Kendal-Rose Horner v P J Event Decorators t/a Decorative Events and Exhibitions
[2019] FWCFB 6730
•4 OCTOBER 2019
| [2019] FWCFB 6730 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
Kendal-Rose Horner
v
P J Event Decorators t/a Decorative Events and Exhibitions
(C2019/5294)
| VICE PRESIDENT HATCHER DEPUTY PRESIDENT MILLHOUSE | SYDNEY, 4 OCTOBER 2019 |
Appeal against decision [2019] FWC 5310 of Commissioner Johns at Sydney on 6 August 2019 in matter number U2019/3305.
Ms Kendal-Rose Horner has applied for permission to appeal against a decision of Commissioner Johns issued on 6 August 2019[1] (Decision) in which the Commissioner declined to grant an extension of time for Ms Horner to file her unfair dismissal application against P J Event Decorators t/a Decorative Events and Exhibitions (respondent) pursuant to s 394 of the Fair Work Act 2009 (FW Act).
Section 394(2) of the FW 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 s 394(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.
Ms Horner’s application for an unfair dismissal remedy was made 14 days out of time. She was dismissed by the Respondent on 15 February 2019, so the 21st day after her dismissal was 8 March 2019. The application was lodged with the Commission on 22 March 2019.
The relevant factual circumstances leading to the making of the application were as follows:
(1) Ms Horner’s employment was terminated on 15 February 2019 at a meeting Ms Horner attended with her manager. Ms Horner was advised that she had been replaced in her role by an external candidate and was asked to return company property.
(2) Later on 15 February 2019, Ms Horner sent an email to the HR Advisor of the Respondent, seeking clarity around “the legal and ethical grounds this dismissal falls under.” Ms Horner received an “out of office” reply indicating that the HR Advisor would be returning to work on 25 February 2019.
(3) On 25 February 2019, the HR Advisor returned to work, but Ms Horner decided to allow her one week to respond to the 15 February 2019 email.
(4) On 28 February 2019, Ms Horner received a payslip from the Respondent, recording that no payment had been made to her.
(5) On 1 March 2019, Ms Horner noticed that she ceased to have access to work emails on her mobile phone.
(6) Between 1-22 March 2019, Ms Horner was on a pre-booked holiday.
(7) On 22 March 2019, Ms Horner discovered via LinkedIn that she had been replaced in her position in March 2019.
(8) On 22 March 2019, the application was lodged with the Commission.
The explanation for the delay in lodging the application was described in the written submissions of Ms Horner as follows:
“The main reason for the delay to submit the application was down to the nature of the whole matter. The diminishing to zero communication meant I was left bewildered and what the conversation taken place on the 15th February meant for me. As far as I was aware, at the time of conversation I was still an employee of Decorative Events & Exhibitions on extended leave. I took the time post the conversation to await further communication and direction from HR which I never received.”[2]
In the Decision, the Commissioner gave separate consideration to each matter required to be taken into account under s 394(3). Regarding the reason for the delay, the Commissioner acknowledged that while the failure of the Respondent to confirm the termination of employment in writing and the generally non-communicative nature of the HR Advisor did not assist, he did not accept that the Applicant did not know that her employment had been terminated on 15 February 2019. The Commissioner said:
“[23] Notwithstanding the clear words used by the Applicant’s manager on 15 February 2019 the Applicant preferred to give the HR Advisor time to return from her leave and then a further week to respond to the email that the Applicant sent immediately following the termination of her employment. The Applicant might be considered polite in allowing the HR Advisor time to respond to the email, but it nonetheless meant that the Applicant lost precious time in which she could have filed her unfair dismissal application within time. In order for the unfair dismissal application to be filed within time it should have been filed on or before 8 March 2019. However, on 1 March 2019 (when the Applicant noticed that her mobile phone access to work emails had ceased) the Applicant went on holidays. The fact that the holiday was pre-booked is not an exceptional circumstance.
[24] Therefore this factor weighs against granting the Applicant a further period to make her application.”
In respect of the remaining considerations in s 394(3), the Commissioner found that paragraphs (b) and (c) weighed against the grant of an extension of time, paragraph (d) and (f) were neutral considerations and paragraph (e), relating to the merits of the application, stood strongly in favour of granting an extension of time. The Commissioner concluded that, when all of the s 394(3) factors were considered in totality, there were no exceptional circumstances warranting the grant of an extension of time to lodge the application.
On 27 August 2019, Ms Horner filed a notice of appeal against the Decision. Directions were issued on 28 August 2019, noting the requirement for Ms Horner to file and serve:
(1) appeal books within seven calendar days after lodging the notice of appeal; and
(2) an outline of submissions by 5:00pm on 18 September 2019.
A notice of listing issued to the parties, also dated 28 August 2019, stated that the matter was listed to be heard on 30 September 2019.
On 9 September 2019, the chambers of the Presiding Member (Chambers) emailed Ms Horner enquiring when an appeal book would be filed and served, noting it was six days overdue.
On 16 September 2019, Ms Horner emailed Chambers, advising that she had been unable to file her appeal book due to undisclosed health reasons. Ms Horner stated that she intended to have the appeal books sent via FedEx from the United Kingdom that week.
On 19 September 2019, Chambers emailed Ms Horner advising that her outline of submissions had not been filed on 18 September 2019 in accordance with the Directions.
On 23 September 2019, Chambers emailed Ms Horner advising that her appeal books and outline of submissions had not been filed in accordance with the Directions and enquired whether they had been served on the Respondent.
On 24 September 2019, Chambers emailed Ms Horner, stating as follows:
“We note that we have attempted to contact you a number of times by email and telephone. Your submissions are now over a week overdue and we have not yet received an appeal book. Your matter has been listed for hearing before a Full Bench on Monday 30 September 2019. You have not requested an extension for the delayed filing of submissions from the Full Bench.
Our chambers expects your submissions to be filed by 5.00pm today and confirmation that the appeal books have been sent.”
On 25 September 2019, Ms Horner emailed Chambers advising that she was currently in the United Kingdom and, due to undisclosed “personal/health matters,” she had been unable to complete her submissions or send the appeal books. Ms Horner enquired about the options available to her.
A response was provided by Chambers on 25 September 2019, querying whether Ms Horner intended on attending the hearing and pursuing the appeal.
On 26 September 2019, Ms Horner emailed Chambers, stating as follows:
“I do wish to proceed with the appeal however given my delay in submitting the relevant documents, please advise where this leaves us for Monday’s hearing? Please advise if there is any possibility to delay the hearing and how I go about requesting to do so.”
Ms Horner was advised by Chambers on 26 September 2019 that she would need to send an email as a matter of priority given the late notice, requesting that the hearing of the matter be adjourned and providing reasons why the Full Bench should grant the adjournment request. Notwithstanding this advice, no further correspondence was received from Ms Horner until the morning of the appeal hearing.
At 9:37am on 30 September 2019, Ms Horner provided a written request that the hearing (listed to commence at 2:00pm that day) be adjourned for an unspecified period. The request was made on the basis that Ms Horner has “been battling a mental health condition which has been particularly heightened” by the dismissal and following it. The adjournment request was not accompanied by any supporting material or medical evidence.
We sought the respondent’s view concerning the adjournment application. It said that while it was aware that Ms Horner had been on a mental health plan during the employment, it was unaware of any specific matters regarding the health condition raised by Ms Horner in her adjournment request. We decided to refuse the adjournment application on the basis that there was insufficient material or information to permit us to be satisfied that Ms Horner was genuinely medically incapable of appearing at the hearing and advancing submissions in support of her application for permission to appeal. We also took into account the fact that Ms Horner appeared still to be in the UK on the day of the hearing, and that an adjournment would cause unwarranted inconvenience to the respondent.
The hearing proceeded on 30 September 2019 in accordance with the notice of listing. There was no appearance for Ms Horner.
As earlier stated, Ms Horner did not comply with the direction to provide an outline of submissions in support of her application for permission to appeal before the hearing. The only material we have before us in support of her application, therefore, is the notice of appeal itself. Ms Horner advanced seven grounds of appeal, which can be summarised as involving the following two propositions:
(1) Ms Horner had a mental health condition, which was a “fundamental factor” contributing to the delay in lodging the application, and this was not taken into account by the Commissioner.
(2) The conclusion in the Decision that Ms Horner’s pre-booked holiday was not an exceptional circumstance is a significant error of fact, as the holiday was not advanced by Ms Horner as an exceptional circumstance. Rather, information concerning the holiday was provided by Ms Horner as part of the timeline of events leading to the lodgement of the application.
Consideration
An appeal under s 604 of the FW 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.[3] There is no right to appeal and an appeal may only be made with the permission of the Commission.
This appeal is one to which s 400 of the FW 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.
In the Federal Court Full Court decision in Coal & Allied Mining Services Pty Ltd v Lawler and others,[4] Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s 400 as “a stringent one”. 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 Makin, 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.”[6]
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.[7] 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.[8]
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.[9] However it is necessary to engage with those grounds to consider whether they raise an arguable case of appealable error.
The test of “exceptional circumstances”, in relation to extensions of time to lodge applications under s 394(3), establishes a “high hurdle” for an application for an extension, and a decision as to whether to extend time under s 394(3) involves the exercise of a broad discretion.[10] Therefore it will be necessary, in an application for permission to appeal against a decision made under s 394(3), to demonstrate that there is an arguable case and that there was appealable error in the exercise of the discretion. This will require the identification of error of the type described in House v The King[11] – 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, s 400(2) requires that it must be a significant error of fact. The overriding public interest requirement of s 400(1) remains.
We are not persuaded that Ms Horner has made out an arguable case of appealable error. The approach take in the Decision to the specific requirements of s 394(3) of the FW Act appears to have been conventional and unremarkable, and we are satisfied that the Commissioner has not made any error in the application of those principles to the facts, as presented to him. It is apparent from the notice of appeal that Ms Horner elected not to advance submissions concerning her stated mental health condition in the proceedings before the Commissioner. Accordingly there can be no arguable contention of error on the basis that the Commissioner did not take this matter into account. There is nothing before us to suggest any reason why Ms Horner could not have raised this matter before the Commissioner. That the Commissioner rejected Ms Horner’s pre-booked holiday as an acceptable reason for her delay in the filing her unfair dismissal application, in circumstances where Ms Horner now says she did not raise this as a reason for the delay, goes nowhere in terms of a contention of appealable error.
Nothing in the information available to us indicates that it would be in the public interest to grant Ms Horner permission to appeal. 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 s 394(3) of the FW Act.
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 FW Act.
VICE PRESIDENT
Appearances:
Ms C Warren on behalf of P J Event Decorators t/a Decorative Events and Exhibitions.
Hearing details:
Melbourne.
2019:
30 September.
<PR712856>
[1] [2019] FWC 5310
[2] Exhibit 4
[3] This is so because on appeal the Commission has power to receive further evidence, pursuant to s.607(2); see Coal and Allied v AIRC [2000] HCA 47, 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ
[4] (2011) 192 FCR 78 at [43]
[5] O’Sullivan v Farrer [1989], HCA 61, 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch [2011] HCA 4, 243 CLR 506, 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] FCAFC 54, 192 FCR 78, 207 IR 177 at [44]-[46]
[6] [2010] FWAFB 5343, 197 IR 266 at [24] – [27]
[7] Wan v AIRC [2001] FCA 1803, 116 FCR 481 at [30]
[8] Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth[2010] FWAFB 10089, 202 IR 388 at [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54, 192 FCR 78, 207 IR 177; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office[2014] FWCFB 1663, 241 IR 177 at [28]
[9] Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]
[10] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21]
[11] [1936] HCA 40, 55 CLR 499
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