Lee Charles v Anglican Care
[2016] FWCFB 5502
•30 AUGUST 2016
| [2016] FWCFB 5502 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
Anglican Care
(C2016/4685)
VICE PRESIDENT HATCHER | SYDNEY, 30 AUGUST 2016 |
Permission to appeal against decision [2016] FWC 4664 of Commissioner Wilson at Melbourne on 14 July 2016 in matter number C2016/3887.
Introduction
[1] This is an appeal, for which permission to appeal is required, against a decision of Commissioner Wilson issued on 14 July 2016 1 (Decision) in which he declined, under s.366 of the Fair Work Act 2009 (FW Act), to extend time to the appellant, Ms Lee Charles, to file a general protections dismissal application under s.365 of the FW Act. Consequently, the Commissioner issued an Order dismissing Ms Charles’s substantive application.2
[2] At the hearing of the appeal before us Ms Charles represented herself. The respondent was represented by Ms Catherine Mordaunt, the respondent’s Human Resources Manager.
[3] Ms Charles filed her general protections dismissal application in the Commission on 25 May 2016. In that application she identified the date of the dismissal the subject of the application as being 1 September 2014.
[4] Section 366(1) requires a general protections dismissal application to be made within 21 days after the dismissal took effect or within such further period as the Commission allows under s.366(2). That means Ms Charles should have filed her application by 22 September 2014. In filing the application on 25 May 2016, she was 611 days late. It was therefore necessary for Ms Charles to obtain an extension of time under s.366(2) in order to make her application.
Legislative provisions
[5] Section 366(2) sets out the circumstances in which the Commission may grant an extension of time as follows:
(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) any action taken by the person to dispute the dismissal; and
(c) prejudice to the employer (including prejudice caused by the delay); and
(d) the merits of the application; and
(e) fairness as between the person and other persons in a like position.
[6] The test of “exceptional circumstances” establishes a “high hurdle” for an applicant for an extension. 3 A decision as to whether to extend time under s.366(2) involves the exercise of a discretion.4
[7] An appeal under s.604 of the FW Act is an appeal by way of rehearing and the Fair Work Commission’s (Commission) powers on appeal are only exercisable if there is error on the part of the primary decision maker. 5 There is no right to appeal and an appeal may only be made with the permission of the Commission. Section 604 provides:
(1) A person who is aggrieved by a decision:
(a) made by the FWC (other than a decision of a Full Bench or an Expert Panel); or
(b) made by the General Manager (including a delegate of the General Manager) under the Registered Organisations Act;
may appeal the decision, with the permission of the FWC.
(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). (2) A person may appeal the decision by applying to the FWC.
[8] Subsection 604(2) requires the Commission to grant permission to appeal if satisfied that it is “in the public interest to do so.” The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment. 6 The public interest is not satisfied simply by the identification of error7, or a preference for a different result.8 In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of Fair Work Australia identified some of the considerations that may attract the public interest:
“... the public interest might be attracted where a matter raises issue 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...” 9
[9] Other than the special case in s.604(2), the grounds for granting permission to appeal are not specified. Considerations which have traditionally been adopted in granting leave and which would therefore usually be treated as justifying the grant of permission to appeal include that the decision is attended with sufficient doubt to warrant its reconsideration and that substantial injustice may result if leave is refused. 10 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.11 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.12
The Decision
[10] In the Decision, the Commissioner described the sequence of events leading up to the dismissal and also between the dismissal and the filing of Ms Charles’s s.365 application in the Commission. These may briefly be summarised as follows:
- In April 2011 Ms Charles commenced employment with the respondent;
- From 2013 there was disharmony in the employment relationship;
- In October 2013 Ms Charles became ill (she ceased working at any Anglican Care site after 24 October 2013);
- On 23 July 2014 the respondent wrote to Ms Charles advising her that her continued absence on what was regarded as a non-work related medical condition could not continue indefinitely;
- On 7 August 2014 the respondent wrote to Ms Charles and advised her that it no longer considered her employment to be protected through the provisions of s.352 because she was unfit to perform the inherent requirements of her role and was unlikely to be able to do so in the foreseeable future;
- On 1 September 2014 the applicant’s employment was terminated (consequently, she had until 22 September 2014 to file an application under s.365 that was within time);
- Between August 2014 and April 2015 Ms Charles was involved in a workers compensation arbitration; and
- On 25 May 2016 the applicant filed the present application.
[11] In the Decision, the Commissioner gave consideration to each of the matters he was required to take into account under s.366(2).
[12] In relation to s.366(2)(a), the reason for the delay, the Commissioner considered the various reasons for the delay advanced by Ms Charles, which can be summarised as follows:
“[22] … her belief that she was unable to make the claim within the necessary timeframe due to her mental health issues and confusion relation to her termination. The second reason she advances is that the legal advice she had received prior to lodging the claim was misleading, with it being said to her that she had no rights for compensation or otherwise regarding her injury.”
[13] The Commissioner was not satisfied that the appellant had an adequate explanation for the entire period of the delay:
“[23] Neither reason is the subject of cogent or persuasive evidence. Ms Charles has not brought forward any evidence to verify either of the circumstances. She has neither brought forward evidence of her medical incapacity during the relevant period or evidence about the misleading legal advice that she claims was given to her or when she may have received the advice. In connection with both, I note that some of the evidence from Ms Charles includes a reference to conducting a workers compensation arbitration at some stage between August 2014 and April 2015. While noting that her evidence in this regard is highly imprecise, it has nonetheless been brought forward by her, partly as an explanation for the reason for there being a delay in the making of this application. It appears therefore that the conduct of that litigation may well have been the focus of her attention during that period and that it was only after the workers compensation matter had concluded that she turned her attention to making a general protections application.
[24] In any event the delay to which I must turn my attention is the period after 22 September 2014, which was the last day on which a general protections application could have been made by Ms Charles within the time period allowed by s.366 of the Act.
[25] Overall, and in the absence of cogent or persuasive evidence about either her medical incapacity or the misleading legal advice that she says was provided to her, I am unpersuaded that there is an acceptable reason put forward by Ms Charles about the reason why there was a delay in making a general protections application.
[26] Accordingly, this criterion does not resolve in her favour in my consideration of whether an extension of time for filing should be granted.”
[14] The Commissioner also considered and made findings about the remaining matters specified in s.366(2) as follows:
- s.366(2)(b) - action taken by the person to dispute the dismissal:
- s.366(2)(c) - prejudice to the employer (including prejudice caused by the delay):
- s.366(2)(d) - merits of the application:
- s.366(2)(e) – fairness as between the person and other persons in a like position:
“[28] The only evidence before me of any action taken by Ms Charles to dispute her dismissal is the commencement of this general protections application. Accordingly, I am satisfied that Ms Charles took no substantive action to dispute her dismissal until the making of this application to the Fair Work Commission on 25 May 2016, more than 20 months after her dismissal on 1 September 2014.
[29] In the circumstances of this matter, consideration of this criterion resolves in favour of the Respondent.”
“[30] The delay in the filing of the application is 611 days. The Respondent notes that the long delay in commencing the action will require it extensive resources to respond to the action and alleged contraventions.
[31] It is acknowledged that the process of having to respond to a general protections application itself creates some prejudice to the former employer. However the Commission’s consideration of this criterion looks to prejudice beyond this usual requirement of having to respond to a claim. The presumption is that in the event an employer claims that there will be prejudice arising from the extension of time, the employer must produce evidence to demonstrate prejudice. It has been held, within the context of similar legislative considerations for an extension of time to the making of an unfair dismissal application, that in the event that such evidence is brought forward, the employee would need to demonstrate that the facts as shown by the former employer do not amount to prejudice.
[32] In relation to this matter, while there is no direct evidence before the Commission that there would be undue prejudice to the former employer if an extension of time is to be granted, I consider it would be difficult for Anglican Care to adequately respond to the application.
[33] Notwithstanding this observation, there is not direct evidence before me of prejudice to the Respondent because of the delay and so I find my consideration of this criterion to be neutral.”
“[34] The merits of the application to which I must have regard are whether or not the limited evidence I have seen to date discloses reasonable prospects of success.
[35] In relation to the Commission’s consideration of the merits of an application when undertaking an analysis of whether an extension of time for the filing of a general protections application should be granted, the Commission does not require detailed evidence and usually does not make findings of fact as to the evidence which is brought forward on the merits of the application. Instead the Commission’s consideration of this question is to ascertain whether there is an arguable case on behalf of the applicant; or alternatively whether it appears that such case either has very strong or very weak merits on its face. It has been said in previous matters that a highly meritorious claim may persuade a decision-maker to accept an explanation for delay that would otherwise have been insufficient.
[36] In general protections matters, s.361(1) of the Act presumes that adverse action was taken for an alleged prohibited reason, unless the employer proves otherwise, with the onus on the employer to be discharged on the balance of probabilities in light of all the evidence. It has been held that the practical effect of s.361 is that in most cases an explanation of the real reason for the adverse action, consistent with the absence of a prohibited reason, is also necessary to rebut the presumption. Evidence from the decision-maker which explains why the adverse action was taken will be relevant to the determination of this factual question.
[37] The merits of the application to which Ms Charles refers are twofold. Firstly, that she was discriminated against for exercising a workplace right in several respects; namely her right to make a complaint about management decisions. Secondly, Ms Charles claims that she was discriminated against because she was refused permission to take sick leave as well as to drop off medical certificates at her workplace. Respectfully I consider that the evidence brought forward to date does not disclose a likely prospect of success in either respect.
[38] The evidence in relation to the first potential area of merits, adverse action for reason of having exercised a workplace right, demonstrates that there was a period of some contention between Ms Charles and Anglican Care about matters at work. There is not strong evidence before me about the nature of any complaint she may have made, or that the making of those complaints may then have resulted in adverse action within the meaning of s.342 of the Act being taken against her.
[39] The material submitted by the Respondent instead puts forward a construction of those circumstances as being about its endeavours to deal with less than satisfactory conduct on the part of Ms Charles which it expected to be the subject of its performance management processes.
[40] In all, and bearing in mind that it is the Respondent’s responsibility to first answer the allegations, it is unlikely that Ms Charles would be able to demonstrate that the adverse action had been taken against her for a proscribed reason. Instead, it would appear to me that the evidence would resolve with a finding that the Respondent adequately discharged its burden of proof with a demonstration that any adverse action was for reasons other than those alleged by Ms Charles and including for reason firstly of her own conduct, and secondly for reason of her extensive absence from work.
[41] The second argument put forward by Ms Charles is that she was dismissed in contravention of s.352 of the Act, namely that she had been dismissed because she was temporarily absent from work because of illness or injury of a kind prescribed by the Fair Work Regulations 2009 (see reg.3.01). There is no material before the Commission that would allow a finding of such nature. Instead the evidence before the Commission would more than likely show that while Ms Charles, at the time of her dismissal, was in fact absent from work it was neither a temporary absence or of a kind prescribed by the Regulations.
[42] My consideration of this criterion is that it therefore resolves in favour of the Respondent.”
“[43] In considering whether I should grant an extension of time, I need to have regard to whether it is fair to other general protections applicants whose applications are either currently before the Commission, or have been decided in the past.
[44] In applying Ms Charles’ facts to this criterion, it is my view that fairness to other general protections applicants in similar circumstances to her would give rise to an expectation that there had been some process of diligent inquiry or dispute by her not long after the dismissal. However, this was not the situation in Ms Charles’ case.”
[15] The Commissioner concluded:
“[45] After consideration of the legislative criteria and the whole the material before me, I am unable to be satisfied that there are exceptional circumstances that would allow a further period for a general protections application to be made by Ms Charles.
[46] For these reasons, I decline to grant an extension of time pursuant to s.366 of the Fair Work Act 2009 and will issue an order dismissing Ms Charles’ application as being out of time.”
[16] The approach taken by the Commissioner was orthodox.
Public interest and grounds of appeal
[17] The Notice of Appeal claimed that it was in the public interest for the Commission to grant permission to appeal because:
- It is in the public interest no minutes were recorded in the formal meeting 30th August 2013. I believe these minutes were created after the fact, this belief is substantiated by email evidence of Catherine, Human Resources Manager asking Barry if he remembered what happened in the meeting of 30th August 2013, the same day Workcover asked for all documentation in relation to Lee Charles. I did not receive a copy of this document until 9th January 2015 from Workcover.
- It is in the public interest that [the] documents [attached to the Notice of Appeal] from Workcover be seen and heard that they are in favour of the public interest test that page 22 supports natural justice and procedural fairness which relates to my matter.”
“ It is in the public interest that [the] documents [attached the Notice of Appeal] be seen and heard for the overturned work related injury under the Workers’ Compensation Act 1987, that the employer had to have a full defence to the claim by virtue of section 11A(1) on which they relay to the extent that they have to prove that my injury was wholly and predominantly caused by their reasonable action in relation to my discipline. This is an error of fact, it is not a personal non work related injury that has been recorded.
[18] Noting the test for public interest, it is not immediately apparent to us how the matters submitted by the appellant raise any issue of wider relevance beyond her immediate interests. Further, it is obvious from the Notice of Appeal that the public interest is said to arise out of the appellant’s Workcover claim and not her application for a remedy under s.365 of the FW Act.
[19] Ms Charles’s appeal raised a number of issues. However, the 13 grounds of the appeal were all confined to matters related to the appellant’s Workcover claim. At no point in the Notice of Appeal does the appellant identify what she says is appealable error in the Decision of the Commissioner.
[20] In advance of the hearing before us Ms Charles was provided with an opportunity to file and serve written submissions in support of her appeal. She declined to do so. Before us Ms Charles indicated that she sought only to rely upon her “Form F7 – Notice of Appeal”. 13 Notwithstanding this, Ms Charles was provided with a further opportunity at the hearing to make oral submissions in further support of her application for permission to appeal. In taking up this opportunity, Ms Charles’ submissions addressed matters primarily relating to her Workcover claim.
[21] In our view, the majority of the appellant’s appeal submissions are a reiteration of the submissions made at first instance and refer to matters which were clearly considered by the Commissioner at first instance. The balance of the appellant’s submissions raise issues which do not address the findings of the Commissioner. The appeal process is not intended to provide an avenue for an unsuccessful party to rerun their case simply because he or she is dissatisfied with the outcome of the decision at first instance.
[22] Having considered all the matters put by Ms Charles, and reading the decision as a whole, we are not satisfied that she has identified any error in the decision which would meet any of the criteria for appealable error in a discretionary decision enunciated in House v The King. 14
[23] Further, the conclusion of the Commissioner that the circumstances attending the very significant delay in filing the application (611 days) did not meet the stringent criterion of “exceptional circumstances” is not counter-intuitive and does not manifest any substantial injustice.
[24] We are not satisfied that any of the matters raised by Ms Charles justify the grant of permission to appeal in the public interest or otherwise. Ms Charles’s appeal does not raise any issue of law or policy which is novel and/or has broader implications. It is not inconsistent with any other relevant Commission decision. The determination of her extension of time application turned entirely on its particular facts.
Conclusion
[25] We are not satisfied that it is in the public interest to grant Ms Charles permission to appeal. We are not satisfied that she has established an arguable case of appealable error.
[26] Accordingly permission to appeal is refused.
VICE PRESIDENT
Appearances:
L. Charles on her own behalf.
C. Mordaunt for Anglican Care.
Hearing details:
2016.
Sydney:
10 August.
1 [2016] FWC 4664
2 PR582681
3 Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21]
4 Halls v McCardle and Ors [2014] FCCA 316
5 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) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ
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 GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343, 197 IR 266 at [24]-[27]
8 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, 197 IR 266at [26]-[27], Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/ Warkworth [2010] FWAFB 10089 at [28], affirmed on judicial review; Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 178; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663, 241 IR 177 at [28]
9 [2010] FWAFB 5343, 197 IR 266 at [24] – [27]
10 Also see CFMEU v AIRC (1998) 89 FCR 200 at 220; and Wan v AIRC (2001) 116 FCR 481 at [26]
11 Wan v AIRC (2001) 116 FCR 481 at [30]
12 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, 241 IR 177 at [28]
13 PN 12
14 (1936) 55 CLR 499 at [504] – [505] per Dixon, Evatt and McTiernan JJ
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