Lay v Bar's Leaks (Australia) Pty Ltd
[2016] FWCFB 2647
•2 MAY 2016
| [2016] FWCFB 2647 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
v
Bar’s Leaks (Australia) Pty Ltd
(C2016/2944)
SENIOR DEPUTY PRESIDENT HAMBERGER | SYDNEY, 2 MAY 2016 |
Appeal against an order PR577254 of Commissioner Johns at Sydney on 19 February 2016 in matter number U2015/15341 – representative error s.394(3)(a) – first became aware of the dismissals.394(3)(b)
[1] Ms K Lay has applied for permission to appeal a decision of Commissioner Johns on 19 February 20161 (decision). The Commissioner refused Ms Lay an extension of time to lodge an unfair dismissal remedy application under s.394 of the Fair Work Act 2009 (the Act) and dismissed her unfair dismissal remedy application.
[2] Section 394(2) of the 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.
[3] Ms Lay filed her unfair dismissal remedy application on 2 December 2015. That application identified the date of the dismissal as being 4 November 2015, and this date is not in contest. Ms Lay’s unfair dismissal remedy application was therefore filed seven days outside the 21 day time limit in s.394(2).
The decision under appeal
[4] The Commissioner decided in relation to consideration of those reasons pursuant to s.394(3)(a) as follows 2:
“The first of those is item (a), the reason for the delay. It is indisputable that there were 28 days between when the termination of the employment occurred and the proper application filed in the Commission. Therefore, the application was seven days late. The reason advanced on behalf of the applicant was that she is the innocent victim of representative error. A late lodgement of an application due to representative error may ground an extension of time. However, there is a distinction between delay caused by the representative where the employee is blameless and when the employee has contributed to the delay. What is central are the actions of the employee concerned in deciding whether the explanation of representative error is acceptable.
Where an application is delayed because the employee has left it in the hands of their representative and has not followed up their claim, the extension of time may be refused. Where an employee has given clear instructions to lodge the application and the representative has failed to do so, the extension may be granted.
In the present matter, Ms Hillman initially attended the meeting with the applicant as her friend. She attended as a support person. Ms Hillman gave evidence of her skills and experience in relation to unfair dismissal matters and industrial matters. That experience is nil. Ms Hillman runs a business which is a dispute resolution business in the building and construction industry. Those disputes relate to payment disputes. She has no employment-related experience and does not deal with those disputes. The applicant gave evidence that she was aware of Ms Hillman’s lack of experience in relation to these matters.
Ms Hillman gave evidence that the delay was caused because she misunderstood the 21-day period in the Fair Work Act and thought that it referred to 21 business days as opposed to ordinary days. She formed this view having regard to her experience in the building and construction injury and the Security of Payment legislation which provides for business days.
In order for the applicant to establish that she is a victim of representative error, it must be also established that she was entitled to rely upon Ms Hillman as her representative and that she herself is blameless for the delay in filing the unfair dismissal application. This is consistent with a long line of authorities in Clark v Ringwood Private Hospital and Robinson v Interstate Transport Pty Ltd and the Full Bench decision in Officeworks Ltd v David Parker. One of the established principles is that the conduct of the applicant is, as I have indicated, a central consideration in deciding whether representative error provides an acceptable explanation for the delay in filing the application. Referring to the Full Bench decision in Officeworks Ltd v David Parker, the Full Bench, at paragraph 18, decided:
In circumstances where “representative error” is relied upon in Commission proceedings as an excuse or explanation for the failure to meet time limits, it is appropriate to have regard to the professional qualifications and expertise of the representative concerned. This will enable an assessment to be made as to the extent to which it was reasonable for a party to rely upon the skills and expertise of the representative in acting on their behalf. Clearly where the representative is a lawyer, an experienced industrial advocate, or an officer or employee of an organisation of employers or employees, it might more readily be concluded that representative error provides an acceptable explanation for the delay and such error should not be blamed upon the party concerned. However where the representative chosen has no experience or expertise in the area of legal and employment matters, there might be less justification for reliance on that person and the responsibility for delays or other errors might be attributed to the party concerned.
Going on at paragraph 19 of the Officeworks decision:
In general, representative error may be more readily accepted as an explanation or excuse where the person relied upon has professional qualifications or expertise in dealing with legal and employment matters than where reliance is placed on a family member or friend.
I have already indicated the evidence given by Ms Hillman as to her experience and I find that, in these circumstances, the applicant relied upon Ms Hillman as her friend. In relying upon Ms Hillman, the applicant has not relied upon a person who has professional qualifications or relevant experience in dealing with legal and employment matters concerning unfair dismissal. The applicant chose Ms Hillman as her representative and is therefore not blameless. A prudent person engaging a representative should enquire about their skills and experience. The evidence of the applicant is that she just left the matters to Ms Hillman. No doubt the termination caused distress - they always do - but that is no excuse for not relying upon a proper person with skills and experience to conduct your unfair dismissal matter. The applicant relied wholly and solely on Ms Hillman and she was not entitled to do so. A good friend, no doubt Ms Hillman is. As a good friend, she should have told the applicant, “Do not rely upon me, I have no skill and experience in this area.”
For those reasons, I do not accept that this is a case of representative error because the applicant must take responsibility for choosing a friend with no skills and experience in this area as her representative. This matter falls squarely into the category of reliance upon a family member or friend and does not ground a claim for representative error.
Before me today, the applicant was represented by her daughter as an advocate, a solicitor. Whilst it is always good advice never to act for a family member, I must say that Ms Thompson today represented the applicant with distinction and clear capability. I accept the submission of the respondent that the applicant would have been in a much better position to choose Ms Thompson as her representative than Ms Hillman.
For those reasons, I reject the suggestion that there has been representative error and the reason for the delay is not an acceptable one in those circumstances and this factor weighs against granting the extension of time.
[5] In considering the other matters required to be taken into account under s.394(3), the Commissioner concluded that:
● It was uncontested that the applicant first became aware of the dismissal on 4 November and this factor weighed against granting an extension of time.
● It was uncontested that the applicant took steps to dispute the dismissal and this was a case where the applicant vigorously contested the validity of the termination of her employment, which weighed in favour of granting the applicant an extension of time.
● The Commissioner noted the delay was only seven days and there was no exceptional prejudice to the employer, and treated this as a neutral factor in considering whether to grant the applicant an extension of time.
● The Commissioner adopted the principles in the matter of Kornicki v Telstra-Network Technology Group 3, and in so doing did not embark upon consideration of the substantive case. In that case, under the former Workplace Relations Act the Commission said:
The merits of the substantive application. If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. However, we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.
● The Commissioner noted the matter was a factual contest about whether or not the termination of the employment was a genuine redundancy and took the view it was not without merit and not lacking in any substance which weighed in favour of granting an extension of time.
● Lastly, in relation to fairness between the applicant and other persons in a similar position, s.394(3)(f) was treated as a neutral consideration in determining whether to grant an extension of time.
● Ultimately the Commissioner was not satisfied that there were exceptional circumstances warranting the applicant being allowed a further period for her application to be granted, that is, an extension of time.
Consideration
[6] 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.4 There is no right to appeal and an appeal may only be made with the permission of the Commission.
[7] This appeal is one to which s.400 of the Act applies. Section 400 provides:
(1) Despite subsection604(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 subsection604(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.
[8] In the Federal Court Full Court decision in Coal & Allied Mining Services Pty Ltd v Lawler and others, Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s.400 as “a stringent one”.5 The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment6. In GlaxoSmithKline Australia Pty Ltd v 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.”7
[9] 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.8 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.9
[10] In relation to extensions of time to lodge applications under s.394(3), the test of “exceptional circumstances” establishes a “high hurdle” for an applicant 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 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 King11 - 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.
Decision
[11] The Commissioner found that there were no ‘exceptional circumstances’ which warranted granting an extension of time. He supported this decision with specific findings about each of the matters in s.394(3), as he was required to do.
[12] The appellant submits that the Commissioner’s conclusions in relation to s.394(3)(a) manifest significant injustice, and other matters 12. The Commissioner, for reasons already quoted, found that the representative error arguments of the appellant were not an acceptable reason for the delay in the circumstances, and that this factor weighed against granting the extension of time.
[13] In his decision the Commissioner quoted and sought to apply relevant authorities in relation to representative error, including Clark v Ringwood Private Hospital 13. He had before him evidence which included an admission by the appellant that she was aware that her representative ‘had no experience in the Fair Work jurisdiction’14, and that she trusted someone with no experience in this area of the law because ‘I don’t know, I didn’t think it was that hard’15.
[14] The appellant was aware of the circumstances of her representative and made a decision based on that knowledge. The Commissioner decided, amongst other things, that the appellant was ‘not blameless’ and that a ‘prudent person engaging a representative should enquire about their skills and experience. The evidence of the applicant is that she just left the matters to Ms Hillman ... the applicant relied wholly and solely on Ms.Hillman and she was not entitled to do so.’ 16
[15] We can find no arguable case of manifest injustice or error in these and other conclusions.
[16] The appellant also submitted that there is a diversity of decisions in which guidance from a Full Bench is required in relation to s.394(3)(b). It submitted that in this case the Commissioner treated the factor in s.394(3)(b) as weighing against the application for an extension of time, while in a number of single member decisions on the specific facts of those cases the Commission found that the factor was neutral 17. The appellant was unable to say whether or not there were Full Bench decisions on the question18.
[17] In this case the Commissioner concluded that the applicant was immediately aware after her dismissal on 4 November 2015 that she was dismissed 19. This finding was and is not challenged. He then found that this factor counted against granting the application for an extension of time.
[18] While there may be no Full Bench authority on this issue, it was open to the Commissioner in the circumstances of the case to find that this factor weighed against granting an extension of time. The appellant’s lack of awareness of her dismissal was not for example a reason for the delay in lodging her application. There is no requirement that s.394(3)(b) be neutral in circumstances such as the present. It is open to members of the Commission to make different findings in relation to this factor on the circumstances before them. As a Full Bench of the Commission said in Bluescope Steel (AIS) Pty Ltd. v Nejat Agas 20:
‘In an appeal such as this, it is not enough that the members of the Full Bench would have reached a different conclusion than the Commissioner. Nor would it be sufficient if the Full Bench were to disagree with the weight to be given to the factors the Commissioner took into account. Thus, the mere fact that the Full Bench might consider that the Commissioner gave insufficient weight to something would not justify setting aside the Decision.’
[19] Even if the factor had been neutral there is no reason to consider, given the findings in relation to s.394(3)(a) and other factors, that there would have been a different result in the matter and that ‘exceptional circumstances’ would have been found to exist. There is no arguable case of appealable error.
Conclusion
[20] In our view there is no basis for granting permission to appeal. There are no issues of importance or general application, or other grounds for granting permission to appeal. We dismiss the appeal.
SENIOR DEPUTY PRESIDENT
Appearances:
Ms J Thompson for the appellant
Hearing details:
Sydney
2016
13 April
1 Decision in transcript on 19 February 2016, Order PR577254
2 Transcript of 19 February 2016 PN231 to 242
3 Kornicki v Telstra-Network Technology Group [AIRC Print P3168, 22 July 1997]
4 Coal and Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ
5 (2011) 192 FCR 78 at [43]
6 O’Sullivan v Farrer (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] FWAFB 5343 at [27], 197 IR 266
8 Wan v AIRC (2001) 116 FCR 481 at [30]
9 GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343 at [26]-[27], 197 IR 266; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth[2010] FWAFB 10089 at [28], 202 IR 288, affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663 at [28]
10 Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21]
11 (1936) 55 CLR 499
12 Appellant written submissions, paragraphs 14-21; appeal grounds 2.1: 2-7, 3.1
13 (1997) 74 IR 413,
14 PN122
15 PN54
16 PN239
17 Appellant submissions, paragraphs 2-13; appeal ground 2.1:1, 3.1
18 PN73-80
19 PN243
20 [2014] FWCFB 5993 at 11
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