Mr Graeme Robson v State Super Financial Services Australia Limited T/A SSFS
[2015] FWCFB 511
•29 JANUARY 2015
| [2015] FWCFB 511 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
State Super Financial Services Australia Limited T/A SSFS
(C2014/8014)
JUSTICE ROSS, PRESIDENT | MELBOURNE, 29 JANUARY 2015 |
Appeal against decision [2014] FWC 8156 of Senior Deputy President Drake at Sydney on 12 November 2014 in matter number U2014/9299 - public interest not enlivened - permission to appeal refused.
[1] Mr Graeme Robson (the appellant) was dismissed from his employment with State Super Financial Services Australia T/as SSFS (the respondent, or SSFS) on 22 August 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 18 November 2014 Senior Deputy President Drake dismissed the appellant’s application for an extension of time for the lodgement of his application. Mr Robson seeks permission to appeal the Senior 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 22 August 2014 and he lodged his unfair dismissal application 6 on 17 September 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 5 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 Senior Deputy President considered each of the matters specified in s.394(3)(a) to (f). At paragraph 8 of the decision her Honour set out the reasons advanced by Mr Robson for the delay in lodging his unfair dismissal application, that is:
● “his ignorance as to his obligations in relation to lodging an application for an unfair dismissal remedy and, in particular, the timeframe for lodgement;
● the failure of State Super to provide counsel or advice as to his rights and obligations;
● the very short timeframe over which his dismissal took place against a background of 18 years of exemplary service;
● the shock and trauma which he said he experienced "for some time";
● an ear, nose, throat and chest infection which he suffered for the period between 10 and 16 days after the termination of his employment;
● his misunderstanding that he had 21 business days and not 21 calendar days to lodge his application, and
● his lack of access to the relevant material to the termination of employment.”
[9] The illness to which her Honour referred was supported by a medical certificate which certified that Mr Robson was unfit for work from 8 - 22 September 2014. The medical certificate only covered some 5 days of the 21 day period within which the unfair dismissal application was to be lodged.
[10] In relation to the reasons advanced by Mr Robson for the delay the Senior Deputy President concluded as follows:
“[9] While sympathetic to these circumstances I was not persuaded that Mr Robson's difficulties were out of the ordinary, unusual or uncommon. Indeed, given his background, Mr Robson was in a somewhat better position than the majority of applicants who seek an extension of time for lodgement.” 7
[11] The essence of the appellant’s submission in support of permission to appeal is that having regard to the reasons he gave for the delay in lodging his application the Senior Deputy President’s decision to refuse to extend time was ‘unfair’ and ‘is not within the realms of Public Interest’. The appellant also took exception to her Honour’s observation (at paragraph [9], set out above) that ‘given his background Mr Robson was in a somewhat better position than the majority of applicants who seek an extension of time’. In his written submission the appellant rejected the proposition that he would have been in a better position than the majority of applicants and submitted that: ‘Financial Planning does not include such employment arrangements and unfair dismissal cases.’
[12] As to the last point we think that the Senior Deputy President’s remark was simply an acknowledgement that the appellant was more articulate and capable than most self represented parties, an observation with which we would agree.
[13] As to the appellant’s primary submission, we are not persuaded that he 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.
[14] 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 G. Robson in person.
The Respondent: No Appearance.
Hearing details:
Sydney
20 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
7 [2014] FWC 8156
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