Joseph Agwalama v Department of Justice (DOJ), Victoria T/A Department of Justice
[2015] FWCFB 1226
•12 MARCH 2015
| [2015] FWCFB 1226 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
v
Department of Justice (DOJ), Victoria T/A Department of Justice
(C2014/1236)
VICE PRESIDENT WATSON | MELBOURNE, 12 MARCH 2015 |
Appeal against decision [[2014] FWC 2286] of Commissioner Gregory at Melbourne on 25 June 2014 in matter number C2014/2781 - General protections application - Application lodged out of time - Whether permission to appeal should be granted - Whether grounds of appeal attract public interest - Permission to appeal not granted - Fair Work Act 2009, ss.365, 366, 604.
Introduction
[1] This decision concerns an application for permission to appeal against a decision of Commissioner Gregory handed down on 25 June 2014. The decision of the Commissioner concerned a refusal to grant an extension of time for the making of a general protections application under s.365 of the Fair Work Act 2009 (the Act).
[2] The parties agreed to the matter being determined by way of written submissions.
The decision under appeal
[3] Section 366 of the Act requires an application made under s.365 of the Act to be made within 21 days after the dismissal took effect or within such further period as the Commission allows under s.366(2). Subsection (2) is as follows:
“(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) any action taken by the person to dispute the dismissal; and
(c) prejudice to the employer (including prejudice caused by the delay); and
(e) fairness as between the person and other persons in a like position.”
[4] Commissioner Gregory heard the application for the extension of time and after discussing each of the factors in s.366(2) by reference to the facts of the matter concluded as follows:
“[55] In conclusion, having regard to each of the considerations in s.366(2) of the Act I am not satisfied that “exceptional circumstances” exist to warrant an exercise of the discretion to extend the time in which to make application. Mr Agwalama was on notice that the termination of his employment could be the end result of a process of restructure within the Department, well before his termination occurred. There was limited evidence provided about his medical condition in the 21 days after his termination, and I am not satisfied he was unable to make application during this time. He then further delayed making application for almost 4 weeks after the conclusion of the 21 day period, despite making a range of enquiries during this time about the options open to him. The apparent lack of merit in his substantive application is also a relevant factor. The application is dismissed.”
Grounds of Appeal
[5] Mr Agwalama’s dismissal took effect on 11 December 2013 and he lodged his application with the Commission on 24 January 2014. The application was received 23 days after the expiry of the 21 day period set down under s.366 of the Act.
[6] The grounds of appeal advanced in Mr Agwalama’s Notice of Appeal are as follows:
- The Commissioner failed to take into account key evidence presented during the hearing concerning one of the reasons for the delay in filing. Specifically, that Mr Agwalama’s union representative provided him with incorrect information concerning the timeframe for lodgment;
- The Commissioner failed to take into account the link between mental health and homelessness, allowed irrelevant matters to guide him and mistook the facts;
- In considering fairness as between Mr Agwalama and other persons in a like position, Mr Agwalama contends that there was another employee at the Department of Justice (the Department) who was, like Mr Agwalama, on WorkCover. However, while Mr Agwalama’s colleague had their redeployment suspended at the request of their doctor, despite Mr Agwalama’s doctor making the same request, Mr Agwalama was dismissed;
- The restructure occurred after a “Review of the Program” which was not presented to the affected staff members during the consultation process;
- The Commissioner did not address the fact that the restructuring of the program led to the loss of employment only for people of a particular cultural background, which Mr Agwalama submits raises an issue of racial discrimination;
- The Commissioner did not address the process of relocation to a different place of work and the non-payment of a relocation allowance, despite these matters being raised by Mr Agwalama during the hearing. Mr Agwalama submits that as the Department has since acknowledged that he was correct, it is unjust not to consider the financial loss suffered and the fact that he was not consulted about changes affecting his employment;
- The Commissioner made a significant effort of fact. In particular, contrary to that noted in the Commissioner’s decision, there are two staff members of the Department who have either taken action or have given notice of their intention to take the matter to Court should they be dismissed;
- That it is in the public interest to allow the appeal as the program that was the subject of the restructure provides support and assistance to refugee communities in relation to the justice system.
[7] Mr Agwalama advanced further grounds of appeal in his submissions, including that:
- The Commissioner contradicted himself by noting that, in the absence of detailed evidence and submissions going to merit, he is not in a position to make findings about what are clearly contested issues, but that the Commissioner goes on to say that the apparent lack of merit in Mr Agwalama’s substantive application is also a relevant factor. Mr Agwalama contends that it appeared that the Commissioner had not read his initial application form;
- The Department’s submissions were incorrect in stating that each of the complaints raised by Mr Agwalama were dealt with through the appropriate process. Mr Agwalama contends that there are outstanding incident reports that have not been addressed;
- The Commissioner was incorrect in stating that it is difficult to conceive that the decision to dismiss Mr Agwalama could be based on events that occurred at least 12 months prior and in some cases more than 3 years prior to the dismissal. Mr Agwalama submits that in coming to that conclusion, the Commissioner failed to take into account the repetitive nature of the threats he received prior to his dismissal.
[8] The Department submits that it would not be in the public interest to allow the appeal, as the decision in the first instance does not raise issues of importance or general application. The Department further submits that the discretion vested in the Commissioner was properly exercised by him and that there is no error of an appealable nature in the decision of the Commissioner.
Permission to Appeal
[9] Permission to appeal may be granted if there is sufficient doubt to warrant its reconsideration or an injustice may result if permission is not granted. 1 If the Commission considers that it is in the public interest to grant permission to appeal, it is required to grant permission.2
[10] It is important to note that the decision under appeal is of a discretionary nature. Usually, such a decision can only be successfully challenged on appeal if it is shown that the discretion was not exercised correctly. 3 It is not open to an appeal bench to substitute its view on the matters that fell for determination before the Commissioner in the absence of error of an appealable nature in the decision at first instance. As the High Court said in House v The King:4
“The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.”
[11] We have considered the circumstances of this matter and the grounds of appeal advanced by Mr Agwalama. Mr Agwalama’s application was filed outside the statutory period for making the application, and by virtue of the provisions of the Act, Mr Agwalama required the Commission to grant him an extension of time for filing his application. An extension of time can only be granted in exceptional circumstances.
[12] Most of the appeal grounds relate to the merits of the general protections claim. We are not satisfied that there was any significant error made by the Commissioner in his limited evaluation of the merits on the material before him and no error which could have affected the outcome. The only alleged error which relates to the reasons for the delay in making the application is the allegation of representative error. The alleged advice from the union which forms the basis for the claim of representative error was received more than seven months before the termination of employment. It is not alleged that the union provided advice about the time period for the making of the application and there was no evidence that the Applicant relied upon the extract of the legislation provided by the union at the time of the dismissal. We are not satisfied that representative error was established. Nor are we are satisfied that the Commissioner made any error in failing to refer to this alleged reason for delay.
[13] The decision of the Commissioner reveals a proper consideration of the relevant factors and a proper consideration of whether the circumstances were exceptional. It is apparent that the Commissioner considered all of the matters advanced by the parties. We are not satisfied that there is a sufficiently arguable case of error in the decision of the Commissioner. Further, we are not satisfied that any of the grounds of appeal attract the public interest. We have not been persuaded that there is a sound basis for granting permission to appeal.
Conclusion
[14] For the above reasons we decline to grant permission to appeal and dismiss the application for permission to appeal.
VICE PRESIDENT WATSON
Final written submissions:
Mr Agwalama’s supplementary submissions on 11 February 2015.
The Department’s supplementary submissions on 19 February 2015.
Mr Agwalama’s submissions in reply on 25 February 2015.
1 Wan v Australian Industrial Relations Commission (2001) 116 FCR 481.
2 Fair Work Act 2009, s.604.
3 House v The King (1936) 55 CLR 499 at [504]-[505] per Dixon, Evatt and McTiernan JJ.
4 Ibid.
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