Mr Denis Ginnane v Ambergold Holdings Pty Ltd T/A Fibber McGees
[2015] FWCFB 522
•29 JANUARY 2015
| [2015] FWCFB 522 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
Ambergold Holdings Pty Ltd T/A Fibber McGees
(C2014/8215)
JUSTICE ROSS, PRESIDENT | MELBOURNE, 29 JANUARY 2015 |
Appeal against decision [2014] FWC 7650 of Deputy President McCarthy at Perth on 24 November 2014 in matter number U2014/11932 - public interest not enlivened - permission to appeal refused.
[1] Mr Denis Ginnane (the appellant) was dismissed from his employment with Ambergold Holdings Pty Ltd T/A Fiber McGees (the respondent) on 11 July 2014and subsequently lodged an application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Cth) (the FW Act).
[2] On 24 November 2014 Deputy President McCarthy dismissed the appellant’s application for an extension of time for the lodgement of his application. Mr Ginnane seeks permission to appeal the Deputy President’s decision and that is the matter before us.
[3] The decision subject to appeal 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’. 1 The Commission must not grant permission to appeal unless it considers that it is ‘in the public interest to do so’.
[4] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment. 2 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.” 3
[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. 4 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.5
[6] The appellant’s employment was terminated on 11 July 2014 and he lodged his unfair dismissal application 6 on 22 August 2014. Section 394(2) 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.394(3). It follows that the appellant’s unfair dismissal application was lodged 21 days outside the statutory time limit.
[7] 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.
[8] In the decision subject to appeal the Deputy President considered each of the matters specified in s.394(3)(a) to (f) and concluded that there were no exceptional circumstances such as to warrant an extension of time to permit Mr Ginnane to lodge his application for relief.
[9] The appellant advances four broad lines of argument in support of his application for permission to appeal,:
(i) the respondent did not meet its obligations under the contract of employment;
(ii) the respondent did not comply with its obligations as a sponsor under the 457 visa conditions;
(iii) the Deputy President’s decision was disharmonious with other Commission decisions (citing Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975; Helen Evans v Combined Warehousing Services Pty Ltd [2014] FWC 173and Peter Badenoch v Flinders Campus Community Services T/A Flinders One [2014] FWC 8207)and;
(iv) the appellant was disadvantaged by his relocation to Ireland shortly after his dismissal and that was a reason for the delay in filing his unfair dismissal application.
[10] As to the first two points these matters can be raised by the appellant with the relevant regulatory agencies but they are not relevant to the grant of permission to appeal. In relation to the third matter we are not persuaded that the Deputy President made any error of principle or that his decision was disharmonious with the decision in Nulty. The decisions in Evans and Badenoch are distinguishable from the present matter.
[11] As to the final point advanced in support of permission to appeal, this matter was not put by Mr Ginnane to the Deputy President as a reason for the delay in lodging his unfair dismissal application. The appeal process is not intended to provide an avenue for an unsuccessful party to rerun their case, absent error on the part of the primary decision maker.
[12] 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: Mr D. Ginnane and Mr P. Ginnane
The Respondent: No appearance
Hearing details:
Sydney with telephone to Ireland and the Czech Republic
21 January 2015
1 (2011) 192 FCR 78 at paragraph 43
2 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.
3 (2010) 197 IR 266 at paragraph 27
4 Wan v AIRC [2001] FCA 1803 at [30]
5 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]
6 ie an application for an unfair dismissal remedy pursuant to s.394 of the FW Act
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