Mohammad Rahimi v Perth Education Group Pty Ltd T/A Technical College of Western Australia (Tcwa)
[2016] FWCFB 1427
•18 MARCH 2016
| [2016] FWCFB 1427 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
Perth Education Group Pty Ltd T/A Technical College of Western Australia (TCWA)
(C2016/2074)
VICE PRESIDENT WATSON | MELBOURNE, 18 MARCH 2016 |
Appeal against decision [2015] FWC 7123 of Commissioner Cloghan at Perth on 21 October 2015 in matter number U2014/13196 – Extension of time to lodge an appeal – Fair Work Act 2009, ss.394, 389, 400 and 604.
[1] Mr Rahimi lodged an application pursuant to s.394 of the Fair Work Act 2009 (the Act) on 12 October 2014. On 21 October 2014 the respondent filed an Employer Response in which it objected to the application on the basis that Mr Rahimi’s termination of employment arose from a genuine redundancy. Commissioner Cloghan heard Mr Rahimi’s application on 16 April 2015. He issued a decision 1and order2 on 21 October 2015. Commissioner Cloghan determined that Mr Rahimi’s dismissal was a case of genuine redundancy and dismissed his application.
[2] Mr Rahimi filed a Notice of Appeal of Commissioner Cloghan’s decision and order on 10 January 2016. Rule 56(2) of the Fair Work Commission Rules 2013 provides that a Notice of Appeal must be lodged within 21 days of the decision or order under appeal unless time is extended by further order of the Commission. The Notice of Appeal was lodged 60 days outside the statutory time frame of 21 days.
[3] Mr Rahimi applied for an extension of time for lodgement of the appeal and permission to appeal. The application for an extension of time to appeal and the application for permission to appeal were both heard on Thursday, 11 February 2016 by video link to Perth. Mr Rahimi represented himself. The respondent was represented by Mr Kennedy of counsel.
[4] We intend to first deal with Mr Rahimi’s application for an extension of time for lodgement of his appeal.The principles applying to a consideration of an application to extend time to lodge a Notice of Appeal were summarised in Jobs Australia v Eland. 3
“[5]Time limits of the kind in Rule 56 should not simply be extended as a matter of course. There are sound administrative and industrial reasons for setting a limit to the time for bringing an appeal and it should only be extended where there are good reasons for doing so. The authorities indicate that the following matters are relevant to the exercise of the Tribunal’s discretion under Rule 56(2)(c):
• whether there is a satisfactory reason for the delay;
• the length of the delay;
• the nature of the grounds of appeal and the likelihood that one or more of those grounds being upheld if time was extended; and
• any prejudice to the respondent if time were extended.”
Reason for and length of the delay
[5] Mr Rahimi’s explanation for his delay in lodgement of his Notice of Appeal encompassed the fact that English is not his first language; the financial difficulties which arose upon termination of his employment both for him and his family; the social issues impacting upon his family during this period, including the ill-health of a child of his family; his difficulties in locating and obtaining legal representation; the difficulties his partner experienced in working whilst providing advice and assistance and the stress and anxiety caused by the decision of Commissioner Cloghan.
[6] The delay in lodgement is significant. We do not consider that Mr Rahimi has provided a satisfactory explanation for the 60 day delay in filing his Notice of Appeal. Mr Rahimi is an educated and articulate man. Whilst English is not his first language he is proficient. His work experience in Australia is in the education field. In all other respects the matters referred to and relied upon by Mr Rahimi are the ordinary exigencies of life and we are not satisfied that they satisfactorily explain a 60 day delay in lodgement.
The nature of the grounds of appeal and the likelihood of one or more of those grounds being upheld if time was extended
[7] The prospects of permission to appeal being granted must be considered when contemplating an extension of time for lodgement of a Notice of Appeal. The principles applicable to an appeal from a decision arising from an application pursuant to s.394 of the Act have been stated on many occasions. A Full Bench of this Commission has succinctly summarised the principles as follows:
“[7] This appeal is one to which s.400 of the FW Act applies. Section 400 provides:
(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.
[8] In the Federal Court Full Court decision in Coal & Allied Mining Services Pty Ltd v Lawler and others, Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s.400 as “a stringent one”. The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment. 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.”
[9] 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. 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.” 4
(citations omitted)
[8] If a termination of employment arises from genuine redundancy as defined by s.389 of the Act that termination of employment cannot be unfair.
“389 Meaning of genuine redundancy
(1) A person’s dismissal was a case of genuine redundancy if:
(a) the person’s employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; and
(b) the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.
(2) A person’s dismissal was not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within:
(a) the employer’s enterprise; or
(b) the enterprise of an associated entity of the employer.”
[9] After a comprehensive consideration of the evidence Commissioner Cloghan found that:
- the Post-Secondary Modern Award did not apply to Mr Rahimi’s employment;
- the respondent had no obligation to consult with him when determining whether or not to make the Marketing Manager position redundant;
- there was a wide variance between Mr Rahimi and the position of Enrolment Officer;
- it would have been unreasonable to deploy Mr Rahimi into that position and that,
- Mr Rahimi’s dismissal was a case of genuine redundancy and therefore not unfair.
[10] For the purposes of the extension of time application, we have reviewed the material before Commissioner Cloghan and the decision under appeal in light of the Grounds of Appeal and the submissions advanced by Mr Rahimi. In his submissions Mr Rahimi sought to reargue the merits of his application. He seeks a different outcome from this Full Bench to that determined by Commissioner Cloghan. This is not sufficient in relation to those aspects of the appeal that seek to challenge a discretionary decision. An error of the kind described in House v the King 5must be identified.
“It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.”
(our emphasis)
[11] We are satisfied that the Commissioner provided a comprehensive and balanced consideration of the evidence and made findings of fact supported by that evidence. We are not satisfied that Mr Rahimi has identified an arguable case of appealable error.
[12] Section 400(1) of the Act prohibits the grant of permission to appeal in this matter unless the Commission considers it is in the public interest to do so. Dissatisfaction with the result of an application does not satisfy the public interest test. There is no relevant diversity of decisions which require guidance from a Full Bench, the appeal does not raise any issues of importance or general application and the legal principles applied by Commissioner Cloghan are not disharmonious when compared with other decisions in similar applications. We are not satisfied that there is any basis on which the Commission may conclude that the public interest is attracted by this appeal.
Any prejudice to the respondent if time were extended
[13] This was a neutral factor in our consideration. We do not consider that the respondent would be prejudiced if an extension of time was granted for the lodgement of this appeal.
Conclusion
[14] Having considered and applied the relevant principles, we are not persuaded that the time for lodgement of this Notice of Appeal should be extended. The appeal is not competent and the application for permission to appeal is therefore dismissed.
VICE PRESIDENT
Appearances:
M. Rahimi on his own behalf.
T Kennedy solicitor for Perth Education Group Pty Ltd T/A Technical College of W.A.
Hearing details:
2016.
Melbourne—Video link to Perth
11 February.
Final written submissions:
Mr Rahimi on 3 February 2016.
1 [2015] FWC 7123.
2 PR573030.
3 [2014] FWCFB 4822 at [5].
4 [2016] FWCFB 371.
5 [1936 ] HCA 40; 55 CLR 499 at 504 – 505.
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