Jeremy Snyder v Helena College Council, Inc. T/A Helena College
[2018] FWCFB 4734
•20 DECEMBER 2018
| [2018] FWCFB 4734 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Jeremy Snyder
v
Helena College Council, Inc. T/A Helena College
(C2018/4170)
DEPUTY PRESIDENT CLANCY | MELBOURNE, 20 DECEMBER 2018 |
Appeal against decision [2018] of Commissioner Gregory at Melbourne on 27 July 2018 in matter number U2018/3043.
Introduction
[1] On 27 July 2018, Commissioner Gregory issued a decision 1 (the Decision) in which he refused the application of Mr Jeremy Snyder (Mr Snyder) for an extension of time within which to lodge his application for an unfair dismissal remedy.
[2] Mr Snyder seeks permission to appeal the Decision.
[3] An appeal under s.604 of the Fair Work Act 2009 (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. 2 There is no right to appeal and an appeal may only be made with the permission of the Commission. The matter was listed for hearing in respect of both permission to appeal and the merits of the appeal.
Extension of Time
[4] It is necessary to say something about s.394 of the Act first, before turning to the Decision and the grounds of appeal.
[5] Section 394(2) of the Act provides that an application for an unfair dismissal remedy (an unfair dismissal application) must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (3).
[6] Section 394(3) sets out the circumstances in which the Commission may grant an extension of time, 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.”
[7] A decision whether to extend time under s.394(3) of the Act involves the exercise of a discretion, so much is clear from the use of the word “may” in s.394(3) of the Act. The discretion is only enlivened if the Commission is satisfied “that there are exceptional circumstances”. The test of “exceptional circumstances” establishes a “high hurdle” for an applicant seeking an extension of time. 3
[8] In determining whether there are “exceptional circumstances” the Commission is required to “take into account” the matters set out in ss.394(3)(a)-(f) of the Act. To take a matter into account means that the matter is a “relevant consideration” in the Peko-Wallsend 4 sense of matters which the decision maker is bound to take into account. The obligation to take into account the matters set out at s.394(3)(a)-(f) of the Act means that each of these matters, insofar as they are relevant, must be treated as a matter of significance in the decision making process.5 As Wilcox J said in Nestle Australia Ltd v Federal Commissioner of Taxation:6
“To take a matter into account means to evaluate it and give it due weight, having regard to all other relevant factors. A matter is not taken into account by being noticed and erroneously discarded as irrelevant.”
[9] Section 394(3) of the Act is in substantially the same terms as s.366(2) (save for the additional consideration in s.394(3)(b), which is absent from s.366(2)). The meaning of “exceptional circumstances” in s.366(1) of the Act was considered by a Full Bench of the then Fair Work Australia in Nulty v Blue Star Group Pty Ltd as follows:
“[13] In summary, the expression “exceptional circumstances” has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.
[14] Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance……..” 7
[10] Generally speaking, the assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances, because even though no one factor may be exceptional, in combination the circumstances may be regarded as exceptional. 8
[11] We now turn to the Decision which is the subject of the appeal.
The Decision
[12] We note at the outset that, while not contested before the Full Bench, it was a matter of dispute in the proceedings at first instance as to whether the date of dismissal was 25 January 2018. The Commissioner set out the evidence and submissions at [7] to [19] of the Decision before concluding:
“I am satisfied in response that it was originally intended when the letter of 23 January was sent to Mr Snyder that he would work out the notice period associated with him being made redundant. However, it was subsequently decided, and confirmed, in the letter of 25 January, that he would no longer be required to work out that notice period, and he would instead receive a lump sum payment in lieu of notice. I am satisfied that, as a consequence, Mr Snyder’s employment was terminated with effect from 25 January 2018. He was not required at work after that time and received a payment in lieu of notice at that time. His employment accordingly ended on that date.” 9
[13] Having reached the conclusion that Mr Snyder’s employment was terminated with effect from 25 January 2018, the Commissioner found that his unfair dismissal application was lodged well outside of the 21 day time period. The application for an unfair dismissal remedy was lodged on 22 March 2018, some five weeks late.
[14] The Commissioner then turned to consider each of the matters specified in s.394(3)(a) to (f) of the Act. At paragraphs [30] to [41], the Commissioner dealt with the reasons advanced by Mr Snyder for the delay in lodging his unfair dismissal application. Mr Snyder had submitted that the reason for the delay was because he initially made an application on 10 February 2018 to the Western Australian Industrial Relations Commission (WAIRC) as he believed the State Tribunal was the appropriate body. He said this was because he understood the College was covered by a State-based enterprise agreement. The College subsequently raised a jurisdictional objection to his application, which is indicated to have been received by the WAIRC on 9 March 2018.
[15] Mr Snyder also contended that the process of dealing with his application in the WAIRC was delayed because of the College’s tardiness in providing a response to the WAIRC and due to the advice of his Union representation to allow the matter to be dealt with by the WAIRC.
[16] As to the reasons for the delay, the Commissioner ultimately concluded, at [41] of the Decision:
“[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. However, that situation would have been more akin to the circumstances involved in the matter of RCR Engineering that he seeks to rely upon.”
[17] The Commissioner then dealt with the other relevant considerations and made the following findings:
• While Mr Snyder had suggested there was some doubt about when his dismissal took effect, the Commissioner was satisfied that date of his termination was 25 January 2018. The Commissioner found that while Mr Snyder might contend that there was some doubt about what the date of his termination was, the fact he lodged an unfair dismissal application with the WAIRC on 10 February 2018 suggested he was aware his employment had been terminated at that point in time (s.394(3)(b)).
• Mr Snyder took steps to dispute his dismissal by the application he first made to the WAIRC and the subsequent application he made to the Commission (s.394(3)(c)).
• The Commission was in no position to express any concluded view about the respective merits, given the submissions and evidence then before it. The Commissioner noted at paragraph [47] of the Decision that it was difficult to conclude, based on the materials then before the Commission, that Mr Snyder’s case had significant merit (s.394(3)(e)).
[18] The Commissioner’s conclusion is set out at paragraphs [49]-[51] of the Decision:
“[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. I have also had regard to the decisions of McCarthy DP that had been referred to which involve circumstances that are not dissimilar to those involved in the present matter.
[50] I am also satisfied for the reasons indicated that the date of Mr Snyder’s termination was 25 January 2018, and there cannot be said to be any genuine confusion about that date. Mr Snyder also proceeded to lodge his unfair dismissal application after that time suggesting he was also aware at that point that his employment had been terminated.
[51] I am satisfied, firstly, that Mr Snyder’s application was lodged outside of the 21 day time period. However, I am not satisfied in all the circumstances, and after having regard to the matters in s.394(3) that I must take into account, that exceptional circumstances exist to warrant the Commission exercising its discretion to extend time in which to make application. In coming to this decision I have had particular regard to the reasons for the delay and the merits of the application. The application is accordingly dismissed.” (Footnotes omitted)
Utility of Appeal
[19] The Full Bench raised with the parties a question as to the utility of the appeal; that of the implications of the timing of Mr Snyder’s filing of his application for an unfair dismissal remedy with the Commission on 22 March 2018 before the withdrawal of his application made for an unfair dismissal remedy in the WAIRC on 23 March 2018.
[20] Attention of the parties was drawn to ss.725, 729 and 732 of the Act which deal with multiple applications and the issue of whether the operation of those provisions in the present matter raised a question as to the utility of the appeal was put to them. Specifically, we asked the parties to address whether Mr Snyder’s unfair dismissal application made in the WAIRC, which was formally withdrawn on 23 March 2018, acted as a bar to Mr Snyder’s unfair dismissal application filed in the Commission on 22 March 2018 by reason of the operation of these sections of the Act and if so, whether the application in the Commission was or would be invalid if the appeal were successful, thus rendering the present appeal of the Decision futile.
[21] Directions were subsequently issued allowing for a further exchange of submissions by the parties in respect of the question of the utility of the appeal. Both parties filed submissions but we will firstly deal with the substantive grounds of appeal.
Grounds of appeal
[22] Notwithstanding his assertion that there were significant errors of fact, we discern from the grounds of appeal in Mr Snyder’s Notice of Appeal that his complaint is that the Commissioner failed to take material considerations into account, namely:
1) that he did not consider the question of the Respondent’s continued misrepresentation as to the applicable industrial instrument, based upon which Mr Snyder believed the Respondent was not a National System Employer, which was a significant factor in relation to both the reason for the delay (s.394((3)(a)) and the merits of the application (s.394((3)(e)); and
2) that having concluded that the effective date of dismissal was 25 January 2018, he did not consider the relevance of this date of dismissal to the reason given for the dismissal and hence to the merits of the case (s.394((3)(e)).
Appellant’s submissions
1) Reason for delay and merits considerations related to industrial instrument
[23] Mr Snyder contends that the Commissioner failed to have proper regard to the reason for the delay in the filing of his Application, that reason being Mr Snyder’s confusion as to whether the Respondent was a National System Employer. Further, Mr Snyder contends that the Commissioner did not have regard to the steps taken by Mr Snyder to clarify that confusion and the prompt action taken by him to file his Application with the Commission once he was able to overcome that confusion.
[24] Mr Snyder claims that the Respondent erroneously and negligently registered the Helena College Inc. Collective Agreement 2014 (the WA Agreement) with the Western Australian Industrial Relations Commission (WAIRC) even though it was a National System Employer. Further, according to Mr Snyder, the Respondent referred to the WA Agreement as the basis for his entitlements throughout his employment with the Respondent and also as the basis for his redundancy entitlements.
[25] Mr Snyder further asserts he was not provided with a copy of the Fair Work Information Statement or the Educational Services (Teachers) Award 2010 when he commenced employment with the Respondent, which he contends he ought to have received if, as the Respondent now maintains, it was a National System Employer at that time.
[26] Mr Snyder acknowledges that the Respondent raised a jurisdictional objection in its Form 5 – Notice to answer 10 (Form 5) filed on 9 March 2018 in response to his application for unfair dismissal relief in the WAIRC (WAIRC Application), that objection being that it was an “incorporated entity and is deemed to be a National System Employer”.
[27] Following receipt of the Form 5, Mr Snyder states that he sought legal advice, which was received on 14 March 2018. 11 Mr Snyder submits that while the advice received from his lawyer confirmed that it was likely that the Respondent was a National System Employer, which gave further weight to the Respondent’s response,12 he was unable to immediately believe that position in light of the contrary evidence of the WAIRC State industrial instrument and the State system status that the Respondent had represented itself as having, during his employment with the Respondent.
[28] Mr Snyder submits it is significant that the Respondent agreed to participate in the conciliation conference listed for 22 March 2018 in the WAIRC Application notwithstanding its jurisdictional objection raised in the Form 5. Mr Snyder submits that his confusion over the Respondent’s status was not resolved until the conciliation conference was conducted by the WAIRC on 22 March 2018. 13 He says that following that conference, he immediately filed his application in the Commission on 22 March 2018 and subsequently filed a Form F14 – Notice of withdrawal or discontinuance (Notice of Withdrawal) in respect of the WAIRC Application on 23 March 201814.
[29] Mr Snyder referred the Full Bench to and sought to rely on a number of Commission authorities including Mr Ricky King v Gourmet Beef Pty Ltd 15(Ricky King).
[30] In summary, Mr Snyder submits that his application to the WAIRC filed on 13 February 2018 16 was filed in error due to the Respondent’s misrepresentations that it was a WA State system employer and not a National System Employer. Further, he says he took reasonable steps to clarify the jurisdictional status of the Respondent once it had raised an objection to his WAIRC application on 9 March 2018 and prompt action to file his application in the Commission once his confusion was resolved on 22 March 2018. He contends that the Commissioner erred by failing to have proper regard to these considerations.
[31] The way in which Mr Snyder appeared to contend that the Respondent’s continued misrepresentation as to the applicable industrial instrument was a significant factor in relation to the merits of the application (s.394((3)(e)) was that prior to reaching a conclusion on the adequacy of the consultation undertaken in relation to the redundancy, it was necessary for the Commissioner to firstly determine the appropriate industrial instrument.
2) Merits of Application based on date of termination
[32] Mr Snyder contends that the Commissioner erred in finding “…it is difficult to conclude, based on the material before the Commission, that Mr Snyder’s case has significant merit.” 17 Mr Snyder submits that the Commissioner took into account the evidence until 10 January 2018 but did not consider that he accepted a reduction of hours on 11 January 2018 and it was the Respondent’s lack of consideration for his family circumstances thereafter that lead to it to terminate his employment.
[33] Mr Snyder submits the Commissioner failed to consider the implications of the date of his termination being brought forward from 16 March 2018 to 25 January 2018 and specifically, that his dismissal with immediate effect on 25 January 2018 undermined the alleged basis of his dismissal, that of a genuine redundancy.
[34] Mr Snyder refers to the sequence of correspondence exchanged between himself and the Respondent between 10 January 2018 and 25 January 2018 and specifically, correspondence from the Respondent on 10 January 18, 19 January19 and 23 January 2018,20 in which Mr Snyder’s date of termination is identified as 16 March 2018. He also points to the correspondence from the Respondent dated 25 January 2018,21 in which he was advised of his termination with immediate effect.
[35] Mr Snyder contends that the change in termination date was driven by a reason other than a genuine redundancy. He submits the reason for his termination was that he made a complaint about the Principal of the Respondent to the Head of the Respondent’s College Council 22 on 22 January 2018. Mr Snyder submits that the requirement imposed by the Respondent that he work out the notice period to 16 March 2018 was inconsistent with the stated reason for his redundancy, that being the reduction in required teaching hours for Term 1 in 2018.
[36] Mr Snyder contends the real reason for his dismissal was not that of genuine redundancy and this was not considered by the Commissioner, causing him to err in concluding his case lacked significant merit.
Respondent’s submissions
1) Reason for delay and merits considerations related to industrial instrument
[37] The Respondent rejects Mr Snyder’s submissions that it had misrepresented its status as a State based system employer rather than as a National System Employer. It refers to various correspondence and communications to bargaining representatives and staff during the negotiations for a new enterprise agreement during 2017 that it says made clear its status as a National System Employer, and of which, Mr Snyder was or ought to have been aware. There was some limited evidence to this effect at first instance. 23
[38] The Respondent also referred to a range of documents that appear not to have been put before the Commissioner:
• Email communication with bargaining representatives between June and October 2017, and copied to all staff, that identified the move from the State to federal system; 24
• A document provided by the Respondent to bargaining representatives at an EBA negotiation meeting on 17 October 2017 which conveyed information pertaining to the change in the registration of the next agreement from the WAIRC to the Commission and described the reason for the change as being that the Respondent was an “incorporated entity and deemed to be a ‘National System Employer.’”; 25
• Minutes of EBA bargaining meeting on 17 October 2017 which recorded a change from a WAIRC to Commission registered agreement. 26
[39] The Respondent submits that all staff were aware or ought to have been aware of the change in jurisdiction from the State to National system through a combination of direct and indirect communications during the course of bargaining for a new agreement. The Respondent submits that the Applicant’s assertion that he was confused regarding the appropriate jurisdiction was not substantiated and fails to disclose error on the part of the Commissioner in the Decision.
2) Merits of Application based on date of termination
[40] The Respondent submits that in finalising its 2018 timetable, it conducted a review of student subject selections for the 2018 year which revealed a reduced demand for Indonesian language, the particular subject that Mr Snyder taught. It says the consequence was that the requirement for one full time equivalent (FTE) Indonesian teaching position in 2017 reduced to 0.61 FTE equivalent in 2018 and Mr Snyder was offered the choice of taking a full or partial redundancy.
[41] The Respondent submits that an inability to reach agreement with Mr Snyder on his claim for the pay-out of seven weeks’ notice in taking a partial redundancy and moving to the reduced hours resulted in Mr Snyder withdrawing his partial redundancy request and instead seeking a full redundancy. When the parties then agreed to a full redundancy, the Respondent says it initially declined to pay the seven week notice period in lieu, but when pressed by the Applicant it agreed on 25 January 2018 to do so.
Permission to appeal
[42] This appeal is one to which s.400 of the 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.”
[43] In Coal & Allied Mining Services Pty Ltd v Lawler and others, Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s.400 of the Act as “a stringent one”. 27
[44] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment. 28 In GlaxoSmithKline Australia Pty Ltd v Makin 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.” 29
[45] 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. 30 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.31
Consideration of grounds of appeal
[46] We are not persuaded that the grounds of appeal on which Mr Snyder relies raise any issue of importance or general application, nor do any of those grounds disclose an arguable case of error or attract the public interest. Our reasons for this conclusion follow below.
Ground 1: Reason for delay related to industrial instrument
[47] Mr Snyder contends that in reaching his conclusions on the reason for the delay, the Commissioner made erroneous findings by failing to have proper regard to Mr Snyder’s confusion over whether the Respondent was a State or National system employer. Mr Snyder attributed the source of his confusion to the State registered industrial instrument and representations made to him by the Respondent during his employment that it was subject to the Western Australian State system. As to this claim of confusion, the evidence of the Respondent before the Commissioner was limited to statements that Mr Snyder knew that it was moving to the National system and had been advised that it was a National system employer. 32
[48] Mr Snyder also sought to emphasise the prompt steps taken by him to file his application with the Commission once his confusion was resolved on 22 March 2018, which he submits the Commissioner did not have regard to.
[49] We note the Commissioner explicitly acknowledged Mr Snyder’s jurisdictional confusion at paragraphs [39] and [49] of the Decision and we consider it is open to conclude that the Commissioner had regard to it and accepted his reason for the delay up until 9 March 2018. We therefore do not consider it to be reasonably arguable that the Commissioner failed to take into account a consideration that was materially relevant to the reason for the delay up until at least 9 March 2019.
[50] The question then becomes, was the Commissioner in error in his consideration of that part of the delay from 10 March 2018 until 22 March 2018, when Mr Snyder’s application for unfair dismissal remedy was made?
[51] The Commissioner’s finding that Mr Snyder was on notice from Friday, 9 March 2018 is erroneous because the Applicant did not receive a copy of the Respondent’s response outlining its jurisdictional objection to his application in the WAIRC until the afternoon of 12 March 2018. The Commissioner considered that upon receipt of the Form 5, Mr Snyder delayed for a further 13 days before making his application for unfair dismissal remedy whereas the further delay was, in fact, 10 days. We do not, however, consider this error to be so significant as to come within s.400 (2) of the Act.
[52] As to the period after Mr Snyder became aware that it was the Respondent’s view that he had made his application in the wrong jurisdiction, his evidence before the Commissioner was limited to:
• “Despite Helena College’s jurisdictional objection, a conciliation conference was listed at the WAIRC on 22 March 2018 (Evidence 26), which had no outcome.” 33
• Having become aware that the Respondent had objected to his application in the WAIRC on the basis it was a National system employer, he then went to see a lawyer and “got legal advice and the legal advice told me that they probably are a national system employer, in which case the EBA didn’t actually apply to my employment.” 34
• The Respondent agreed to have a conciliation conference at the WAIRC so he was hoping that that would resolve the matter. The conciliation was held on 22 March 2018, but it did not resolve the matter and so that same afternoon he applied to the Fair Work Commission because he “was now aware that they are a national system employer.” 35
[53] Mr Snyder’s complaint rests on the findings the Commissioner made in relation to the balance of the delay until his filing of the application for unfair dismissal remedy on 22 March 2018:
“[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. However, that situation would have been more akin to the circumstances involved in the matter of RCR Engineering that he seeks to rely upon.
…
[49]……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……”
(our emphasis, reference omitted)
[54] Before us, Mr Snyder submits his lawyer had agreed it was likely the Respondent was a National System Employer, but while he acknowledged this, he gave further weight to the Respondent’s objection to the WAIRC Application, as to which he submits “it was not immediately believable.” Mr Snyder also submits that he had to prepare for the conciliation in the WAIRC, listed on 16 March 2018 and to take place on 22 March 2018. 36
[55] Mr Snyder further submits that during the 10-day period from 13 March until 22 March 2018, he “struggled to come to terms with this legally complex issue and continued to actively seek an outcome to the dispute up to and including during the Conciliation meeting. It was not until the Conciliation meeting that I was genuinely aware for the first time that the Fair Work Commission was the appropriate jurisdiction and I submitted my application for Unfair Dismissal to the Commission straightaway that afternoon…” 37
[56] Mr Snyder also filed correspondence he had with his lawyers that was not put before the Commissioner 38 and that he now seeks to rely on. We have determined, pursuant to s.607(2) of the Act, that we will take it into account. This correspondence indicates that Mr Snyder:
• was on notice regarding the Respondent’s jurisdictional objection from at least 12 March 2018;
• was then in immediate contact with his lawyers;
• received advice from his lawyers that the Educational Services (Teachers) Award 2010 was likely to apply to his employment, at 5.28pm on 13 March 2018;
• received a preliminary view from his lawyers that the neither the WA Agreement nor the WA State Award applied to his employment, at 5.43pm on 13 March 2018; and
• received advice from his lawyers on 14 March 2018 39 which variously stated:
• “…..Your former employer is incorporated and provides education services for fees. This means the legal argument that it is within the federal industrial relations system, rather than within the Western Australian industrial relations system, is strong and persuasive.”
• “Based on your instructions to us about your employment law matter, we advise that there is a strong legal argument that the Former Employer (the Respondent) is a national system employer and you are a national system employee, which means the FWC, rather than the WAIRC may be the appropriate tribunal for your dismissal dispute.”
• “On the other hand, the Helena College (Inc) Collective Agreement is registered with the WAIRC, supporting the legal argument that your employment is within the Western Australian industrial relations system and the WAIRC should have jurisdiction and power to determine your employment disputes.” (our emphasis)
[57] Mr Snyder’s proposition is that in spite of having received the Form 5 and the legal advice from his lawyers, his explanation for the delay between 12 March and 22 March 2018 was acceptable on the basis of the Respondent’s previous misrepresentation as to the applicable industrial instrument. We do not agree.
[58] From 12 March 2018, Mr Snyder was on notice that the Respondent had raised a jurisdictional objection to the WAIRC application. From 14 March 2018, he had received advice from his lawyers that the legal argument that the Respondent was a National System Employer was “strong and persuasive.” We consider that from this time it would have been apparent to Mr Snyder that there was a real risk that he had lodged an application in the wrong jurisdiction and he had the choice between persisting with the WAIRC Application or discontinuing and pursuing an application for unfair dismissal remedy in the Commission. Mr Snyder chose to persist with the WAIRC Application until 22 March 2018.
[59] The decision in Ricky King is distinguishable and does not assist Mr Snyder because Mr Snyder had the benefit of the advice of his lawyer, such advice confirming the “strong and persuasive” legal argument that the Respondent was a National System Employer. Mr Snyder pressed on with the WAIRC Application despite his inquiries and the legal advice received by him.
[60] The fact that the Respondent may have agreed to proceed to the conciliation conference before the WAIRC on 22 March 2018 is not a matter of great moment in our view, nor is the lack of mention of that point by the Commissioner an error, in our view, let alone a significant error. That is because ultimately the decision as to whether the Applicant either continued to pursue or withdraw the WAIRC Application was a matter for him, not the Respondent.
[61] Further, the conciliation before the WAIRC on 22 March 2018 was not a formal determinative hearing of the jurisdictional objection and we were not taken to any evidence led before the Commissioner revealing that further material was adduced during the WAIRC conciliation that could have unequivocally resolved Mr Snyder’s claimed confusion.
[62] The Commissioner’s conclusions that Mr Snyder was on notice upon receiving the Respondent’s jurisdictional objection, despite being in error as to the date this occurred, and that it “would have been prudent, and perhaps expected, that Mr Snyder would have made an application to the Federal Commission…” 40 were reasonable, particularly because Mr Snyder’s evidence before the Commissioner was that he then went to see a lawyer and “got legal advice and the legal advice told me that they probably are a national system employer.” We also consider the Commissioner’s finding that Mr Snyder decided instead to let the processes in the WAIRC Application “play out” was open to him.
[63] In our view, the Commissioner reasonably concluded on the material before him that Mr Snyder was aware of the jurisdictional hurdle before him, but chose to allow the WAIRC Application to continue in the hope of reaching agreement with the Respondent at the conciliation on 22 March 2018. In these circumstances, we are not persuaded that the Commissioner erred in his conclusion that Mr Snyder had failed to provide an acceptable explanation for the delay from the time he received the Form F5 until 22 March 2018, which weighed against a finding that exceptional circumstances exist. Mr Snyder’s first ground of appeal is rejected.
Ground 2 – Merits of Application based on date of termination
[64] Mr Snyder contends that having concluded that the effective date of dismissal was 25 January 2018, the Commissioner did not consider the relevance of this date of dismissal to the reason for dismissal, and hence, to the merits of the case. He takes issue with the Commissioner’s finding, in considering s.394(3)(e) of the Act, that his case lacked significant merit. 41
[65] In doing so, Mr Snyder asserts that a genuine redundancy was not the real reason for the dismissal. He contends that his dismissal with immediate effect on 25 January 2018 cannot be reconciled with the Respondent’s previous position that his termination date would be 16 March 2018. He submits that the real reason for his dismissal with immediate effect on 25 January 2018 was because he had raised a formal complaint on 22 January 2018.
[66] It is useful to summarise particular events leading up to the termination of Mr Snyder’s employment on 25 January 2018. They are as follows:
• December 2017 – Mr Snyder was notified of the redundancy of his position and the option for him to take either a partial (0.39 FTE) or full redundancy.
• 9 January 2018 – Mr Fiala of the Independent Education Union of WA (IEUWA) sent correspondence on behalf of Mr Snyder to Mr Ian Lyons, the Principal of the Respondent, seeking clarification of a number of questions regarding the proposed redundancy and the options available to Mr Snyder. 42
• 10 January 2018 – Mr Lyon replied to Mr Fiala’s correspondence. The response includes confirmation that in taking a partial redundancy and reducing from 1.0 to 0.61 FTE, a seven week notice period would apply which would require Mr Snyder to work full time up until 16 March 2018, the end of Term 1. 43
• 11 January 2018 – Mr Snyder sent correspondence to Mr Lyon in which he confirmed acceptance of the 0.39 FTE partial redundancy and in doing so “respectfully” requested that the Respondent bring forward the effective date of redundancy from 16 March 2018 to the commencement of Term 1, with the notice period to be paid out. 44
• 19 January 2018 – Mr Lyon replied and referred to various emails from Mr Snyder of 11, 12 and 16 January 2018, and in doing so confirmed the redundancy offer per previous correspondence to Mr Snyder dated 22 December 2017 and 10 January 2018. Mr Lyon reiterated that the notice period for the partial redundancy would commence at the start of Term 1 on Monday, 29 January 2018 and finish on Friday, 16 March 2018. 45
• 22 January 2018 – Mr Snyder sent correspondence to Mr Lyon withdrawing his acceptance of the 0.39 FTE partial redundancy, seeking instead the default position of a full 1.0 FTE redundancy and requesting confirmation of the Respondent’s acceptance of the full redundancy. Mr Snyder attributed his change of position to the failure of the parties to reach “mutual agreement” on the pay out of his 7 week notice period. 46
• 22 January 2018 – Mr Snyder sent correspondence to Mr Nathan Johnston, Head of the College Council of the Respondent, in which he raised a formal complaint regarding Mr Lyon’s handling of his redundancy. Mr Snyder in the correspondence proffered to resolve the dispute by accepting a full redundancy “with 7 weeks’ notice paid out in lieu, associated 2.1 weeks holiday pay and the required 6 weeks’ severance pay….” 47
• 23 January 2018 – Mr Lyon replied to Mr Snyder’s email sent to him on 22 January 2018 and in doing so agreed to the full 1.0 FTE redundancy sought by Mr Snyder. Mr Lyon again confirmed that the notice period would need to be worked out rather than be paid in lieu as sought by Mr Snyder. 48
• 25 January 2018 – Mr Snyder sent further correspondence to Mr Johnston requesting that his request for the full redundancy with payment in lieu of the seven weeks’ notice be dealt with by the close of business on Friday, 25 January 2018. Mr Snyder specifically referred to a breakdown of his professional relationship with Mr Lyon and that he had “lost all trust and confidence in the leader of the school”. 49
• 25 January 2018 – Mr Lyon sent correspondence to Mr Snyder, in which he agreed to Mr Snyder’s request for a full 1.0 FTE redundancy and advised of the withdrawal of the requirement for Mr Snyder to work out the seven week notice period. Mr Lyon confirmed a total payment of 15.1 weeks would be made to Mr Snyder on 25 January 2018, consisting of six weeks’ severance pay, seven weeks’ notice period payment in lieu and 2.1 weeks’ holiday pay applicable for Term 1. 50
[67] Having regard to this chain of events, the correspondence behind which was before the Commissioner, we do not accept the proposition of Mr Snyder that he was dismissed with immediate effect on 25 January 2018 because he had raised a formal complaint on 22 January 2018. It is rather the case that the parties were disputing how the notice of the termination of Mr Snyder’s employment should be treated. The Respondent’s position appeared to be that notice of termination could only be given to a teacher during a school term 51 and the notice period could only commence when it was known what option regarding notice Mr Snyder would be taking.52 Mr Snyder’s position appeared to be that he had a preference to not work out a notice period. It appears the Respondent ultimately reviewed its position and agreed to Mr Snyder’s request for payment in lieu of the notice period.
[68] The following transcript reveals the position articulated by Mr Snyder before the Commissioner in relation to the merits of his claim:
“THE COMMISSIONER: In terms of the merits of your application, I don't need to go into the merits in detail, but as I understand the college maintains that you are redundant. What do you say in response?
MR SNYDER: All right. Well, I don't think that it was a genuine redundancy because they didn't really consult me very well. As Michael Papali said this morning, the first meeting on 4 December was then notifying me of my dismissal. So obviously they agree that they weren't consulting me at that meeting, they were just telling me that I was being dismissed.
I also - what happened was I agreed to what they called a partial redundancy, which basically meant that I was getting redeployed into 61 per cent of my original role. And I agreed to that but on the condition that the notice period gets brought forward until 29 January because of my family reasons.
But they disagreed to that and because of this disagreement that's why they terminated my employment. So I don't think that the real reason is actually redundancy. I think it's because of this disagreement. And that was on 23 January and then two days later they terminated it again for other reasons.” 53
[69] Mr Snyder then said in reply to submissions of the Respondent:
“They've also said that they hired a relief teacher full-time for seven weeks and yet they're claiming that I was dismissed for redundancy on the 25th. So that kind of says, well, no, my job still existed for seven weeks in which case it wouldn't be a redundancy, right?” 54
[70] Mr Snyder’s position appears to be that the Respondent’s insistence that he serve out a notice period as a 1.0 FTE suggests his position was not genuinely redundant and that the Commissioner failed to take this material consideration into account when weighing the merits of his application that he has been unfairly dismissed. However, the Respondent’s evidence before the Commissioner, referred to above at [67], indicates it held the view that notice of termination could only be given to a teacher during a school term and the notice period could only commence when it was known what option regarding notice Mr Snyder would be taking. This, and the events leading to the termination of Mr Snyder’s employment, on 25 January 2018 suggest that the Respondent ultimately agreed to the outcome of pay in lieu of the notice period at the request of Mr Snyder. This does not disclose that Mr Snyder’s dismissal was for a reason other than genuine redundancy.
[71] The Commissioner considered the submissions of Mr Snyder as to the merits of his unfair dismissal application as follows:
“Mr Snyder also submits that his termination was harsh, unjust or unreasonable because it was never made clear why he had been selected for redundancy in circumstances where his dismissal was not related to capacity or performance. The two letters from the College, dated 23 and 25 January 2018, also provided inadequate information about what was being proposed. In addition, the processes of consultation about his redundancy were inadequate, and the discussions did not deal comprehensively with what other options might be available to him. He also submits that in the meeting in December last year, when these issues were first discussed, he was told by Mr Michael Papali, the Business Manager at the College, that he was being dismissed which left little room for consultation about any other options.” 55
[72] The Commissioner also identified the change in position adopted by the Respondent in its 25 January 2018 correspondence to Mr Snyder, wherein it modified its position in respect of its requirement that Mr Snyder work out the seven week notice period at Mr Snyder’s behest and, in dealing with the dispute in the proceedings at first instance as to whether the date of dismissal was 25 January 2018, concluded as follows:
“[24] I am satisfied in response that it was originally intended when the letter of 23 January was sent to Mr Snyder that he would work out the notice period associated with him being made redundant. However, it was subsequently decided, and confirmed that, in the letter of 25 January, he would no longer be required to work out that notice period, and he would instead receive a lump sum payment in lieu of notice. I am satisfied that, as a consequence, Mr Snyder’s employment was terminated with effect from 25 January 2018. He was not required at work after that time and received a payment in lieu of notice at that time. His employment accordingly ended on that date.”
[73] The Commissioner then stated, correctly observing as to merits:
“The Commission is in no position at this time to express any concluded view about the respective merits of this matter, given the submissions and evidence now before the Tribunal. It is also noted that previous decisions of this Tribunal have determined that the Commission is not required, in proceedings of this kind, to come to a concluded view about the respective merits of an application…” 56
[74] Having summarised the competing positions of the parties regarding merit and having stated the correct principles, the Commissioner then proceeded to conclude as follows:
“However, 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.” 57 (our emphasis)
[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.
Further material
[77] Since the appeal hearing Mr Snyder has continued to prosecute his complaints and arguments, both with the Respondent and us. Having reviewed the additional material he has sent us, we are not persuaded that it adds anything of moment to the material previously filed as part of these proceedings. We have consequently had no regard to it.
Conclusion
[78] The grounds for the grant of permission to appeal set out in the notice of appeal were (in summary) that Mr Snyder had suffered an injustice because the Commissioner had not considered crucial evidence, the Respondent was going to benefit from a favourable decision from the Commission as a result of its negligent misrepresentation of the appropriate industrial instrument, and he had been summarily dismissed because he made a complaint about his employer in accordance with a dispute resolution policy.
[79] On the material before us, we are not persuaded that the matters set out in the grounds of appeal raise an arguable case of error in the Commissioner’s Decision. We also do not consider that an arguable case has been made out that the Commissioner's conclusion was unreasonable, manifested by any injustice or was counter-intuitive. Nor are we persuaded in circumstances where the matter turned entirely on its own facts that the appeal raises issues of importance or general application or that there is a need for Full Bench guidance on any matter raised. Therefore, we do not consider that there is any basis that would justify the grant of permission to appeal in the public interest or otherwise. In accordance with s.400(1) of the Act, permission to appeal is refused.
[80] Having reached the above conclusions regarding the grounds of appeal advanced by Mr Snyder it is unnecessary for us to deal with the question of the utility of the appeal as raised in paragraphs [17] – [19] above.
DEPUTY PRESIDENT
Appearances:
J Snyder on his own behalf
M Papali and M Jensen (Solicitor) for Helena College Council, Inc. T/A Helena College
Hearing Details:
2018.
Melbourne:
1 November.
Printed by authority of the Commonwealth Government Printer
<PR609883>
1 [2018] FWC 4432.
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) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.
3 Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288 at [21].
4 Minister for Aboriginal Affairs v Pelco-Wallsend (1986) 162 CLR 24.
5 Friends of Hinchinbrook Society Inc v Minister for Environment (No 3) (1997) 77 FCR 153; Australian Competition and Consumer Commission v Leclee Pty Ltd (1999] FCA 1121; Edwards v Giudice [1999] FCA 1836; National Retail Association v Fair Work Commission [2014] FCAFC 118.
6 Minister for Aboriginal Affairs v Pelco-Wallsend (1986) 162 CLR 24.
7 [2011] FWAFB 975.
8 See Griffiths v The Queen (1989) 167 CLR 372 at 379 (Brennan and Dawson JJ); Ho v Professional Services Review Committee No 295 [2007] FCA 388 at [23]-[26] (Rares J); Hasim v Attorney-General of the Commonwealth [2013] FCA 1433, (2013) 218 FCR 25 at [65] (Greenwood J).
9 Decision at [24].
10 Appeal Book at page 95.
11 Appellant Submission received 17 August 2018, Attachment - Letter from Lynn Brown Lawyers to Appellant re Employment Law Matter Involving Termination By Redundancy, dated 14 March 2018.
12 Appellant Submission received 17 August 2018 at paragraph [19].
13 Ibid at paragraph [24].
14 Appeal Book at page 98.
15 [2017] FWC 3866.
16 Appeal Book at page 87.
17 Decision at paragraph [47].
18 Appeal Book at page 73.
19 Ibid at page 77.
20 Ibid at page 84.
21 Ibid at page 86.
22 Ibid at page 79.
23 Transcript at first instance PN 92-93, AB 54.
24 Respondent Submissions, dated 27 August 2018, Attachment 3- Email dated 11 October 2017.
25 Ibid, Attachment 4, EBA Negotiations HCCI Collective Agreement – Information pertaining to change in registration of Agreement from WAIRC to FWC.
26 Ibid, Attachment 4, Minutes of EBA Negotiations – HCCI Collective Agreement 2017, dated 17 October 2017.
27 (2011) 192 FCR 78 at [43].
28 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 Pty Ltd v Lawler and others (2011) 192 FCR 78 at [44] -[46].
29 [2010] FWAFB 5343, 197 IR 266 at [27].
30 Wan v AIRC (2001) 116 FCR 481 at [30].
31 GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343 at [26]-[27], 197 IR 266; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth[2010] FWAFB 10089 at [28], 202 IR 388, affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663 at [28].
32 Transcript at first instance PN 92-93, AB 54.
33 AB 6.
34 Transcript at first instance PN 44, AB 49-50.
35 Transcript at first instance PN 45, AB 50.
36 Appellant Outline of Submissions received 17 August 2018 pages 4 and 5.
37 Ibid at page 5 at paragraph 24.
38 Document referred to as Evidence 6 filed with Appellant Outline of Submissions received 17 August 2018.
39 Appellant Submission received 17 August 2018, Attachment - Letter from Lynn Brown Lawyers to Appellant re Employment Law Matter Involving Termination By Redundancy dated 14 March 2018.
40 Decision at paragraph [41].
41 Decision at [47].
42 Appeal Book at page 72.
43 Ibid at page 74.
44 Ibid at page 76.
45 Ibid at page 77.
46 Ibid at page 78.
47 Ibid at page 82.
48 Ibid at page 84.
49 Ibid at page 85.
50 Ibid at page 86.
51 Transcript at first instance at PN 101-103, AB 55-56.
52 Ibid at PN 103, AB 56.
53 Ibid at PN46 – PN49, AB 50
54 Ibid at PN 118, AB 57.
55 Decision at [14].
56 Decision at [45].
57 Decision at [47].
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