Michael Loftus v Earth Force Personnel Pty Ltd
[2014] FWCFB 1978
•26 MARCH 2014
[2014] FWCFB 1978 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
Earth Force Personnel Pty Ltd
(C2013/7491)
DEPUTY PRESIDENT GOSTENCNIK | MELBOURNE, 26 MARCH 2014 |
Appeal against decision in transcript in U2011/12772 and decisions [[2013] FWC 5612] & [[2013] FWC 6408] of Deputy President Gooley at Melbourne on 17 May 2013, 2 September 2013 and 17 September 2013 in matter numbers U2011/12772, U2013/11261 and C2013/5504.
[1] These reasons for decision concern an application for permission to appeal by Mr Michael Loftus pursuant to s.604 of the Fair Work Act 2009 (the Act) against three decisions of Deputy President Gooley, in matters U2011/12772, U2013/11261 and C2013/5504.
[2] In these proceedings Mr Loftus was unrepresented. On 3 February 2014 the Commission issued a statement to assist Mr Loftus to properly identify the issues for determination on appeal; those being the question of whether permission to appeal should be granted and whether, if granted, his appeal should be upheld. Further, the statement provided that Mr Loftus would need to address the Commission on why his appeal should be entertained at all, given that it was lodged outside the time prescribed by the Fair Work Australia Rules 2010 (the Rules).
[3] Mr Loftus’ Notice of Appeal did not contain any grounds of appeal.
Background
[4] Mr Loftus’ employment with Earth Force Personnel Pty Ltd (Earth Force) ended on 1 September 2011. On 20 October 2011, Mr Loftus lodged an unfair dismissal application (U2011/12772) under s.394 of the Act. On 7 March 2012, a notice of discontinuance was filed by Mr Loftus’ representative, Mr Wainwright of the Construction, Forestry, Mining and Energy Union (CFMEU). In 2013, Mr Loftus sought to have the Notice of Discontinuance set aside. On 17 May 2013, that application was dismissed by Deputy President Gooley, in a decision given in transcript. The Deputy President was satisfied that the notice of discontinuance was not filed by mistake; that there was no evidence that duress had been applied to Mr Loftus; and the Deputy President did not consider there was any misrepresentation that would invalidate the Notice of Discontinuance. In that decision, the Deputy President advised Mr Loftus that, in accordance with the Full Bench decision in Chandra Narayan v MW Engineers Pty Ltd [2013] FWCFB 2530, he was at liberty to file another unfair dismissal application, but that he would need to satisfy the Commission there were exceptional circumstances warranting the granting of an extension of time for that further application.
[5] On 8 July 2013, Mr Loftus made a further application (U2013/11261) alleging he was unfairly dismissed. 1 Following written submissions from Mr Loftus, The Deputy President determined,2 on 2 September 2013, that the matter was almost 2 years out of time, there were no exceptional circumstances warranting an extension of time and she dismissed the matter.
[6] On 7 August 2013 Mr Loftus made an application under s.773 of the Act (C2013/5504) alleging that Earth Force had taken adverse action against him by terminating his employment. The application was not made within 60 days of the date of the dismissal. 3 On 17 September 2013,4 Deputy President Gooley dismissed the application, having found that Mr Loftus had not addressed the criteria of s.774(2) of the Act and that no exceptional circumstances were found to warrant an extension of time.
[7] Mr Loftus has appealed all three decisions and these are the matters that are before us.
Leave to Introduce Fresh Evidence
[8] Mr Loftus sought to introduce fresh evidence in support of his unlawful termination matter (C2013/5504).
[9] As to the decision in C2013/5504 of 17 September 2013, (the unlawful termination decision), Mr Loftus submitted that the delay in lodging the application for unlawful termination under s.773 was occasioned by him being unaware that an unlawful termination had occurred until he was in possession of documents from a company known as “Xchanging” (the Xchanging documents) which he received in early July 2013.
[10] When asked to explain the delay between receipt of the Xchanging documents and the lodging of his unlawful termination application on 7 August 2013, Mr Loftus said he had been confused. He admitted that he did not provide the Xchanging documents as evidence to Deputy President Gooley at the hearing on 16 September 2013.
[11] Following questions from the Full Bench as to how the Xchanging documents related to his claim of unlawful termination, Mr Loftus was not immediately able to identify the proscribed ground under s.772(1) upon which he relied. He did finally submit that his claim was based on s.772(1)(a), temporary absence from work because of illness or injury of a kind prescribed by the regulations. Mr Loftus referred the Full Bench to pages A101-A121 in Folder “D” of the appeal book. These documents were copies of computer entry notes, made by Earth Force, relating to Mr Loftus’ employment. Whilst Mr Loftus said these documents were relevant to establish he had been terminated for an unlawful reason, he was unable to identify anything in the Xchanging documents that indicated this position.
[12] Upon further consideration of those pages in the appeal book, the Commission remains unaware of any circumstance or evidence which would advance the claims of Mr Loftus. The relevance of those documents to the unlawful termination decision has not been established by Mr Loftus.
[13] Mr Loftus acknowledged the Xchanging documents were in his possession at the time of the hearing. Accordingly, these documents could have been produced at the hearing at first instance.
[14] Section 607(2) of the Act provides that:
The FWC may:
(a) admit further evidence; and
(b) take into account any other information or evidence.
[15] Relevant material that comes to light subsequent to the time of an initial hearing may be admitted if it bears on an issue to be determined in the appeal 5. The exercise of the discretion to admit further evidence is in general guided by the principles set out in Akins v National Australia Bank6.In Akins, the Court held at that:
Although it is not possible to formulate a test which should be applied in every case to determine whether or not special grounds exist there are well understood general principles upon which a determination is made. These principles require that, in general, three conditions need be met before fresh evidence can be admitted. These are: (1) It must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; (2) The evidence must be such that there must be a high degree of probability that there would be a different verdict; (3) The evidence must be credible. 7
[16] In considering whether to exercise the discretion in s.607(2), it is permissible in an appropriate case to depart from the principles set out in Akins and the principles need not be strictly applied 8. However, we do not think this is an appropriate case.
[17] An appeal ought not be an occasion for a party to run an improved case, devoid of the deficiencies that were present at the initial hearing. An appeal bench would not generally admit fresh evidence to the consideration of an appeal which was able to be provided at the initial hearing. Mr Loftus has provided us with no reason as to why we would depart from the usual practice.
[18] For the reasons above and the authorities on this point, 9 we have declined to allow the admission of fresh evidence.
The Extension of Time
[19] The appeal was filed on 29 November 2013, almost six months out of time for matter U2011/12772, 66 days out of time for matter U2013/11261 and some 51 days out of time for matter C2013/5504. The Rules deal with appeals and the allowable time period within which to make application. Rule 12 provides a timeframe of 21 days within which to lodge an appeal. However, r12.3(b) provides a discretion for the Commission to extend the time period within which an appeal can be lodged.
[20] Authorities 10 on the extension of time provide that time limits of this kind are not routinely extended. Good administrative and industrial reasons exist for applying a limit to the time for bringing of appeals and this limit should only be extended where reasons of real substance are found. The following matters are relevant to the exercise of discretion under r12.3(b):
● whether there is a satisfactory explanation for the delay;
● the length of the delay;
● the character of the appeal grounds and the merit of one or more of those grounds (ie the likelihood of success of the appeal ground(s)); and
● any prejudice suffered by the respondent if time were extended.
[21] It is for the Commission to determine whether, having regard to relevant matters, the interests of justice support an extension of time to lodge the appeal.
[22] The extent of the delay in all three matters is significant, particularly in respect of U2011/12772. Whilst Mr Loftus advanced an argument that, since having his employment terminated, he had suffered confusion and had been under stress due to personal and family illness and financial strain, he was not able, in our view, to advance any satisfactory reasons for the delay in lodging his appeal.
[23] Under s.400(1) of Part 3-2 of the Act Unfair dismissal, permission to appeal is not to be granted unless it is in the public interest for the Commission to do so. In two of the decisions that are the subject of this appeal,, appeals on a question of fact can only be sustained on the ground that the decision maker made a “significant error of fact” (see s.400(2)).
[24] Mr Loftus was questioned extensively by the Full Bench as to his grounds of appeal. Whilst he submitted that he believed errors had been made by Deputy President Gooley in her decisions, he was unable to identify any significant errors of fact in any of the three decisions. He stated that he was “taken by surprise” on 17 May 2013 and did not receive a fair hearing. However, he conceded that he failed to request an adjournment on that day and that he had availed himself of pro-bono advice and representation.
[25] Whilst Mr Loftus ‘took issue’ with some of the findings made by Deputy President Gooley in matter U2011/12772, he was unable to indicate any errors, significant or other, in that matter or matter U2013/11261. Nor was he able to point to any other appellable error of the kind indentified in House v The King 11
[26] As to the unlawful termination decision, Mr Loftus was referred to the relevant paragraphs [10] to [14] of that decision where the statutory considerations of the Act had been considered and applied by the Deputy President, and he was asked to identify any errors. Mr Loftus was unable to indicate any errors made by the Deputy President.
[27] We are of the view that Mr Loftus’ submissions provided no basis for finding any appellable errors on the part of Deputy President Gooley and, in our view the decisions are each plainly correct. We have found there is no public interest to support a grant of permission to appeal. Nor has any appellable error been identified which might found a basis for permission in the unlawful termination decision appeal.
[28] Although the Respondent may not suffer any prejudice if the time for lodging his appeal were extended, Mr Loftus has not advanced any satisfactory explanation for the delay in lodging his appeal, the period of delay is lengthy and for the reasons given above, the appeal lacks any merit.
[29] We are therefore not persuaded to extend time to lodge the appeal and accordingly we dismiss Mr Loftus’s application to appeal. Even if we were minded to extend time, we would not grant permission to appeal as no appellable error nor any significant error of fact has been identified. There is no public interest element that would warrant permission to appeal.
Conclusion
[30] Permission to lodge the appeal outside of the time prescribed by Rules is refused.
DEPUTY PRESIDENT
Appearances:
Mr M. Loftus
Ms W. Alexander on behalf of Earth Force Personnel Pty Ltd
Hearing details:
Melbourne.
2014.
12 February
1 Note the amendment to the Fair Work Act extending the time for lodging of unfair dismissal applications to 21 days applies only to dismissals after 1 January 2013.
2 Loftus v Earth Force Personnel[2013] FWC 6408
3 Note the amendment to the Fair Work Act reducing the time for lodging of unfair dismissal applications to 21 days applies only to terminations after 1 January 2013
4 Loftus v Earth Force Personnel[2013] FWC 5612
5 The Australian Workers' Union v Killarnee Civil & Concrete Contractors Pty Ltd, ITF The Thompson Family Trust; Construction, Forestry, Mining and Energy Union [2011] FWAFB 4349 at [22]
6 (1994) 34 NSWLR 155
7 Ibid at 160
8 J.J. Richards & Sons Pty Ltd v Transport Workers' Union of Australia [2010] FWAFB 9963 at [95]
9 Harvey v Australian Injecting & Illicit Drug Users’ League PR976613, 27 March 2007 per Giudice J, Richards SDP and Williams C; Automotive, Food. Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers’ Union (AMWU) v Silcar Pty Ltd PR508807, 29 April 2011 per Lawler VP, Hamberger SDP and Spencer C; Transport Workers’ Union of Australia v WA Freightlines Pty Ltd PR508822, 2 May 2011 per Giudice J, Harrison SDP and Cloghan C
10 Tokoda v Westpac Banking Corporation T/A Westpac PR523591, 17 May 2012 per Ross VP, Hamberger SDP and Jones C; Stevenson-Helmer v Epworth Hospital, Print T2277, 19 October 2000 per RossV P, Acton SDP and Simmonds C; Dundovich v P&O Ports, Print PR923358, 8 October 2002 per Ross VP, Hamilton DP and Eaves C
11 (1936) 55 CLR 499 at 505
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