Linda Rigby v BMS Retail Group Pty Ltd T/A Champions IGA
[2016] FWCFB 5094
•28 JULY 2016
| [2016] FWCFB 5094 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
BMS Retail Group Pty Ltd T/A Champions IGA
(C2016/3964)
DEPUTY PRESIDENT SAMS | SYDNEY, 28 JULY 2016 |
Appeal against decision in transcript and Order PR580211 of Deputy President Hamilton at Melbourne on 10 May 2016 in matter number U2016/3521; appeal lodged outside of the time prescribed; consideration of whether time should be extended; absence of a satisfactory explanation for delay; not likely that permission to appeal would be granted; application to extend time to lodge appeal refused.
[1] Linda Rigby (Appellant) lodged a Notice of Appeal, for which permission is necessary, against a decision 1 and order2 of Deputy President Hamilton dismissing her application under s.394 of the Fair Work Act 2009 (Act) made to the Fair Work Commission (Commission) for an unfair dismissal remedy. Prior to her dismissal on 14 December 2015, the Appellant had been employed by BMS Retail Group Pty Ltd (Respondent) at its IGA Supermarket in Whittlesea, Victoria as a fruit and vegetable attendant. The Appellant commenced employment with the Respondent on or about 12 August 2013. She was dismissed for reasons that relate to allegations of misconduct in which she had earlier engaged, including that she had not been truthful with her employer during meetings at which the allegations were discussed.
[2] The Notice of Appeal was lodged by the Appellant on 2 June 2016. The decision and order the subject of that notice were made on 10 May 2016. Rule 56 of the Fair Work Commission Rules 2013 (FWC Rules 2013) deals with appeals and the time period for instituting appeals. That rule relevantly provides that an appeal must be instituted within 21 days after the date of the decision appealed against. The appeal was instituted two days outside of the time prescribed. Rule 56(2)(c) confers a discretion on the Commission to extend the time within which the appeal is to be lodged.
[3] Time limits of the kind in Rule 56 should not simply be extended as a matter of course. There are sound reasons for setting a limit to the time for bringing an appeal. Time limits in relation to the institution of appeals must be treated seriously and should only be extendedwhere there are good reasons for doing so.
[4] The authorities 3 indicate that the following matters are relevant to considering whether to exercise the Commission’s discretion under Rule 56(2)(c):
● 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.
[5] In broad terms, the issue for the Commission is whether, in all the circumstances and having regard to the matters set out above, the interests of justice favour an extension of the time within which to lodge the appeal. 4 We consider these matters below.
[6] In support of her application to extend time for the institution of the appeal, the Appellant says that since her dismissal and during the period following the making of the decision and order the subject of this appeal, she has been suffering from anxiety and stress for which medical and psychological treatment was ongoing. Consequently she was not able to cope, with the result that she was unable to comply with the time limit within which to institute the appeal. At the hearing before us on 12 July 2016, the Appellant did not produce any medical evidence in support of this contention. We allowed an adjournment until 14 July 2016 to enable the Appellant to communicate with her medical practitioners and to arrange for them to give evidence.
[7] On 14 July 2016, the Appellant provided two reports. The first, from Dr Hans Surya dated 13 July 2016 5 and the second, from Ms Kirsty Lamers, a psychologist dated 14 July 2016.6 Dr Surya was cross-examined by the Respondent while Ms Lamers was not available to give evidence.
[8] Whilst the material tendered confirms ongoing depression and anxiety symptoms experienced by the Appellant, it is clear that Dr Surya last saw the Appellant on 23 May 2016 7, at which time he referred her to a psychiatrist, Dr Kerry Mack, for which an appointment is to take place in August 2016.8 Whilst we accept the evidence given by Dr Surya about the Appellant’s condition on 23 May 2016 and its impact on her capacity to function, the remainder of his evidence is at best, speculative and not supported by any observation or assessment made by him during any consultation with the Appellant following the period between 24 May 2016 and 2 June 2016, the date on which the appeal was lodged.
[9] As to the material contained in Ms Lamers’ report, we are unable to give it any great weight. First, Ms Lamers was not available to be cross-examined by the Respondent in circumstances where the Respondent made clear that it wished to cross-examine Ms Lamers on her report. 9 Secondly, we are unable to take at face value the suggestion in Ms Lamers’ report that the Appellant was not “able to effectively act on an appeals process or to put together an appeals application” because of her mood and motivation, but that this improved by 10 June 201610; or the further suggestion that until that time (10 June 2016), the Appellant did not have the capacity to attend to an appeals process.11 This is because it is clear that the appeal was lodged on 2 June 2016. This was some eight days before the date on which Ms Lamers asserts the Appellant obtained the capacity to attend to the appeals process.
[10] Whilst it is doubtless the case that the Appellant suffered and continues to suffer from depressive and anxiety symptoms, we are not persuaded on medical evidence that the symptoms of her condition were so severe during the relevant period as to satisfactorily explain the delay. Consequently, we are not satisfied that there is a satisfactory explanation for the delay. This is a matter that weighs against the Appellant.
[11] The period of the delay was relatively short, only two days, and in the circumstances of this case, we are persuaded to weigh this factor in favour of the Appellant.
[12] Before turning to consider the likelihood of permission to appeal being granted and if granted, the nature of the appeal grounds and the likelihood of one or more of those grounds being upheld if an extension of time were granted, we should say something about prejudice to the Respondent.
[13] The Respondent submitted that there was an element of prejudice that has been suffered by the Respondent which was acting in furtherance of its rights by applying for costs and that there is an inherent prejudice that arises from the delay. 12 We are not persuaded that the Respondent will suffer any prejudice if the appeal were allowed to be instituted outside of the time prescribed beyond the usual cost and inconvenience of defending the appeal. As to the costs application prejudice, the Respondent was required to lodge its cost application within 14 days of the date of the Deputy President’s decision,13 which is well before the time at which an appeal might be lodged expired. The only result of the lodgement of an appeal might be a delay in the processing of the costs application. But this would be the effect of any appeal that is lodged within time whether before or after a cost application has been made. We cannot identify any additional prejudice in relation to the Respondent’s cost’s application that might result from the initiation of an appeal, two days outside of the time prescribed.
[14] As to the second, the so-called inherent prejudice that arises from a delay seems to us, to relate to matters such as the availability of witnesses and the impact of the delay on the Respondent’s capacity to lead evidence. These issues will not normally arise in an appeal, but in any event, no such specific prejudice was asserted.
[15] Beyond the time and cost involved in defending an appeal, we are unable to identify any particular prejudice to the Respondent. In these circumstances, we consider that prejudice to the Respondent is a neutral factor in this case.
[16] As to the likelihood of permission being granted and the nature of the grounds of appeal and the likelihood of one or more of those grounds being upheld if time was extended, we make the following observations.
[17] The decision, the subject of the application for permission to appeal, was made under Part 3-2 – Unfair Dismissal of the Act. Section 400(1) provides that permission to appeal must not be granted from such a decision unless the Commission considers that it is in the public interest to do so. Further, in such matters, appeals on a question of fact may only be made on the ground that the decision involved a ‘significant error of fact’ (s.400(2)). In Coal & Allied Mining Services Pty Ltd v Lawler and others 14, Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s.400 as ‘a stringent one’.15 The Commission must not grant permission to appeal unless it considers that it is ‘in the public interest to do so’.
[18] The task of assessing whether the public interest test is met, is a discretionary one involving a broad value judgment. 16 In GlaxoSmithKline Australia Pty Ltd v Makin17 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.” 18
[19] 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 appellable error. 19 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.20
[20] The Notice of Appeal lodged by the Appellant sets out the grounds of appeal which in essence may be distilled into the following propositions. First, that the Appellant was not given a fair hearing because not all “witnesses” were there to be cross-examined. Ancillary to this is the complaint that the Appellant was not given a copy of the CCTV footage said to exist during the investigation of allegations of misconduct by the Respondent. Secondly, the Appellant also feels that her dismissal was unjust because she was on Work Cover due to stress and anxiety arising out of workplace bullying and that upon her return to work, the bullying continued. Thirdly, the Appellant says that the Deputy President allowed the “advisor” of the Respondent to constantly leave the courtroom during the period the Appellant was giving evidence. From this, we discern that the Appellant suggests some impropriety on the part of the advisor during absences from the courtroom.
[21] We are not persuaded that the Appellant will be able to make out an arguable case that the Deputy President erred in the manner suggested. The reference by the Appellant to “witnesses” who were not called to be cross-examined is a reference to persons who were interviewed by the person appointed by the Respondent to investigate allegations of misconduct. True it is that these persons were not called to give evidence, but the Appellant was free to call them to give evidence or to ask the Deputy President to make orders that particular persons attend to give evidence. The same may be said of the CCTV footage.
[22] An application for orders for production of the footage could have been made. The Appellant was represented in the proceedings before the Deputy President. An appeal is not an opportunity to conduct a better case than that which was conducted at first instance in the hope of a different result. Nor is an appeal the occasion to introduce evidence that could have been led or tendered at first instance but was not, in order to construct a better case. The Appellant does not suggest that the Deputy President prevented the Appellant from calling any of these persons, or that he refused a request for orders to attend as witnesses or to produce the CCTV footage. Nor is it suggested that the Appellant’s representative was instructed to call these persons or to seek orders of attendance or production but did not. No arguable case of appellable error is disclosed in this regard.
[23] The second basis of the appeal seems to us to be no more than an additional argument which could have been put to the Deputy President at first instance relating to the question of whether the dismissal was harsh, unjust or unreasonable. It does not go to demonstrating any arguable case of appellable error. It is not suggested, for example, that evidence was led about that issue or that submissions about that issue were made, but not taken into account.
[24] As to the third basis of the appeal, the complaint seems to us to amount to no more than suspicion or speculation without a proper factual foundation. That suspicion or speculation does not amount to an arguable case of appellable error.
[25] The appeal is in reality no more than a complaint that the Appellant’s case was not accepted and the Respondent’s case was preferred.
[26] The Appellant did not in the Notice of Appeal identify the public interest grounds upon which permission to appeal should be given. We have not been able to identify any matter in the appeal that might enliven the public interest. We are not persuaded that the appeal raises any issues of importance or general application, nor does it identify any relevant diversity of decisions at first instance. We do not consider that it is arguable that the decision of the Deputy President manifests an injustice, or that the result is counterintuitive. The legal principles applied do not appear to us to be disharmonious when compared with other recent decisions dealing with similar matters.
[27] For these reasons, we are not persuaded that there is a likelihood of permission to appeal being granted, much less is there a likelihood, having regard to the nature of the grounds of appeal, that one or more of those grounds would be upheld if time was extended. This is a matter that weighs against the Appellant.
[28] Taking all of these matters into account, we are not persuaded that we should extend the period of time within which the appeal may be lodged.
[29] The appeal was lodged outside of the time prescribed by Rule 56 of the FWC Rules 2013. The application to extend the period of time within which the appeal may be lodged, is refused.
DEPUTY PRESIDENT
Appearances:
Ms L Rigby on her own behalf.
Mr K Mihaly, Counsel for the Respondent.
Hearing details:
2016.
Sydney/Melbourne:
July 12, 14.
1 Transcript (10 May 2016) at PN919 – PN937; AB81-AB84.
2 PR580211; AB1.
3 See for example Fox v Kangan TAFE Print S0253, 25 October 1999 at [36];Stevenson-Helmer v Epworth Hospital, Print T2277, 19 October 2000; Dundovich v P&O Ports, Print PR923358, 8 October 2002 per; SPC Ardmona Operations Ltd v Esam and Organ (2005) 141 IR 338; Jobs Australia v Eland[2014] FWCFB 4822; Farnhill v Australian Business Academy Pty Ltd [2016] FWFBC 3410.
4 Jobs Australia v Eland[2014] FWCFB 4822; Farnhill v Australian Business Academy Pty Ltd [2016] FWFBC 3410.
5 Appeal Exhibit 1.
6 Appeal Exhibit 2.
7 Appeal Exhibit 1, third paragraph.
8 Ibid.
9 transcript PN 66 – PN 69.
10 Appeal Exhibit 2, fourth paragraph.
11 Ibid.
12 Transcript PN 100.
13 see section 402 of the Act.
14 (2011) 192 FCR 78.
15 Ibid at [43].
16 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, Crennon, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54 at [44] – [46].
17 (2010) 197 IR 266.
18 Ibid at [27].
19 Wan v AIRC [2001] FCA 1803 at [30].
20 GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343 at [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 in Coal & Allied Mining Services Pty Ltd v Lawler; [2011] FCAFC 54; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663 at [28].
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