Kylie Degenaar v Wellparks Holdings Pty Ltd T/A ERGT Australia
[2019] FWCFB 3861
•14 JUNE 2019
| [2019] FWCFB 3861 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Kylie Degenaar
v
Wellparks Holdings Pty Ltd T/A ERGT Australia
(C2019/2300)
VICE PRESIDENT CATANZARITI |
|
Appeal against decision [2019] FWC 1705 of Commissioner Williams at Perth on 20 March 2019 in matter number U2019/595.
[1] Ms Kylie Degenaar (Appellant) has lodged an appeal, for which permission is required against a Decision 1 and Order2 of Commissioner Williams issued on 20 March 2019 in which the Commissioner determined that an extension of time should not be granted to the Appellant within which she could make an application for relief from unfair dismissal.
Decision at first instance
[2] The Appellant was employed by Wellparks Holdings Pty Ltd T/A ERGT Australia. Her employment was terminated and took effect on 21 December 2018. The Applicant made her application for an unfair dismissal remedy on 20 January 2019, some 9 days outside the 21 day time limit set by the Fair Work Act 2009 (the FW Act).
[3] In his Decision the Commissioner considered each of the criteria necessary for deciding if an extension of time should be granted pursuant to s.394 of the Act.
[4] The Commissioner considered the reason of the delay in the Appellant making her application. He took into account her explanation of what she was doing for the period between her dismissal and making her application. The Commissioner took into account the Appellant’s ignorance of the time period within which to make an application for unfair dismissal, and that she took a conscious decision to delay pursuing an unfair dismissal application believing that it would be easier to do so once the criminal charges against her were hopefully dismissed.
[5] The Commissioner did not accept that ignorance of the time period within which the application needed to be made provided an acceptable reason for the delay. Further, he did not accept that the Appellant was prevented from making her application due to the pressing need to prepare for court proceedings regarding the criminal charges. He reached this conclusion because he found it not uncommon for employees, on dismissal, to have personal circumstances that impinge upon their time and that the Appellant spent time doing other things besides preparing for her court proceedings.
[6] For these reasons the Commissioner did not consider that the Appellant provided a satisfactory explanation of the delay in making her application to the Fair Work Commission (Commission).
[7] The Commissioner found that the Appellant became aware of her dismissal on the day it took effect, that she did not otherwise seek to dispute her dismissal and that there was no suggestion of prejudice to the employer if an extension of time was granted.
[8] The Commissioner considered the merits of the application of the Appellant. He recognised a fundamental disagreement between the Appellant and her employer around the reasons for her dismissal. On this basis he considered that the merits of her case could only be properly determined at a full hearing. He therefore considered this a neutral matter in reaching his conclusion.
[9] The Commissioner concluded, on the basis of his findings, that the Appellant had not persuaded the Commission that there were exceptional circumstances such that she should be granted an extension of time. He therefore declined to grant an extension of time and dismissed her application.
[10] It is this Decision the Appellant appeals.
Permission to appeal
[11] An appeal under s.604 of the Fair Work Act 2009 (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. Section 604(2) of the FW Act states:
(2) Without limiting when the FWC may grant permission, the FWC must grant permission if the FWC is satisfied that it is in the public interest to do so.
Note Subsection (2) does not apply in relation to an application for an unfair dismissal (see section 400).
[12] This appeal is one to which s.400 of the FW Act applies. Section 400 of the FW Act provides as follows:
400 Appeal rights
(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.
[13] In Coal & Allied Mining Services Pty Ltd v Lawler and Others 4 the Federal Court characterised the test under s.400 as “stringent”.5 The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.6 In GlaxoSmithKline Australia Pty Ltd v Makin7(Makin) a Full Bench of the Commission 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. 8
[14] 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. 9 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.10
Grounds of appeal
[15] The Appellant’s grounds of appeal are that:
1. The Commissioner did not give due weight to her level of incapacity caused by stress and anxiety in relation to criminal proceedings;
2. The Commission did not give appropriate consideration to the severity of the criminal proceedings against the Appellant and therefore failed to weight them accordingly;
3. The conclusion that there were no exceptional circumstances warranting an extension of time within which to make the application was not reasonably open the Commissioner on the facts;
4. It was reasonably open to the Commission to find that the severe preoccupation of the Appellant with her criminal proceedings coupled with her ignorance of the law incapacitated her from being able to deduce or discern the imperative to make her application within the time provided by the Fair Work Act 2009.
[16] The Appellant says that it is in the public interest to grant permission to appeal because the decision of the Commissioner would create an injustice to the Appellant as the Commissioner fell into error. Further, the Appellant says that the appeal raises matters of such importance insofar as it goes to the competing priorities between criminal proceedings and an application for unfair dismissal.
Consideration
[17] The Appellant’s submissions focus on what she says is the level of incapacity she suffered due to the stress and anxiety in relation to the seriousness of the criminal proceedings against her. The Commissioner at first instance failed to take this into account and therefore his decision was attended by error. Further, the Appellant submits that a substantial injustice would be done to her of the type referred to in Makin as she would not be able to dispute her dismissal.
[18] We have carefully considered the decision of the Commissioner. We do not consider that there was any error of fact of the type argued by the Appellant.
[19] The Commissioner gave consideration to each of the matters put to him by the Appellant. He considered the stress and anxiety occasioned by the criminal proceedings but found that the Appellant was not totally consumed by preparation for it including that she consciously decided to pursue her unfair dismissal application after the criminal proceedings. 11
[20] The Commissioner has properly considered each of the matters required by him under s.394 of the FW Act. His considerations were carried out in an orthodox manner. He considered each of the matters required of him and had grounds on which to reach the conclusion he did. The conclusion he reached was reasonably open to him on the material before him. We find no error in his approach.
[21] We are not convinced that an arguable case of appealable error has been disclosed by the Appellant. The Decision is soundly based. We are not satisfied that:
• There is a diversity of decisions at first instance so that guidance from an appellate body is required of this kind;
• The appeal raises issues of importance and/or general application;
• The decision at first instance manifests an injustice, or the result is counter intuitive; or
• The legal principles applied by the Commissioner were disharmonious when compared with other decisions dealing with similar matters.
[22] We do not consider that this appeal attracts the public interest. We are therefore bound by s.400(1) of the FW Act to refuse permission to appeal.
Conclusion
[23] Permission to appeal is therefore refused.
VICE PRESIDENT
Appearances:
M. Stiller for the Appellant.
No appearance for the Respondent.
Hearing details:
2019.
Sydney via video link to Melbourne and Perth:
May 14.
Printed by authority of the Commonwealth Government Printer
<PR708997>
1 [2019] FWC 1705.
2 PR705883.
3 This is so because on appeal the Commission has power to receive further evidence, pursuant to s.607(2); see Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission and others (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.
4 (2011) 192 FCR 78.
5 Ibid at [43].
6 O’Sullivan v Farrerand another (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch (2011) 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) 192 FCR 78 at [44] -[46].
7 (2010) 197 IR 266.
8 Ibid at [27].
9 Wan v Australian Industrial Relations Commission and Another (2001) 116 FCR 481 at [30].
10 GlaxoSmithKline Australia Pty Ltd v Makin (2010) 197 IR 266; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth (2010) 202 IR 388, affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78; NSW Bar Association v McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663 at [28].
11 See AB p 16.
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