Mary Finch v Plastic Bend Fabrications Pty Ltd
[2023] FWCFB 108
•23 JUNE 2023
| [2023] FWCFB 108 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Mary Finch
v
Plastic Bend Fabrications Pty Ltd
(C2023/2257)
| DEPUTY PRESIDENT MASSON | MELBOURNE, 23 JUNE 2023 |
Appeal against the extempore decision of Commissioner Johns at Melbourne on 6 April 2023 in matter number C2023/353 – permission to appeal refused – appeal dismissed.
Introduction
Mary Finch (the Appellant) has applied under s 604 of the Fair Work Act 2009 (Cth) (Act) for permission to appeal, and if granted, appeals a decision of Commissioner Johns issued in transcript on 6 April 2023 (the Decision). The Decision dealt with an application for an extension of time required to deal with a general protections application (the Application) involving dismissal under s 365 of the Act. The Application was lodged with the Fair Work Commission on 25 January 2023, approximately nine months after the date of the Appellant’s dismissal on 28 April 2022. The Respondent in the appeal proceedings is Plastic Bend Fabrications Pty Ltd.
The matter was listed for permission to appeal and merits of the appeal. Directions were issued on 1 May 2023 for the filing of submissions and material and the matter was listed for hearing on 9 June 2023. Both parties filed material in advance of the hearing pursuant to the Directions. At the hearing on 9 June 2023, the Appellant was represented by Mr Huw Roberts of Counsel who was granted permission to appear pursuant to s 596 of the Act while the Respondent was also granted permission to be legally represented by Mr M. Ritchie of WW Legal.
The background to the appeal may be shortly stated. The Appellant was employed by the Respondent as a Warehouse Assistant until her dismissal on 28 April 2022. Following her dismissal, the Appellant filed an F9 Unlawful Termination Application (the First Application) with the Commission on 25 October 2022 (C2022/7123), some five months and 27 days after her dismissal. The Applicant subsequently filed an F8 general protections application involving dismissal (C2023/338) (the Second Application) on 23 January 2023. The First Application and Second Application were both discontinued on 25 January 2023. The Appellant filed the Application that same day. In the Decision, the Commissioner dismissed the Application after declining to grant an extension of time for it to be made.
For the reasons that follow permission to appeal is refused.
The Decision
The Commissioner in his decision commenced by referring to the relevant provisions in the Act dealing with general protections applications involving dismissal made under s 365 and to the extensions of time provisions at s 366 of the Act[1]. He then highlighted the key Full Bench authority of Stogiannidis v Victorian Food Distributors[2] which set out the correct approach to determining whether to grant an extension of time for a general protections application involving dismissal pursuant to s 366(2) of the Act where such application was made outside the required 21-day period[3].
In dealing with the reason for the Appellant’s delay (s 366(2)(a)) in filing the Application, the Commissioner firstly noted that the Appellant declined an opportunity afforded to her to give evidence at the hearing. He then referred to the limited evidence before him going to the reason for the delay, including a medical certificate dated 8 August 2022[4], which he observed might at its highest explain the delay in the filing of the application between the date of dismissal on 28 April 2022 and the date of the medical certificate of 8 August 2022. The certificate could not however, in the Commissioner’s view, explain why the Appellant was unable to file the Application until 25 January 2023[5].
The Commissioner continued and stated that the 170-day period from 8 August 2022 to 25 January 2023 was entirely unexplained by the Appellant and that she had provided no evidence, including any witness statements going to that period of the delay, despite being given every opportunity to do so[6]. The Commissioner then noted that in circumstances where the Appellant had been assisted by her representative Mr Roberts since 28 April 2022 and that representative error had not been contended, he was satisfied that the Appellant had some capacity to file an application before 25 January 2023 as evidenced by her filing the First Application on 25 October 2022 and the Second Application on 23 January 2023. The Commissioner concluded in relation to the reason for the delay that he was not satisfied that the Appellant had no capacity to file the Application before she had[7].
In then considering what action was taken by the Appellant to dispute the dismissal (s 366(2)(b)) the Commissioner considered the First Application lodged on 25 October 2022 and the Second Application lodged on 23 January 2023 and in doing so noted that the First Application was a jurisdictionally incorrect application. As regards the Second Application, the Commissioner observed that the application was filed late, and it was unclear why it had been withdrawn. Nonetheless, the Commissioner accepted that by those applications the Appellant had taken action to dispute the dismissal, albeit both applications were filed late, and concluded that factor weighed in favour of granting an extension of time[8].
The Commissioner then found that as there were no submissions made by the Respondent in relation to the question of prejudice (s 366(2)(c)), there would be no prejudice if an extension of time were granted[9]. In respect of the merits (s 366(2)(d)) of the Application, the Commissioner concluded that in the absence of hearing evidence on contested points of fact it was not possible to make a detailed assessment of the merits[10]. Turning to fairness between the Appellant and other persons in a similar position (s 366(2)(e)), the Commissioner stated that as neither party brought to his attention any relevant matter, there was nothing for him to weigh in his assessment[11].
After considering each of the criteria set out in s 366(2) of the Act the Commissioner concluded:
“Having regard to all of the matters which have been submitted before me, having regard to the matters listed in subsection (2) of section 366 of the Fair Work Act, I am not satisfied that there are exceptional circumstances in this matter. Not being satisfied that there are exceptional circumstances, there is no basis for the Commission to allow an extension of time. The applicant’s application for the Commission to deal with a dismissal dispute is therefore dismissed and an order to that effect will be issued this afternoon……”[12]
Grounds of appeal
The Appellant advances two grounds of appeal, being:
(1) the Commissioner fell into error by denying the Appellant procedural fairness in that he declined to receive and consider oral submissions from the Appellant’s representative regarding the contents of the application; and
(2) the Commissioner failed to properly apply the ‘exceptional circumstances’ test as required by s 366(2) of the Act.
The Appellant submits that the public interest is enlivened by the need for the Commission to give broader consideration to the nature and extent of the impact of mental illness on the capacity of an individual to comply with the legal requirements of filing of documents, in particular where there is evidence of the impact on the mental health of that individual from the circumstances leading up to and subsequent to the dismissal.
Appeal Principles
An appeal under s.604 of the Act is an appeal by way of rehearing and the Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision maker.[13] There is no right to appeal, and an appeal may only be made with the permission of the Commission. Subsection 604(2) requires the Commission to grant permission to appeal if satisfied that it is in the public interest to do so. Permission to appeal may otherwise be granted on discretionary grounds.
The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[14] The public interest is not satisfied simply by the identification of error, or a preference for a different result.[15] In GlaxoSmithKline Australia Pty Ltd v Makin 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...”[16]
Other than the special case in s.604(2), the grounds for granting permission to appeal are not specified. Considerations which have traditionally been treated as justifying the grant of permission to appeal include that the decision is attended with sufficient doubt to warrant its reconsideration and that substantial injustice may result if leave is refused.[17]
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 appealable error.[18] However, as earlier stated, the fact that the Member at first instance made an error is not necessarily a sufficient basis for granting permission to appeal.
Consideration
Ground 1 – denial of procedural fairness
Before turning to consider the specifics of this ground of appeal it is useful to set out some matters relevant to consideration of whether the Appellant was accorded a procedurally fair process. As earlier stated, the Appellant filed the Application on 25 January 2023. On 20 February 2023, the matter was allocated to the Commissioner’s Chambers following which the matter was initially listed for a case management hearing on 24 February 2023 but was rescheduled to 23 March 2023 due to the unavailability of both parties. Following the case management hearing, Directions were issued setting out the dates for filing of any further material by both parties and listing the matter for hearing on 5 April 2023. The Applicant was required to file any further material by 4.00pm on 30 March 2023.
On 30 March 2023, the Applicant’s representative sought a further adjournment. The adjournment request was opposed by the Respondent and declined by the Commissioner. The Appellant then failed to file her material by 4.00pm on 30 March 2023 and after explaining why no material was filed, the Appellant was notified by Chambers of the Commissioner on 3 April 2023 that she had missed her opportunity to file material and that the hearing would proceed and be relisted to 2pm on 6 April 2023.
At the hearing on 6 April 2023 and after marking documents that had been filed by both parties, the Commissioner asked the Appellant’s representative Mr Roberts whether the Appellant would be giving evidence at the hearing to which Mr Roberts advised she would not. The Commissioner accepted the response and declined to hear the reasons from Mr Roberts for that decision of the Appellant to not give any oral evidence[19]. In the absence of any witness evidence the Commissioner then proceeded to receive closing submissions from the parties. During submissions by the Appellant’s representative, it was relevantly conceded by Mr Roberts that the only material before the Commissioner going to the extension of time filed by the Appellant was that of the Form F2, a medical certificate dated 8 August 2023 and a photograph of medication the Appellant was taking[20].
Returning now to the Appellant’s ground of appeal that she was denied procedural fairness, we understand the claimed error of the Commissioner arises from him declining to receive ‘evidence from the bar table’ from Mr Roberts regarding the Applicant’s medical condition and the considerable amount of contact he had with the Appellant in the preparation of the application. The following exchange between Mr Roberts and the Commissioner during closing submissions is relevant:
“MR ROBERTS: Right. So firstly with regards to the medical certificate, as is generally understood (audio malfunction) provision of documentation by doctors, for reasons of privacy doctors don’t provide anything more than very basic information, for reasons of privacy. So therefore unless a detailed medical report is sought and obtained, which would have cost money, cost a significant amount of money, that it’s not possible to obtain any more information from a GP other than that.
Further to which in addition to the very brief letter the Commissioner has received a screenshot of the medication which she was prescribed. Further to which (audio malfunction) that she (indistinct) the doctor that that (audio malfunction). I became conscious of her mental health, and I became aware that she was not on medication, hadn’t had any formal diagnosis, I encouraged her to seek to see her GP for that purpose. But the purpose was particularly with regard to just her mental health and to seek opinions (audio malfunction).
I did say to Ms Finch that it would be of assistance to tell the GP that there was this application in case that GP (indistinct) in regard to how that might have - any diagnosis might have impacted upon her capacity to function. And here again I refer back to her details provided as to what’s going on at this time, to assist in expanding upon that letter from the GP.
GPs are capable of (audio malfunction) and prescribing medication for depression and anxiety, although it is (audio malfunction) - sorry, (audio malfunction) medication. As I said my principal concern was (audio malfunction) her mental health, and it was apparent to me throughout the process of (audio malfunction) to have this application is that (indistinct) that her mental health was continuing to have an impact on the baseline exchange of the texts I’ve had.
THE COMMISSIONER: Mr Roberts, you’re a barrister. I understand you have some qualifications as a chef also. You don’t as I understand it have any qualification as a mental health practitioner, and I’m not going to receive evidence from the Bar about the applicant’s condition.
MR ROBERTS: No, I’m not, I’m not suggesting I am, your Honour - - -
THE COMMISSIONER: All right. I don’t need to hear those submissions that contains observations you’ve made about the applicant.
MR ROBERTS: All right. Well, I’ll put it this way. In the process of assisting Ms Finch with regards to this application I exchanged a number of texts about the matters with her which total 146 emails exchanged between me and her over a period of 46 days, and I would suggest that the evidence (indistinct) for the Commission to take into account as to the (audio malfunction) - - -
THE COMMISSIONER: Mr Roberts, on 23 March I provided you with every opportunity to put on whatever additional material you wanted to. I’m not going to sit here today and have you tell me that you’ve got some evidence of multiple text messages over 46 days when I provided you with an opportunity on 23 March to file additional material, including evidence, and you chose or the applicant chose not to do so. It’s quite inappropriate for you to be trying to lead evidence like that from the Bar table. You should know that.”[21]
The Appellant submits that it was unreasonable for the Commissioner to have declined to hear from her representative Mr Roberts on his background and involvement in the matter. Further it is contended that there was no other means for Mr Roberts to raise matters relevant to whether there were ‘exceptional circumstances’ that would justify an extension of time being granted. The Appellant’s submissions are rejected for the following reasons.
Firstly, as set out above the Appellant had ample opportunities to put on evidence in support of her application for an extension of time to be granted. Those opportunities included the ability to file witness statements and any other evidence she wished to rely upon in advance of the hearing on 6 April 2023. Notwithstanding having not filed a witness statement in advance of the hearing, the Appellant was then afforded an opportunity to give oral evidence at the hearing on 6 April 2023. That opportunity was declined.
Secondly, contrary to the Appellant’s submission that Mr Roberts had no other means to put forward his knowledge of relevant matters going to the medical condition of the Appellant including various communication with the Appellant, there were clear alternatives. Mr Roberts could have filed relevant material by way of his own witness statement and documents in accordance with the directions issued by the Commissioner. Alternatively, the Appellant could have put forward the relevant evidence by way of a witness statement. To submit there was no alternative but to seek to advance ‘evidence from the bar table’ is simply not correct. As revealed above in the exchange on transcript between Mr Roberts and the Commissioner, this was made clear by the Commissioner.
Thirdly, in circumstances where the Appellant had an opportunity to put on evidence but declined to do so, the Commissioner was entirely correct in declining to receive evidence from the Applicant’s representative at the bar table by way of lay person opinion on the Appellant’s medical state or selective quoting of messages exchanged between the Appellant and Mr Roberts that were not in evidence.
A history of the matter and the transcript of the proceedings before the Commissioner on 6 April 2023 makes clear that the Appellant was provided with a fair and reasonable opportunity to present her case. That she failed to avail herself of that opportunity does not disclose error on the part of the Commissioner.
Ground 2 – failure to properly apply ‘exceptional circumstances’ test
By the second ground of appeal the Appellant contends that the Commissioner failed to properly apply the ‘exceptional circumstances’ test in dismissing the Appellant’s application when regard is had to the following:
the detailed, cogent and credible account put forward by the Appellant on the impact of her mental health which is capable of amounting to exceptional circumstances;
the increased rates of mental health issues that arose during lockdowns and the increased focus on mental health which generally demonstrates that mental health issues are no longer the purview of medical practitioners;
that the diagnosis of psychological injuries is less capable of objective assessment than other injuries; and
no expert could provide a definitive opinion about how any impact on the mental health of the Appellant could impact on the Appellant’s capacity to complete her application;
The Appellant further submits that the Commissioner illogically concluded that the medical certificate dated 8 August 2023 only provided evidence of incapacity up to that point and not beyond. That submission was advanced on the basis of the claimed effect of medications commonly prescribed, such as mirtazapine which the Appellant was prescribed, which the Appellant submits may take several weeks to take effect and even then, may not be effective. Further it was submitted that such medications do not cure the illness, but merely assist in managing the mental health issues.
The Appellant’s submissions on this ground of appeal largely involve the expression of lay opinions by her representative regarding the prevalence of and impacts of mental illness and the effects of medication. None of those submissions were supported at first instance or before the Full Bench by expert opinion or referenced research. The submissions of the Appellant provide no basis for identifying error in the Commissioner’s consideration of whether ‘exceptional circumstances’ were present such as to warrant an extension of time.
Contrary to the Appellant’s submission, the Commissioner applied an orthodox and correct approach to consideration of the reasons for the delay and whether that weighed in favour of a finding of exceptional circumstances. The Commissioner acknowledged the medical certificate dated 8 August 2023 and although no witness evidence was led either from the Appellant or a medical practitioner in relation to its content, the Commissioner nonetheless took the medical certificate at its highest, that it may have explained the reason for the delay between 6 April and 8 August 2022. As correctly identified by the Commissioner, beyond 8 August 2022 there was simply no evidence before him regarding the capacity or incapacity of the Appellant to prepare and file her application beyond the evidence that she filed and ultimately discontinued the First Application and the Second Application.
The absence of any evidence going to the reason for delay in filing the Application between 8 August 2022 and 25 January 2023 left the Commissioner with no basis upon which he could find there where was a credible explanation for that period of delay. In an appeal of a decision that dealt with the granting of an extension of timer for a late application for an unfair dismissal remedy, the Full Bench in Australian Postal Corporation v Lili (Karen) Zhang[22] (Zhang) considered the medical evidence advanced in support of the claim that the applicant in that matter had been incapacitated by trauma, stress and depression. The Full Bench relevantly stated as follows in relation to the absence of direct medical evidence going to the period of delay:
“[21] Drawing on the above, it does not appear that Ms Zhang was incapacitated for the period January 2015 until 24 April 2015 when her application was received by the Commission when, based on her own submissions, she was attending interviews for jobs. Nor does it appear that she was incapacitated prior to 20 September 2014 when she collected her possessions from Australia Post. More significantly, however, it is not clear to us on what basis the Commissioner felt qualified to make a determination that Ms Zhang suffered from PTSD in the immediate aftermath of her termination.
[22] In our view, in the absence of compelling medical evidence to that effect, such a finding was simply not open to the Commissioner. We note that the medical evidence before the Commissioner provided no insight into the extent to which Ms Zhang was incapacitated during the entire 205 day period of delay, let alone the 21 day period immediately following the termination of her employment for making an unfair dismissal application.”
We take from the Full Bench’s comments in Zhang that more than lay person opinion is required to support a claim that a person was medically incapacitated such that they could not have filed an application for a general protections dismissal or unfair dismissal application earlier than they did. We also agree with the Full Bench in Zhang that ‘compelling medical evidence’ is required to support a conclusion that the reason for the delay was due to the individual’s medical condition. The Commissioner in the present matter had no medical evidence before him, let alone ‘compelling medical evidence’, to explain the 170-day period of delay in filing the Application between 8 August 2022 and 25 January 2023. In fact, had he accepted the lay opinion that the Appellant’s representative sought to advance at first instance to the effect that the Appellant was medically incapacitated between 8 August 2022 and 25 January 2023, the Commissioner would in our view have fallen into the same error identified in Zhang.
As to the Appellant’s claim that the Commissioner did not have proper regard to the ‘detailed, cogent and credible account’ provided by the Appellant in her Form F8, we note that the explanation for the delay provided by the Appellant at question 1.4 of the Application filed on 25 January 2023 was in identical terms to the answer she provided at the comparable question at 2.3 of the Form F9 filed in the First Application on 25 October 2022. While the Appellant’s answer to question 1.4 of the Application described her state of mind and behaviour following the dismissal, it sheds little light on whether she was medically incapacitated such that she could not have filed the Application earlier than she did. In any case, the Appellant was not called to give evidence in the proceedings before the Commissioner. Nor was she able to be cross-examined in relation to the statements she made in her Form F8. In our view the Commissioner was correct to place no apparent weight on the information contained in the Form F8.
The Commissioner was not satisfied on the material before him that the Appellant had no capacity to file the Application in the period between 8 August 2022 and 25 January 2023. That finding was in our view clearly open to the Commissioner on the evidence before him. He then weighed each of the criteria set out in s 366(2) before concluding that ‘exceptional circumstances’ were not present that would warrant an extension of time being granted. The approach adopted by the Commissioner in assessing whether there were ‘exceptional circumstances’ present was entirely consistent with the relevant authorities referred to above. The Appellant has failed to identify error let alone appealable error in relation to the second ground of appeal.
Conclusion
The issue for this Full Bench is whether, in all the circumstances and having regard to the matters set out above in the context of the necessary principles, permission to appeal should be granted. We are satisfied that the Commissioner has not erred in the application of the principles to the matter before him. The discretion that arose[23] was exercised and was clearly open to the Commissioner.
Further, we have considered whether this appeal attracts the public interest, and we are not satisfied, for the purposes of s.604(2) that:
- there is a diversity of decisions at first instance so that guidance from an appellate body is required;
- the appeal raises issues of importance and/or general application;
- the Decision at first instance manifests an injustice, or the result is counter intuitive; or
- the legal principles applied by the Commission were disharmonious when compared with other decisions dealing with similar matters.
Permission to appeal is refused.
DEPUTY PRESIDENT
Appearances:
H Roberts of Counsel for the Applicant.
M Ritchie for the Respondent.
Hearing details:
2023.
Melbourne:
June 9.
[1] Appeal Book at p.16, Transcript of Hearing on 6 April 2023, PN120-PN122
[2] [2018] FWCFB 901
[3] Appeal Book at p.16, Transcript of Hearing on 6 April 2023, PN123
[4] Appeal Book, at p.35, Medical Certificate from Plaza Medical Centre, dated 8 August 2022
[5] Ibid at PN124
[6] Ibid at PN125
[7] Ibid at PN126
[8] Ibid at PN126-PN127
[9] Ibid at PN128
[10] Ibid at PN128-PN129
[11] Ibid at PN129
[12] Ibid at PN132
[13] Coal and Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.
[14] 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, [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [44] – [46].
[15] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343, [26]-[27], 197 IR 266; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth[2010] FWAFB 10089 [28], 202 IR 388, affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663, [28].
[16] [2010] FWAFB 5343, 197 IR 266, [24] – [27].
[17] See also CFMEU v AIRC (1998) 89 FCR 200; Wan v AIRC (2001) 116 FCR 481.
[18] Wan v AIRC (2001) 116 FCR 481, [30].
[19] Appeal Book at p.5, Transcript of hearing on 6 April 2023 at PN25-PN27
[20] Ibid at PN33-PN38
[21] Ibid at PN59-PNPN67
[22] [2015] FWCFB 5285
[23] See Atkinson v Killarney Properties Pty Ltd T/A Perm-A-Pleat Schoolwear and Adrian Palm and others[2015] FWCFB 6503 at [25].
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