Kirby Drew v Wesley Mission
[2020] FWCFB 4703
•11 SEPTEMBER 2020
| [2020] FWCFB 4703 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Kirby Drew
v
Wesley Mission
(C2020/6283)
VICE PRESIDENT CATANZARITI | SYDNEY, 11 SEPTEMBER 2020 |
Appeal against decision [2020] FWC 3793 of Deputy President Sams at Sydney on 21 July 2020 in matter number U2020/6020. Section 394 application, extension of time sought to file application, extension of time sought to file appeal against Deputy President’s decision. Extension of time to file appeal not granted.
Background to the appeal
[1] This decision deals with an appeal, for which an extension of time is sought and permission to appeal is required, made by Ms Kirby Drew (the Appellant) under s 604 of the Fair Work Act 2009 (Cth) (the Act) against a decision of Deputy President Sams issued on 21 July 2020. 1 The Deputy President declined (under s 394(2) of the Act) to extend time to the Appellant to file an unfair dismissal application made under s 394 of the Act.
[2] The Appellant filed her unfair dismissal application on 1 May 2020. In the Appellant’s application, she alleged that she was unfairly dismissed from her employment on 9 March 2019. Section 394(2) of the Act requires that an application for an unfair dismissal remedy be made within 21 days after the dismissal took effect, or within a further period for the application to be made if the Fair Work Commission (the Commission) is satisfied that exceptional circumstances exist.
[3] The Deputy President noted that the application was filed 398 days out of time, pursuant to the statutory time limit stipulated in s 394(2) of the Act. In his Decision, the Deputy President was satisfied that the reasons for the Appellant’s delay in filing her application within time were not exceptional circumstances, within the meaning of s 394(3) of the Act. Accordingly, the Deputy President concluded that the Commission’s jurisdiction was not enlivened, and the Appellant’s application was dismissed.
[4] Rule 56(2) of the Fair Work Commission Rules 2009 relevantly provides that a notice of appeal under s 604 must be filed within 21 calendar days after the date of the decision being appealed against or within such further time allowed by the Commission on application by the Appellant.
[5] In these circumstances, the Appellant was required to file an appeal within 21 days after the date of the Decision. The 21 day period after the date of the Decision was 11 August 2020. The Appellant’s notice of appeal was filed on 14 August 2020. It follows that the appeal was lodged three days outside the prescribed time limit. Accordingly, is it necessary for the Appellant to apply for an extension of time to file her appeal. This question must be addressed first before this Full Bench can address whether leave to appeal the decision in the first instance should be granted.
[6] As the Full Bench noted in a recent decision in the Commission:
“Time limits of the kind in Rule 56 should not simply be extended as a matter of course. There are sound administrative and industrial reasons for setting a limit to the time for bringing an appeal and it should only be extended where there are good reasons for doing so.” 2
[7] The Form F7-Notice of Appeal (Application) filed by the Appellant ticked ‘no’ on the question of whether the Application had been filed within the prescribed time frame. In addition to reasons outlined in her Application, the Appellant gave reasons in a written submission and in her oral submissions why the Application was filed out of time and why permission to appeal should be granted. The Appellant also sent emailed correspondence shortly after the hearing outlining a new matter and/or elaborating upon certain matters which had already been touched-upon. We have considered all the matters raised by the Appellant but, in deference to her privacy-related concerns as outlined before the Appeal Bench, we do not refer to them in any detail in these reasons.
[8] The relevant authorities 3 provide that the following matters are relevant to the exercise of the Commission’s discretion to extend time to file an appeal:
• whether there is a satisfactory reason for the delay;
• the length of the delay;
• the nature of the grounds of appeal and the likelihood that one or more of those grounds being upheld if time was extended; and
• any prejudice to the respondent if time were extended.
[9] The issue for this Full Bench is whether, in all the circumstances and having regard to the matters set out above in the context of the necessary principles, an extension of the time within which to lodge the appeal should be granted.
[10] This matter was subject to a telephone hearing on 2 September 2020. Wesley Mission (the Respondent) sought permission to be legally represented. The Full Bench granted the Respondent’s application for permission to be represented pursuant to s 596(2)(a) of the Act in the hearing.
Extension of time for the appeal
Satisfactory Reason for the Delay
[11] In broad summary, the Appellant made reference to medical treatment she received in the relevant time period and that the recovery period following treatment compromised her ability to file her Application within the prescribed time frame. Additionally, the Appellant also noted that she experienced a series of serious personal incidents; that she had various computer-related issues and difficulties accessing printing; that she was not provided with any information by the Commission regarding her appeal rights until 5 August 2020; that it took the Appellant some time to process the Decision; and that she was dealing with a pending home relocation at the time of the prescribed period.
[12] Critically, the reasons for delay provided by the Appellant must be considered in the context of correspondence sent by the Chambers of Deputy President Sams on 5 August 2020 in response to an email sent by the Appellant on the same day. The correspondence is extracted below:
“Dear Ms Drew,
I refer to your below email. If you feel aggrieved by the decision, you have the ability to make an appeal application by filing a Form F7 application which I have attached for your convenience. Please be advised that there is a 21-day time limit to file an appeal application from the date the decision was issued pursuant to Rule 56(2) of the Fair Work Commission Rules 2013.
There is further information about appealing a decision on the Commission’s website, which you can find here: Any further questions can be directed to the Commission’s Registry, who can be contacted on 1300 799 675.”
[13] In hearing, the Appellant submitted that she should have been given 21 days to file her Application from the date that she received this correspondence from the Chambers of Deputy President Sams.
[14] The Appellant was made aware of her obligations to file her Application as at 5 August 2020 within the prescribed period. The correspondence was sent to the Appellant on a date when she still had time to file her Application within time. Accordingly, the Appellant was put on notice as to the prescribed statutory period. To the extent that the Appellant was lacking in knowledge about the process involved in filing her Application, the correspondence directed the Appellant to both the Commission’s website and the Commission’s Registry, which may have been able to answer any further queries. The fact that the Appellant was able to correspond with the Commission on 5 August 2020 in writing weighs in favour of the proposition that she had capacity to make further inquiries about her right to appeal.
[15] In any event, we would note that it is not the practice of the Commission to provide parties with information about filing an appeal simultaneously with the issuing of a decision.
[16] Accordingly, based on the Appellant’s written and oral submissions and the reasons aforementioned, we are not persuaded that a satisfactory explanation for the delay in filing the appeal exists.
Length of delay
[17] As mentioned earlier, the Application was lodged three days outside the prescribed time limit.
Grounds of appeal and likelihood of one or more being upheld
[18] The prospects of success of the appeal, if an extension of time was to be granted, must be assessed as minimal. On a fair reading of the Decision as a whole, it is apparent that the Deputy President took into account all of the relevant evidence before him. Further, the Decision involved an exercise of discretion, and the Deputy President made findings which appear to have been reasonably open to him on the evidence and submissions.
[19] The appeal grounds do not identify any error in the Decision. We note that the grounds of appeal in substance, or in large measure, repeat aspects of the submissions made by the Appellant in her filing of the initial extension of time application before the Deputy President.
Prejudice to the Respondent
[20] In hearing, the Respondent did not make any submissions that the Respondent would be unduly prejudiced if an extension of time was granted.
Conclusion
[21] The Full Bench acknowledges the impact that a number of distressing events have occasioned on the Appellant. Notwithstanding the outcome of this appeal, the Full Bench hopes that the Appellant’s future will be one that is absent of the type of exigencies that she has faced in the past or the ongoing impact of them; and we acknowledge the personal fortitude of the Appellant in this decision.
[22] Having regard to all of the relevant considerations and applying the necessary legal principles, we are not persuaded that it is appropriate to extend time to file the appeal. Accordingly, we have concluded that an extension of time should not be granted.
[23] The Appellant’s application for an extension to extend time to appeal is therefore dismissed and, as a result, the appeal proceedings are concluded.
[24] We also considered both parties’ submissions in the appeal regarding whether permission to appeal should be granted. Had we granted an extension of time, we would not otherwise have granted permission to appeal having regard to our observations at paragraphs [18] and [19] above.
VICE PRESIDENT
Appearances:
Ms K Drew, the Appellant on her own behalf.
Mr A Barwick, for the Respondent.
Hearing details:
2020.
Telephone hearing:
2 September.
Printed by authority of the Commonwealth Government Printer
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1 Kirby Drew v Wesley Misson [sic] [2020] FWC 3793 (the Decision).
2 Robert Gavin Tunsted v Busways North Coast Pty Ltd [2020] FWCFB 25 at [14].
3 Lesic v No 1 Riverside Quay Pty Ltd T/A BP Australia [2015] FWCFB 395; Tokoda v Westpac Banking Corporation T/A Westpac [2012] FWAFB 3995.
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