Kevin Allan Bentley v Department of Finance
[2024] FWCFB 260
•21 MAY 2024
| [2024] FWCFB 260 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Kevin Allan Bentley
v
Department of Finance
(C2024/2129)
| DEPUTY PRESIDENT MILLHOUSE COMMISSIONER LEE | MELBOURNE, 21 MAY 2024 |
Appeal against decision [2024] FWC 754 of Commissioner Schneider at Perth on 22 March 2024 in matter number U2024/1078 – permission to appeal refused.
Mr Kevin Bentley has lodged an appeal under s 604 of the Fair Work Act 2009 (Cth) (Act), for which permission to appeal is required, against a decision[1] and order[2] of Commissioner Schneider issued on 22 March 2024.
In the decision, the Commissioner declined to grant the Applicant, Mr Bentley, an extension of time to file his unfair dismissal application against the Respondent, Department of Finance (DOF), and ordered that his application be dismissed.
The matter was listed for permission to appeal only. For the reasons that follow, permission to appeal is refused.
Context
Section 394(2) of the Act requires an application for an unfair dismissal remedy to be filed 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.”
Mr Bentley’s application for an unfair dismissal remedy was lodged on 1 February 2024. The decision records that his dismissal took effect on 19 December 2023. The application needed to have been lodged with the Commission by 9 January 2024. The application was therefore lodged 23 days outside the statutory timeframe of 21 days.
In his Form F2 application for an unfair dismissal remedy, Mr Bentley answered “yes” to the question, “Is this form being lodged within the 21 days limit.” The DOF raised the jurisdictional objection that the application was out of time in its Form F3.
The decision under appeal
In the decision, the Commissioner commenced by dealing with the evidence as to the effective date of the dismissal. This was necessary as Mr Bentley had indicated that he did not know the exact date of the dismissal. The Commissioner determined after considering the evidence, including finding that he had reservations as to the credibility of the Mr Bentley, that the effective date of dismissal was 19 December 2023. That determination is not challenged on appeal by Mr Bentley.
The Commissioner then set out the law to be applied to a consideration as to whether to extend the period within which an application for unfair dismissal remedy may be made. The Commissioner then proceeded to separately address each of the matters in s 394(3) of the Act that he was required to take into account.
The Commissioner considered the two reasons advanced by Mr Bentley for the delay. The first reason was that he had attempted to agitate action against the DOF through Comcare and the second was that he was unaware of the timeframe for lodgement. The Commissioner was not satisfied these explanations for the delay in filing his application for the purposes of
s 394(3)(a) evidenced exceptional circumstances.[3] In respect to 394(3)(b) the Commissioner was not satisfied that Mr Bentley only first became aware of the dismissal after it took effect. As to the considerations in s 394(3)(c) the Commissioner again considered Mr Bentley’s attempts to have Comcare take some action against the DOF but was not satisfied that his action in contacting Comcare in the manner described was an attempt to dispute the dismissal. In considering 394(3)(d) the Commissioner found that there was no prejudice to the DOF if an extension of time was granted and in respect to 394(3)(f) that neither party brought to his attention any relevant matter.
As to the merits of Mr Bentley’s substantive case, the Commissioner noted that it will not be appropriate for the Commission to resolve contested issues of fact going to the ultimate merits in the context of an extension of time application. The Commissioner concluded that it was not possible to make any firm or detailed assessment of the merits beyond finding that Mr Bentley has an apparent case and the DOF has an apparent defence.
After reiterating the law to be applied to a consideration of exceptional circumstances the Commissioner determined that none of the criteria that he had considered, alone or combined, led him to a finding of exceptional circumstances and therefore he was not satisfied that there are exceptional circumstances and therefore no basis for the Commission to allow an extension of time and dismissed Mr Bentley’s application.[4]
Ground of appeal
Mr Bentley’s Form F7 Notice of Appeal contains three grounds of appeal which are in summary:
That the Commissioner failed to give proper weight to the seriousness of the actions of the DOF who Mr Bentley claims was involved in “breaking the law” by dismissing an elected workplace health and safety representative.
That the Commissioner was dismissive of Mr Bentley’s submissions that the reason for the delay in lodgement was his attempts to have Comcare take action against the DOF.
That the Commissioner appears to have given no weight to Mr Bentley’s submission that he was simply unaware of the requirement to lodge an application for unfair dismissal remedy in 21 days.
In relation to the public interest, Mr Bentley states in his Notice of Appeal as follows:
“It is imperative under the Workplace Health and Safety Act that employers be prevented from attacking elected WHS Representatives for raising important WHS issues. If they are not prevented from doing so the legislation is in danger of becoming unworkable which is why there are substantial penalties embodied in the Act.”[5]
Principles – permission to appeal
An appeal under s 604 of 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.[6] 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 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,[7] 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.[8] A Full Bench of the Commission, in GlaxoSmithKline Australia Pty Ltd v Makin[9], 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...”
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.[10] However, the fact that the Member at first instance made an error is not necessarily a sufficient basis to grant permission to appeal.[11]
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.[12] However, it is necessary to engage with the appeal grounds to consider whether they raise an arguable case of appealable error.
Fresh evidence
In the appeal, Mr Bentley seeks to rely upon three emails dated 27 April 2023, 25 January 2024 and 7 March 2024. The emails evidence exchanges that Mr Bentley had with Comcare on those dates. Is not in dispute that these emails were not before the Commissioner at first instance and therefore constitute fresh evidence.
Section 607(2) of the Act confers a discretion on the Full Bench to “admit further evidence” and “take into account any other information” on appeal, however it is by no means a matter of course that it will do so.
It is well-settled that the principles governing the discretion to admit new evidence or to consider further material are set down in Akins v National Australia Bank.[13] In that case, the New South Wales Supreme Court identified three conditions which need to be met before fresh evidence can be admitted. These are: (1) it must be established that the evidence could not have been obtained or adduced with reasonable diligence for use at first instance; (2) it must be evidence which is of such a high degree of probative value that there is a probability that there would have been a different result at first instance; and (3) the evidence must be credible.[14]
It has been recognised by Full Benches of the Commission that, in considering whether to exercise the discretion in s 607(2), it is permissible in an appropriate case to depart from the principles set out in Akins and the principles need not be strictly applied.[15]
However, the Full Bench decisions referred to indicate it will be rare for fresh evidence to be admitted on appeal where the conditions in Akins are not met.
We decline to admit the three emails, as we are not satisfied that the requirements of Akins are met or that the material is otherwise appropriate to admit. Specifically, having considered the material, we are not satisfied that the first two of the three conditions in Akins have been met. In respect of the first condition, it is clear that the emails all pre-date the filing of Mr Bentley submissions and other materials on 11 March 2024. Mr Bentley could have filed the emails but made a forensic choice not to do so. In respect to the second condition, the emails are not of such a high degree of probative value that there is a probability that it would have changed the result at first instance. In respect of the 27 April 2023 email, this predates the dismissal and is of little to no relevance to a consideration of the extension of time application. The remaining two emails post-date the dismissal, however the Commissioner was aware that Mr Bentley was agitating the matter with Comcare and took that into account in his consideration. We are not satisfied there is a probability it would have changed the result at first instance.
Consideration
We do not consider that it is appropriate to grant permission to appeal.
The time limit that applies to the exercise of a person’s right to bring an application under s 394 of the Act reflects Parliament’s intention that this right be exercised promptly. The Act recognises that there are some cases where a late application should be accepted, namely where there are exceptional circumstances.
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.[16] A decision as to whether to extend time under s 394(3) involves the exercise of a broad discretion.[17]
The appeal grounds upon which Mr Bentley relies do not identify an arguable case of appealable error in the exercise of the Commissioner’s discretion.[18]
The first appeal ground invites the Full Bench to conclude that the Commissioner did not give proper weight to Mr Bentley’s assertion that the DOF had broken the law for dismissing a workplace health and safety representative. The weight to be attributed to the evidence before him was a matter for the Commissioner, in the exercise of his discretion. However, to the extent that Mr Bentley alleges that the Commissioner erred by not reaching a concluded view on this aspect of the merits of the case, this ground has no arguable prospects of success. The Commission should not embark upon a detailed consideration of the merits of the substantive case in determining whether to grant an extension of time. Consistent with this principle, the Commissioner noted that it was not appropriate to resolve contested issues of fact and observed that while Mr Bentley had an apparent case, the DOF had an apparent defence. It is apparent from the materials before the Commissioner that Mr Bentley considers he was dismissed in connections with his role as an elected workplace health and safety representative. The respondent submits that Mr Bentley was dismissed for allegedly failing to comply with a warning to behave in accordance with the APS Code of Conduct. The Commissioner’s approach to the merits consideration and the conclusion reached, discloses no arguable error on appeal.
The second appeal ground contends that the Commissioner erred by dismissing Mr Bentley’s submission that the delay arose due to his attempts to get Comcare to take action against the DOF. However, the Commissioner clearly took that matter into account and considered it. He was not dismissive of the evidence on that point.[19]The Commissioner concluded that the action taken by Mr Bentley to agitate the matter with Comcare was not a satisfactory explanation for the delay. We see no arguable error in his determination on that point. Mr Bentley could have pursued his unfair dismissal application simultaneously. Further, Mr Bentley was clearly aware that he could do so as evidenced in the 11 December 2023 email response from Mr Bentley to the DOF referred to by the Commissioner at [53] of the decision. In that email Mr Bentley advised the respondent that he intended to make an application to the Fair Work Commission for unfair dismissal should he be dismissed as well as expediting “…processes through Comcare.”[20] The second appeal ground discloses no arguable error on appeal.
The third appeal ground is that the Commissioner gave no weight to the claim that Mr Bentley was simply unaware of the 21-day lodgement requirement. Ignorance of the statutory time limit is not an exceptional circumstance.[21] The Commissioner’s consideration and conclusion on this point discloses no arguable error on appeal.
Conclusion
We are not persuaded that any of the matters raised by Mr Bentley justify the grant of permission to appeal or enliven the public interest. Mr Bentley’s application for an extension of time was determined on the basis of its own facts. In this respect, we are not satisfied that the appeal raises any issue of importance or general application, nor does it identify any relevant diversity of decisions at first instance. We do not consider it to be arguable that the decision of the Commissioner manifests an injustice, or that the result is counterintuitive or unjust. For the reasons we have given, the legal principles are not disharmonious with other authorities concerning s 394(3) of the Act.
As we are not satisfied that the grant of permission to appeal would be in the public interest, permission to appeal must be refused in accordance with s 400(1) of the Act.
Order and disposition
Permission to appeal is refused.
DEPUTY PRESIDENT
Appearances:
Mr. K Bentley, Appellant.
Ms C Mann of AGS for the Respondent.
Ms A Mills of AGS for the Respondent.
Ms B Asaris of DOF, Respondent.
Hearing details:
2024:
Melbourne (by video link):
May 8
[1] [2024] FWC 754 (Decision).
[2] PR772654.
[3] Decision at [79]
[4] Ibid at [81].
[5] Question 3.1 of the Form F7.
[6] This is so because on appeal, the Commission has the power to receive further evidence pursuant to s.607(2); see Coal and Allied v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.
[7] (2011) 192 FCR 78 at [43].
[8] 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].
[9] GlaxoSmithKline Australia Pty Ltd v Colin Makin[2010] FWAFB 5343 at [27].
[10] Wan v AIRC [2001] FCA 1803, 116 FCR 481 at [30].
[11] 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].
[12] Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82].
[13] (1994) 34 NSWLR 155.
[14] Cited in Perry v Rio Tinto Shipping Pty Ltd [2016] FWCFB 6936.
[15] JJ Richards & Sons Pty Ltd v Transport Workers’ Union of Australia (2010) 202 IR 180; [2010] FWAFB 9963 at [95]; Mermaid Marine Vessel Operations Pty Ltd v Maritime Union of Australia (2014) 241 IR 35; [2014] FWCFB 1317 at [17]; C Ozsoy v Monstamac Industries Pty Ltd[2014] FWCFB 2149 at [21] - [25]; Perry v Rio Tinto Shipping Pty Ltd [2016] FWCFB 6963 at [11].
[16] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21].
[17] Ibid.
[18] See, House v The King [1936] HCA 40, 55 CLR 499.
[19] [2024] FWC 754 at [44]-[57].
[20] Decision at [31].
[21] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [14].
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