Matthew Duncan Hatch v Woodside Energy Ltd - [2023] FWCFB 51

[2023] FWCFB 51

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.604—Appeal of decision

Matthew Duncan Hatch
v

Woodside Energy Ltd.

(C2022/6960)

VICE PRESIDENT CATANZARITI
DEPUTY PRESIDENT BELL
COMMISSIONER LEE

BRISBANE, 9 MARCH 2023

Appeal against decision [2022] FWC 2572 of Deputy President Young at Melbourne on 26 September 2022 in matter number C2022/2787 – permission to appeal granted – appeal upheld.

Background

Mr Matthew Duncan Hatch (the Appellant) has lodged an appeal pursuant to s.604 of the Fair Work Act 2009 (Cth) (FW Act) for which permission to appeal is required against a decision (the Decision) of Deputy President Young (Deputy President) issued on 26 September 2022.[1] The Decision concerns an application lodged by the Appellant under s.365 of the FW Act, alleging contraventions of Part 3-1 of the FW Act associated with his dismissal by Woodside Energy Ltd (the Respondent).

The Deputy President determined that the application had been lodged one day out of time having regard to the statutory time limits in s.366(1). Having then considered the factors in s.366(2) the Deputy President determined not to extend the time limit for lodging the application and dismissed the application.[2]

The Applicant does not set out particular grounds of appeal but provided submissions setting out various alleged errors in the Deputy President’s decision. For the reasons that follow, it is not necessary to set out or engage with those submissions in a substantive way.

At the hearing of the Appeal on Monday 05 December 2022, the Full Bench indicated to the parties that the application may in fact have been lodged within time having regard to the application of the Acts Interpretation Act 1901 (Cth) (AIA). Directions were sent and parties were provided with an opportunity to file submissions addressing that point and written submissions were filed.
For the reasons that follow, we consider that the application was made in time and that it is unnecessary to consider whether an extension of time was required. Permission to appeal is granted and the appeal is allowed.

Decision Under Appeal

The Deputy President set out the following background and factual findings:

“[4]       Mr Hatch commenced employment with the Respondent in September 2012 as an Environmental Advisor. The Respondent terminated Mr Hatch’s employment on 13 April 2022. Mr Hatch resides in Western Australia.
[5]       Mr Hatch sent the GP Application by email to the Melbourne Registry at 11.59 pm Australian Western Standard Time (AWST) on 4 May 2022. That email was received by the Melbourne Registry at 1.59 am Australian Eastern Standard Time (AEST) on 5 May 2022. The GP application was also sent the Perth Registry at 12.12 am AWST on 5 May 2022.
[6]       At 9.20 am AEST on 5 May 2022 the Commission wrote to Mr Hatch and advised that an email had been received from him on 5 May 2022 but the GP Application had not been received because the Commission could not access the document; that is, the GP Application was not in a readable format.…

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.

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Details

Case: [2023] FWCFB 51
Decision Date: 9 MARCH 2023

CaseChat Overview and Summary

In the Fair Work Commission, Matthew Duncan Hatch has appealed against a decision of the Deputy President, which dismissed his application for unfair dismissal on the basis that it was lodged one day out of time. The appeal was lodged one day out of time but permission to appeal was granted. The Full Bench considered whether the application had been made within time and, if not, whether an extension of time should be granted. The Full Bench found that the application was made within time and there was no need to consider an extension of time. The appeal was upheld and the matter is remitted to the Fair Work Commission for allocation to a conciliator. The Full Bench considered the interpretation of "made" and "lodged" in the context of the Fair Work Act 2009 and the Fair Work Commission Rules 2013. The Full Bench held that the application was made within time, as it was received at 11:59pm AWST on 4 May 2022, which was within 21 days of the dismissal taking effect. The Full Bench also considered the relevance of the Acts Interpretation Act 1901 and the Electronic Transactions Act 1999. The Full Bench held that the application was made within time and there was no need to consider an extension of time. The Full Bench considered the public interest in granting permission to appeal and allowing the appeal. The Full Bench held that the appeal enlivened the public interest, as the Deputy President's finding that the application was one day out of time was in error. The Full Bench granted permission to appeal, upheld the appeal, quashed the Deputy President's decision, and remitted the matter to the Fair Work Commission for allocation to a conciliator.

Orders