Mr Dean Stothard v Macmahon Contractors Pty Ltd

[2014] FWCFB 7389

[2014] FWCFB 7389

DECISION

Fair Work Act 2009
s.604 - Appeal of decisions
Mr Dean Stothard
v
Macmahon Contractors Pty Ltd
(C2014/1437)
VICE PRESIDENT WATSON
DEPUTY PRESIDENT HAMILTON	MELBOURNE, 30 OCTOBER 2014
COMMISSIONER ROE

Appeal against decision [[2014] FWC 4825] of Commissioner Williams at Perth on 22 July in matter number U2014/6863 - application filed out of time - whether grounds of appeal attract public interest - permission to appeal dismissed -Fair Work Act 2009 ss.394,400(1).

Introduction

[1] This decision concerns an application for permission to appeal against a decision of Commissioner Williams handed down on 22 July 2014. The decision of the Commissioner concerned an unfair dismissal application made by Mr Dean Stothard under s.394 of the Fair

Work Act 2009 (the Act) in relation to the termination of his employment by Macmahon

Contractors Pty Ltd (Macmahon).

[2] The parties agreed the matter would be heard on the papers. Written submissions have been filed on behalf of Mr Stothard and Macmahon.

The Decision under Appeal

[3] The decision under appeal concerned the single issue of whether an extension of time for the filing of an unfair dismissal application should be granted having regard to the terms of s.394(2) and (3 ) of the Act. After considering the criteria in s.394(3) the Commissioner concluded:

“[26] The onus is on the applicant to persuade the Commission that a further period

should be allowed for him to make this application beyond the statutory time limit of

21 days.

[27] I have considered the information provided and the submissions. In this case there

is no acceptable reason for the full delay in making the application however the applicant had contested his dismissal with the respondent. Considering all of the

[2014] FWCFB 7389

relevant factors there is nothing before the Commission to persuade me that in this
case there where exceptional circumstances.

[28] In the absence of exceptional circumstances I cannot exercise the discretion

available to allow a further period for this application to be made. The application has been made out of time and so is not properly before the Commission and must be dismissed.”

Grounds of Appeal

[4] The grounds of appeal essentially state that the application was lodged late because of attempts to resolve the matter first with the employer, the lack of responses from the employer, travel back to Tasmania and public holidays occurring during the 21 day time period. The written submissions filed by Mr Stothard relate to allegations that the dismissal was harsh, unjust or unreasonable. He submits that it is in the public interest to “have this big company bullying a worker stamped out, and for the terms and conditions of an employee’s contract honoured.”

[5] Macmahon submits that the appeal does not attract the public interest and permission to appeal should not be granted.

Permission to Appeal

[6] In unfair dismissal matters, permission to appeal can be granted only if the Commission considers that it is in the public interest to do so: s.400(1) of the Act. The way in

which the public interest may be attracted has been described as follows:[1]

“... 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.”

[1]GlaxoSmithKline Australia Pty Ltd v Colin Makin [2010] FWAFB 5343 at [27].

[7] 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 Commission must not grant permission to appeal unless it considers that it is “in the public interest to do so”.[2]

[2]Coal and Allied Mining Services Pty Ltd v Lawler & others [2011] FCAFC54.

[8] The decision under appeal is of a discretionary nature. Such a decision can usually only be successfully challenged on appeal if it is shown that the discretion was not exercised

correctly.[3]It is not open to an appeal bench to substitute its view on the matters that fell for

determination before the Commissioner in the absence of error of an appealable nature in the decision at first instance. As the High Court said in House v The King:[4]

“The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. 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

[2014] FWCFB 7389

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.”

[3]House v The King (1936) 55 CLR 499 at [504]-[505] per Dixon, Evatt and McTiernan JJ.

[4]Ibid.

[9] The grounds of appeal restate submissions taken into account by the Commissioner. They fail to demonstrate any error in the approach of the Commissioner of the type required to give rise to a successful appeal. We are not satisfied that the submissions demonstrate that the appeal against the refusal to extend time for lodging an appeal attracts the public interest.

Conclusion

[10] For the above reasons, we are not of the view that the grounds of appeal have substance. Nor do we consider that, individually or collectively, the grounds attract the public interest. We therefore decline to grant permission to appeal. The application for permission to appeal is dismissed.

VICE PRESIDENT

Written submissions:

Dean Stothard on 26 August 2014 and 30 September 2014.

Macmahon Contractors Pty Ltd on 20 September 2014.

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[2014] FWCFB 7389