Mr John Spencer v Surfside Buslines Pty Ltd T/A Surfside Buslines Pty Ltd (a member of the Transit Australia Group)
[2017] FWCFB 1975
•7 APRIL 2017
| [2017] FWCFB 1975 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
Surfside Buslines Pty Ltd T/A Surfside Buslines Pty Ltd (a member of the Transit Australia Group)
(C2017/1112)
VICE PRESIDENT CATANZARITTI | SYDNEY, 7 APRIL 2017 |
Appeal against decision [2017] FWC 1164 and finding and order PR590397 of Senior Deputy President Drake at Sydney on 28 February 2017 and 21 February 2017 respectively in matter number U2016/15230.
[1] John Spencer has applied for permission to appeal a finding and order issued by Senior Deputy President Drake on 21 February 2017 1 (Order). The effect of the Order was to refuse Mr Spencer an extension of time to lodge an unfair dismissal remedy application under s.394 of the Fair Work Act 2009 (FW Act) and to dismiss, pursuant to s.587(1)(a) of the FW Act, the unfair dismissal remedy application which Mr Spencer had lodged on the basis that it had not been made in accordance with the FW Act. The Senior Deputy President published reasons for the decision embodied in the Order on 28 February 20172 (Decision).
[2] Section 394(2) of the FW Act requires an unfair dismissal remedy application to be lodged within 21 days after the dismissal took effect or within such further period as the Commission allows under s.394(3). Section 394(3) provides:
(3) 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.
[3] The factual background is as follows:
a) On 12 February 2007 Mr Spencer commenced employment with Surfside Buslines Pty Ltd (Surfside). He was engaged on a casual basis.
b) On 18 July 2016 the Surfside wrote to Mr Spencer about his casual employment. Mr Spencer has maintained that he did not receive this letter.
c) Because Mr Spencer did not respond to the letter dated 18 July 2016, on 12 September 2018 Surfside again wrote to Mr Spencer and terminated his employment.
d) Between 7 September 2016 and 23 October 2016 Mr Spencer was overseas.
e) Consequently, Mr Spencer did not receive the letter of termination until his return.
f) On 25 October 2016 Mr Spencer wrote to Surfside about the decision to terminate his employment. In total he wrote three letters complaining about the same.
g) On 19 December 2016 a representative of Surfside spoke with Mr Spencer by telephone confirming the decision to terminate.
h) On 21 December 2016 Mr Spencer lodged an Unfair Dismissal Application.
[4] It is a well-established principle that a dismissal does not take effect unless and until it is communicated to the employee who is being dismissed. 3 By reason of Mr Spencer being overseas and not receiving the letter of termination until 23 October 2016, that is the effective date of termination.
[5] There are 59 days between 23 October 2016 and when Mr Spencer lodged his Unfair Dismissal Application. Consequently, his application for an unfair dismissal remedy was 38 days late.
[6] In the Decision the Senior Deputy President calculated that “Mr Spencer’s application was lodged 78 days outside the statutory time limit” because she relied upon the date that the termination letter was sent. Nothing turns on this issue. On any analysis Mr Spencer’s Unfair Dismissal Application was outside the statutory time limit.
[7] Having found that Mr Spencer’s application was lodged outside the statutory time limit the Senior Deputy President determined that Mr Spencer required an extension of time to be granted under s.394(3) if his application was to progress.
[8] In the Decision, the Senior Deputy President dealt with all the matters she was required to take into account pursuant to s.394(3) of the FW Act. In doing so the Senior Deputy President noted that Mr Spencer had provided a comprehensive statement on 9 February 2017 and that she had considered it.
[9] In relation to the reason for the delay (s.394(3)(a)), the Senior Deputy President noted that the reasons for the delay advanced by Mr Spencer were that:
a) he had no idea that Surfside was considering terminating his employment,
b) warning letter that they allegedly sent to him was never received by him, and
c) he was not aware of the dismissal until several weeks after it had taken effect.
[10] Having recorded the reasons advanced by Mr Spencer, the Decision records that:
[9] In essence Mr Spencer states that he was unaware of his termination of employment. He seems to have done very little to have confirmed his ongoing employment that was in any event aware that he had been dismissed in late October 2016.
[10] I was not persuaded Mr Spencer’s difficulties were out of the ordinary, unusual or uncommon.
[11] In relation to when Mr Spencer first became aware of the dismissal after it had taken effect (s.394(3)(b)), the Senior Deputy President found that,
Mr Spencer became aware of the end of his relationship with the respondent in October 2016. 4
[12] In relation to whether Mr Spencer had taken any action to dispute the dismissal (s.394(3)(c)), the Senior Deputy President determined that,
Mr Spencer disputed his dismissal by contacting the respondent in lodging [an Unfair Dismissal] application. 5
[13] In relation to whether there was any prejudice to the employer (s.394(3)(d)), the Senior Deputy President said she was,
… satisfied that there would be no greater prejudice to the respondent caused by Mr Spencer’s application being listed now and there would have been had it been lodged in time. Prejudice to the respondent with a neutral consideration. 6
[14] In relation to the merits of the application (s.394(3)(e)), the Senior Deputy President determined,
Merit was a neutral issue in [her] consideration of this application. 7
[15] In relation to fairness between Mr Spencer and other persons in a similar position (s.394(3)(f)), the Senior Deputy President determined,
There was no issue of fairness in relation to any other person in a similar position. 8
[16] Having considered all of the matters required by the FW Act the Senior Deputy President decided she:
[16] was not satisfied that there were exceptional circumstances which would warrant [her] granting an exception to the statutory time limit and on that basis dismissed the application. Mr Spencer’s circumstances were not out of the ordinary course, unusual, special or uncommon.
[17] The Senior Deputy President dismissed the application.
Consideration
[18] This appeal is one to which s.400 of the FW Act applies. Section 400 provides:
(1) Despite subsection 604(2), the FWC must not grant permission to appeal from a decision made by the FWC under this Part unless the FWC considers that it is in the public interest to do so.
(2) Despite subsection 604(1), an appeal from a decision made by the FWC in relation to a matter arising under this Part can only, to the extent that it is an appeal on a question of fact, be made on the ground that the decision involved a significant error of fact.
[19] In the Federal Court Full Court decision 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(1) as “a stringent one”. 9
[20] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment 10. 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. 11
[21] 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. 12 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.13
Grounds of appeal
[22] Mr Spencer’s Notice of Appeal identified to grounds of appeal as follows,
1. It is unreasonable to expect me or anyone else to have received a dismissal notification and any warning notifications where those notifications were only sent by ordinary, unregistered mail and are not accompanied by additional means such as text message or email.
2. The decision states that I seem to have done very little to have confirmed my on-going employment. As I explained in my application I was very busy for much of 2016 dealing with my late father’s complex estate and, as a casual, was not concerned about not being offered shifts. I know of other casuals with Surfside in that situation and did not suspect at all that my employment was about to be terminated.
[23] It is not immediately apparent how the grounds of appeal give rise to a House v King 14 error. It is not clear how it could be argued the Senior Deputy President:
a) acted upon a wrong principle,
b) allowed extraneous or irrelevant matters to guide or affect her,
c) mistook the facts,
d) did not take into account some material consideration, or
e) exercised her discretion in a way that was unreasonable or plainly unjust.
[24] However, at this point we are only concerned with whether we should grant permission to appeal. In his Notice of Appeal Mr Spencer asserted that it is in the public interest for the Commission to grant him permission for the appeal because he believes that,
“… it is in the public interest that the Commission grant [his) appeal to extend the 21 day statutory period for lodgement as otherwise it is too easy for employers to issue warnings or dismissal notices to employees without making necessary and reasonable attempts to inform employees of those notices.”
[25] In advance of the hearing before us Mr Spencer filed submissions about what, he submitted, enlivened the public interest. Those submissions expanded upon his complaint about the steps taken by Surfside to issue him with a warning letter and notice of termination. He submitted that “Surfside should, at least, have also sent [him] an email or text message with the same information.”
[26] In this regard, the submissions made by Mr Spencer attach to the underlying fairness of how his employer terminated his employment, rather than the refusal by the Senior Deputy President to grant him an extension of time.
[27] Even if it is accepted that Surfside could have communicated the termination better, at least by 23 October 2016 Mr Spencer was aware of the termination of his employment but did not file an application for an unfair dismissal remedy until a further 59 days had past. Before us Mr Spencer explained that delay was being caused by his desire to try and resolve the matter directly between himself and Surfside. That is not a reasonable explanation for the delay.
[28] Further, we are not satisfied that this matter:
a) raises issues of importance and or general application;
b) is in a class where there is a diversity of decisions at first instance so that guidance from an appellate bench is required;
c) is one 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.
Conclusion
[29] We are not persuaded that Mr Spencer 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 there is an arguable case that the Decision or Findings and Order were attended by any error of principle or any significant error of fact.
[30] 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.
VICE PRESIDENT
Appearances:
J. Spencer, Applicant for himself.
I. McDonald, Australian Public Transport Industrial Association, for the Respondent.
E. Coleman, for the Respondent
Hearing details:
2017.
Sydney:
April, 4.
1 PR590397.
2 [2017] FWC 1164.
3 Burns v Aboriginal Legal Service of Western Australia (Inc) AIRCFB, Williams SDP, Acton SDP, Gregor C, 21 November 2000 (Print T3496), [24].
4 [2017] FWC 1164, at [11].
5 [2017] FWC 1164, at [12].
6 [2017] FWC 1164, at [13].
7 [2017] FWC 1164, at [14].
8 [2017] FWC 1164, at [15].
9 (2011) 192 FCR 78 at [43].
10 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 [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [44] -[46].
11 [2010] FWAFB 5343 at [27], 197 IR 266.
12 Wan v AIRC (2001) 116 FCR 481 at [30].
13 GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343 at [26]-[27], 197 IR 266; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth[2010] FWAFB 10089 at [28], 202 IR 288, affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663 at [28].
14 [1936] HCA 40; (1936) 55 CLR 499, (17 August 1936).
Printed by authority of the Commonwealth Government Printer
<Price code C, PR591687>
1
7
0