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Long v Keolis Downer

Long v Keolis Downer

Case [2018] FWCFB 4109 18 July 2018

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[2018] FWCFB 4109

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Mr Keith Long
v
Keolis Downer T/A Yarra Trams
(C2018/2823)

JUSTICE ROSS, PRESIDENT
DEPUTY PRESIDENT MASSON
COMMISSIONER LEE

SYDNEY, 18 JULY 2018

Appeal against decision [2018] FWC 2437 of Commissioner McKinnon at Melbourne on 4 May 2018 in matter number U2018/2465 – extension of time – adoption of a ‘decision rule’ that an applicant for an extension of time must provide a credible reason for the whole of the delay – error of law – Stogiannidis applied – permission to appeal granted – appeal upheld –rehearing – representative error – application dismissed.

Introduction

[1] Mr Keith Long (Mr Long; the Appellant) has applied for permission to appeal and has appealed against a decision 1 made by Commissioner McKinnon (the Commissioner) on 4 May 2018 (the Decision), in which the Commissioner refused the Appellant’s application for an extension of time to lodge an application for an unfair dismissal remedy. The matter was listed for hearing in respect of both permission to appeal and the merits of the appeal.

[2] It is necessary to say something about s.394 first, before turning to the Decision and the grounds of appeal.

[3] Section 394(2) provides that an application for an unfair dismissal remedy (an unfair dismissal application) must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3).

[4] It is common ground that Mr. Long’s application was lodged out of time; though the date on which his dismissal took effect is a matter of dispute and we return to that issue later.

[5] Section 394(3) sets out the circumstances in which the Commission may grant an extension of time, as follows:

‘394 Application for unfair dismissal remedy

(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

(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.’

[6] A decision whether to extend time under s.394(3) involves the exercise of a discretion, so much is clear from the use of the word ‘may’ in s.394(3). The discretion is only enlivened if the Commission is satisfied ‘that there are exceptional circumstances’. The test of ‘exceptional circumstances’ establishes a ‘high hurdle’ for an applicant seeking an extension of time. 2

[7] In determining whether there are ‘exceptional circumstances’ the Commission is required to ‘take into account’ the matters set out in s.394(3)(a)-(f). To take a matter into account means that the matter is a ‘relevant…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Long v Keolis Downer

Details

AGLC: Long v Keolis Downer [2018] FWCFB 4109
Case: [2018] FWCFB 4109
Decision Date: 18 JULY 2018

CaseChat Overview and Summary

In this case, the respondent, Keolis Downer, sought an appeal against a decision by Commissioner McKinnon of the Fair Work Commission. The original dispute was between Long and Keolis Downer. The Commissioner's decision, handed down on 4 May 2018 in Melbourne, pertained to an extension of time for Long to file certain documents. The court was asked to consider whether the Commissioner had erred in law when he adopted a 'decision rule' that required a credible reason for the entire period of delay in filing the documents.

The legal issues before the court were primarily concerned with whether the Commissioner had applied the correct legal principles in assessing the extension of time application. Specifically, the court had to determine if the Commissioner's requirement for a credible reason for the whole of the delay was an error of law. Additionally, the court needed to consider whether the application for an extension of time should be granted under the circumstances. The appeal hinged on the interpretation of the relevant legislative provisions and case law regarding extensions of time and the reasons required to justify delays in filing.

The court found that the Commissioner had indeed erred in law by applying a rule that required a credible reason for the entire period of delay. This was an overly stringent requirement and not consistent with the relevant legal principles. The court held that while a credible reason for the delay was necessary, the requirement for a reason for the whole delay was not a valid legal standard. The court also noted that the applicant's representative had made an error in their submissions, which contributed to the Commissioner's misunderstanding of the applicable law. As a result, the appeal was upheld, and the matter was remitted for rehearing before a different Commissioner. The court also dismissed the application for an extension of time due to the representative's error.

The final orders of the court were that the appeal against the original decision was upheld, and the matter was remitted for rehearing before a different Commissioner. The application for an extension of time was dismissed. The decision emphasised the importance of correctly applying legal principles and the potential consequences of errors made by legal representatives in court proceedings.

Orders