Mr Gary Tainui v Schneider Electric Pty Ltd
[2015] FWCFB 874
•23 FEBRUARY 2015
| [2015] FWCFB 874 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
Schneider Electric Pty Ltd
(C2014/7986)
JUSTICE ROSS, PRESIDENT | MELBOURNE, 23 FEBRUARY 2015 |
Appeal against Order PR557899 of Senior Deputy President Drake at Sydney on 18 November 2014 in matter number 12812 public interest not enlivened - permission to appeal refused.
[1] Mr Gary Tainui (the appellant) was dismissed from his employment with Schneider Electric (the respondent) in early February 2013 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 25 September 2014.
[2] Under s.394(2) of the FW Act, an unfair dismissal remedy application must be made within 21 days after the dismissal took effect or within such further time as the Commission allows under s.394(3). Section 394(3) allows the Commission to allow a further period for the application to be made where it is satisfied that there are “exceptional circumstances” taking into account a number of specified matters. The appellant’s application was lodged over some 18 months outside the 21-day time limit, and accordingly it was necessary for him to obtain an extension of time under s.394(3).
[3] In October 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 was required to consider 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 listed matters. The appellant provided such a statement later in October 2014.
[4] On 18 November 2014 Senior Deputy President Drake issued an order dismissing the appellant’s application 1 and on 2 December 2014 her Honour issued the reasons for her decision to dismiss the appellant’s application.2 In her reasons, the Senior Deputy President indicated that she had refused to grant the appellant an extension of time and had dismissed his application on that basis. Mr Tainui seeks permission to appeal the Senior Deputy President’s order and decision and that is the matter before us.
[5] 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’. 3 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. 4 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.” 5
[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. 6 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.7
[8] The appellant’s employment was terminated in early February 2013 and he lodged his unfair dismissal application on 25 September 2014. As mentioned earlier, the appellant’s unfair dismissal application was lodged over 18 months 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 subject to appeal the Senior Deputy President considered each of the matters specified in s.394(3)(a) to (f). At paragraph [4] of the decision her Honour set out the reasons advanced by Mr Tainui for the delay in lodging his unfair dismissal application, that is:
“[4]... Mr Tainui provided an extensive statement on 20 October 2014. His explanation for the delay contained in that statement is set out hereunder.
“A noose of hate over a period of two and a half years closed on me and on the following Monday being around the first week of February 2013 Polly from Trojan rang with the bad news. She simply stated ‘Gary I regret to inform you you are no longer required at Schneiders’ I was devastated and dumbfounded convincing myself that everything was my fault I became entangled in confusion over the situation and a grim reality. I tried to apply for other jobs but never received a placement at eight other jobs after feb 2013. We lapsed on our loan repayments lost our rental home and I lost my dignity. In the closing months of our stay in Brisbane me and my partner were constantly arguing about finances and we nearly fell of (sic) the deep end. The stress and mental anguish became too much and we had to give back our home to Lamonds real estate after 5 years of renting in one location and my partner had to hand in her notice at her Brisbane job. We eventually moved back to NZ.””
[11] Paragraph [10] of her Honour’s decision sets out her assessment of the reasons advanced by Mr Tainui for the delay in lodging his application:
“[10] Mr Tainui’s explanation for delay did not provide any reason to grant an exception to the statutory time limit. He went to New Zealand and attended to other matters. He has now returned and wishes to prosecute his application.”
[12] At paragraphs [11] to [15] of her decision her Honour dealt with other matters referred to in s.394(3) and made the following findings:
¬ Mr Tainui disputed his dismissal by lodging his unfair dismissal application (s.393(3)(c));
¬ prejudice to the respondent was a neutral consideration (s.393(3)(d));
¬ the merits of the application was a neutral issue in her consideration of the extension of time application (s.393(3)(e)); and
¬ there was no issue of fairness in relation to any other person in a similar position.
[13] The Senior 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 she was not satisfied that there were exceptional circumstances such as to warrant the grant of an extension of the statutory time period for the appellants unfair dismissal application. On that basis the appellant’s application was dismissed.
[14] In support of his application for permission to appeal Mr Tainui submitted that her Honour’s decision was counter intuitive and inconsistent with the decision of the Commission in Glyn Roberts v Westech IT Solutions Pty Ltd 8 (Roberts). Contrary to Mr Tainui’s submissions we are not persuaded that her Honour’s decision was counter intuitive and nor can it be said to be inconsistent with the decision in Roberts.
[15] In Roberts the applicant’s unfair dismissal application was filed some 22 days out of time; the applicant had attempted, albeit unsuccessfully, to make an application within time; and there was medical evidence which established that the primary reason for the delay in filing the applications related to Mr Roberts’ depressive illness. Senior Deputy President O’Callaghan found that the circumstances were exceptional for the purpose of s.394(3) and on that basis his Honour made an order extending the time within which the applicant could file his unfair dismissal application. The circumstances in the matter before Senior Deputy President Drake were quite different - the application was filed well outside the statutory time limit for filing such an application (18 months as opposed to 22 days in Roberts) and other than a reference to suffering ‘stress’ no medical evidence was adduced to support Mr Tainui’s contention that there were exceptional circumstances such as to warrant the grant of an extension of time.
[16] Nor are we persuaded that the Senior Deputy President’s decision was counter intuitive, indeed on the material before her the decision was entirely explicable. In support of the application for permission to appeal Mr Tainui sought to rely on some ‘fresh evidence’ concerning him being subjected to cyber bullying; a medical certificate which states that he has a depressive illness and a document from a person described as a counsellor which states that Mr Tainui had counselling sessions on 26 August, 2, 12, 19, 30 September, 4 and 25 November 2014. The medical certificate Mr Tainui sought to tender is dated 24 November 2014, states that Mr Tainui has a ‘depressive disorder’ and that he is unable to work for a 13 week period from 8 November 2014. The certificate says nothing about Mr Tainui’s mental state in the 18 month period between his dismissal and the filing of his unfair dismissal application. None of this material provides a satisfactory explanation for the 18 month delay in the lodgement of Mr Tainui’s unfair dismissal application. Further, this material, albeit of limited relevance, could have been provided in the proceedings before the Senior Deputy President, but was not. We do not propose to admit the fresh evidence.
[17] We are not persuaded that Mr Tainui has established that it is in the public interest to grant permission to appeal. The Senior 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: Mr Tainui
The Respondent: Ms Roland
Hearing details:
Sydney
19 February 2015
1 PR557899
2 [2014] FWC 8556
3 (2011) 192 FCR 78 at paragraph 43
4 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.
5 (2010) 197 IR 266 at paragraph 27
6 Wan v AIRC [2001] FCA 1803 at [30]
7 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]
8 [2014] FWC 4226
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