Michael Broadbent v Goulburn Flight Training Academy Pty Ltd

[2021] FWCFB 2794

[2021] FWCFB 2794

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604—Appeal of decision

Michael Broadbent
v
Goulburn Flight Training Academy Pty Ltd
(C2021/1599)

DEPUTY PRESIDENT SAUNDERS
DEPUTY PRESIDENT LAKE
DEPUTY PRESIDENT CROSS SYDNEY, 17 MAY 2021

Appeal against decision [2021] FWC 1151 of Commissioner Johns at Sydney on 8 March 2021 in matter number U2020/16239 – appeal from refusal to extend time in unfair dismissal proceedings – permission to appeal refused.

Introduction

[1] Mr Michael Broadbent (the Appellant), a pilot who worked for the Goulburn Flight Training Academy Pty Ltd (the Respondent), has appealed against a decision of Commissioner Johns on 8 March 2021 (the Decision). 1 The Decision concerned an extension of time for an unfair dismissal application.

[2] The Commissioner in the Decision determined that there were no exceptional circumstances either individually or collectively. He therefore declined to grant an extension of time under section 394(3) of the Fair Work Act 2009 (Cth) (the Act).

Delay to the appeal hearing

[3] On the morning of 3 May 2021, the day on which the permission to appeal hearing was scheduled, the Commission received an email from the Appellant requesting a postponement of the hearing as due to unforeseen circumstances, he was in a remote region without internet or phone coverage. The Full Bench determined that they would request further information from the Appellant before deciding on whether an adjournment would be granted.

[4] The following communications were issued by the Commission to the Appellant:

“Dear Mr Broadbent

I refer to your email received at 11:48am this morning in which you sought a postponement and rescheduling of the permission to appeal hearing scheduled to commence at midday today.

By 4pm on 6 May 2021, you are directed by the Full Bench to file and serve any written submissions, documents and evidentiary material you wish to rely on in support of your application for a postponement and rescheduling of the permission to appeal hearing. Your submissions and material should address:

- where you were located at midday today;

- your contention that you were not able to participate in the hearing today because you could not gain phone or internet connection in an isolated region due to weather; and

- why, if you were in an isolated region with foreseeable connectivity difficulties, a new hearing date should be set for your application for permission to appeal.

The respondent will be given an opportunity to respond to any material you file and serve in accordance with the direction set out above.”

[5] The Appellant responded on 5 May 2021 with the following explanation:

“Sirs,

I have been unemployed since being unfairly dismissed from my post in November last year, and have managed but a few casual odd-jobs within my spectrum of skills and experience , one of which is to act as crew on commercial small vessels ( I am gaining experience for a coxswains certificate).

I accepted a paid position as "passage crew" to deliver a Motor Yacht from NewCastle NSW to Cairns, via Coffs Harbour, Gold Coast, Hamilton Island , on a timetable that would fit in with my commitments with the scheduled Fair Work hearing.

The leg Gold Coast to Hamilton Island plan included a stop at Bundaberg and Yepoon and arrive at Hamilton Island in good time for the Hearing ie 2 days to spare

After leaving Yepoon on Saturday 1 May we were well ahead of schedule, but encountered unexpected severe storms and sheltered in a small creek in the Shoalhaven ( Miltiary Training Zone) Harbour . There was no internet or phone signals. obtainable.

Despite worsening weather the Captain attempted to move the vessel up-river to get signal but the water was too shallow and our progress was minimal. We grounded briefly but got free.

Even standing on the top deck-head with phone in hand and trying other crew members phones was largely unsuccessful, but at top the tide on Monday midday managed a weak signal and got the message out. Multiple attempts were made

We were unable to resume our voyage until the weather cleared on Tuesday afternoon 4th May.

As I write we have just encountered internet and phone signals and the Captain had diverted the voyage to Airley Beach Marina arriving this afternoon.

I plead force majure for this outcome. The planning was made in belief that the leg Yepoon to Hamilton Island would be made with 2 days to spare , and that loss of internet/phone cover , if such occurred would only be brief.

The un- forecast adverse weather could not be foreseen and the Captain and I did all we could to rectify the situation .

Captain Edward Ruyessenars will corroborate this explanation if required

Russell Broadbent”

[6] The Appellant was granted an adjournment and the permission to appeal application was heard on 12 May 2021 by Microsoft Teams.

The nature of unfair dismissal appeals

[7] An appeal under section 604 of the Act is an appeal by way of rehearing. 2 An appeal may only be made with the permission of the Commission.

[8] This appeal is one to which section 400 of the Act also applies. Under section 400, the Commission must not grant permission to appeal from a decision made by the Commission in relation to unfair dismissal unless it considers it in the public interest to do so. An appeal of an unfair dismissal decision involving a question of fact can only be made on the ground that the decision involved a significant error of fact.

[9] The test under section 400 has been characterised as “a stringent one”. 3 The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.4 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.”  5

[10] 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. 6

[11] 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. 7 However, it is necessary to engage with the appeal grounds to consider whether they raise an arguable case of appealable error.

Commissioner’s Decision

[12] At first instance the parties agreed that the Appellant’s last day of engagement with the Respondent was 24 November 2020. 8 The relevant section of the Act is section 394(2) which states that an application for an unfair dismissal remedy must be made ‘within 21 days after the dismissal took effect’, or within such further period as the Commission allows pursuant to section 394(3). The application for an unfair dismissal remedy was made on 21 December 2020 and was, therefore, six days out of time.

[13] The Commissioner considered each of the requirements under section 394(3) in turn.

Reason for the delay

[14] The Appellant put forth two arguments, firstly that he was unaware of the 21-day timeframe and secondly, the ‘tyranny of distance’ and the COVID pandemic. He did not elaborate on this argument. The Commissioner did not consider these arguments either individually or collectively provided an acceptable or reasonable explanation for the delay. He made comment that ignorance of the timeline did not amount to exceptional circumstances. He noted that online access to the Commission’s system mitigates against the tyranny of distance and further, that the Appellant had not provided any evidence supporting his assertion that the tyranny of distance and the pandemic contributed to his delay. Finally, as to whether the Appellant used the days between the cessation of employment and the filing to deal directly with the Respondent rather than file an application is a matter for him and not an explanation for the delay. The Commissioner concluded that this factor weighed against an extension of time.

Whether the person first became aware of the dismissal after it had taken effect

[15] The Commissioner identified that the Appellant had resigned from his position and therefore had the full 21 days to lodge the application and noted that this factor weighed against an extension of time being provided.

Action taken to dispute the dismissal

[16] The Appellant had resigned from his position and this factor was treated as neutral by the Commissioner.

Prejudice to the employer

[17] The Commissioner could not identify any prejudice to the employer if the extension was to be granted and attributed little weight to this factor.

Merits of the application

[18] The Commissioner made the following comments regarding the merits of the application:

“[18] Having examined these materials, it appears to me that the Application would face further issues of a jurisdictional nature if an extension of time were provided. First, the Applicant would bear the onus of proving that he did not resign voluntarily, but that the resignation was forced by the employer

[19] During proceedings before me, the Applicant also made the admission that, throughout his engagement with the respondent, he was paid through a family trust.10 It therefore appears that there may also be an arguable case that the Applicant was never an employee at all.”

[19] The Commissioner went on to state that the prospects of success seemed limited, given his previous comments (extracted above) and therefore concluded that this factor weighed against an extension of time.

Appellant’s grounds of appeal and public interest contentions

[20] The Appellant’s notice of appeal identifies the following grounds for the appeal:

“2.1.1 The Commissioner failed to recognize the exceptional circumstances which developed due to COVID 19 and the effect on Employer – Employee relationships and dynamics.

2.1.2 Government intervention encouraged unfair dismissals and replacement of the employee to gain Job Seeker – Job Keeper subsidies.

2.1.3 The dynamics of the complainants employment was dictated by COVID 19 and the Federal Government subsidies to new employment. The decision maker failed to provide proper reasons in his decision."

[21] The Appellant argues that granting permission to appeal would be in the public interest for the following reasons:

“(a) Public are rightly concerned about the Governments responses to COVID 19 and particularly the unintended effect of job payment subsidies. Employers such as the Respondent were encouraged by the job seeker and Job Keeper subsidies to turn over existing employees.

(b) Public interest also in existing employment contracts could be avoided – as in this case – thereby the pay increase due to me under the employment agreement was avoided.

(c) Both of these benefitted the employer and disadvantaged [the Appellant]”

Consideration

[22] During the permission to appeal hearing, the Appellant raised the same matters of the COVID pandemic, the ‘tyranny of distance’ and the Federal Government JobKeeper and JobSeeker subsidies as contributing to his termination, however he was unable to explain how these factors contributed to his delay in filing his unfair dismissal application, other than making it more difficult for him to speak with Mr Ferrara, director of the Respondent, face to face after his dismissal. On the topic of a potential meeting with Mr Ferrara, the Appellant sent him a letter of demand about a week after his alleged dismissal and was hoping to meet with Mr Ferrara to discuss a potential resolution of his demands. Mr Ferrara did not respond to the letter of demand and no meeting was arranged. We agree with the Commissioner’s assessment that these matters did not give the Appellant an acceptable or reasonable explanation for the delay in filing his application.

[23] When he focused attention upon the matter of why he should be granted an extension, the Appellant’s argument simply put was that he had an entitlement to paid leave of approximately four weeks and if the leave had been granted, it would be possible to regard his application as within time as the termination would be moved forward by the four weeks.

[24] The proposition may have had weight if indeed he had applied for leave and was granted it. However, the facts of the matter are that on 8 November 2020 the Appellant wrote to the Respondent and tendered his resignation “effective from the last day of my leave owing which I believe is 24^th November”. The Appellant did not apply to take any leave from or after 24 November 2020. In addition, at first instance the Appellant agreed that his employment with the Respondent came to an end on 24 November 2020, with the result that his application was filed six days late. 9 Any entitlement the Appellant had to annual or other leave at the time of his resignation did not alter the date on which his relationship with the Respondent came to an end.

[25] The Appellant raised a concern that his leave entitlements and his last few days of employment had not been paid out. If this is the case, the appropriate channel for that claim would be through the Fair Work Ombudsman, or an application to an appropriate court, and not through an unfair dismissal claim.

[26] The view of the Full Bench is that there is no arguable case that the Commissioner erred in determining the date on which the Appellant’s alleged dismissal took effect or that the application was filed six days late. Nor are we persuaded that there is any arguable case of error in relation to the Commissioner’s consideration of the reasons for the delay in filing the application.

[27] In his submissions the Appellant challenged the Commissioner’s consideration of the merits of the application. In particular, the Appellant contends that all the relevant indicia point to him being an employee, rather than a contractor.

[28] The Act requires the Commission to take into account the merits of the application in considering whether to extend time. However, the substantial merits of the application are not able to be fully examined or agitated at this stage of the proceeding which is essentially interlocutory. On the limited material available, the Commissioner made the correct observations that (a) the Appellant would need to establish at any final hearing that he did not resign voluntarily and was instead forced to resign by the Respondent and (b) the Appellant was paid by the Respondent through a family trust, with the result that “there may also be an arguable case that the Applicant was never an employee at all”. 10 The Commissioner then reasoned that the Appellant’s prospects of success “seem limited” by these matters and found that the merits of the application weighed against an extension of time being granted.11

[29] In our view, there is no arguable case that the Commissioner erred in considering the merits of the application. The two factors relied on by the Commissioner to form the opinion that the Appellant’s prospects of success “seem limited” were supported by the evidence. The Commissioner did not find that the Appellant was a contractor. Instead, he made the correct observation that the arrangement entered into by the Appellant whereby he was paid for his services to the Respondent through a family trust gave rise to an arguable case that the Appellant was never an employee at all.

[30] We do not discern any arguable case of error in relation to any aspect of the Decision.

[31] We do not consider that the Decision raises any issue of importance or general application that enlivens the public interest. It concerned an application for extension of time for an unfair dismissal matter where the applicable principles were applied in an orthodox manner and the outcome turned on the particular facts of the case.

[32] We do not consider that the result of the Decision is counter intuitive or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters.

[33] Finally, we are not satisfied that any substantial injustice would ensue to the Appellant if permission to appeal is not granted, given that no arguable case of appealable error is disclosed in the Decision.

Conclusion

[34] In all the circumstances, we are not persuaded that it would be in the public interest to grant permission to appeal.

[35] Permission to appeal is refused.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR729886>

Appearances:

Mr M Broadbent on behalf of himself

Mr J Ferrara on behalf of the Respondent

Hearing details:

2021.

Sydney (by videoconference and telephone):

May 12.

 1   [2021] FWC 1151

 2   This is so because on appeal the Commission has power to receive further evidence, pursuant to section 607(2); see Coal and Allied v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.

 3   Coal & Allied Mining Services Pty Ltd v Lawler and others (Buchanan, Marshall and Cowdroy JJ) (2011) 192 FCR 78 at [43].

 4   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 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; (2011) 192 FCR 78 at [44]-[46].

 5   [2010] FWAFB 5343, 197 IR 266 at [27].

 6   Wan v AIRC (2001) 116 FCR 481 at [30].

 7   Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82].

 8   PN 92-93.

 9   PN89-PN98

 10   Decision at [19]

 11   Decision at [20]