Mr Albert Dunn v Civmec Construction and Engineering Pty Ltd
[2015] FWCFB 875
•23 FEBRUARY 2015
| [2015] FWCFB 875 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
Civmec Construction and Engineering Pty Ltd
(C2015/1032)
JUSTICE ROSS, PRESIDENT | MELBOURNE, 23 FEBRUARY 2015 |
Appeal against decision [[2014] FWC 9063] of Deputy President Kovacic at Melbourne on 15 December 2014 in matter number C2014/6094 - public interest not enlivened - permission to appeal refused.
[1] On 27 August 2014 Mr Dunn (the appellant) lodged a general protections application pursuant to s.365 of the Fair Work Act 2009 (Cth) (the FW Act) alleging that he had been dismissed from his employment with Civmec Construction and Engineering Pty Ltd (the respondent) in breach of Part 3-1 of the FW Act.
[2] The appellant’s employment was terminated on 28 July 2014 and he lodged his s.365 application on 27 August 2014. Section 366(1) of the FW Act provides that such applications must be made within 21 days after the dismissal took effect or within such further period as the Commission allows under s.366(2). The appellant’s application was lodged 9 days outside the statutory time limit.
[3] On 15 December 2014 Deputy President Kovacic dismissed the appellant’s application for an extension of time for the lodgement of his application. Ms Dunn seeks permission to appeal the Deputy President’s decision and that is the matter before us.
[4] An appeal under s.604 of the FW Act is an appeal by way of rehearing and the Fair Work Commission’s (FWC) powers on appeal are only exercisable if there is error on the part of the primary decision maker. 1 There is no right to appeal and an appeal may only be made with the permission of the FWC. Section 604 provides:
(1) A person who is aggrieved by a decision:
(a) made by the FWC (other than a decision of a Full Bench or an Expert Panel); or
(b) made by the General Manager (including a delegate of the General Manager) under the Registered Organisations Act;
may appeal the decision, with the permission of the FWC.
(2) Without limiting when the FWC may grant permission, the FWC must grant permission if the FWC is satisfied that it is in the public interest to do so.
Note: Subsection (2) does not apply in relation to an application for an unfair dismissal (see section 400).
(3) A person may appeal the decision by applying to the FWC.
[5] Subsection 604(2) requires the FWC to grant permission to appeal if satisfied that it is ‘in the public interest to do so’. The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment. 2 The public interest is not satisfied simply by the identification of error, or a preference for a different result.3 In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of Fair Work Australia identified some of the considerations that may attract the public interest:
“... 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...” 4
[6] Other than the special case in s.604(2), the grounds for granting permission to appeal are not specified. Considerations which have traditionally been adopted in granting leave and which would therefore usually be treated as justifying the grant of permission to appeal include that the decision is attended with sufficient doubt to warrant its reconsideration and that substantial injustice may result if leave is refused. 5 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
[7] As we have mentioned s.366(2) provides that the Commission may extend the time within which a s.365 application may be lodged provided it is satisfied that there are ‘exceptional circumstances’, as follows:
366 Time for application
...
(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) any action taken by the person to dispute the dismissal; and
(c) prejudice to the employer (including prejudice caused by the delay); and
(d) the merits of the application; and
(e) fairness as between the person and other persons in a like position.
[8] In the decision subject to appeal the Deputy President considered each of the matters specified in s.366(2)(a) to (e) that were relevant to the matter before him and concluded that there were no exceptional circumstances such as to warrant an extension of time and accordingly the application was dismissed.
[9] As the Deputy President addressed the reasons for the delay (s.366(2)(a)) at paragraph [18]-[21] of his decision:
“[18] Mr Dunn submitted that he had contacted the Commission in the week after his dismissal and was informed that he was ineligible lodge an unfair dismissal application. Mr Dunn further submits, however, that he was not informed that he could make a general protections application but instead was referred to ELS.
[19] As previously noted, Mr Dunn continued to search the internet seeking an avenue for redress and in late August visited the Commission in person, at which time he received assistance in completing his general protections application.
[20] At the hearing, Mr Dunn submitted, among other things, that the reasons for the delay in making his application were, firstly, that he was trying to retrieve his belongings and tools from the worksite and, secondly, that he was not aware of the opportunities for redress.
[21] Based on the above analysis, the reasons for the delay do not appear to involve exceptional circumstances.”
[10] The Deputy President noted, pursuant to s.366(2)(b), that two days after his dismissal the appellant had emailed Civmec contesting the reasons for his dismissal and he subsequently sent a number of further emails to Civmec (see [2014] FWC 9063 at [22]-[23]).
[11] As to the merits of the application (s.366(2)(d)) the Deputy President said:
“[25] Mr Dunn alleges that his dismissal stemmed from him raising a number of safety concerns and that a number of his colleagues did not like him. However, he provided no material to substantiate that assertion either in his application or at the hearing.
[26] Based on the limited material before me, the merits of Mr Dunn’s application do not appear strong.”
[12] No submissions were advanced in relation to any prejudice to the employer (s.366(2)(c)) or the question of fairness as between the appellant and other persons in a like position (s.366(2)(f)).
[13] Having considered all of the factors set out in s.366(2) the Deputy President concluded (at [32]) that he was not satisfied that there were exceptional circumstances warranting the grant of a further period for the making of a s.365 application. For that reason the appellant’s application was dismissed and an order was subsequently issued to that effect. 7
[14] The essence of the Deputy President’s decision is set out at paragraphs [29]-[30] of his reasons,:
“[29] While in this case Mr Dunn stated that he was aware of the 21 day statutory timeframe, he also acknowledged that one of the reasons for the delay in filing his application was that he was not aware of the opportunities for redress. Beyond this, there appears to have been some tardiness in Mr Dunn contacting ELS. Based on Mr Dunn’s submissions, the Commission suggested he speak to ELS when he first contacted the Commission in the week after his dismissal yet he did not contact ELS until the days before his general protections application was lodged. In other words, it appears that Mr Dunn did not contact ELS until at or around the 21 day statutory time frame or after the time frame had elapsed.
[30] Drawing on the comment in Nulty that mere ignorance of the statutory time limit is not an exceptional circumstance, I consider that ignorance of the avenues available to Mr Dunn for redress is similarly not an exceptional circumstance. Further, I note that Mr Dunn did not provide any compelling reason as to why it took him so long to contact ELS or subsequently visit the Commission’s offices to discuss his dismissal.”
[15] In support of his application for permission to appeal Mr Dunn sought - in essence - to rerun the case he had advanced before the Deputy President. In particular, he submitted that while the Deputy President correctly identified the reasons for the delay in lodging the application (at [18]-[20]), he reached the wrong conclusion and should have found that the reasons provided constituted ‘exceptional circumstances’ within the meaning of s.366(2). We are not persuaded that the Deputy President erred in the manner suggested by the appellant. The Deputy President’s finding in relation to the reasons for the delay was reasonably open on the materials before him.
[16] We are not persuaded that Mr Dunn has established that it is in the public interest to grant permission to appeal. Nor are we persuaded that he has established an arguable case of error in relation to the decision subject to appeal or that there are any other considerations that warrant the grant of permission to appeal. Accordingly permission to appeal is refused.
PRESIDENT
Appearances:
The Appellant: Mr Dunn in person
The Respondent: Mr Boyle (solicitor) and Ms Baptist
Hearing details:
Sydney
19 February 2015
1 This is so because on appeal FWC has power to receive further evidence, pursuant to s.607(2); see Coal and Allied v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.
2 O’Sullivan v Farrer (1989) 168 CLR 210; Coal & Alllied v Lawler [2011] FCAFC 54 at [44]-[46].
3 GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343 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] FCAFC 54; Ferrymen Pty Ltd v Maritime Union of Australia[2013] FWCFB 8025; and NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office[2014] FWCFB 1663
4 (2010) 197 IR 266 at [27]
5 Also see CFMEU v AIRC (1998) 89 FCR 200; and Wan v AIRC (2001) 116 FCR 481
6 Wan v AIRC [2001] FCA 1803 at [30]
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