Loretta Woolston v The Uniting Church in Australia Property Trust (Q.) t/a Blue Care Bli Bli Aged Care Facility
[2015] FWCFB 4032
•25 JUNE 2015
| [2015] FWCFB 4032 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
The Uniting Church in Australia Property Trust (Q.) t/a Blue Care Bli Bli Aged Care Facility
(C2015/3915)
VICE PRESIDENT HATCHER | SYDNEY, 25 JUNE 2015 |
Extension of time sought to appeal against a decision of Commissioner Roe at Melbourne on 2 April 2015 in matter number U2014/16541.
Introduction
[1] On 12 May 2015 Ms Loretta Woolston filed a notice of appeal against an order for the production of documents issued by Commissioner Roe on 2 April 2015 (Order). The Order was issued on the application of Ms Woolston in connection with her unfair dismissal remedy application against her former employer, the Uniting Church in Australia Property Trust (Q.) t/a Blue Care Bli Bli Aged Care Facility (Blue Care). The hearing of that unfair dismissal remedy application before Deputy President Asbury has already substantially occurred, with the evidence having been received on 13-14 May 2015. The parties have been directed to file written closing submissions, and the matter has been listed for a further short hearing to receive oral closing submissions on 21 July 2015.
[2] Ms Woolston sought an expedited hearing of her appeal because the hearing of her unfair dismissal remedy application was due to commence the day after the appeal was filed. Expedition was refused by Vice President Hatcher on 12 May 2015 on the basis that the appeal had been filed well beyond the time period prescribed by rule 56(2) of the Fair Work Commission Rules 2013 (Rules), no explanation had been advanced for the delay, the failure to file the appeal promptly was inconsistent with any application for expedition, and it was not possible for the appeal to be heard prior to the commencement of the hearing of the unfair dismissal remedy application so that expedition would have no utility.
[3] Rule 56(2) relevantly provides that a notice of appeal under s.604 must be filed within 21 calendar days after the date of the decision the subject of the appeal or within such further time allowed by the Commission on application by the Appellant. Ms Woolston’s notice of appeal was filed 19 days after the prescribed 21-day time period had expired. Accordingly it is necessary for the Appellant to be granted an extension of time in order for the appeal to be competent.
[4] The usual principles applying to consideration of an application to extend time to lodge an appeal were summarised in the Full Bench decision in Jobs Australia v Eland 1as follows (footnotes omitted):
- 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]Time limits of the kind in Rule 56 should not simply be extended as a matter of course. There are sound administrative and industrial reasons for setting a limit to the time for bringing an appeal and it should only be extended where there are good reasons for doing so. The authorities indicate that the following matters are relevant to the exercise of the Tribunal’s discretion under Rule 56(2)(c):
Consideration
[5] Having regard to the relevant matters identified in Jobs Australia v Eland, we do not consider that there is a proper basis to grant Ms Woolston an extension of time to lodge her appeal. No satisfactory explanation for the delay has been provided by Ms Woolston. Even assuming she had no knowledge of the requirement in rule 56(2), that does not explain why Ms Woolston waited until the day before the commencement of the hearing before the Deputy President to file an appeal against an order that documents be produced for the purpose of that hearing. Having regard to the circumstances, the delay can only be characterised as a lengthy one.
[6] Taking into account the grounds of appeal stated in the notice of appeal and the submissions in support of the grant of permission to appeal provided by Ms Woolston, the appeal must be assessed as having negligible prospects of success. The order for production applied for by Ms Woolston (on 11 March 2015) sought the following categories of documents:
“Blue Care HR files for Loretta Woolston including HR investigation for first & final warning and final termination. To include all emails sent by Loretta Woolston to all levels site, regional and head offices.
File on investigation involving resident Keith Hope, RN Louise Cornwall, PCA’s Leah Harris and Kristy Arthur, 2014.
Documentation on termination of Leah Harris and resignation/ termination of RN Louise Cornwall.
Record of Blue Care Bli Bli public health notifications 2014-15 (in relation to dates of Leah Harris & Louise Cornwall termination/ resignation dates)
Schedule 8 drug signing book for period relating to Keith Hope (305) investigation and Leah Harris termination.
Directives from Blue Care Head office to HR responsing [sic] to culture change, response to bullying legislation, etc.”
[7] There was a short procedural telephone hearing before the Commissioner on 2 April 2015 which dealt, among other things, with the form of the order to be issued. The Commissioner foreshadowed that some redrafting of the categories of documents to be produced was required. The Order was issued later that day, and the attached schedule identified the following categories of documents required to be produced:
“1. Any records held by the Respondent in relation to investigations undertaken by the Respondent which led to the first and final warning and the termination of the Applicant.
2. Any records held by the Respondent of public health notifications during 2014-15 which relate to the Applicant or the matters raised by the Applicant in her F2 Application Form or the materials attached to it.
3. Any policies or procedures or directives of the Respondent which are relevant to the termination of the Applicant or the matters raised by the Applicant in her F2 Application Form or the materials attached to it.”
[8] On its face, it appears to us that the Commissioner redrafted, in a reasonable fashion, the categories of documents to ensure that the schedule had sufficient clarity and was confined to documents which were of relevance to Ms Woolston’s unfair dismissal remedy application.
[9] Ms Woolston’s single ground of appeal was as follows:
“The wording of the Commissioner’s order to produce documents is vague and its use of the term ‘relevance’ instead of the narrow and specific description given on my application, allows the respondent to decide what documents they chose me to have. The commission thus far shows no ability to enforce the order. This allows the respondent to have an unfair advantage whilst dictating my access to justice and manipulating my ability to defend my application. I believe Commissioner Roe has discriminated and disadvantaged me in these processes.”
[10] Ms Woolston’s subsequent submission states:
“The documentation relating to the investigation involving Kristy Arthur, Leah Harris, Lou Cornwall and resident 305 evidences the bullying behaviour, collusion and lying by Leah Harris and Louise Cornwall. It is pre my termination by 2-3 months. This investigation has recently been denied as existing by Wendy Russell, Blue Care General Manager to the statutory office of the Health Ombudsman. This is in spite of Kristy Arthur [mobile number omitted] being interviewed 3-4 times during its processes. I believe the documentation is important to support my case that blue care was aware and allowed me to work in an unsafe work place and goes to Blue Cares credibility issues.
...
Commissioner Roe's did not state I could not have any of the documents I requested, rather he paraphrased the request giving Blue Care both discretion and advantage.”
[11] As a general proposition, an order for production of documents should not be expressed in a form that requires the party the subject of the order to form a judgment about whether a document is relevant to the proceedings or not. 2 On one view, paragraph 3 of the schedule to the Order does that by requiring an assessment as to whether the documents are relevant to Ms Woolston’s dismissal or her case. However there is nothing before us to demonstrate that this has caused any substantive injustice to Ms Woolston in the sense that she has been deprived of access to documents necessary to make out her case. It does not appear to us that the documents relating to the other identified employees had apparent relevance to Ms Woolston’s claim of unfair dismissal, given that they pre-dated her dismissal by some months and did not relate to the reason for her dismissal (identified in the letter of dismissal of 4 December 2014 as “unacceptable behaviour in the workplace” in relation to an incident which occurred on 2 November 2014). We consider that the Commissioner’s redrafting of the categories of documents required to be produced was reasonable in circumstances where he was dealing with a self-represented individual without legal knowledge or training who had attempted to herself draft an order for production.
[12] The Order is of course interlocutory in nature. Appeals against interlocutory orders are generally discouraged, and it will not usually be the case that permission would be granted to appeal against an interlocutory decision under s.604 of the FW Act, whether or not s.400(1) applies. 3 We therefore do not consider that there is any real prospect that Ms Woolston would obtain permission to appeal if an extension of time was granted. We would not grant permission to appeal if the appeal was properly before us.
[13] It seems to us moreover that the grant of an extension of time would cause prejudice to Blue Care in the sense that it would be faced with the expense and inconvenience of an appeal about an interlocutory matter in circumstances where the evidentiary phase of the substantive hearing has already been completed.
[14] We can identify no other relevant matter which supports the grant of an extension of time.
[15] An extension of time to file the appeal is refused. The appeal is therefore incompetent and is dismissed.
VICE PRESIDENT
Appearances:
L.Woolston on her own behalf.
T. Longwill solicitor for The Uniting Church of Australia (Q.) t/a Blue Care Bli Bli Aged Care Facility.
Hearing details:
2015.
Sydney:
18 June.
1 [2014] FWCFB 4822
2 National Employers’ Mutual General Insurance Association Ltd v Waind [1978] 1 NSWLR 372
3 See Hutton v Sykes Australia Pty Ltd [2014] FWCFB 3384 at [3]; Clermont Coal Pty Ltd v Troy Brown[2015] FWCFB 2460 at [17]
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