Joseph Spehar v Sarina Prestige Investments Pty Ltd T/A ATA Fleet Repairer Group Pty Ltd
[2023] FWCFB 90
•12 MAY 2023
| [2023] FWCFB 90 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Joseph Spehar
v
Sarina Prestige Investments Pty Ltd T/A ATA Fleet Repairer Group Pty Ltd
(C2023/954)
| VICE PRESIDENT CATANZARITI | SYDNEY, 12 MAY 2023 |
Appeal against decision [2023] FWC 441 of Deputy President Lake at Brisbane on 22 February 2023 in matter number C2022/6546 – permission to appeal refused.
Background
Mr Joseph Spehar worked for Sarina Prestige Investments Pty Ltd (Sarina) from 2000 until 2022. On 25 July 2022, Mr Spehar was “put off on the spot”. Mr Spehar was told that Sarina’s principal, Mr Tod Sarina, wanted to get out of the business and there was a management team coming in to take over and purchase the business. Mr Spehar obtained legal advice and made inquiries with the Fair Work Ombudsman about payments owed on termination. Mr Spehar then made several attempts to recover his outstanding entitlements from Sarina. Sarina ignored or resisted Mr Spehar’s claims.
On 25 September 2022, almost nine weeks after he was dismissed, Mr Spehar applied to the Fair Work Commission under s.365 of the Fair Work Act 2009 (the Act) for the Commission to deal with the dispute about his termination of employment.
Section 366(1)(a) requires applications to be made within 21 days after a dismissal took effect. Section 366(1)(b) allows the Commission to extend the time for making an application if the Commission is satisfied that there are exceptional circumstances:
“366 Time for application
(1) An application under section 365 must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (2).
(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
(d) the merits of the application; and
(e) fairness as between the person and other persons in a like position.”
Mr Spehar’s application was lodged 41 days late and he needed an extension of time.
On 22 February 2023, Deputy President Lake decided not to extend the time for Mr Spehar to make his general protections application. In his decision,[1] the Deputy President provided his reasons for not granting the extension of time. Mr Spehar now seeks permission to appeal the Deputy President’s decision.
Under s.604 of the Act, Mr Spehar can only appeal with the permission of the Full Bench. For the following reasons, we have decided not to grant permission to appeal.
The decision under appeal
In his decision the Deputy President:
(a)noted that the Respondent failed to attend the hearing (at [4]-[5]);
(b)set out the relevant law and legal principles relevant to an extension of time (at [9]-[12]);
(c)described the events surrounding Mr Spehar’s dismissal and Mr Spehar’s explanation for the delay in filing his application (at [13]);
(d)noted the Respondent’s response as recorded in the Form F8A (at [14]-[16]);
(e)found that the reasons for the delay were not exceptional (at [17]-[20]);
(f)found that action taken by Mr Spehar was a factor that weighed in favour of an extension of time (at [21]-[22]);
(g)found the other factors identified in s.366 to be neutral considerations: prejudice to the employer, the merits of the application and fairness between Mr Spehar and other persons in a like position (at [23]-[28]);
(h)observed that he would be minded to provide an extension of time if there was discretion to do so, but that an extension of 41 days was beyond what the Deputy President considered reasonable; and
concluded that he was not satisfied that there were exceptional circumstances and made an order dismissing Mr Spehar’s application (at [31]-[32]).
The Deputy President described Mr Spehar’s explanation for delay as follows:
“[13] Mr Spehar’s written and oral submissions may be summarised as follows:
…
(c) Following dismissal on the same day the Applicant sought advice from the [Fair Work] Ombudsman. The Ombudsman recommended that the Applicant seek legal advice. He provided a screenshot illustrating that he was in contact with the Ombudsman from 25 July 2022 to 30 November 2022.(d) The legal advice the Applicant received suggested that his dismissal was a case of genuine redundancy. His legal representative at the time wrote a letter dated 17 August 2022 which was sent to Mr Sarina requesting a formal letter confirming his outstanding entitlements and reasons for termination. Further, there was a request for payments on redundancy, notice period, long service leave, and annual leave and superannuation. The letter was sent to Mr Sarina three times, yet he did not respond. His legal representative suggested that the Applicant take Mr Sarina to court, but the Applicant was unwilling due to the costs to prosecute his claim.
(e) On 19 September and 20 September, the Applicant sought further advice from the
Ombudsman.(f) On 25 September, he filed his application with the Commission. The reason he filed this application was that he was not prepared to sit on his hands. He has seen Mr Sarina dismiss others without proper process or procedure and get away with it.
(g) The Applicant stated that there was one other person who was dismissed on the same day as him. However, this former employee has no interest in prosecuting their claim as they are close to retirement and will be happy just receiving their entitlements.”
Grounds of appeal and submissions
On appeal, Mr Spehar submitted that the Deputy President should have found that there were exceptional circumstances and should have granted him an extension of time. Mr Spehar’s submissions on appeal were substantially the same as his submissions to the Deputy President at first instance.
On appeal, Mr Spehar relied on one additional matter. In his written submissions, he said:
“I was asked to leave my job place on the 25th July 2022.
At that time I was entitled to a notice period of 5 weeks which I was receiving on a week to week basis (like I was still employed).
So should my date of termination actually be the 5th of September 2022 ?
I believe this is the case therefore my application was in fact within the 21 day period.”
There are two problems with this submission. The first is that the argument should have been put to the Deputy President in the proceedings below. The case before the Deputy President was argued on the basis that the dismissal was effective on 25 July 2022. The proper administration of justice requires that the substantial issues between the parties generally be settled at first instance. A party to an appeal will be held to its case below, unless there are exceptional circumstances (see University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481 at 483). We do not think that there are any exceptional circumstances that would allow Mr Spehar to argue on appeal that his employment ended on a different, later date.
The second problem with Mr Spehar’s submission is that he has miscalculated his dates and, even if his argument was correct, it does not change the outcome of the appeal. If Mr Spehar’s employment had continued for a further five weeks during a notice period, the employment would have ended on 29 August 2022, not 5 September 2022 as Mr Spehar calculated. Even if this were so, the application made on 25 September 2022 was made six days late.
Principles on appeal and consideration
Decisions about extension of time are discretionary insofar as the Commission can only grant an extension if it is “satisfied” that there were exceptional circumstances after taking into account the specific factors listed in s.366(2). In considering the factors in s.366(2), "no one [consideration] and no combination of [considerations] is necessarily determinative of the result" (see Coal and Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194, (2000) 99 IR 309, [2000] HCA 47 at [19] (Coal and Allied)). The Commission has some latitude about the decision to be made and within that latitude, reasonable minds might disagree.
Appeals from discretionary decisions are not simply an opportunity for an appellant to run their case again and try for a better result. On appeal, it is not enough that the members of the Full Bench might have arrived at a different conclusion if they had been in the same position with the same latitude as the member at first instance. It must appear that some error has been made in exercising the discretion (see House v. The King (1936) 55 CLR 499 at 504-505, [1936] HCA 40), otherwise a Full Bench will not substitute its preferred decision for the original decision. In appeals from discretionary decisions, an appellant must establish an error in the decision-making process (per Coal and Allied at [21]) rather than the ultimate conclusion.
Mr Spehar does not submit that the Deputy President misstated the legal requirements or misconstrued the facts. Mr Spehar has not identified any apparent error in the decision-making process. The basis for the appeal seems to be that the Deputy President made the wrong decision at the end of the decision-making process.
Under s.604(2) of the Act, we are required to grant permission to appeal if we are satisfied that it is in the public interest to do so. We may otherwise grant permission on discretionary grounds.
In GlaxoSmithKline Australia Pty Ltd v Makin (2010) 197 IR 266 at 273-274, [2010] FWAFB 5343 at [26]-[27] a Full Bench identified considerations that might 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…”
We have decided not to grant permission to appeal because we are not satisfied that it is in the public interest to do so. None of the above considerations arise in Mr Spehar’s appeal, nor any other matter of public interest that requires us to grant permission.
We do not see that there are any other discretionary grounds to grant permission to appeal. In his decision, the Deputy President correctly identified the relevant law and applied it in an orthodox way to the matters before him. No arguable case of appealable error is apparent in the Notice of Appeal, nor the submissions made by Mr Spehar.
Conclusion
Accordingly, permission to appeal is refused.
VICE PRESIDENT
Appearances:
Matter decided on the papers.
Final written submissions:
Appellant – 14 March 2023.
[1] Spehar v Sarina Prestige Investments Pty Ltd [2023] FWC 441.
Printed by authority of the Commonwealth Government Printer
<PR761850>
0
6
0