Mahmoud Dahbache v Prixcar Services Pty Ltd
[2015] FWCFB 1227
•5 MARCH 2015
| [2015] FWCFB 1227 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
v
Prixcar Services Pty Ltd
(C2015/1206)
VICE PRESIDENT WATSON | MELBOURNE, 5 MARCH 2015 |
Appeal against decision [[2014] FWC 7932] of Senior Deputy President Drake at Sydney on 14 November 2014 in matter number C2014/4492 - Extension of time to lodge an appeal - Fair Work Act 2009, s.604.
Introduction
[1] This decision concerns an application for permission to appeal by Mahmoud Dahbache against a decision of Senior Deputy President Drake handed down on 14 November 2014. The decision of the Senior Deputy President concerned an application to deal with a dispute made by Mr Dahbache under s.739 of the Fair Work Act 2009 (the Act) concerning flexible working arrangements at Prixcar Services Pty Ltd (Prixcar).
[2] Mr Dahbache lodged a Notice of Appeal at the Commission on 14 January 2015, more than 5 weeks outside of the 21 day period prescribed by the Fair Work Commission Rules 2013 (the Rules). As a result, it is first necessary to determine whether the Commission will allow Mr Dahbache’s appeal application to be filed outside of the prescribed 21 day period.
[3] The parties have agreed that this issue would be determined on the papers before any hearing of the appeal against the decision of the Senior Deputy President. Written submissions on this question have been filed on behalf of Mr Dahbache and Prixcar.
The relevant Rule and the approach to extending the time for filing an appeal
[4] Rule 56(2) provides as follows in relation to appeals against decisions of the Commission:
“(2) The notice of appeal must be lodged:
(a) within 21 calendar days after the date of the decision being appealed against; or
(b) if the decision was issued in the form of an order—within 21 calendar days after the date of the order; or
(c) within such further time allowed by the Commission on application by the appellant.
Note: Subsection 598(4) of the Act provides that a decision may be made as an order.”
[5] A Full Bench of this Commission (then called ‘Fair Work Australia’) said the following in relation to the predecessor to Rule 56 1:
“[3] Time limits of the kind in Rule 12 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 2 indicate that the following matters are relevant to the exercise of the Tribunal’s discretion under Rule 12.3(b):
● 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.
[4] In broad terms the issue for the Tribunal 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.”
[6] This approach has been applied in other Full Bench decisions and we apply it in this case.
Should the time for lodging the appeal be extended?
[7] In accordance with Rule 56 the appeal needed to be filed by Friday, 5 December 2014.
[8] The grounds that Mr Dahbache has relied upon in seeking an extension of time in which to file his appeal are that he submitted the appeal within 21 days of the decision but the size of the email was too large and was not able to be sent through. He waited until his daughter returned and sent the appeal in a number of smaller files. He said that he could not send the document by mail as he could not access his daughter’s computer whilst she was away.
[9] The file in this matter indicates that on Monday, 15 December Mr Dahbache emailed the Commission indicating that his emails attaching the notice of appeal were bouncing back. He said “Can you please advise if I should contact other or send by mail?” Later the same day a member of the administrative staff sent an email to Mr Dahbache which stated:
“Dear Mr Dahbache,
There are various methods available to an [sic] someone that is seeking to lodge an application. If you are having problems sending through material, you may wish to send through the documents in a number of emails with a smaller number of attachments to each email. You can also fax your application and any attachments 02 62092400 or 02 93806990. If these options are not available to you, you can hand deliver the documents to the Sydney or Canberra Registry. I note that the timeframes for lodgement of an appeal are strict, and failure to lodge within the 21 day timeframe may result in your appeal being dismissed. You should therefore ensure that the documents reach the Registry as a matter of urgency if you intend to pursue your matter further.
Please feel free to call me if you require any further assistance.”
[10] The next communication from Mr Dahbache approximately one month later, was the filing of his hand written Notice of Appeal on 14 January 2015. The Notice of Appeal was dated 3 December 2014.
[11] The grounds of appeal advanced by Mr Dahbache allege that the decision was based on lies from the Respondents and the situation was not investigated enough. No public interest factors are alleged.
[12] Prixcar strongly opposes an extension of time being granted. It states that since the decision has been handed down it has implemented the recommendation made by the Senior Deputy President in her decision and dealing with the matter has required 3 trips from Melbourne to Sydney to represent the company in the proceedings which date back to May 2014.
[13] We are not persuaded that an acceptable reason for the delay in excess of 5 weeks has been advanced. In particular, there appears to be no reason why the hand written appeal document could not have been forwarded by mail prior to 15 December, and especially after 15 December when the administrative staff member pointed out the alternative means of filing and the importance of complying with time limits.
[14] Further, we are not persuaded that the appeal grounds have any realistic prospects of success. No error of a type required to successfully appeal against a discretionary decision has been advanced. We also consider that given the nature of the decision sought to be appealed, the late filing does involve some prejudice to the employer.
[15] For these reasons we decline to allow the Notice of Appeal to be filed outside the 21 day time limit required by Rule 56. The Application to extend the time for filing the appeal is dismissed.
VICE PRESIDENT WATSON
Final written submissions:
Mahmoud Dahbache on 6 February 2015.
Prixcar Services Pty Ltd on 11 February 2015.
1 Tokoda v Westpac Banking Corporation[2012] FWAFB 3995
2 Stevenson-Helmer v Epworth Hospital, Print T2277, 19 October 2000 per Ross VP, Acton SDP and Simmonds C; Dundovich v P&O Ports, Print PR923358, 8 October 2002 per Ross VP, Hamilton DP and Eaves C; SPC Ardmona Operations Ltd v Esam and Organ (2005) 141 IR 338.
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