Michael Wilson v S.J. Electric (Vic) Pty. Ltd
[2025] FWCFB 33
•13 FEBRUARY 2025
| [2025] FWCFB 33 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Michael Wilson
v
S.J. Electric (Vic) Pty. Ltd.
(C2024/9311)
| DEPUTY PRESIDENT MILLHOUSE COMMISSIONER LEE | MELBOURNE, 13 FEBRUARY 2025 |
Appeal against decision [2024] FWC 3353 and order PR782105 of Commissioner Fox at Melbourne on 5 December 2024 in matter number U2024/12744 – permission to appeal refused.
Mr Michael Wilson has lodged an appeal under s 604 of the Fair Work Act 2009 (Cth) (Act) against a decision[1] and order[2] of Commissioner Fox, issued on 21 November 2024, for which permission to appeal is required. In the decision, the Commissioner declined to grant an extension of time for the filing of Mr Wilson’s application for an unfair dismissal remedy against the respondent, S.J. Electric (Vic) Pty Ltd.
The matter was listed for permission to appeal only. The parties consented to the application being determined without holding a hearing pursuant to s 607(1)(b) of the Act. We are satisfied that the question of permission to appeal can be adequately determined without the need for oral submissions. For the reasons that follow, permission to appeal is refused.
Decision under appeal
After setting out various procedural matters, the Commissioner turned to consider Mr Wilson’s application for an extension of time. Noting that the documentary material established that Mr Wilson alleged that his dismissal took effect on 2 October 2024, the Commissioner recorded that the application was filed one day outside the statutory timeframe for lodgement prescribed by s 394(2) of the Act.
The Commissioner considered whether to allow a further period for Mr Wilson’s application to be made, having regard to the factors in s 394(3) of the Act. In relation to
s 394(3)(a), the Commissioner did not consider that the evidence supported Mr Wilson’s contention that he did not take immediate action based on advice from his union. Nor was the Commissioner persuaded by Mr Wilson’s evidence as to his awareness (or lack thereof) of the 21-day statutory timeframe or that the delay was attributable to any inaction by the respondent in addressing Mr Wilson’s demands.
The Commissioner was satisfied that the considerations in ss 394(3)(b), (c), (d), (e) and (f) were neutral in her overall assessment, finding that:
(a)Mr Wilson was aware of his dismissal at the time it had taken effect;
(b)Mr Wilson had not taken action to expressly dispute the dismissal (but had challenged other matters);
(c)no prejudice would accrue to the respondent by the grant of an extension of time; and
(d)on a preliminary assessment of the material, Mr Wilson alleged that his selection for redundancy was personal and not for operational reasons, while the respondent’s position was that it was a genuine redundancy occasioned by a business downturn. However, a fulsome assessment could not be undertaken, absent hearing all the evidence; and
(e)there was nothing relevant to weigh in the consideration of the fairness factor.
Having regard to the findings that made in relation to the above factors collectively, the Commissioner concluded that there were no exceptional circumstances warranting the grant of an extension of time and dismissed Mr Wilson’s application
Permission to appeal – principles
There is no right to appeal, and an appeal may only be made with the permission of the Commission. Section 400 of the Act applies to this appeal, as it is from a decision made under Part 3-2 of the Act. By 400(1), the Commission must not grant permission to appeal unless it is in the public interest to do so. Section 400(2) provides that an appeal on a question of fact can only be on the ground that the decision involved a significant error of fact. The test under s 400 is “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] The public interest is not satisfied simply by the identification of error or a preference for a different result.[5] Considerations that may attract the public interest include that the matter raises issues of importance and general application, that the decision manifests an injustice or that the result is counterintuitive.[6] It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. However, 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 preliminary hearing of the appeal. In determining whether to grant permission to appeal, it is unnecessary and inappropriate to conduct a detailed examination of the appeal grounds.[7] However, it is necessary to engage with the grounds to consider whether they raise an arguable case of appealable error.
Grounds of appeal
Mr Wilson lists his grounds of appeal in a detailed attachment to his Notice of Appeal. Mr Wilson’s appeal grounds may be summarised as follows:
Misguidance from his union representative impacted Mr Wilson’s actions.
Delayed communication from his union representative impacted Mr Wilson’s ability to take timely action.
Perceived inconsistencies in the decision regarding the date Mr Wilson became aware of the 21-day statutory timeframe for filing his application.
Mr Wilson was focussing on resolving a wage dispute following the dismissal.
There was a shift in Mr Wilson’s intent following the respondent’s denial of his claims.
Mr Wilson’s redundancy coincided with significant personal challenges.
Mr Wilson’s dismissal has given rise to financial hardship and employment challenges.
The respondent’s delayed response to Mr Wilson’s claims for unpaid wages and forced leave, combined with the union’s delayed communication, obstructed Mr Wilson’s ability to act within time.
Mr Wilson’s application was not considered on its merits, which undermines procedural fairness.
As a self-represented applicant, Mr Wilson faced significant procedural disadvantages during the hearing as he was unaware the hearing was limited to the issue of an extension of time.
The Commissioner did not consider the intimidating and unfamiliar nature of the legal proceedings for Mr Wilson.
The Commissioner failed to adequately weigh the merits of Mr Wilson’s claim.
The finding that the merits were “neutral” is a significant error of fact and this determination was made without a full evidentiary hearing.
Mr Wilson contends that it is in the public interest to grant permission to appeal including because the Commission did not adequately review alleged procedural irregularities in the redundancy process, and the implications of this case concern fundamental principles of procedural fairness and transparency in redundancy processes. Mr Wilson says that a substantive examination of the merits would clarify whether employers can avoid scrutiny by relying on procedural barriers, which is contrary to the Act's purpose of promoting equity in the workplace.
Consideration
At the outset, we record that the issue being determined by the Commissioner was limited to the question of whether to grant Mr Wilson an extension of time to make his application for an unfair dismissal remedy. This was made clear in the Commissioner’s 8 November 2024 directions and it appears that Mr Wilson understood this to be the case having regard to the submissions he filed with the Commissioner’s chambers on 8 November 2024 which focus on the question of extension of time. Noting that the parameters of the hearing were also discussed at the commencement of the determinative conference without Mr Wilson raising any concerns, we regard the contention advanced by appeal ground (10) to be unarguable.
Appeal grounds (1) to (8) disclose no arguable case of appealable error. These grounds comprise a restatement of the position advanced by Mr Wilson at first instance to explain the reason for the delay in filing his application for an unfair dismissal remedy. These grounds are not directed to any allegation of error in the Commissioner’s decision and therefore cannot support the grant of permission to appeal. We otherwise note that the Commissioner dealt with these matters in her consideration of the reason for the delay, and the findings made appear to be supported by the materials before her and would not disclose arguable error in any case.
By appeal grounds (9), (12) and (13), Mr Wilson invites the Full Bench to conclude that the Commissioner failed to assess the merits of the application. To the extent that Mr Wilson alleges that the Commissioner erred by not reaching a concluded view on the merits of the case, this ground has no arguable prospects of success. The Commission should not embark upon a detailed consideration of the merits of the substantive case in determining whether to grant an extension of time. Consistent with this principle, the Commissioner took the merits of Mr Wilson’s substantive case into account noting that Mr Wilson considered that his selection for redundancy was personal and not due to the respondent’s operational needs. The Commissioner recorded the respondent’s argument that the redundancy was genuine; it had been occasioned by a business downturn, Mr Wilson had been consulted in accordance with the relevant enterprise agreement, and Mr Wilson had declined a role with an associated entity of the respondent. The parties’ claims and counterclaims would need to be tested in a hearing on the merits, which is not appropriate in a proceeding to deal with extension of time. The Commissioner’s approach to the merits consideration and the conclusion reached, being that it was a neutral consideration in her overall consideration of whether to grant an extension of time, discloses no arguable error on appeal.
We are not otherwise persuaded that Mr Wilson’s contention that he was not afforded procedural fairness, including due to his status as a self-represented applicant (ground 11)), are borne out. It appears to be clear that Mr Wilson filed comprehensive written submissions addressing issues relevant to the consideration of an extension of time and supplemented this material orally by giving evidence before the Commissioner at the determinative conference. The Commissioner made it clear at the commencement of the proceedings that she would assist the parties in the progression of their case, noting Mr Wilson’s self-represented status. We have not been taken to, nor have we identified, any occasions during the proceeding at which Mr Wilson sought, and was denied, any assistance by the Commissioner.
Mr Wilson’s submissions raise a further contention that the Commissioner erred in her consideration of the action taken by Mr Wilson to dispute the dismissal. Mr Wilson relies upon an email dated 27 October 2024 which he says demonstrates that he stated his intent to challenge his unfair dismissal. However, this email post-dates Mr Wilson’s application to the Commission, which was filed on 24 October 2024. It follows that the Commissioner’s conclusion that Mr Wilson did not contest the fairness of the dismissal outside of filing the application in the Commission discloses no arguable error.
Finally, we record that in Mr Wilson’s written submissions he refers to “supporting evidence.” While not expressly described as such, it appears that Mr Wilson is seeking to rely upon fresh evidence in the appeal, comprised of (1) an email from the Fair Work Ombudsman which confirms that a conversation was held with Mr Wilson on 24 October 2024, and (2) an email from Mr Wilson’s union branch organiser stating that Mr Wilson had not been offered alternative employment by the respondent. We decline to admit this material for the following reasons.
Section 607(2) of the Act confers a discretion on the Full Bench to “admit further evidence” and “take into account any other information” on appeal, however it is by no means a matter of course that it will do so. The principles governing the discretion to admit new evidence or to consider further material are set down in Akins v National Australia Bank (Akins).[8] Three conditions need to be met; these are: (1) it must be established that the evidence could not have been obtained or adduced with reasonable diligence for use at first instance; (2) it must be evidence which is of such a high degree of probative value that there is a probability that there would have been a different result at first instance; and (3) the evidence must be credible. While it is permissible in an appropriate case to depart from the Akins principles, it will be rare for fresh evidence to be admitted on appeal where the conditions in Akins are not met.
In this case, we are not satisfied that the first and second conditions of Akins are met. In relation to the first document, Mr Wilson’s submissions at first instance addressed the call he had with the Fair Work Ombudsman on 24 October 2024. An email containing the reference number for that call takes this issue no further. The second document, being an email from the union, was produced after the conclusion of the determinative conference before the Commissioner. As noted at [14] above, the Commissioner was not determining, in the proceeding, whether Mr Wilson’s dismissal was a case of genuine redundancy. Accordingly, this material does not have a high degree of probative value, nor is there a probability that it would yield a different result in Mr Wilson’s application for an extension of time.
Conclusion
We are not persuaded that any of the matters raised by Mr Wilson justify the grant of permission to appeal or enliven the public interest. Mr Wilson’s application for an extension of time was determined on the basis of its own facts. In this respect, we are not satisfied that the appeal raises any issue of importance or general application, nor does it identify any relevant diversity of decisions at first instance. We do not consider it to be arguable that the decision of the Commissioner manifests an injustice, or that the result is counterintuitive or unjust. For the reasons we have given, the legal principles are not disharmonious with other authorities concerning s 394(3) of the Act.
As we are not satisfied that the grant of permission to appeal would be in the public interest, permission to appeal must be refused in accordance with s 400(1) of the Act.
Order and disposition
Permission to appeal is refused.
DEPUTY PRESIDENT
Hearing details:
Matter determined on the papers.
[1] [2024] FWC 3353
[2] PR782105
[3] Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54; 192 FCR 78; 207 IR 177 at [34] and [43]
[4] 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 and others (2011) 192 FCR 78 at [44]-[46]
[5] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343; 197 IR 266 at [24]-[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]
[6] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343, 197 IR 266 at [24]-[27]
[7] Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]
[8] (1994) 34 NSWLR 155
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