Mr Charbel Arida v Lifestylelogic Pestrol Pure Water Queensland
[2015] FWCFB 1260
•26 MARCH 2015
| [2015] FWCFB 1260 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
Lifestylelogic - Pestrol - Pure Water Queensland
(C2015/1003)
JUSTICE ROSS, PRESIDENT | MELBOURNE, 26 MARCH 2015 |
Appeal against decision [[2014] FWC 9458] of Deputy President Sams at Sydney on 24 December 2014 in matter number U 2014/15201 - public interest not enlivened - permission to appeal refused.
[1] Mr Charbel Arida was dismissed from his employment with Lifestylelogic - Pestrol - Pure Water Queensland (the respondent, Lifestylelogic) on 3 October 2014 and subsequently lodged an application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Cth) (the FW Act). The application was lodged on 12 November 2014.
[2] An unfair dismissal remedy application must be made within 21 days after the dismissal took effect 1 or within such further time as the Commission allows under s.394(3). The appellant’s application was lodged 19 days outside the 21-day time limit, and accordingly it was necessary for him to obtain an extension of time under s.394(3).
[3] On 24 November 2014 the Commission caused a letter to be sent to the appellant informing him that he needed to seek an extension of time if he wished his application to proceed, listing the matters which, under s.394(3), the Commission is required to take into account in determining any such application, and requesting him to supply a written statement within 14 days explaining why an extension of time should be granted and addressing the criteria in s.394(3)(a) to (f). The appellant provided a brief statement on 1 December 2014 and further materials on 16 December 2014.
[4] On 18 December 2014, Deputy President Sams issued an order dismissing the appellant’s application2 and on 24 December 2014 the Deputy President published reasons for his decision (the Decision).3 In the Decision, the Deputy President indicated that he had refused to grant the appellant an extension of time and had dismissed his application on that basis. Mr Arida seeks permission to appeal the Decision and that is the matter before us.
[5] The Decision was made under Part 3-2 – Unfair Dismissal – of the FW Act. Section 400(1) provides that permission to appeal must not be granted from such a decision unless the Commission considers that it is in the public interest to do so. Further, in such matters appeals on a question of fact may only be made on the ground that the decision involved a ‘significant error of fact’ (s.400(2)). 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’.4 The Commission must not grant permission to appeal unless it considers that it is ‘in the public interest to do so’.
[6] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.5 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.”6
[7] 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.7 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.8
[8] The appellant’s employment was terminated on 3 October 2014 and he lodged his unfair dismissal application on 12 November 2014. As mentioned earlier, the appellant’s unfair dismissal application was lodged some 19 days outside the statutory time limit.
[9] Subsection 394(3) deals with applications to extend time, it provides:
The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) whether the person first became aware of the dismissal after it had taken effect; and
(c) any action taken by the person to dispute the dismissal; and
(d) prejudice to the employer (including prejudice caused by the delay); and
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.
[10] In the Decision the Deputy President considered each of the matters specified in s.394(3)(a) to (f). At paragraphs [7]-[9] of the Decision the Deputy President set out the reasons advanced by Mr Arida for the delay in lodging his unfair dismissal application, that is:
“[7] The reasons the applicant provided for his delay in lodging the application were expressed as follows:
‘- the reason for the delay;- Work injury which I was on sick leave at the time, and still barely sleep out of fright that I wont be able to walk as it takes me a few hours per day to get up from the pain., I’ve barely been able to walk each day, and am daily waking up no knowing whether is Monday or Sunday.’
[8] While an unexpected illness or injury may constitute an ‘exceptional circumstance’ it will be usual for the Commission to require medical evidence to verify such an explanation. Accordingly, I directed the applicant to provide medical evidence of his workplace injury. He responded as follows:
‘Hi there I dont really have much documents as its a ongoign situation which includes heavy prescribed medication. recently ive just been really depressed , had family issues , relationship issues, family issues, basically struggling to fight on, have no support, no way up and even dr’s have been a let down, Back in my mind i have a feeling that it will last forever, and find it so hard to have this conflict with lifestyle logic, as ive already been harassed bullied and tormented in that company, and now left to feel icolated when Andrew ( owner) was meant to be a older family figure.
I don’t want harm on anyone but I do wish something would be done to A: stop them from punishing others B: some closure on this pain C: use money compensated with to fix the work place inuury which I am also fighting for, i could’ve been doing so much if it was never in this unproffessional scarring place that i worked.’”
[11] Paragraph [9] of the Decision the Deputy President sets out his assessment of the reasons advanced by Mr Arida for the delay in lodging his application:
“[9] The applicant provided an Independent Medical Examination completed by a Neurosurgeon dated 22 November 2013, almost a year prior to his dismissal. Relevantly, he did not provide medical reports or other evidence in respect to the period immediately after the date of his dismissal and within the following 21 day time period.”
[12] At paragraphs [10] to [16] of the Decision the Deputy President dealt with the other matters referred to in s.394(3) and made the following findings:
Ø Mr Arida became aware of his dismissal on 3 October 2014 (s.393(3)(b));
Ø the only action taken to dispute the dismissal was the lodgement of the unfair dismissal application and this was a neutral factor in the Deputy President’s consideration (s.393(3)(c));
Ø the Deputy President was satisfied that ‘there would be no greater prejudice to the respondent caused by this application being listed for hearing in the near future than there would have been, had it been lodged in time’ 9 (s.393(3)(d));
Ø the merits of the substantive application was a neutral issue in the Deputy President’s consideration of the extension of time application (s.393(3)(e)); and
Ø fairness in relation to any other person in a similar position was a neutral consideration (s.393(3)(f)).
[13] The Deputy President concluded that having regard to all of the matters which the Commission is required to take into account under s.394(3) of the FW Act he was not satisfied that there were exceptional circumstances such as to warrant the grant of an extension of the statutory time period for the appellant’s unfair dismissal application. On that basis Mr Arida’s application was dismissed.
[14] Mr Arida was notified of the time and place of the hearing in relation to his application for permission to appeal, but did not attend the hearing. Mr Arida subsequently informed the Commission that he was unaware that he was required to attend the hearing and on that basis, and having regard to his ill-health, we provided him with a further opportunity to make a written submission in support of his application. We have considered all of the written submissions filed by Mr Arida.
[15] Mr Arida submitted that his application for an unfair dismissal remedy was filed before the expiry of the statutory time limit, albeit incorrectly. Mr Arida paid the application fee at 11:57pm on Friday 24 October 2014 but did not complete and file the application form at this time. FWC staff requested that Mr Arida provide the prescribed form 10 on the following Monday, 27 October 2014 and Mr Arida subsequently filed the unfair dismissal application form 16 days later, on 12 November 2014.
[16] Contrary to Mr Arida’s submission the payment of the relevant prescribed fee does not constitute the making of an application. Section 585 provides that an application must be in accordance with the procedural rules relating to applications of that kind. The approved form in respect of an application for an unfair dismissal remedy is Form F2. An application is made upon the completion and lodgment of Form F2, not by simply paying the prescribed fee. So much is clear from s.395(1) which delineates the application and the payment of the prescribed fee, it states:
“An application to the FWC under this Division must be accompanied by any fee prescribed by the regulations.’ (emphasis added)
[17] We are not persuaded that Mr Arida has established that it is in the public interest to grant permission to appeal. The Deputy President addressed the relevant statutory criteria and we are not persuaded that the decision subject to appeal discloses any error of principle or any significant error of fact. Nor are we persuaded that the appellant has established an arguable case of error in relation to any aspect of the decision subject to appeal.
[18] As we have mentioned, s.400(1) provides that permission to appeal must not be granted unless the Commission considers that it is in the public interest to do so. We do not consider that it is in the public interest to grant permission to appeal and accordingly we refuse permission to appeal.
PRESIDENT
Appearances:
The Appellant: No appearance
The Respondent: No appearance
Hearing details:
Melbourne with video link to Sydney
19 March 2015
1 s.394(2) of the FW Act
2 PR559342
3 [2014] FWC 9458
4 (2011) 192 FCR 78 at paragraph 43
5 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 paragraph 69 per Gummow, Hayne, Heydon, Crennon, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54 at paragraphs 44 - 46.
6 (2010) 197 IR 266 at paragraph 27
7 Wan v AIRC [2001] FCA 1803 at [30]
8 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 in Coal & Allied Mining Services Pty Ltd v Lawler; [2011] FCAFC 54; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663 at [28]
9 at [14] of the Decision
10 F2 - Unfair Dismissal Application
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