Jia (Kira) Deng v Specialist Diagnostic Services Pty Ltd T/A Laverty Pathology
[2020] FWCFB 1275
•10 MARCH 2020
| [2020] FWCFB 1275 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Jia (Kira) Deng
v
Specialist Diagnostic Services Pty Ltd T/A Laverty Pathology
(C2020/196)
VICE PRESIDENT CATANZARITI | SYDNEY, 10 MARCH 2020 |
Appeal against decision [2019] FWC 8597 of Deputy President Kovacic at Canberra on 20 December 2019 in matter number U2019/6190.
[1] Ms Jia (Kira) Deng has applied for permission to appeal and appeals a decision 1 by Deputy President Kovacic made on 20 December 2019 (Decision) in which the Deputy President declined to grant Ms Deng’s application for an extension of time to lodge an unfair dismissal application under s.394 of the Fair Work Act 2009 (Cth) (Act).
[2] The matter was listed for hearing in respect of permission to appeal only.
[3] Section 394(2) of the 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 subsection (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] Ms Deng’s employment ceased on 10 April 2019. Ms Deng lodged her unfair dismissal application on 5 June 2019. Her application was therefore lodged 35 days out of time.
The Decision
[5] In the Decision, the Deputy President gave separate consideration to each matter required to be taken into account under s.394(3) of the Act and concluded as follows:
“Having considered all of the factors set out in s.394(3) of the Act, and drawing on the decision of Nulty, I am not satisfied that there are exceptional circumstances warranting the granting of [a] further period for the making of an application for an unfair dismissal remedy. In particular, I note that the above consideration of the various factors in s. 394(3) of the Act does not indicate that any of those factors point to the existence of exceptional circumstances, though several factors are neutral considerations.” 2
[6] Regarding the delay in lodgment, Ms Deng submitted that there were five reasons for the delay; representative error, acute anxiety and depression, alternative efforts made by her, unfamiliarity with Australian legal processes and isolation and difficulty in accessing support from her former partner. For the following reasons the Deputy President found that the reasons for the delay relied upon, when considered either individually or collectively, did not point to the existence of exceptional circumstances:
1. There was no probative material before the Commission which indicated either the information provided by Ms Deng to Legal Aid ACT or the advice provided by Legal Aid ACT to Ms Deng. It was therefore not possible to determine that Ms Deng was provided with inaccurate legal advice by Legal Aid ACT. Indeed, on the material before the Commission the advice provided to Ms Deng by Legal Aid ACT appears to be reasonably open to it;
2. Medical certificates filed by Ms Deng predate the cessation of her employment and there was therefore no medical evidence suggesting that she was incapacitated as a result of her illness such that she was unable to lodge her application within the statutory time frame;
3. Ms Deng’s efforts to secure employment with Dorevitch Pathology in Melbourne were irrelevant as those efforts all predated the cessation of her employment; and
4. It is unclear how Ms Deng’s estrangement from her partner precluded her from seeking information, guidance and/or advice from other sources.
[7] In respect of the remaining considerations in section 394(3), the Deputy President found that paragraphs (b), (d) and (f) were neutral considerations and paragraph (c) did not point to the existence of exceptional circumstances. As to paragraph (e), the Deputy President found, without expressing a concluded view and having regard to the limited material before the Commission, that the merits of the application did not appear compelling and therefore did not support a finding of the existence of exceptional circumstances. The Deputy President concluded that, when all of the factors of section 394(3) were considered in totality, he was not persuaded that there were exceptional circumstances warranting the grant of an extension of time to lodge the application.
Permission to appeal
[8] An appeal under s.604 of the Act is 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. 3 There is no right to appeal and an appeal may only be made with the permission of the Commission.
[9] This appeal is one to which section 400 of the Act applies. Section 400 provides:
“400 Appeal rights
(1) Despite subsection 604(2), FWC must not grant permission to appeal from a decision made by FWC under this Part unless 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.”
[10] In the Federal Court Full Court decision 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”. 4 The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.5 A Full Bench of the Commission, in GlaxoSmithKline Australia Pty Ltd v Makin6 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.” 7
[11] 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. 8 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.9
[12] An application for permission to appeal is not a de facto or preliminary hearing of the appeal. In determining whether permission to appeal should be granted, it is unnecessary and inappropriate for the Full Bench to conduct a detailed examination of the grounds of appeal. 10 However it is necessary to engage with those grounds to consider whether they raise an arguable case of appealable error.
Appeal grounds and submissions
[13] Ms Deng’s Notice of Appeal and associated submissions identify four principal grounds of appeal, which are summarised below.
[14] Firstly, Ms Deng submits the Deputy President’s statement that there was “no probative material before the Commission” 11 regarding Ms Deng’s claim of representative error was based on a wrong principle, being that Ms Deng’s statement of her recollection of the meeting as set out in her Outline of Submissions and Evidence12 was inaccurate, or not believable, or that reasonable efforts had not been made by her to obtain such probative material.
[15] Secondly, Ms Deng submits the arguments submitted by the Respondent were relied upon by the Deputy President in a way that was insufficiently open to both sides or which took evidential factors out of their original context.
[16] Thirdly, Ms Deng submits the Deputy President misrepresented the facts pertaining to Ms Deng’s attempts to secure a different outcome to the cessation of employment by not adequately considering the context or the difficult history leading up to her action on 10th April 2019 and by discounting the genuine alternate efforts Ms Deng made to secure a different outcome.
[17] Fourthly, Ms Deng submits the Deputy President did not have sufficient regard to the material considerations of the case, in finding for the purposes of 394(3)(e) of the Act that Ms Deng’s application did not appear compelling and therefore did not support a finding of exceptional circumstances.
[18] Ms Deng submits that the grant of permission to appeal would be in the public interest because the Decision is counter intuitive given the body of evidence presented by her and the very limited amount of separate evidence provided by the Respondent. Ms Deng further submits that the grant of permission to appeal would be in the public interest as by concluding that the reasons for delay in lodgment put forward by Ms Deng did not constitute exceptional circumstances under s.394(3) of the Act the decision manifests an injustice. Ms Deng submits that if the reasons “were put to a typical Australian citizen with general knowledge of workplace relations issues, that they would be very likely to form a view that the ruling by the Commission to not even hear such a case in the first place manifested an injustice.”
Consideration
[19] The test of “exceptional circumstances” in relation to extensions of time to lodge applications under section 394(3) establishes a “high hurdle” and a decision as to whether to extend time under section 394(3) involves the exercise of a broad discretion. 13 Therefore it is necessary in an application for permission to appeal against a decision under section 394(3) to demonstrate that there is an arguable case and that there was appealable error in the exercise of the discretion. This requires the identification of error of the type described in House v King14- 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, section 400(2) requires that it must be a significant error of fact. The overriding public interest requirement of section 400(1) remains.
[20] In relation to the first ground of appeal, the statement made by the Deputy President was that there was “no probative material before the Commission which indicates either the information provided by Ms Deng to Legal Aid ACT or the advice provided to her by Legal Aid ACT” is, in our view, entirely correct. It is uncontested that apart from the Outline of Submissions and Evidence, 15 Ms Deng did not file any documentary evidence to support the claim of representative error.
[21] As to the second and third appeal ground, the approach taken in the Decision to the specific requirements of s.394(3) of the Act appears to have been conventional and unremarkable, and we are satisfied that the Deputy President has not made any error in the application of those principles to the facts, as presented to him.
[22] The fourth ground of appeal goes to the Deputy President’s consideration of the merits of Ms Deng’s application. An application to extend time is essentially an interlocutory matter that does not allow the merits to be fully tested. Whilst the Deputy President found that the merits of Ms Deng’s application were not compelling, the Deputy President correctly stated that a concluded view as to the merits could not be expressed having regard to the limited material before the Commission. We see no error in the approach taken by the Deputy President to his consideration of section 394(3)(e).
[23] For the reasons set out above, we are not persuaded that Ms Deng has made out an arguable case of appealable error. We are satisfied that the Deputy President has considered and attributed weight to each of the matters he was required by the Act to take into account and concluded that when taken together there were not the requisite exceptional circumstances warranting the grant of a further period of time to make an application, pursuant to section 394(3) of the Act. We do not identify any error in the Deputy President’s approach to the considerations in section 394(3) of the Act or in his conclusion. No basis for an arguable contention of appealable error is ascertainable.
[24] There is nothing before us that indicates that it would be in the public interest to grant Ms Deng permission to appeal. We do not consider that the Deputy President’s conclusion was unreasonable or manifests any injustice, nor do we consider it to be counterintuitive. There is no issue of importance or general application arising in the matter and the legal principles applied are not disharmonious with other authorities concerning section 394(3) of the Act.
[25] Accordingly, we are not satisfied that it would be in the public interest to grant permission to appeal. Having reached this conclusion, permission to appeal must be refused in accordance with s.400(1) of the Act.
VICE PRESIDENT
Appearances:
W Mount and J Deng for theApplicant.
L Manfre and S Bonnette for the Respondent.
Hearing details:
2020.
Melbourne and Sydney (by video):
March 2.
Final written submissions:
Applicant, 2 March 2020
Printed by authority of the Commonwealth Government Printer
<PR717362>
1 [2019] FWC 8597.
2 Jia (Kira) Deng v Specialist Diagnostic Service Pty Ltd T/A Laverty Pathology[2019] FWC 8597 at [45].
3 Coal and Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.
4 (2011) 192 FCR 78; (2011) 207 IR 177 at [43].
5 O’Sullivan v Farrer and another (1989) 168 CLR 210 at 216-217 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch (2011) 243 CLR 506 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78; (2011) 207 IR 177 at [44]-[46].
6 [2010] FWAFB 5343.
7 Ibid at [27].
8 Wan v AIRC (2001) 116 FCR 481 at [30].
9 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].
10 Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82].
11 Decision at [23].
12 Appeals Book p.67-68.
13 Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21].
14 [1936] HCA 40, 55 CLR 499.
15 Appeals Book p.67-68.
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