Banovich submitted that this evidence was largelyunchallenged and the Deputy President mistook the facts as to the severity of her condition and symptoms. Mr Banovich identified excerpts from transcript to demonstrate the appellant’s own view as to her incapacity to function properly. He reiterated that cumulatively, all this evidence demonstrated that the Deputy President had mistaken the facts and not taken material considerations into account.
For Westpac
[15] In oral submissions, Ms Bowman put that there were no public interest considerations arising from the appeal and the appellant had failed to demonstrate any significant error of fact in the evaluation by the Deputy President of the medical evidence. On the contrary, it is clear that the Deputy President carefully considered all the evidence and weighed it up as a whole.
[16] Ms Bowman relied on a number of authorities which support the proposition that a failure to properly consider medical evidence is not enough for the public interest to be engaged; See: Khoury v Rockdale Family Medical Centre [2016] FWCFB 3566, Underwood v Terra Firma Pty Ltd T/A Terra Firma Business Consulting [2015] FWCFB 3435; Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 and Noske v Interact Australia (Victoria) Limited T/A Interact Australia [2016] FWCFB 3563. Ms Bowman put that what the appellant is seeking to do here is to re-run her case on appeal, in the hope of securing a different result. The Deputy President properly assessed all of the evidence. There were no public interest considerations, no significant errors of fact and therefore the appeal should be dismissed.
CONSIDERATION
[17] Section 604 of the Act reads as follows:
604 Appeal of decisions
(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.
[18] 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; See: Coal and Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ. There is no right to appeal and an appeal may only be made with the permission of the Commission.
[19] 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.
[20] In the Federal Court Full Court decision in Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 (‘Coal and Allied Mining Services’) at para [43], Buchanan 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; See: 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, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services at paras [44]-[46]. In GlaxoSmithKline Australia Pty Ltd v Makin (2010) 197 IR 266; [2010] FWAFB 5343 (‘GlaxoSmithKline’), a Full Bench of the Commission identified some of the considerations that may attract the public interest at para [27]:
‘... 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.”
[21] 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; Wan v Australian Industrial Relations Commission (2001) 116 FCR 481. 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; See: GlaxoSmithKline at paras [26]-[27]; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089 and NSW Bar Association v McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663 at para [28].
[22] In relation to extensions of time to lodge applications under s 394(3) of the Act, the test of ‘exceptional circumstances’ establishes a ‘high hurdle’ for an applicant for an extension, and a decision as to whether to extend time under s 394(3) involves the exercise of a broad discretion; See: Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288 at para [21]. 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 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 King (1936) 55 CLR 499 – 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.
[23] The Deputy President’s primary finding was that the appellant’s medical evidence did not provide any indication as to the state of her incapacity or that her illness precluded her from lodging her unfair dismissal application within the 21 day statutory time frame. We are not satisfied that there is an arguable case of error in relation to this finding. We would wish to observe that:
a) nowhere in the medical evidence is there a medical conclusion that the appellant’s cognitive function was affected to the extent that it prevented her from lodging her unfair dismissal application within time;
b) the Deputy President balanced the medical evidence with the facts that the appellant was able to care for her grandchild and make contact with solicitors during the relevant period; and
c) the appellant’s late application was filed on the same day as she saw Dr Farquhar and where he recorded her as ‘on Tender hooks [sic] and really upset Feels flat Horrible nervous energy which makes her full rundown Anhedonia Lack of Motivation’.
[24] In Underwood v Terra Firma Pty Ltd T/A Terra Firma Business Consulting [2015] FWCFB 3435 the Full Bench dealt with an appeal in a case where medical evidence was called in aid of a conclusion that the primary reason for the delay in filing an unfair dismissal application was an applicant’s depressive illness. At paragraphs [15] and [16] the Full Bench said:
‘Regarding the Appellant’s contentions surrounding his medical evidence, in Roberts the Applicant’s unfair dismissal application was filed some 22 days out of time and there wasmedical evidence which established the primary reason for the delay in filing the applicationrelated to Mr Robert’s depressive illness. Senior Deputy President O’Callaghan found that thecircumstances were exceptional for the purpose of s.394(3) and on that basis his Honour madean order extending the time within which the applicant could file his unfair dismissalapplication. The facts in the matter before us are quite different and the circumstances of eachcase must be considered in their own unique context. Roberts cannot be taken as authority for the proposition that in every case where the applicant is suffering from depression, exceptional circumstances will be found for the purposes of s.394(3) of the Act. …
…
We consider that the Deputy President properly considered the medical evidence at paragraphs [7]-[12] of the Decision and found that it did not positively demonstrate that the Appellant’s depressive illness had an impact on his mental capacity so as to prevent him from lodging the application within the 21 day time frame. At best, the letter recited the Appellant’s own assessment of his inability to have lodged the application within time.’
[25] In our opinion, the Deputy President’s decision carefully set out the basis for his conclusions and, after weighing up all the medical evidence with other relevant factors, came to the correct conclusion. We discern no arguable error in the Deputy President’s approach or outcome.
[26] As to the appellant’s granddaughter’s illness, the Deputy President found that this did not explain the whole of the period the application was delayed; See: Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers (2010) 197 IR 403 at 408-409. In addition, the Deputy President rejected Ms Harris’ submission that the reason for the delay was because she was unaware of the 21 day time limit; See: Cheyne Leanne Nulty v Blue Star Group [2011] 203 IR 1, at para [14]. These findings do not disclose any arguable error in the Decision.
[27] We do not apprehend that the appellant challenges the Deputy President’s findings as to the other matters required to be taken into account in sub-sections (b)-(f) of s s.394(3). Nevertheless, we note that the Deputy President appears to have properly addressed each of the factors required to be taken into account in sub-sections (b)-(f) of s.394(3) and made appropriate findings. Overall, the Deputy President’s careful approach to the specific requirements of s 394(3) appears to be entirely conventional and unremarkable, and no arguable case of error is disclosed.
[28] Further, we are not satisfied that this appeal raises issues of general importance and/or general application beyond the direct interest of the parties or that there is a diversity of decisions about this subject matter. There have been numerous decisions of the Commission, at Full Bench and single member level, as to the relevance of medical evidence when considering whether the reasons for delay on medical grounds provide an acceptable explanation or reason for the delay for the purposes of s 394(3)(a) of the FW Act. The legal principles are well settled and appear to have been applied by the Deputy President in an entirely thorough and orthodox fashion. There is no basis to revisit these principles disclosed in the appeal. To the extent that it is necessary to do so, we do not consider that it is arguable that the Deputy President’s decision manifests an injustice or that it is counterintuitive.
[29] For the reasons herein, we are not satisfied that the public interest is enlivened in this case.
[30] Permission to appeal is refused.
DEPUTY PRESIDENT
Appearances:
Mr S Banovich for the appellant
Ms Bowman for the respondent
Hearing details:
2016.
Sydney.
12 July.
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