Mr Joseph Costelloe v Origin Energy Resources Limited T/A Origin Energy
[2017] FWCFB 5241
•10 OCTOBER 2017
| [2017] FWCFB 5241 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
Origin Energy Resources Limited T/A Origin Energy
(C2017/4764)
DEPUTY PRESIDENT GOSTENCNIK | MELBOURNE, 10 OCTOBER 2017 |
Appeal against decision in [2017] FWC 3946 and Order in PR595199 of Commissioner Bissett at Melbourne on 8 August 2017 in matter number U2016/13231.
[1] Mr Joseph Costelloe has applied for permission to appeal a decision 1 and order2 of Commissioner Bissett issued on 8 August 2017 in which the Commissioner dismissed his application for an extension of the statutory 21 day period prescribed by s.394(2) within which to make an unfair dismissal application.
[2] Mr Costelloe resigned from his employment at Origin Energy Ltd (Origin) on 2 December 2015. Nearly one year later, on 2 November 2016, Mr Costelloe made an unfair dismissal application under s.394 of the Fair Work Act 2009 (FW Act). Origin objected to the application on the grounds that it was filed outside the 21 day limit.
[3] Mr Costelloe applied for an extension of the 21 day period, as contemplated by s.394(2)(b), arguing that there were exceptional circumstances for the delay in his making the unfair dismissal application, related among other things to psychological illness and representational error.
[4] On 3 January 2017, Senior Deputy President Drake dismissed Mr Costelloe’s application. 3 However, that decision was overturned on appeal, on the basis that the application had been determined without a hearing or a conference in circumstances where there were contested facts, contrary to s.397 of the Act.4 The Full Bench remitted Mr Costelloe’s application for an extension of time to Commissioner Bissett for determination.5
[5] Following a mention on 7 April 2017, 6 the Commissioner heard the application on 5 and 6 June 2017. The Commissioner concluded that, having regard to the considerations set out in s.394(2)(b) of the FW Act, there were no exceptional circumstances warranting an extension of time. Mr Costelloe’s unfair dismissal application had therefore not been made within the required statutory period, and his unfair dismissal application was dismissed.7
[6] Mr Costelloe’s application for permission to appeal was heard before us on 3 October 2017. Both parties filed written submissions and presented oral argument.
[7] Origin sought permission, pursuant to section 596 of the FW Act, to be represented by counsel. Mr Costelloe opposed this application. Both parties filed written submissions and made brief oral submissions on this question. We were satisfied that, taking into account the complexity of the matter, granting the respondent’s counsel permission to appear would enable the matter to be dealt with more efficiently. 8
[8] On 4 October 2017, Mr Costelloe filed further written submissions, although the parties had not been directed or granted leave to do so. Origin objected to the further submission and contended that we should not take them into account, but provided its own further submissions in reply, in the event that we decided to allow further submissions.
[9] We have decided to accept the further submissions and have taken them into account in our consideration of the application for permission to appeal. Although the filing of unsolicited further submissions is irregular, we consider that, as an unrepresented party, some leeway should be afforded to Mr Costelloe. As Origin has filed a reply, which we have also considered, the company suffers no prejudice.
Permission to appeal
[10] An appeal under s604 of the FW Act is an appeal by way of rehearing and the Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision maker. 9 There is no right to appeal and an appeal may only be made with the permission of the Commission.
[11] This appeal is one to which s400 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.
[12] In Coal & Allied Mining Services Pty Ltd v Lawler and others, the Federal Court characterised the test under s400 as ‘stringent’. 10
[13] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment. 11 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.” 12
[14] 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. 13 However, the fact that a member of the Commission at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.14
[15] An application for permission to appeal is not a de facto or preliminary hearing of the appeal. In determining whether permission to appeal should be granted, it is unnecessary and inappropriate for the Full Bench to conduct a detailed examination of the grounds of appeal. 15
Relevant statutory provisions
[16] It is convenient to set out the statutory provisions that were at issue in the proceeding before the Commissioner. Section 394 of the FW Act states:
(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.
Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.
Note 2: For application fees, see section 395.
Note 3: Part 6-1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.
(2) The application must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (3).
(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.
[17] Section 396 of the FW Act sets out those matters that must be determined prior to the Commission considering the merits of an application. One such matter is whether the application was made within the period required in subsection 394(2).
[18] The principles relevant to consideration of exceptional circumstances are well established and are set out in the Commissioner’s decision. 16 We do not repeat them.
Grounds of appeal
[19] Mr Costelloe’s notice of appeal set out two categories of appeal grounds. The first concerned alleged errors of law and fact, and advanced eleven contentions. The second concerns an alleged denial of natural justice, and advanced two contentions.
[20] Mr Costelloe filed a four page submission in support of his request for permission to appeal. This document contends that the Commissioner’s decision was affected by four significant errors. At the hearing of the application for permission to appeal, Mr Costelloe advised the Bench that, for the purposes of permission to appeal, he relied on his written submissions. 17 We have considered both the notice of appeal and the four page submission. In our view Mr Costelloe’s written submission conveys the essence of the contentions raised in the notice of appeal.
[21] We deal first with the alleged ‘four significant errors’ referred to in Mr Costelloe’s appeal submissions and then address some additional contentions in the notice of appeal.
‘Significant error 1’ – alleged representative error of Mr Cruz
[22] Mr Costelloe contended that he was unaware of the possibility of claiming, in an unfair dismissal application, that he had been constructively dismissed, and that his legal representatives did not properly advise him in this regard. He argued that representative error contributed to his delay in filing his unfair dismissal application. Mr Costelloe sought to have two previous legal advisors summonsed to give evidence at first instance. The Commissioner ordered the attendance of one, Ms Thorley, but not the other, Mr Cruz. 18
[23] Mr Costelloe raises several concerns in connection with the Commissioner’s decision as it relates to Mr Cruz.
[24] First, Mr Costelloe appears to contest the Commissioner’s decision not to issue an order for Mr Cruz to attend the Commission to give evidence about what advice he gave or did not give to Mr Costelloe about constructive dismissal. However, Mr Costelloe did not seek to appeal that decision when it was made, as he could have done. The decision not to order Mr Cruz to attend and give evidence is not properly the subject of the present application for permission to appeal. However, we have considered whether this earlier decision might have affected the fairness of the Commissioner’s hearing of Mr Costelloe’s application for an extension of time. We return to this below.
[25] Mr Costelloe challenges the Commissioner’s conclusion that the advice provided (or not provided) by Mr Cruz did not constitute an acceptable reason for Mr Costelloe’s delay in making his application. 19 The Commissioner states that there was no suggestion that Mr Costelloe sought advice on matters relating to constructive dismissal or that Mr Cruz withheld information about what remedies might be available if Mr Costelloe resigned.20
[26] At the hearing before Commissioner Bissett, Mr Costelloe stated:
‘… I was not aware of possibility of a constructive dismissal, which I thought I had been seeking advice for and had been told that there wasn’t – I’d previously been told that there was no remedy by Mr Cruz, and then when directed to the actual words, ‘constructive dismissal, by Ms Thorley there was no – no intellect – there was no advice around that and I was persuaded to take a different course of action.’ 21
[27] Whilst somewhat equivocal, this passage suggests that Mr Costelloe may have asked Mr Cruz about constructive dismissal and been told there was ‘no remedy’. However, when later asked by the Commissioner whether Ms Thorley or Mr Cruz had advised him that he could not make an application for unfair dismissal, Mr Costelloe replied no. 22
[28] As the Commissioner noted in her decision, Mr Costelloe consulted Mr Cruz well before his resignation and subsequently obtained advice from Ms Thorley that dealt with the question of constructive dismissal. 23 Ms Thorley’s advice was more recent and more relevant than that of Mr Cruz and would logically appear to be the appropriate focus of any inquiry into allegations of representative error.
[29] In our view, the Commissioner’s findings concerning, and consideration of, the role of Mr Cruz do not disclose an arguable case of appellable error. Nor do we consider the earlier decision of the Commissioner not to order the attendance of Mr Cruz to give evidence to have affected the fairness of the hearing.
‘Significant error 2’ – alleged representative error of Ms Thorley
[30] Mr Costelloe submitted that the Commissioner erred in her conclusion that the advice provided by Ms Thorley did not provide an acceptable reason for the delay in Mr Costelloe bringing his claim for unfair dismissal.
[31] Mr Costelloe contended that the Commissioner did not accord him procedural fairness by permitting the order of witnesses to be changed, such that Ms Thorley, an important witness, gave evidence on the first rather than the second day of the hearing. However, it is not apparent to us that Mr Costelloe was disadvantaged by Ms Thorley giving evidence on the first day. Mr Costelloe did not object to Ms Thorley giving evidence on that day. 24
[32] Mr Costelloe also raised a concern about Ms Thorley’s file note of a discussion she had had with him on 29 October 2015. The file note records that Mr Costelloe had wanted to ‘know the issues behind constructive dismissal’ and that Ms Thorley had ‘walked him through the unfair dismissal application forms and the cost of a fixed fee of $1,500.’ 25 Mr Costelloe submitted that he only became aware of the existence of this file note during his examination of Ms Thorley at the hearing.26
[33] Again it is not apparent that Mr Costelloe suffered any prejudice in this regard. Mr Costelloe was able to respond to this evidence, and advance his own position that his telephone records did not show a lengthy telephone discussion with Ms Thorley on that day. He could have recalled Ms Thorley on the second day of the hearing but declined an invitation to do so. 27
[34] The Commissioner found Ms Thorley to be a witness of credit 28 and was satisfied that she did ‘take Mr Costelloe through’ unfair dismissal matters.29 The Commissioner also noted that Mr Costelloe conceded during his evidence that he raised the issue of constructive dismissal with Ms Thorley around 29 October and that the expression ‘forced resignation’ had been used;30 and that Ms Thorley had raised in an email to Mr Costelloe of 9 November 2015 the possibility of him bringing a ‘dismissal dispute’ if he resigned.31 The Commissioner concluded that Ms Thorley responded to matters raised by Mr Costelloe, gave appropriate advice on those matters,32 and had not misdirected him.33
[35] It is well established that findings of fact at first instance, based on the credibility of a witness, will only be set aside on appeal where incontrovertible facts or uncontested testimony show that the decision-maker’s conclusions are erroneous, or where the conclusions drawn are clearly improbable or contrary to compelling inferences. 34 It does not appear to us Mr Costelloe’s contentions establish any arguable case that the Commissioner’s conclusions can be described in any of these ways.
‘Significant error 3’ – the decision in Bidinost v Orica
[36] Mr Costelloe contends that the Commissioner erred by not taking into account the decision in Bidinost v Orica. 35 This contention is misconceived. As the Commissioner noted, in that case the applicant had provided clear instructions to the representative to file an unfair dismissal application, which the representative did not do. There was a finding that the applicant in that case had been misled. Bidinost is plainly distinguishable from the present matter. In any event, as a decision of a single member, it was not binding on the Commissioner.
[37] In connection with the representative error discussed in Bidinost, the member in that case made some passing observations about the provisions in the FW Act that may have been applicable in relation to paid agents who cause costs to be incurred because of an unreasonable act or omission. Mr Costelloe appears to invite the Full Bench to make similar observations in the present matter however there is simply no basis to do so. We do not discern an arguable case of appellable error in relation to the Commissioner’s findings concerning the question of representative error, must less an argument that costs might be awardable against the representatives.
‘Significant error 4’ – reasons for the delay
[38] Mr Costelloe’s fourth category of error contends that, under the heading ‘Reasons for Delay’, and in connection with [27] to [116] of the decision, the Commissioner mistook the facts and failed to take into account material considerations, or failed to attribute them correct weight.
[39] Mr Costelloe then revisits the reasons for his delay in filing his unfair dismissal application. One major factor is said to have been his ignorance of what constituted a forced resignation or constructive dismissal and whether that applied to his situation. 36 In his notice of appeal, Mr Costelloe states that he became ‘aware of the dismissal’ (by which he appears to mean the idea of arguing he was constructively dismissed) on 28 October 2016, and that he filed his application within 5 days.37 The Commissioner does not accept this, and cites a draft submission he prepared for his worker’ compensation claim from April 2016, where he states that ‘such remedy (unfair dismissal / constructive dismissal) was not available to me as I was in the first 6 months of employment’.38The Commissioner states that this evidence suggested Mr Costelloe was at least aware of the possibility of dismissal in April.39 We do not identify any apparent error in this analysis.
[40] In his further submissions filed after the hearing of the application for permission to appeal, Mr Costelloe strongly contested that he had drawn a link between constructive dismissal and unfair dismissal. However, even if this be accepted, ignorance of the law is not a sufficient reason for delay. 40 The FW Act is very clear that the application is to be made within 21 days of the dismissal taking effect, not from the date a person realises they might be able to bring an application.
[41] In this regard, information is available on the Commission’s website about unfair dismissal applications. This material covers eligibility for unfair dismissal, procedure, and information about previous decisions of the Commission. The Commission’s unfair dismissal benchbook is a 208 page document containing an entire part headed ‘What is dismissal’, including a section on ‘forced resignation’. 41 It also deals with the statutory requirement to lodge applications within 21 days.42 Mr Costelloe noted in his submissions that he found the benchbook very helpful and that it contained exactly what he needed to know,43 but suggested it could be placed in a more prominent position.44 However, if Mr Costelloe was able to find and make use of the benchbook in October 2016, we fail to see why he could not have done so in December 2015.
[42] A further contention advanced by Mr Costelloe is that the Commissioner should have taken into account that Ms Thorley initially advised him not to resign, whereas he had not sought this advice and it was contrary to his medical advice; and that Ms Thorley later advised him to do something different, namely to make a ‘general protections’ claim and negotiate a paid exit. 45
[43] The argument seems to be that Ms Thorley should have advised him to resign and claim constructive dismissal, instead of considering a general protections claim. This submission does not travel any further than the contentions referred to above concerning alleged representative error. The Commissioner considered Ms Thorley’s advice in relation to general protections and the question of resignation as part of her analysis of Mr Costelloe’s claims about Ms Thorley’s advice and does not find there to have been any representational error. 46 In this connection there is nothing that suggests to us an arguable case of appellable error on the part of the Commissioner.
Other contentions in the notice of appeal
[44] We have considered the contention in the notice of appeal challenging the Commissioner’s finding that Mr Costelloe did not appear to have actively sought to dispute the reason for his resignation (or notional dismissal) beyond his workers compensation claim. 47 We do not see merit in it. Mr Costelloe appears to have had many grievances with his former employer, and during the hearing on 3 October 2017 explained that for a period of time, he was “consumed” by the workers compensation claim. . But it is not explained how Mr Costelloe prosecuted any belief that he had been forced to resign.
[45] We have also considered Mr Costelloe’s argument that he was unfairly dissuaded from advancing the merits of his application, and that the merits could be found to favour the granting of an extension. 48 However, the Commissioner does consider the merits of his application and concludes that it is not possible in the circumstances to draw any conclusions about them.49 We do not perceive an arguable appellable error in the Commissioner’s analysis or conclusions.
[46] Mr Costelloe stated in his notice of appeal that he was denied natural justice at the hearing before the Commissioner. In addition to the issue concerning his application to summons Mr Cruz, and the fact Ms Thorley gave evidence on the first day and not the second of the hearing (dealt with above), Mr Costelloe raised a concern about the use of the file material concerning his interaction with Ms Thorley. He submitted that he received these materials a week before the hearing, but that the respondent did not seek to obtain access to it until after the commencement of the hearing. The contention appears to be that he was taken by surprise in this regard. However, it does not appear to us that this adversely affected Mr Costelloe’s ability to run his case.
[47] There is also a contention that Ms Thorley did not produce Mr Costelloe’s full legal file until the morning of the hearing. But again, it is not apparent that Mr Costelloe suffered any prejudice. He could have sought an adjournment if he needed one. We do not consider this matter points to an arguable case of a denial of natural justice.
Conclusion
[48] We are not persuaded that Mr Costelloe has made out an arguable case that the Commissioner’s decision was affected by error. Further, he has not identified matters of general application or importance, a diversity of decisions at first instance, a denial of natural justice, a manifest injustice or other matters that would enliven the public interest for permission to appeal being granted.
[49] We do not consider that it is in the public interest to grant permission to appeal. Section 400(1) of the FW Act requires that in such circumstances the Commission must not grant permission to appeal. Permission to appeal is therefore refused.
DEPUTY PRESIDENT
Appearances:
Mr Costelloe appeared for himself
Mr Mentiplay, solicitor, appeared for Origin Energy
Hearing details:
2017
Melbourne
Brisbane
3 October
1 [2017] FWC 3946
2 PR595199
3 PR589048
4 [2017] FWCFB 2023 at [24]
5 Ibid at [27]
6 The Notice of Appeal alleges at 1(a) that the respondent’s lawyer did not seek permission to appear at the mention, however this is not correct. The audio recording confirms that the Commissioner granted permission to appear at the commencement of the hearing. It is also alleged that a communication from the respondent to the Commission two hours before the mention may give rise to apprehended bias. However, this message was sent by the respondent to Mr Costelloe, and copied to the Commissioner. It addressed the directions that the respondent would seek at the mention. There is nothing unusual or inappropriate about this correspondence.
7 [2017] FWC 3946 at [144]
8 Transcript of proceedings before the Full Bench at PN22
9 This is so because on appeal the Commission has power to receive further evidence, pursuant to s607(2); see Coal and Allied v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ
10 (2011) 192 FCR 78 at [43] per Buchanan J (with whose judgment Marshall and Cowdroy JJ agreed)
11 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]
12 [2010] FWAFB 5343, 197 IR 266 at [27]
13 Wan v AIRC (2001) 116 FCR 481 at [30]
14 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 388, 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]
15 Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]
16 Paragraphs 14 to 23 of the decision
17 Transcript of proceedings before the Full Bench at PN31
18 Order dated 29 May 2017
19 Ibid at [82]
20 [2017] FWC 3946 at [55] – [57]
21 Transcript of proceeding before Commissioner Bissett at PN1509
22 Transcript of proceedings before Commissioner Bissett on 6 June 2017 at [PN1516]
23 See paragraphs 32-54 of the decision, particularly 37 and 46.
24 PN43-47 of transcript dated 5 June 2017.
25 Paragraph 34 of the decision,
26 PN823-826 of transcript dated 5 June 2017.
27 PN1133-1134 transcript of 6 June 2017
28 Paragraph 48 of the decision
29 Paragraph 51 of the decision
30 PN1483, 1568, paragraph 46 of the decision
31 Paragraph 53 of the decision
32 Paragraph 87 of the decision
33 Paragraph 94 of the decision
34 Short v Ambulance Victoria [2015] FCAFC 55
35 [2013] FWC 2089
36 Paragraph 39 of the Appellant’s submissions on appeal
37 See ground 1(f) of the Notice of Appeal
38 Paragraph 120 and 121 of the decision
39 Paragraph 123 of the decision
40 Paragraph 17 of the decision; Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1 paragraph 14
41 Benchbook on Unfair Dismissal – see Part 4, and specifically page 62
42 Page 131 of the benchbook
43 PN105, transcript of 3 October 2017
44 Paragraph 46 of the Appellant’s submissions on appeal
45 Paragraph 41 of the Appellant’s submissions on appeal
46 Paragraphs 38 to 51 of the decision
47 See paragraph 128 of the decision; Notice of Appeal ground 1(g)
48 Paragraph 1(h) of the Notice of Appeal
49 Paragraphs 132 to 137 of the decision
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