Lorraine Adey v Christian Heritage College
[2014] FWCFB 6039
•3 SEPTEMBER 2014
| [2014] FWCFB 6039 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s 604 - Appeal of decisions
v
Christian Heritage College & ors
(C2014/4824)
DEPUTY PRESIDENT SAMS | SYDNEY, 3 SEPTEMBER 2014 |
Application for permission to appeal - appeal - general protections application filed ‘out of time’ - new evidence - representative error - public interest - merits of application - no error established - public interest not engaged - appeal dismissed.
INTRODUCTION
[1] This decision will determine an application, filed by Mrs Lorraine Adey (the ‘appellant’) for permission to appeal and, if permission be granted, appeal against a decision and order of Commissioner Simpson dated 16 May 2014 (Adey v Christian Heritage College & Ors[2014] FWC 2720). Essentially, the Commissioner’s decision was to dismiss the appellant’s application (the ‘primary application’) filed under Chapter 3, Part 3-1, Division 8 of the Fair Work Act 2009 (the ‘Act’) on the basis that she was unable to satisfy the Commissioner that she had established ‘exceptional circumstances’, such as to allow her application to be accepted ‘out of time’, pursuant to s 366 of the Act. The respondents to this appeal are Christian Heritage College (the ‘College’) and two named management persons employed by the respondent (Dr Johan Roux, CEO and Ms Eija Bunch, Director, Corporate Services).
[2] Prior to the hearing of the appeal, the Full Bench granted permission for the respondents to be legally represented. We were satisfied that the requirements of s 596(2) of the Act had been met; See: New South Wales Bar Association v McAuliffe and another [2014] FWCFB 1663.
APPEAL PRINCIPLES
[3] Appeals of this kind are governed by s 604 of the Act. That section is expressed as follows:
‘604 Appeal of decisions
(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).
(3) A person may appeal the decision by applying to the FWC.’
[4] Section 607(2) of the Act is also relevant to this appeal as the appellant sought to admit new evidence in the proceeding. That section is expressed as follows:
‘607 Process for appealing or reviewing decisions
(1) An appeal from, or a review of, a decision of the FWC or the General Manager may be heard or conducted without holding a hearingonly if:
(a) it appears to the FWC that the appeal or review can be adequately determined without persons making oral submissions for consideration in the appeal or review; and
(b) the persons who would otherwise, or who will, make submissions (whether oral or written) for consideration in the appeal or review consent to the appeal or review being heard or conducted without a hearing.
(2) The FWC may:
(a) admit further evidence; and
(b) take into account any other information or evidence.
(3) The FWC may do any of the following in relation to the appeal or review:
(a) confirm, quash or vary the decision;
(b) make a further decision in relation to the matter that is the subject of the appeal or review;
(c) refer the matter that is the subject of the appeal or review to an FWC Member (other than an Expert Panel Member) and:
(i) require the FWC Member to deal with the subject matter of the decision; or
(ii) require the FWC Member to act in accordance with the directions of the FWC.’
[5] There is no doubt that the Commissioner’s decision was a discretionary one. In that context, the appellant relied on the principles extolled in the well known authority of House v The King (1936) 55 CLR 499 (‘House v King’):
‘The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts on a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court in the first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.’
[6] Both parties referred to the established principles as to the notion of the public interest for the purposes of s 604(2) of the Act. The principles are set out in a decision of the Full Bench of Fair Work Australia (FWA, as the Commission then was) in GlaxoSmithKline Australia Pty Ltd v Colin Makin[2010] FWAFB 5343 (‘GlaxoSmithKline’). At paras [26]-[27], the Full Bench said:
‘[26] Appeals have lain on the ground that it is in the public interest that leave should be granted in the predecessors to the Act for decades. It has not been considered useful or appropriate to define the concept in other than the most general terms and we do not intend to do so. The expression ‘in the public interest’, when used in a statute, classically imports a discretionary value judgment to be made to be made by reference to undefined factual matters, confined only by the objects of the legislation in question.
[27] Although 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, it seems to us that none of those elements is present in this case.’
THE COMMISSIONER’S DECISION
[7] We note that the Commissioner did not conduct a formal hearing of the ‘out of time’ application and no transcript was taken of a conference in which the Commissioner heard oral submissions and received documentary material from the parties on the ‘out of time’ application. It would appear that this approach was with the agreement of the parties. The absence of transcript in the proceeding below, while not strictly necessary for our determination of the appeal, was nevertheless an unfortunate diversion. This was so, because during these proceedings, there was some dispute as to what the appellant said she had told the Commissioner during the conference and what she had sought, but was refused permission to have admitted into evidence.
[8] At the outset of his decision, the Commissioner set out the background to the primary application and outlined the history of the appellant’s employment with the College. The Commissioner then referred to the reasons advanced by the appellant for the delay in filing her primary application:
‘Prior Dismissal Application
[13] The applicant said in her application in this matter that she had previously pursued the matter as an unfair dismissal application. The applicant stated she became aware in the course of conciliation before the Fair Work Commission on 17 February 2014 that the matter should have been brought as a General Protections claim.
[14] The applicant relies on the fact that when she filed a Form 50 (Notice of Discontinuance) for the Unfair Dismissal claim she advised the respondent she would be pursuing a General Protections claim.
[15] The applicant said that the Unfair Dismissal application was filed within time in November 2013, and conciliation did not occur until 17 February 2014, and that is the explanation for the delay in filing, at least for the period of time between the alleged dismissal on 8 November 2013 and the Unfair Dismissal conciliation conference on 17 February 2014.
Other reasons for delay
[16] Given that the General Protections application was not filed until 6 March 2014, other reasons given for delay by the applicant following 17 February 2014 were the time taken in getting legal advice on changing her application. The applicant said she did not get an appointment with a lawyer until 24 February 2014.
[17] The applicant also relied on the time taken to study the legislation and to compile her General Protections application, as she was unable to afford to engage a lawyer to prepare the claim.’
[9] After considering the respondents’ submissions, which included a denial that the appellant had been dismissed from her position, or at all, but had resigned her position after rejecting an offer of ongoing part-time employment, the Commissioner made the following observations and findings at paras [24]-[27] as follows:
‘[24] It would appear in this case the matter is less clear in that despite the applicant electing to file a Form 2 Unfair Dismissal application she included content in the form which indicates an intention to press arguments under Chapter 3, Part 1. There is material indicating the content of the Form 2 application created some initial uncertainty with the Fair Work Commission administrative staff as to the nature of the application.
[25] For reasons set out below ultimately my conclusions regarding the delay between Friday 29 November 2013 and Monday 17 February 2014 don’t affect my final decision in this matter, however it is arguable the reason for the delay between these dates could constitute exceptional circumstances in that the Form 2 filed did not represent the true nature of the application the applicant was making, despite the legal advice she received being confined to an Unfair Dismissal application, and not addressing a General Protections claim.
[26] There was no material and no submission that would satisfy me there was representative error in this case.
[27] To the extent that the applicant has sought to have regard to the content of discussions in the course of the conciliation conference in the Unfair Dismissal application I do not intend to have regard to those submissions as such discussions are conducted in private in accordance with the Act.
[10] We consider the following two paragraphs to be the underpinning essence of the Commissioner’s decision. At paras [28]-[29], he said:
‘[28] The applicant has been unable to provide a satisfactory explanation for the delay between 17 February 2014 and 6 March 2014. It is her claim that it was following the conciliation conference on Monday 17 February that she became concerned that she should have filed a General Protections claim. On her submission she could not get an appointment to see a solicitor until a full week later on Monday 24 February 2014. Following that she withdrew the Unfair Dismissal application on Tuesday 25 February, but did not file the subsequent General Protections application until another 9 days later on 6 March 2014. There was no adequate explanation as to why it took 10 days after 24 February, and 9 days after 25 February when the first application was withdrawn, for this application to filed.’
[29] In terms of s.366 (2)(b) it is acknowledged that the applicant disputed the dismissal within time as an Unfair Dismissal. The delay has caused some prejudice to the respondents in that that the reasons for the delay have caused at least the first respondent to incur unnecessary expense, including legal expense. I regard the merits of the matter as a neutral consideration and s.366 (2)(b) to have no particular bearing in this case.’
SUBMISSIONS
For the appellant
[11] The appellant provided extensive written and oral submissions, though much of this material was not relevant to the issues before the Full Bench, namely, whether the Commissioner erred in finding that there were no ‘exceptional circumstances’, within the meaning of s 366(2) of the Act, to accept her primary application ‘out of time’. To the extent that they are relevant, her submissions are summarised below.
[12] In written submissions, the appellant noted that the Full Bench could intervene on the basis that the Commissioner’s decision was unreasonable or plainly unjust; See: Craig v South Australia (1995) 184 CLR 163; MIMA v Yusuf (2001) 206 CLR 323; and Kirk v Industrial Court of New South Wales (2010) 239 CLR 531. The Commissioner had acknowledged ‘initial uncertainty with the Fair Work Commission administrative staff as to the nature of the application’. However, his finding that the delay between 29 December 2013 and 17 February 2014 did not affect his decision, was unjust in the extreme. His other finding that an extension of time would prejudice the respondent due to its legal costs, should be seen in the context of the respondents’ choice to be legally represented. In any event, she believed the respondents were insured for this cost.
[13] The appellant claimed that she had never been advised by her lawyer that the General Protections jurisdiction of the Commission was a more suitable legal avenue for her, even though she had been dealing with this lawyer in relation to her issues at work from July 2013; well before her actual dismissal. This failure by her lawyer constituted representative error. Mayall v French Island Ferries[2013] FWC 9880 (‘Mayall’) could be distinguished from this case, as there was no evidence that her original unfair dismissal application had failed.
[14] The appellant referred to House v King and submitted that if the Commissioner had been prepared to disregard the time between the lodgement of the Form F2 on 29 November 2013 to the date of the conference, 17 February 2014 it would be logical to exclude the time taken in the initial preparation of the incorrect form. Even if that was not considered, the General Protections application was lodged within 21 days of the unfair dismissal conference on 17 February 2014. The appellant claimed that she had been given a week by the Fair Work Conciliator to decide on whether to withdraw the application. The General Protections application was lodged ten days later. She believed that the Commissioner’s failure to extend the time by 9 days after the withdrawal of her unfair dismissal application was clearly an injustice in light of the 21 day time limit. In any event, the total time delay was 38 days, which was substantially less than the three months considered in Przedpelski Trustees of Czapp Pty Ltd t/a Airport Doors Pty Ltd [2012] FWAFB 8577 and Mohammed v Veolia Transport (NSW) Pty Ltd[2013] FWC 1774.
[15] In addition, the appellant put that the decision of the Commissioner was attended with sufficient doubt as to warrant reconsideration by a Full Bench; See: House v King; Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; and Construction, Forestry, Mining & Energy Union v Giudice (1998) 84 IR 314.
[16] The appellant complained that the Commissioner had directed her to focus on the ‘out of time’ issue and had not permitted her to rely on evidence of two years of inappropriate treatment by the respondents. She said that the Commissioner had explained to her that the conference was only to determine whether an extension of time should be granted and that she would be able to address her substantive issues with the respondents at a later conference. This represented a failure to take material considerations into account (House v King) and the Full Bench should allow these materials to be admitted in the appeal. The appellant submitted that the Commissioner’s determination that the merits of the case were a ‘neutral consideration’ in relation to a finding as to whether there were ‘exceptional circumstances’, was made without the Commissioner considering the overwhelming evidence in relation to the merits of the case.
[17] The appellant also raised a number of what she described as ‘misleading statements’ in the respondents’ response, indicating that the Commissioner may have been guided by irrelevant factors.
[18] In oral submissions, the appellant said that the Commissioner was not ‘opened to the facts’ due to his disallowance of much of her evidence. She acknowledged that she had been aware of General Protections applications prior to her dismissal. However, she had not been aware that such an application could be brought for contraventions including dismissal and this was distinct to an unfair dismissal application. She noted that when she filed her unfair dismissal application, it was originally filed with a matter number she believed corresponded to a General Protections application (C2014/6883). She had received an email from the Commission to this effect on 12 February 2014. She had never really intended to file an unfair dismissal application, as she had wanted the Commission to address her mistreatment over a longer period, including while she was employed by the College.
[19] The appellant also claimed that she had been subject to physical attacks. However, she had not reported these matters to the appropriate authorities as she was a Christian and she forgave people.
[20] The appellant acknowledged that she had been made aware, in the conciliation conference on 17 February 2014, that she had filed her application in the wrong jurisdiction. She had therefore discontinued the unfair dismissal application and had then very carefully considered her position. As she had been offered a week to decide, she had sent her documents to her solicitor to read and then made the decision on 25 February 2014. She explained the delay in filing after this period by submitting she had always performed her work thoroughly and comprehensively. She said there had been no guidance provided by the Commission as to how long she had after she had withdrawn an application to file another one. The appellant also claimed that she had parental and carers’ responsibilities during this period and she had been diagnosed with depression on 29 January 2014, for which she had been prescribed medication.
[21] The appellant put that she had maintained at the conference before the Commissioner that this was a case involving representative error, although she had not provided documentary evidence of this at the conference, because she thought that the merits of the matter would be discussed.
[22] The appellant sought to make some submissions on the public interest, in which she relied heavily on the merits of her case and her allegations of bullying and harassment by the respondents.
[23] We note that the appellant has continued to send further material to the Full Bench after we had reserved our decision. We do not intend to take any of this material into account as it was inappropriate for the appellant to further engage with the Full Bench after the decision has been reserved and the proceedings concluded.
For the respondent
[24] In written submissions, Mr B Heath, Special Counsel, emphasised that the only issue before the Commissioner had been whether the appellant could demonstrate that there were ‘exceptional circumstances’ within the meaning of s 366(2) of the Act to allow her primary application to be accepted ‘out of time’. Mr Heath submitted that the Commissioner’s decision on this point should be upheld and the appeal dismissed.
[25] Mr Heath argued that the failure of the appellant to comply with the procedural requirements of this appeal were a ground for permission to appeal being refused. She had not addressed the issue of whether the Commissioner had erred in his decision, but simply restated her earlier submissions and sought to adduce new evidence relevant to the merits of her case. Nor had the appellant properly complied with the requirements under s 56(3) of the Fair Work Commission Rules 2013 by providing appropriate and complete appeal books.
[26] Mr Heath submitted that the public interest was not enlivened in this case such as to give rise to permission to appeal; See: GlaxoSmithKline. The decision of the Commissioner was on a narrow point, was not one of general importance or general application, and was entirely consistent with the established law, surrounding s 366(2) of the Act. Moreover, it could not be said that the appellant had not been given a full and fair opportunity to run her case before the Commissioner.
[27] Mr Heath put that the appellant had not identified any error of fact made by the Commissioner and indeed, there was no evidence that he had made any error of fact. He had had proper regard to all relevant matters before him in forming the view that there were no ‘exceptional circumstances’.
[28] Mr Heathsaid that this case could be distinguished from Mayall as the appellant did have the benefit of legal advice prior to lodging her initial application and there was no evidence that she was not fully advised of her rights. She had even used the language of the General Protections provisions in her unfair dismissal application, suggesting that she had had some advice on that jurisdiction. After realising her error on 17 February 2014, the appellant still waited until 6 March 2014 to file her primary application and there was no satisfactory explanation for the delay during this period.
[29] In oral submissions, Mr Heath said that while the appellant had correctly identified Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 (‘Nulty v Blue Star’) as setting out the correct test as to what constituted ‘exceptional circumstances’, she had failed to show that that test had been satisfied in this case. There was still no explanation as to why the appellant had not filed her application between 17 February and 6 March 2014. Her professed confusion as to time limits was at odds with her submissions that she had carefully and diligently researched the legislation. The circumstances of this case were analogous to, if less complex than those in Beggs v Login Systems Pty Ltd [2013] FCCA 526. The reality was that the appellant had simply changed her mind as to which application she wished to pursue. This was not an ‘exceptional circumstance’ for the purposes of 366(2) of the Act.
[30] Mr Heath put that the appellant had tried to ‘have it both ways’ by putting a number of allegations in her application, intending to sort out the procedural details later. This was not a proper approach. In any event, there was an email to the Conciliator on 17 February 2014 which suggested that she was aware of her rights at that stage. There was also extensive email correspondence between the appellant and her solicitors both prior to, and after the cessation of her employment, in which she sought advice about General Protections issues. Having received that advice, she still instructed her solicitors to file an unfair dismissal application on 19 November 2013. The appellant was well aware that jurisdiction was in issue when she attended the conference, as the respondent had specifically addressed this in its response (Form F3).
[31] Mr Heath referred to the merits of the appellant’s primary application. He submitted that the merits of her case were ‘tenuous’ and the reference to physical abuse had never previously been agitated. The only evidence before the Commissioner of ‘differential treatment’ came from the appellant’s correspondence with her own lawyers. The fact was that she had been offered a permanent part time position at the College. She had rejected it after being given the opportunity to consider the offer over a three week period.
[32] While Mr Heath acknowledged the appellant’s distress, this did not in itself enliven the public interest. No issue concerning the public interest arose in this appeal.
[33] In reply, the appellant denied that she had specifically instructed her solicitor to pursue an unfair dismissal application. She had merely instructed them to ‘go ahead’ with an application after the solicitor had provided her with information on the unfair dismissal jurisdiction.
[34] The appellant noted that her unfair dismissal application had made reference to physical abuse and that she had made some submissions in relation to discrimination when she was offered the permanent part time position.
[35] Finally, the appellant submitted that this appeal gave rise to important issues of general application due to the manner in which the respondent had treated her and others.
CONSIDERATION
Admission of new evidence
[36] The appellant sought to admit new evidence from Dr David Pohlmann, a former employee of the College. The respondent strongly resisted the admission of this evidence, particularly given that Dr Pohlmann was unavailable for cross-examination.
[37] We decided to refuse the admission of new evidence for the following reasons. Firstly, there was no satisfactory explanation offered by the appellant as to why Dr Pohlmann’s evidence was not reasonably available to her during the proceedings before the Commissioner. Secondly, given the new evidence went to matters which were irrelevant to the Commissioner’s conclusions at first instance and, indeed, Dr Pohlmann would have had no knowledge of such matters in any event, there could be little probability that his evidence would have produced a different result below. Thirdly, we have some doubt as to the credibility of Dr Pohlmann’s evidence, given that his statement was highly critical of the respondents, yet his resignation letter to the College was in pleasant and complimentary terms. The fact that Dr Pohlman was unavailable to be cross examined only compounded the appellant’s difficulty in convincing the Full Bench that his evidence should be accepted (For the relevant principles dealing with the admission of new evidence; See: Akins v National Australia Bank (1994) 34 NSWLR 155; and Abigroup Contractors Pty Ltd v Crema and others [2012] FWAFB 8453.)
Representative error
[38] In the absence of transcript of the proceedings below, it is difficult to establish the extent of oral submissions put by the appellant in respect to her claim of representative error of her solicitor for the failure to lodge her application within time. The respondents submitted that the claim of representative error was not raised during the conference before the Commissioner and, accordingly, cannot be the basis for an appeal against his decision. However, it is clear that something must have been put to the Commissioner on this issue, because he expressly refers to it, at para [26] of his decision, in which he said: ‘There was no material and no submission that would satisfy me there was representative error in this case.’
[39] In any event, the claim of representative error cannot arise during the period which the Commissioner considered as crucial to his decision; namely 17 February to 6 March 2014. We note that the appellant had a meeting with her legal representative on 24 February 2014 and discontinued her unfair dismissal application the following day. There was no submission, by the appellant, that any advice received at this meeting, or at any time during the relevant period between 17 February to 6 March 2014, constituted representative error. That being so, the claim of representative error simply does not arise, and therefore cannot constitute a ground for appeal.
Meaning of ‘exceptional circumstances’
[40] The powers of the Commission in respect to accepting an adverse action application outside the 21 day time limit imposed by s 366(1) of the Act are set out in the following sub-section 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.’
[41] Both parties referred us to the decision of the Full Bench of FWA in Nulty v Blue Star, where it was said at paras [13]-[15]:
‘[13] In summary, the expression “exceptional circumstances” has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.
[14] Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance. Indeed, unfortunately, it would seem to be all too common for dismissed employees to be unaware of the time limits imposed in relation to making an application for an unfair dismissal remedy or a general protections FWA application. The parliament has chosen to condition the discretion to extend time for making such applications on the existence of “exceptional circumstances”. In doing so the parliament must be presumed to have proceeded on the basis that an employee who is aggrieved at being dismissed ordinarily ought be expected to seek out information on any remedy they may have in a timely fashion such that delay on account of ignorance of the statutory time limit is not, of itself, an exceptional circumstance.
[15] A finding that there are “exceptional circumstances”, taking into account the matters specified in paragraphs 366(2)(a) to (e), is necessary before the discretion to extend time is enlivened. That is, even when “exceptional circumstances” are established, there remains a discretion to grant or refuse an extension of time. That discretion should be exercised having regard to all the circumstances including, in particular, the matters specified in paragraphs 366(2)(a) to (e) and will come down to a consideration of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended.’
[42] In the material filed with her primary application and throughout her submissions in this appeal, the appellant focused almost entirely upon the merits of her primary application. Although the merits are a factor to be considered by the Commission in determining whether to extend the time for filing an application, it is but one of the matters to be taken into account under s 366(2) of the Act. Moreover, the merits of the application, at such a preliminary stage of the proceeding and without the benefit of properly tested evidence, will only ever be a prima facie consideration, at best. In Kyvelos v Champion Socks Pty Limited Print T2421, a Full Bench of the Australian Industrial Relations Commission (AIRC) said at para [14]:
‘[14] In considering whether to accept an application which has been lodged outside the time prescribed in s.170CE(7) the Commission may consider whether, on the basis of the material relied on by the parties, the applicant has a sufficient case on the merits although the discretion should be exercised having primary regard to the circumstances which led to the late lodgement: see by analogy Bearings Incorporated (Australia) Pty Ltd v Treloar [Print P8600] - a case concerned with an application for the late exercise of an election under s.170CFA(8). It should be emphasised that in considering the merits the Commission is not in a position to make findings of fact on contested issues, unless evidence is called on those issues. Evidence is rarely called on the merits and there are sound reasons why the Commission should not embark on a detailed consideration of the substantive case in an application pursuant to s.170CE(8). In particular, it is undesirable that parties be exposed to the requirement to present their evidentiary cases twice. There are other matters, however, which might affect the exercise of the Commission's discretion directly, in particular those matters which led to the late lodgement. If the applicant does not call evidence on contested issues relevant to those matters the Commission may nevertheless make findings based on the opposing contentions of the parties or conclude that on a particular issue the applicant has not made out its case. In these proceedings the allegation of representative error and the assertion that the termination was contested at the outset were both matters directly relevant to the case for late acceptance. As we have indicated earlier, it was open to the Commissioner to draw conclusions adverse to the appellant on those matters even though no evidence was called by either party. But for the reasons we have given it was not open to the Commissioner to make a finding that the substantive application had no merit.’
[43] We apprehend the Commissioner had received the appellant’s detailed primary application setting out the merits of her claim and the basis of her adverse action contentions and it is apparent that he had taken these matters into account. He concluded that when considering the totality of the matters required to be taken into account under s 366(2) of the Act, that the merits of the application was a ‘neutral consideration’.
[44] Given the untested and serious allegations made by the appellant against the respondents (and repeated by her, more than once, in these appeal proceedings) and the other jurisdictional objection of the respondents that there had, in fact, been no dismissal, we consider the Commissioner’s characterisation of the merits of the primary application as a ‘neutral consideration’, to be an appropriate finding in this case.
[45] It is abundantly clear that the Commissioner did not focus on the entirety of the period from the appellant’s alleged termination of employment (8 November 2013) to the filing date of the primary application (6 March 2014). In fact, he said it was arguable that the confusion over what application had been filed might constitute ‘exceptional circumstances’ such as to account for the period between 29 November 2013 and 17 February 2014.
[46] However, it is equally clear that the Commissioner was not satisfied with the appellant’s explanations as to why it took her from the day she was well aware that she had the option of filing a General Protections claim (17 February 2014) until her unfair dismissal application was formally withdrawn 8 days later (25 February) and then a further 9 days to file the General Protections claim (6 March 2014).
[47] It was this period of time which the appellant was required to focus on, in order to establish that the Commissioner was in error in not accepting her explanations as constituting ‘exceptional circumstances’. We had a similar difficulty in extracting from the appellant anything different from what she claimed the Commissioner had not taken into account, or not given appropriate weight to, in his consideration of the matters under s 366(2) of the Act.
[48] Despite the Bench’s efforts to have the appellant focus on how the Commissioner had fallen into error, she largely restated what she had told the Commissioner, namely:
a) she could not get an appointment with a lawyer until 24 February 2014; and
b) she was a thorough and meticulous person who had taken the time to study the legislation and prepare her own General Protections claim.
[49] The appellant also raised with us that she had carer’s and parental responsibilities and had been suffering from depression during this time. In addition, the appellant referred to her complaint that she had been uncertain and upset due to the confusion caused by the distinction between an unfair dismissal application and a General Protections claim involving a dismissal. In our view, the appellant’s reliance on the confusion over what claim she should have initially filed, can be put to one side. On her own submission, there was no confusion, as of the conciliation conference of 17 February 2014. She knew from that date she had the option of filing a General Protections claim and she did so on 6 March 2014.
[50] Moreover, her claims of uncertainty and confusion sit rather uncomfortably with her other submission that as far back as July 2013 - four months before her alleged dismissal - she had intended to file a General Protections claim and had consulted with a lawyer about doing so. In addition, she said she was a thorough and meticulous person who had closely studied and researched the legislation. If this is so, she must have surely realised, or at least been aware of the critical importance of filing an application within specified statutory time limits.
[51] We do not consider that the appellant’s claims of parental and carer’s responsibilities meet the test of ‘exceptional circumstances’. In addition, there was no medical evidence that the appellant was suffering from depression during the relevant period, so as to incapacitate her from filing her primary application within time.
CONCLUSIONS
[52] We have considered all of the material the appellant has put before the Full Bench in this appeal, noting that much of this material is not directly relevant to the disposition of her appeal. We are satisfied that the Commissioner’s findings as to the appellant’s failure to explain her inability to file her primary application between 17 February and 6 March 2014, were reasonably open to him. The appellant has not identified any error in the Commissioner’s exercise of discretion in that respect.
[53] We are not persuaded that any of the appellant’s grounds of appeal are sufficient to attract the public interest. The appeal does not raise any issues of importance or general application to the Commission’s jurisdiction. The Commissioner’s decision did not result in a manifest injustice, nor is it counter-intuitive. The Commissioner properly considered each of the matters under s 366(2) of the Act and came to an entirely orthodox conclusion - that there were no ‘exceptional circumstances’ established to accept the appellant’s General Protections application ‘out of time’. We expressly agree with this conclusion.
[54] We make the following orders:
1. Permission to appeal is refused.
2. The appeal is dismissed.
DEPUTY PRESIDENT
Appearances:
Applicant in person.
Mr B Heath, Solicitor for the respondents.
Hearing details:
2014:
Brisbane
5 August
Printed by authority of the Commonwealth Government Printer
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