Mehluli Sibanda v Ayuya Pharmacy Trust. & Others T/A HealthPro Pharmacy
[2023] FWCFB 94
•22 MAY 2023
| [2023] FWCFB 94 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Mehluli Sibanda
v
Ayuya Pharmacy Trust. & Others T/A HealthPro Pharmacy
(C2023/1537)
| VICE PRESIDENT CATANZARITI | SYDNEY, 22 MAY 2023 |
Appeal against decision [2023] FWC 435 of Deputy President Cross at Sydney on 2 March 2023 in matter number C2022/7446 – permission to appeal refused.
Background
On 23 March 2023, Mehluli Sibanda (Mr Sibanda or the Appellant) lodged a Notice of Appeal, for which permission to appeal is required, against a decision and order made by Deputy President Cross on 14 February 2023 ex-tempore and published on 2 March 2023 (the Decision). The Respondent to the appeal is his former employer, Ayuya Pharmacy Trust & Others trading as HealthPro Pharmacy (HealthPro or the Respondent).
On 27 March 2023, directions were set for the filing of material. The Appellant filed written submissions on 17 April 2023. The Respondent was not required to file any written material and did not do so. The Appeal was initially listed for hearing on 10 May 2023, on whether it was filed within time (and if not, whether time should be extended) and whether to grant Mr Sibanda permission to appeal.
On 7 May 2023, both parties consented to the issues of extension of time and permission to appeal being determined on the papers, and the listing was subsequently vacated. We are satisfied this matter can be adequately determined based on the materials before the Commission, pursuant to s.607(1) of the Act.
For the reasons that follow, permission to appeal is refused.
The decision under appeal
The Respondent operates retail pharmacies. Mr Sibanda was employed as a pharmacist. Mr Sibanda was dismissed on 24 September 2022.[1]
On 9 November 2022, a solicitor acting for Mr Sibanda made a general protections application involving dismissal under s 365 of the Fair Work Act 2009 (Cth) (FW Act).
The application was made twenty-five days late having regard to the twenty-one day statutory time limit for filing such claims.
The matter before the Deputy President was whether time should be extended for late lodgement.
At the first instance hearing, Mr Sibanda was represented, with permission, by his solicitor. The Respondent was self-represented. Mr Sibanda gave evidence on a statement filed in his name.
The Deputy President decided that time should not be extended.
The Deputy President delivered his decision ex-tempore at the conclusion of a hearing conducted remotely on 14 February 2023:[2]
“An extension of time is therefore refused and the application for a general protections remedy made by the applicant is dismissed. An order to that effect will be separately issued. That is the conclusion of my decision…”
On 2 March 2023 the Deputy President formally published reasons (Decision)[3] and issued an Order (Order):[4]
“[1] This Decision was originally made on an ex-tempore basis on transcript on 14 February 2023. In publishing these Reasons, I have taken the opportunity to revise same in accordance with the principles stated by Kirby J in Ex Tempore Judgments - Reasons on the Run (1995) 25 UWALRev 213 (at 229-230, including the authorities cited therein), and the New South Wales Court of Appeal in Bar-Mordecai v Rotman & Ors [2000] NSWCA 123 (at [193]-[195], including the authorities cited therein).”
The Decision as published revised in minor respects only the decision as delivered ex-tempore on 14 February 2023.
In the Decision, the Deputy President commenced by noting that s 366 of the FW Act allows for an extension of time if exceptional circumstances exist and if a discretion to extend time is exercised. The Deputy President observed that matters set out in s 366(2) need to be taken into account to the extent relevant in considering whether the circumstances are exceptional.
The Deputy President then assessed each of the considerations in s 366(2).
Having done so, the Deputy President concluded:
“[17] In conclusion, statutory time limits that are applicable to the exercise of a person's right to bring a general protections remedy are an expression of parliament's intention that rights should be exercised promptly so as to bring about certainty. Time limits seek to balance the right to bring an action against the desirability for prompt action and certainty. The reason for time limits is that parties should be able to know that, if there is a question about an action taken by one party, in this case in relation to a dismissal, the right to question that action will be exercised promptly; otherwise, except in exceptional circumstances, a right to bring the action will be lost.
[18] My conclusions in this matter have been that the factors that weigh in favour of the
Respondent and against the Applicant were, principally, the absence of any acceptable reason for a delay and the failure of the Applicant to take any action to dispute the dismissal.”
By Order, the application was dismissed.
Grounds of appeal & submissions
The Notice of Appeal raises multiple grounds of appeal. It asserts that significant errors of fact were made. The grounds of appeal overlap. To assist their consideration it is convenient to group them accordingly:
· Error of fact concerning the reason for late lodgement (ground 1);
· Error in concluding that the reason for delay (s 366(2)(a)) weighed against the Appellant (grounds 2 and 3);
· Error in concluding that s 366(2)(b) considerations weighed against the Appellant (ground 4); and
· Error in not concluding that s 366(2)(d) considerations weighed in favour of the Appellant (ground 5).
On permission to appeal, the Appellant submits that his reason for late lodgement raises an issue of human rights and familial responsibility (his travel to visit a gravely ill mother) and that it is in the public interest that a decision refusing to extend time in those circumstances should be reviewed.
Principles on appeal
An appeal under s 604 of the FW Act is an appeal by way of rehearing. The Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision maker.[5] There is no right to appeal, and an appeal may only be made with permission of the Commission.
Permission must be granted if the Commission is satisfied that it is in the public interest to do so.[6] Moreover, s 400 of the FW Act applies to this appeal. It provides that:
(1)Despite subsection 604(2), the FWC must not grant permission to appeal from a decision made by the FWC under this Part unless the FWC considers that it is in the public interest to do so.
(2)Despite subsection 604(1), an appeal from a decision made by the FWC in relation to a matter arising under this Part can only, to the extent that it is an appeal on a question of fact, be made on the ground that the decision involved a significant error of fact.
The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[7] The public interest is not satisfied simply by the identification of error,[8] or a preference for a different result.[9] In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of the Commission identified some of the considerations that may attract the public interest: [10]
“... the public interest might be attracted where a matter raises issue 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 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.[11] However, the fact that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.
An application for permission to appeal is not a de facto or preliminary hearing of the appeal. In determining whether permission to appeal should be granted, it is unnecessary and inappropriate for the Full Bench to conduct a detailed examination of the grounds of appeal.[12] However, it is necessary to engage with the appeal grounds to consider whether they raise an arguable case of appealable error.
Consideration
Status of the appeal
The FW Act requires that an appeal be made within twenty-one calendar days of the date of the decision or order being appealed against[13] or such further time as allowed by the Commission.[14]
In this matter, if the date of Decision and Order is the date of the ex-tempore decision, then the appeal is sixteen days late and time would need to be extended for the appeal to proceed.
Conversely, if the date is the date of the Decision and Order as published, then the appeal is within time.
We find that the appeal is within time. Mr Sibanda is appealing not only the Decision but also the Order dismissing his application. Although issuing an order was foreshadowed in the ex-tempore decision, the Order was not formally issued until 2 March 2023. On that basis alone, the appeal is within time.
Although it is not necessary to decide whether to allow time to be extended had the appeal been made late, we observe that discretionary reasons for doing so would have existed given the somewhat unusual circumstance of an ex-tempore decision followed sixteen days later by a published decision and that revisions to the reasons, albeit minor, were made in the Decision as published, and the absence of prejudice.
Permission to appeal
We now consider whether to grant Mr Sibanda permission to appeal. Before dealing with the specific issues raised by Mr Sibanda, we make three general observations about the Decision.
Firstly, the Deputy President correctly stated the law concerning whether time should be extended, and in particular the statutory requirement that circumstances be exceptional before considering whether the discretion to extend time should be exercised.
Secondly, the Deputy President, also correctly in our view, dealt with each of the relevant considerations set out in s 366(2).
Thirdly, the application by Mr Sibanda was twenty-five days late, not twenty-three as stated by the Deputy President[15] (twenty-five days elapsed from 16 October 2022 being the day after the twenty-first day and filing on 9 November 2022). In the context of this matter, this counting error, which was slightly to the favour of Mr Sibanda, is not a significant error of fact.
We now deal with the specific issues raised by Mr Sibanda in the Notice of Appeal. We observe that we have taken into account all of the matters raised by Mr Sibanda and have grouped them for convenience sake only.
Errors of fact
The Appellant submits that the Deputy President made errors of fact concerning the reason for late lodgement. The Appellant contends:[16]
“There is a significant error of fact in what the Deputy President calls my essential reason for the late filing. I could not file on time because my employment was terminated a few hours before my flight to leave the country and came back on the deadline day.”
At paragraph [8] of the Decision the Deputy President found:
“[8] Essentially, the reason put by the Applicant in relation to why his Application was late goes to asserted difficulties in obtaining legal advice upon his return to Australia on 15 October 2022. 15 October 2022 is a relevant date because that is the date upon which the Application should have been filed. That was the last date for filing.”
Findings of fact during a delay period are necessarily relevant to considering the reason for delay under s 366(2)(a). The delay period is the period commencing immediately after the time for lodging an application has expired, ending on the day on which an application is ultimately lodged. In this matter, the delay period was the twenty-five days between 16 October 2022 and 9 November 2022.
It was not disputed at first instance that the Appellant travelled overseas to Zimbabwe the day after he was notified of dismissal to visit his gravely ill mother, returning only on 15 October 2022. His return date coincided with the twenty-first day following dismissal which was the statutory deadline for filing an in-time application.
It is well established that regard may be had to circumstances which arise from the date a dismissal took effect when assessing whether the explanation for delay is acceptable or credible.[17]
However, that facts arising prior to the delay period were relied upon by Mr Sibanda does not mean that findings of fact made by the Deputy President concerning events during the delay period were not also relevant. For reasons discussed below, clearly they were.
It was appropriate that the Deputy President made findings of fact on those matters.
Further, we conclude that the facts as found by the Deputy President at paragraph [8] of the Decision were reasonably open on the evidence.
There is no apparent merit in the Appellant’s contention of error as to the Deputy President’s findings of fact, and accordingly we reject these grounds of appeal.
Error in assessing reason for late lodgement
The Appellant contends that the Deputy President erred in concluding that the reason for delay weighed against the Appellant.[18] This is the essence of grounds 2 and 3 of the Notice of Appeal.
A perusal of the proceedings at first instance reveal that the Appellant contended that the timing of the notification of his dismissal (on the eve of his overseas travel) and then his familial obligations whilst in Zimbabwe explained in part the delay.
To this extent, the Appellant is correct in submitting in his Notice of Appeal that the reason for delay he advanced included the circumstances prior to the delay period. We agree that they provided contextual relevance.
However, that was not the exclusive reason for delay advanced at first instance. It was the Appellant’s case that, upon returning to Australia, he had other priorities including difficulties in obtaining legal advice. This was specifically the subject of six paragraphs (12 to 17) of the Appellant’s seventeen paragraph witness statement tendered at first instance.
Thus, assessing the reason for delay necessarily required the Deputy President to consider the circumstances arising in the delay period in the context of the Appellant having just returned to Australia. The Deputy President dealt with those issues and appropriately so.
The Deputy President found:
“[9] On the Applicant's statement, it notes that, upon returning to Australia, the Applicant began to make enquiries with local solicitors in Maryborough but was unable to find a solicitor who could see him and eventually made contact with a solicitor on 24 October 2022. He had an initial telephone appointment to provide instructions on 25 October 2022 and, following that meeting, the solicitor provided advice on 27 October 2022, that was, apparently, captured in the junk mail of the Applicant's email system and he did not see that email until he followed up with the solicitor on 2 November 2022, and was able to obtain the advice that, he says, was sent to him on 21 October 2022 (I note this as being some days before his evidence says he saw his solicitor).
[10] The Applicant then states that, over the next few days, he provided his solicitor with information requested to complete the Application and it was completed and filed on 9 November 2022.”
The Deputy President concluded:
“[11] The chronology presented as constituting an exceptional reason for delay is extraordinary in its lack of attention to the urgency of filing an application. It is clear that the Applicant was able to obtain legal advice some weeks before he finally filed his Application and yet the necessary urgency that would have attended on such enquiry and advice was simply not followed.
[12] In the circumstances, I am not satisfied the Applicant has provided an acceptable explanation for the delay and that is a matter that weighs against the Applicant in this case.”
We see no apparent error in this conclusion. It was arrived by taking into account relevant considerations and considering the evidence in an orthodox manner. The Decision also discloses that the Deputy President took into account that those events occurred upon the Appellant’s “return to Australia”.[19]
On s 366(2)(a) considerations, the Deputy President drew reasonably open conclusions. Considered overall, there is no apparent error disclosed by reference to the evidence relied upon or admitted by the Deputy President.
There is no apparent merit in these grounds of appeal, and accordingly we reject them.
Error in assessing action to dispute dismissal
The Appellant contends that the Deputy President erred in concluding that s 366(2)(b) considerations weighed against the Appellant.[20] Section 366(2)(b) concerns action taken to dispute a dismissal.
On this, the Deputy President concluded:
“[13] Turning to the question of whether the Applicant had taken action to dispute his dismissal, it is relevant that the first the Respondent knew of the Application was upon receipt of that Application at least 23 days after the expiry of the 21-day period. In the circumstances, this is also a matter that weighs in favour of the Respondent, though not to the level of magnitude in relation to acceptable reason.”
The Appellant contends in his Notice of Appeal that upon being notified of dismissal, he sent a text message to the Respondent asking that it (the dismissal) be formalised by email. He submits on appeal that this was “a sign that I was going to take it further”.
There are a number of difficulties with this submission.
Firstly, it is not apparent that any such text reply was in evidence at first instance. An appeal is not a forum for advancing fresh evidence. It is not error that the Deputy President did not take into account what was not in evidence before him.
Secondly, even if the Appellant had replied by text in the manner he contends, there is no reasonable basis on which it could be concluded that a text message in those terms put the employer on notice of proposed action to dispute the dismissal within the meaning of s 36(2)(b).
There is no apparent merit in this ground of appeal, and we reject it.
Error in assessing merits
The Appellant contends that the Deputy President erred in not concluding that s 366(2)(d) considerations weighed in favour of the Appellant.[21] Section 366(2)(d) concerns the merits of the application.
On this, the Deputy President concluded:
“[15] Regarding the merits of the Application, in cases such as this, where the substantial merits of an Application are not fully examined into or agitated, it is inappropriate that I make an assessment about the merits based on the limited material that is available. At the least, I would say that it would appear that there is arguable merit on either side.”
It was clearly evident that the merits of the substantive application involved contested propositions of fact and law.
It is well established that, when considering merits in the context of an extension of time hearing where matters have not been substantially let alone fully ventilated, it is not appropriate for a Member to express concluded views on such questions and that even the expression of a provisional view should be made with considerable caution and caveat.[22]
In this context and given the very limited material that was before the Deputy President on merit, the conclusion made by the Deputy President at paragraph [15] of the Decision was appropriate. Indeed any conclusion other than that this consideration was neutral would, in all probability, have been in error.
There is no apparent merit in this ground of appeal, and we reject it.
Conclusion
The Decision was reasonably open to the Deputy President and arrived at by an orthodox process of reasoning. It does not raise matters of general importance.
Mr Sibanda clearly disagrees with the Decision. However, an appeal is not a forum to re-argue one’s case. Error needs to be established and permission to appeal is only granted if the public interest is enlivened.
None of the grounds on which the appeal is advanced have apparent merit individually or collectively. The Decision and Order do not manifest an injustice, are not counter intuitive and the legal principles applied are not disharmonious. No matter of general importance arises. There is no public interest in hearing and determining a meritless appeal.
Accordingly, permission to appeal is refused.
VICE PRESIDENT
Appearances:
Matter determined on the papers.
Final written submissions:
17 April 2023, for the Appellant.
[1] The Respondent had initially contended that no dismissal occurred. However at the first instance hearing, the Respondent advised that it did not press that contention.
[2] PN148 – 149.
[3] [2023] FWC 435.
[4] PR750978.
[5] This is so because on appeal the Commission has power to receive further evidence, pursuant to s 607(2); see Coal and Allied Operations Pty Ltd v AIRC [2000] HCA 47, 203 CLR 194, 74 ALJR 1348, 174 ALR 585, 99 IR 309 at [17] per Gleeson CJ, Gaudron and Hayne J.
[6] Section 604(2).
[7] O’Sullivan v Farrer (1989) 168 CLR 210 at 216-217 per Mason CJ, Brennan, Dawson and Gaudron JJ: applied in Hogan v Hinch (2011) 243 CLR 506 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78 at [44] – [46].
[8] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343, 197 IR 266 at [24]-[27].
[9] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343, 197 IR 266 at [26]-[27], Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/ Warkworth[2010] FWAFB 10089 at [28], affirmed on judicial review; Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 178; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office[2014] FWCFB 1663, 241 IR 177 at [28].
[10] [2010] FWAFB 5343, 197 IR 266 at [24]-[27].
[11] Wan v AIRC [2001] FCA 1803, 116 FCR 481 at [30].
[12] Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82].
[13] Section 604 FW Act and Rule 56(2)(a) and (b) Fair Work Commission Rules 2013.
[14] Rule 56(2)(c).
[15] Decision, [3].
[16] Notice of Appeal ground 1.
[17] Shaw v Australia and New DEPUTY PRESIDENTealand Banking Group Limited[2015] FWCFB 287 at [12]; ODeputy Presidentsoy v Monstamac Industries Pty Ltd[2014] FWCFB 2149 at [31] – [33]; Perry v Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine[2016] FWCFB 6963; CDeputy Presidentoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149.
[18] Notice of Appeal grounds 2 and 3.
[19] Decision, [8].
[20] Notice of Appeal ground 4.
[21] Notice of Appeal ground 4.
[22] Long v Keolis Downer T/A Yarra Trams [2018] FWCFB 4109, [72]; Cannon v Quad Services[2019] FWCFB 2097, [49].
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