Jeremy Snyder v Helena College Council, Inc. T/A Helena College
[2019] FWCFB 7398
•25 OCTOBER 2019
| [2019] FWCFB 7398 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.603—Application to vary or revoke a FWC decision
Jeremy Snyder
v
Helena College Council, Inc. T/A Helena College
(C2019/3816)
DEPUTY PRESIDENT CLANCY | MELBOURNE, 25 OCTOBER 2019 |
Section 603 of the Fair Work Act 2009 (Cth) – Application to revoke a decision of a Full Bench of the Fair Work Commission – application dismissed.
[1] On 13 June 2019, Mr Jeremy Snyder (Mr Snyder) filed a Form F1 – Application form, making application pursuant to s.603(2)(b)(i) of the Fair Work Act 2009 (the Act) to revoke four previous decisions of the Commission. This is the fourth occasion upon which Mr Snyder has sought review of a decision that refused his application for an extension of time within which to lodge his application for an unfair dismissal remedy, so it necessary to outline the background to this current application.
Background
[2] On 27 July 2018, Commissioner Gregory issued a decision 1 (the Decision) in which he refused the application of Mr Snyder for an extension of time within which to lodge his application for an unfair dismissal remedy.
[3] Mr Snyder sought permission from this Full Bench to appeal the Decision (the First Appeal). On 20 December 2018, we issued a decision 2 refusing permission for Mr Snyder to appeal (First Appeal Decision).
[4] On 16 January 2019, Mr Snyder lodged a second Notice of Appeal against the Decision. This second appeal was filed outside the time period prescribed in the Fair Work Commission Rules 2013 (the Rules) and the application to extend time was heard by a separately constituted Full Bench of the Commission on 5 February 2019. In its decision 3 (Second Appeal Decision), that Full Bench was not persuaded that it was in the interests of justice to extend time to file the second appeal and refused Mr Snyder’s application.
[5] On 12 February 2019, Mr Snyder filed a Form F1 – Application form, making application pursuant to s.603(2)(b)(i) of the Act for the First Appeal Decision to be revoked (First Revocation Application) and for reconsideration of his appeal against the Decision, taking into account all submissions made by him and Helena College Council, Inc. T/A Helena College (the Respondent).
[6] On 11 June 2019, this Full Bench dismissed the First Revocation Application (Revocation Decision), 4 declining to exercise the discretionary power in s.603(2)(b)(i) of the Act to vary or revoke the First Appeal Decision.
[7] As outlined above at [1], on 13 June 2019, Mr Snyder filed a Form F1 – Application form, making a second application pursuant to s.603(2)(b)(i) of the Act (Second Revocation Application) seeking the revocation of each of the:
a) The Decision;
b) The First Appeal Decision;
c) The Second Appeal Decision; and
d) The Revocation Decision.
[8] Following the allocation of the Second Revocation Application to us by the President of the Commission on 27 June 2019 for hearing and determination, Mr Snyder filed a Form F1 – Application form on 15 July 2019, making application that we not hear and determine the Second Revocation Application due to a reasonable apprehension of bias (Recusal Application). In that document, Mr Snyder outlined the grounds for the Recusal Application.
[9] In support of the Second Revocation Application, Mr Snyder filed submissions dated 17 July 2019, 24 July 2019 (by way of an email) and 25 July 2019. The Respondent filed submissions dated 24 July 2019
[10] Additionally, on 17 July 2019, the Respondent made application pursuant to s.596 of the Act to be represented by a lawyer for the purposes of the Second Revocation Application. This was opposed by Mr Snyder.
[11] The matter was listed for a hearing before us on 5 August 2019. On 26 July 2019, we advised the parties that at the hearing:
1. We would hear any oral argument from the parties and then determine the Respondent’s application pursuant to s.596 of the Fair Work Act 2009 to be represented by a lawyer; then
2. We would hear any oral argument in relation to theRecusal Application, after which we would adjourn to consider that particular application. We further advised that if we considered we were in a position to determine theRecusal Application on 5 August 2019, we would proceed to do so; and
3. If we determined we should recuse ourselves, we would advise the parties and the Second Revocation Application would then be allocated to another Full Bench; but
4. If we determined we would not recuse ourselves on 5 August 2019, we would proceed to hear the parties’ oral argument in support of the written submissions they have filed in relation to the Second Revocation Application.
Hearing on 5 August 2019
[12] At the hearing, we firstly dealt with the Respondent’s application for permission, under s.596 of the Act, to be represented by Mr Michael Jensen. We were satisfied that the matter was invested with sufficient complexity such that we would be assisted in the efficient conduct of the matter if we allowed the Respondent to be represented by Mr Jensen. We decided to exercise our discretion to grant permission pursuant to s.596(2)(a) of the Act.
[13] We then heard argument from the parties in relation to the Recusal Application before adjourning to consider their submissions, together with the contents of the Form F1 – Application form filed by Mr Snyder on 15 July 2019. When the hearing resumed, we delivered our decision.
[14] We advised the parties we did not accept there was a basis for concluding that a fair-minded, lay observer might reasonably apprehend that we might not bring an impartial mind to the resolution of the questions we are required to determine in the Second Revocation Application. We also rejected the submission made by Mr Snyder that we had a personal interest in the outcome of the Second Revocation Application because its outcome would reflect on our professional capacity as members of the Commission because we considered a fair minded observer would recognise that a professional decision-maker is capable of departing from an earlier expressed opinion.
[15] Having dismissed the Recusal Application, we advised the parties that we would then proceed to determine the Second Revocation Applicationon the basis of the oral argument they proposed to make in addition to the written submissions they had previously filed in the Second Revocation Application and references, where relevant, to written material from the prior proceedings. Having heard from the parties, we reserved our decision and adjourned the proceeding. Our decision and reasons are outlined below.
Consideration
[16] Section 603 of the Act relevantly provides:
“603 Varying and revoking the FWC's decisions
(1) The FWC may vary or revoke a decision of the FWC that is made under this Act (other than a decision referred to in subsection (3)).
Note: If the FWC makes a decision to make an instrument, the FWC may vary or revoke the instrument under this subsection (see subsection 598(2)).
(2) The FWC may vary or revoke a decision under this section:
(a) on its own initiative; or
(b) on application by:
(i) a person who is affected by the decision; or
(ii) if the kind of decision is prescribed by the regulations--a person prescribed by the regulations in relation to that kind of decision.”
[17] We consider the following principles in relation to s.603 of the Act can be discerned from the decision of the Full Court of the Federal Court in Minister for Industrial Relations for the State of Victoria v Esso Australia Pty Ltd (Esso): 5
a) Section 603 is applicable to the whole of the broad range of decisions which may be made by the Commission, other than those specified in s.603(3) of the Act; 6
b) This circumstance, together with provisions in the Act concerning the establishment of the Commission and the discharge of its functions, suggests that the power in s.603(1) should not be narrowly confined but should have a broad flexible operation; 7
c) The Act does contemplate that the Commission should have both the power to vary and revoke pursuant to s.603, and the power to determine matters on appeal pursuant to s.604; 8
d) There is no discernible basis upon which it could be concluded that the correction of error is solely within the preserve of s.604. On the contrary, it would be inconsistent with the relatively broad powers available under s.603 for the correction of error somehow to be carved out from its purview; 9
e) The fact that there might be a degree of overlap between s.604 and s.603 so that there might be scope to deploy each to achieve the same practical result does not alter the position; 10
f) The discretionary power in s.603(1) to vary or revoke a decision is not cast in terms of a power to be exercised only in particular stated events or circumstances and, apart from the decisions that are excluded by s.603(3), the power is not subject to any other express limitations; 11
g) There may be circumstances in which the discretionary power under s.603 properly should not be exercised because the applicant for the order is a person who is aggrieved by the decision and should pursue an appeal under s.604; 12 and
h) However, the fact that one can contemplate the existence of a range of potential circumstances in which the discretionary power under s.603 might properly not be exercised does not warrant the implication of arbitrary limits on the power itself. 13
[18] Mr Snyder asserts the Commission has failed on multiple occasions to consider and determine which industrial instrument applied to his employment despite it being a significant underlying issue in relation to the reason for his delay in making his application for an unfair dismissal remedy and the merits of that application. Mr Snyder’s position is that the Respondent misrepresented which were the applicable industrial instruments during his employment and then provided false information to the Commission regarding them. Mr Snyder submits the delay in him making his application for an unfair dismissal remedy should have been considered through the prism of the Respondent having misrepresented which were the applicable industrial instruments, rather than there having been a misunderstanding on his part. The premise of the Second Revocation Application is that the Respondent has placed incomplete and false information before the Commission, upon which the various decisions are based.
[19] In the Decision, the Commissioner considered the delay and drew a distinction between the period before the Respondent raised a jurisdictional objection to the application made by Mr Snyder to the Western Australian Industrial Relations Commission (WAIRC) and the period after. 14 In the First Appeal Decision, we found it was open to conclude the Commissioner accepted Mr Snyder’s reason for the delay up until the time the Respondent raised its jurisdictional objection to Mr Snyder’s WAIRC application.15 It was clear however, from the Commissioner’s ultimate conclusion, that he nonetheless considered Mr Snyder had not provided an acceptable reason for the delay and this weighed against a finding of exceptional circumstances. In particular, the Commissioner’s findings were:
“[40] Mr Snyder was also made aware on 9 March 2018 that the College was of the view that he had made application in the wrong jurisdiction. However, he continued to allow the matter to be progressed in the State Commission and participated in a conference with the College on 22 March to explore whether some agreed resolution of the dispute could be arrived at. Mr Snyder only then made application to the Federal Commission when that conference process proved to be inconclusive.
[41] I am satisfied in response that it would have been prudent, and perhaps expected, that Mr Snyder would have made application to the Federal Commission as soon as he became aware that the College was taking issue with his ability to pursue the application in the WAIRC. However, Mr Snyder agreed to let that process play out, despite being aware that the College had raised a jurisdictional objection to the State Commission’s ability to deal with his application. If he had made application to the Federal Commission as soon as he became aware of the jurisdictional objection his application would still have been lodged out of time…
…
[49] I have had regard to all of the circumstances involved in this matter, together with the considerations in s.394 that I must take account of. In conclusion, I am not satisfied that “exceptional circumstances” exist to warrant an extension of time being granted to Mr Snyder in which to make application. It is acknowledged that he made application to the WAIRC on the basis of a mistaken belief that it was the appropriate jurisdiction in which to pursue his unfair dismissal claim. However, I am also satisfied that he should have been alerted to the fact he may have made application in the wrong jurisdiction when the jurisdictional objection was made to his application by the College on 9 March of this year. However, he decided to let that process play out, and only made the present application when the processes before the State Commission had been exhausted. It also appears that nothing prevented him from making application to the Fair Work Commission at any time, including immediately after 10 March of this year…” 16
[20] In the First Appeal Decision, we dealt with the period of time after Mr Snyder became aware of the Respondent’s jurisdictional objection at [50]-[63], finding the Commissioner’s conclusion was reasonable. We were not persuaded that the Commissioner had erred in ultimately concluding Mr Snyder had failed to provide an acceptable explanation for his delay after having received the Respondent’s jurisdictional objection, and that this weighed against a finding of exceptional circumstances. We dealt with this period of time again in the Revocation Decision, outlining our conclusion at [63]-[65]. Nowhere does Mr Snyder dispute that on and from 12 March 2018, he was aware of the Respondent’s jurisdictional objection to the application he made to the WAIRC.
[21] Mr Snyder also challenges the various findings that have previously been made in relation to the assessment of the merits of his application for an unfair dismissal remedy. He asserts that the determination of the question of whether his dismissal was a case of genuine redundancy has to occur with consideration being given to the applicable industrial instrument and its redundancy consultation provisions. Mr Snyder submits this has not occurred to date.
[22] The Commissioner’s finding in relation to the merits of Mr Snyder’s unfair dismissal application was:
“…it is difficult to conclude, based on the materials now before the Commission, that Mr Snyder’s case has significant merit. There were a number of discussions held with him after it was decided that the maintenance of a full-time position could not be justified. He was also provided with some options in these circumstances. While it is accepted that Mr Snyder did not necessarily agree with the rationale for what was being proposed this does not mean that the College’s decision, and the processes put in place as a consequence of that decision, were necessarily misconceived or unwarranted.” 17
[23] Having regard to this, we concluded in the First Appeal Decision:
“[75] Reading the Decision as a whole, we do not consider the Commissioner erred in his consideration of the merits of Mr Snyder’s application that he has been unfairly dismissed. The approach the Commissioner adopted was appropriate for the consideration of the merits in an application for an extension of time. The Commissioner did not have the benefit of hearing all the evidence but he nonetheless considered the material before him and his conclusion, that it was difficult to conclude that Mr Snyder’s case has significant merit, was open to him.
[76] We are not persuaded the Commissioner erred in his assessment of the material before him or in his conclusion that Mr Snyder’s case lacked significant merit. No error is disclosed in respect of Mr Snyder’s second ground of appeal and we reject it.” 18
[24] In the Second Appeal Decision, the Full Bench was not persuaded the Commissioner erred in law by not applying what Mr Snyder asserted was “the accepted test of whether an application has ‘no merit’”. The Full Bench concluded:
“The consideration in s.394(3)(e) does not invite a binary assessment; rather, the merit of the substantive application will fall somewhere on a continuum from no merit to substantial or overwhelming merit. An absence of significant merit will generally sound against a finding of exceptional circumstances.” 19
[25] In the Revocation Decision, we summarised Mr Snyder’s various submissions going to the merits of his unfair dismissal application and outlined our conclusions at [66]-[75]. In both the Revocation Decision and the First Appeal Decision we were satisfied the parties engaged in discussions and correspondence regarding Mr Snyder’s redundancy. Mr Snyder now lays complaints about the process and takes issue with our conclusion that the discussions and correspondence passing between the parties culminated in the Respondent acceding to his request for matters to be resolved by close of business on 25 January 2018 and for Mr Snyder to receive seven weeks’ pay in lieu of notice, 2.1 weeks’ holiday pay and six weeks’ redundancy pay. However, this conclusion is consistent with the statement in Mr Snyder’s submissions dated 17 July 2019 that, at that moment, he was satisfied.
[26] Esso establishes that our discretionary power under s.603is broad and, apart from the decisions that are excluded by s.603(3), not subject to any other express limitations. It is said that the power in s.603(1) should have a broad, flexible operation. This goes to the availability of power, not the circumstances in which it should, as a matter of discretion, be exercised.
[27] We do not, however, consider it would be a proper exercise of the discretionary power under s.603 of the Act to now vary or revoke the Decision because Mr Snyder has already exercised his right to pursue an appeal against it under s.604 of the Act and then sought revocation of the First Appeal Decision.
[28] Further, we consider the Second Revocation Application amounts to an attempt by Mr Snyder to appeal three Full Bench Decisions with re-casted arguments. The Act does not provide for appeal of a decision of a Full Bench of the Commission to another Full Bench. Instead, a person aggrieved by a decision of a Full Bench of the Commission may seek judicial review of the decision in the Federal Court of Australia, pursuant to s.39B of the Judiciary Act 1903 (Cth) and ss.562 and 563 of the Act. We also point out that the Full Court in Esso identified overlap between ss.603 and 604 of the Act but did not in any way suggest that separate proceedings should lie under each provision to prosecute the same arguments.
[29] We decline to exercise the discretionary power under s.603 of the Act in circumstances where this Full Bench and another Full Bench of the Commission have found no error in the Commissioner’s approach to the consideration of the merits of Mr Snyder’s unfair dismissal application in either the two appeal proceedings or the First Revocation Application and in circumstances where we have found the Commissioner has not erred in concluding Mr Snyder failed to provide an acceptable explanation for his delay in making the unfair dismissal application. We consider the proper course for Mr Snyder, if he remains aggrieved by the Full Bench decisions, is to seek judicial review in the Federal Court of Australia.
[30] In summary, we reject the premise of the Second Revocation Application that each Commission decision is based on incomplete or false information and decline to exercise the discretionary power in s.603(1) of the Act to vary or revoke any of:
a) The Decision;
b) The First Appeal Decision;
c) The Second Appeal Decision; and
d) The Revocation Decision.
[31] We dismiss the Second Revocation Application.
DEPUTY PRESIDENT
Appearances:
J Snyder on his own behalf
M Jensen (Solicitor) for Helena College Council, Inc. T/A Helena College
Hearing Details:
2019.
Melbourne:
5 August.
Printed by authority of the Commonwealth Government Printer
<PR713733>
1 [2018] FWC 4432.
2 [2018] FWCFB 4734.
3 [2019] FWCFB 815.
4 [2019] FWCFB 3992.
5 [2019] FCAFC 26.
6 Ibid at [33].
7 Ibid at [34].
8 Ibid at [72].
9 Ibid.
10 Ibid.
11 Ibid at [73].
12 Ibid at [74].
13 Ibid, citing FAI General Insurance Co Ltd v Southern Cross Exploration NL [1988] HCA 13; (1988) 165 CLR 268 at 283-4 (Wilson J).
14 [2018] FWC 4432 at [41] and [49].
15 [2018] FWCFB 4734 at [49].
16 [2018] FWC 4432 at [40], [41] and [49].
17 Ibid at [47].
18 [2018] FWCFB 4734 at [75]-[76].
19 [2019] FWCFB 815 at [38].
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