Mr Joseph Costelloe v Origin Energy Resources Limited T/A Origin Energy
[2017] FWCFB 1405
•15 MARCH 2017
[2017] FWCFB 1405
The attached document replaces the document previously issued with the above code on 15 March 2017.
The summary catchwords of this Decision have been amended to state: “Appeal against decision [2017] FWC 214 of Senior Deputy President Drake at Sydney on 3 January 2017 in matter number U2016/13231”.
Associate to Vice President Catanzariti
Dated 15 March 2017
| [2017] FWCFB 1405 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
Origin Energy Resources Limited T/A Origin Energy
(C2017/439)
VICE PRESIDENT CATANZARITI | SYDNEY, 15 MARCH 2017 |
Appeal against decision [2017] FWC 214 of Senior Deputy President Drake at Sydney on 3 January 2017 in matter number U2016/13231.
[1] Mr Joseph Costelloe has appealed against a Decision 1 and subsequent Order2 of Senior Deputy President Drake issued on 12 January 2017 in which her Honour refused an extension of time within which Mr Costelloe could make his application of unfair dismissal.
[2] Mr Costelloe’s employment ended on 8 December 2015. He made his application for unfair dismissal on 2 November 2016. His application was therefore made 307 days outside the statutory time period of 21 days within which such an application should be made. 3
[3] Senior Deputy President Drake considered each of those matters in s.394(3) of the Fair Work Act 2009 (Cth)(“the Act”) relevant to the determination of whether an extension of time should be granted for making the application.
[4] In reaching her decision, the Senior Deputy President considered the reasons given by Mr Costelloe for the delay in making his application. These were:
1. Ill-judged and misleading legal advice;
2. The complicated, multifaceted nature of the specific course of conduct undertaken by others that were not within his control;
3. Psychological and financial impacts resulting from the two previous reasons for delay;
4. He was juggling two jobs from December 2015 to April 2016, his wife’s miscarriage in June 2015 and time spent supporting her with the birth of their first child in the first seven months of 2016. 4
[5] Senior Deputy President Drake, whilst sympathetic to the circumstances, did not consider the reasons given by Mr Costello to be “out of the ordinary, unusual or uncommon.” 5
[6] The Senior Deputy President also found that Mr Costelloe became aware of the end of the employment relationship on 8 December 2015; that Mr Costelloe had disputed his dismissal by seeking legal advice; that prejudice was a neutral matter; that the merits of the claim were a neutral consideration and that there were no issues in relation to fairness. She concluded that she was not satisfied exceptional circumstances existed that would warrant the grant of an extension of time. 6
Legislative provisions
[7] An appeal under s.604 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. 7 There is no right to appeal and an appeal may only be made with the permission of the Commission.
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.”
[8] 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 as “a stringent one”. 8 The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.9 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.” 10
[9] 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. 11 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.12
Grounds of Appeal and Submissions
[10] Mr Costelloe appeals on three grounds, namely, that:
1. He was denied procedural fairness in that when he advised the Commission that he had more material to file, he was advised by the associate to the Senior Deputy President that “Her Honour is only considering the extension of time issue at this stage. No further documentation is required.”
2. He was denied procedural fairness in that the reasons for decision state that merit was a neutral consideration yet he was denied every opportunity to advance the merits of the unfair dismissal application by being instructed not to send more documentation.
3. The findings in the decision at paragraphs [8], [9], [11] and [13] were not reasonably open to the Senior Deputy President. 13
[11] In his oral submissions Mr Costelloe advanced a fourth ground of appeal:
4. That the matter involved a contested finding of fact and should, therefore, have been subject to a hearing.
[12] Mr Costelloe expanded on the grounds of appeal in his written and oral submissions to the Commission. He submitted that:
● The matter involved a contested finding of fact between the parties and, for this reason, a hearing was necessary 14 but was not held;
● He had taken a variety of actions to dispute the dismissal including through internal processes (to the Respondent); legal advice which, in one case was ill-judged and wrong and including from 15 other law firms, none of whom advised of the possibility of an application for unfair dismissal;
● He was denied the opportunity to fully advance material relevant to the consideration of an extension of time because of the advice received from the associate to the Senior Deputy President. For this reason, he was not given the opportunity to avail the Senior Deputy President of all of the facts necessary for her to make an informed decision;
● In finding that the reasons for delay were not out of the ordinary, unusual or uncommon, the Senior Deputy President failed to take into account the compounding effect of the matters he raised and, further, the inadequate reference to the medical reports detailing his psychological conditions causing his misunderstanding of the courses of remedy available to him. This failure is indicative of the general misunderstanding within the community more broadly of psychological issues;
● He was not given the opportunity to fully advance his arguments as to why exceptional circumstances existed because of the advice given by the associate; and
● The Senior Deputy President failed to properly find that the merits of the case weighed in favour of finding that exceptional circumstances existed.
[13] Mr Costelloe said that “public interest” should be given a broad and flexible remit in this matter. He put to the Full Bench a range of matters particular to the Respondent (including bullying, repudiation of contract etc.) which he said demonstrated that what he was subject to by the Respondent was widespread. A number of matters in relation to other employees or past employees of the Respondent were also raised by Mr Costelloe (not repeated here) which he said demonstrated that it was in the public interest for his appeal to be heard.
[14] The Respondent submitted that the matters raised by Mr Costelloe with respect to the public interest do not relate to the proceedings before the Full Bench and hence should not be given any weight.
[15] As to the particular grounds of appeal, the Respondent submitted that it was Mr Costelloe’s error, and not the Senior Deputy President’s, that he failed to put to the Commission all of the material he believed should be considered by the Commission in reaching a decision. Further, the Respondent submitted that her Honour weighed all of the factors appropriately and she was not required to consider the full merits of the application for unfair dismissal in deciding the extension of time issue.
Consideration
[16] We have carefully considered all of the submissions put by Mr Costelloe.
[17] On receipt of the file, her Honour wrote to Mr Costelloe and sought submissions from him as to why she should grant an extension of time. That letter set out the matters for consideration under s.394(3) of the Act and invited Mr Costelloe to address each of these. It then said:
“If your statement persuades me that there might be exceptional circumstances justifying an extension of time for the lodgement of your application I will give your former employer an opportunity to be heard, either in writing or in person. They may make an application to me, or another member of the Fair Work Commission, if appropriate, regarding how they should be heard.
If you prefer to make your statement in person I might hear the application myself or it may be listed before another member of the Fair Work Commission. Your former employer will be asked to attend on the same day and put their opposition, if any, to the extension of time. They may seek to oppose your application in writing. Consideration will be given to that request and, if granted, you will be able to respond.
If you do not understand any of the process set out in this correspondence you may telephone my associate, Dean Superina on 02 9308 1911 to make enquiries.”
[18] In response, Mr Costelloe filed submissions and over 100 pages of supporting materials (provided in the Appeal Book filed by him). He did not seek to be heard.
[19] No materials were invited from or filed by the Respondent beyond its Form F3 response to Mr Costelloe’s application. In the Form F3 response, the Respondent gave notice of its jurisdictional objections on the grounds that the application was made out of time and also that Mr Costelloe had resigned.
[20] A critical issue in the unfair dismissal application is whether or not Mr Costelloe had resigned from his employment or was forced to resign because of conduct or a course of conduct engaged in by the Respondent. He said he was forced to resign, the Respondent says he was not. This was clearly a contested fact.
[21] In not holding a hearing in relation to the extension of time application – which necessarily involved some consideration of whether or not Mr Costelloe resigned – it is arguable that the Senior Deputy President fell into error.
[22] Section 397 of the Act states:
“The FWC must conduct a conference or hold a hearing in relation to a matter arising under this Part if, and to the extent that, the matter involves facts the existence of which is in dispute.”
[23] In Shields v The Trustee for the Jell Discretionary Trust t/as Frank Jell Commissioning Services Pty Ltd 15 (hereafter “Shields”) the Full Bench of the Commission said:
“[20] It is apparent from the terms of s.397 that where a matter arising under Part 3-2 involves facts in dispute, the Commission must either hold a conference or conduct a hearing in relation to the facts in dispute.
[21] Whether an application was made within the time period prescribed in s.394(2) is clearly a ‘matter arising’ under Part 3-2 of the Act. Section 396 is relevant in this regard. It provides that:
‘The FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:
(a) whether the application was made within the period required in subsection 394(2) …’
…”
[24] It is apparent that the Senior Deputy President did not hold a conference or hearing in relation to the matter. The contested facts were not considered in such a process.
[25] In Shields, the Full Bench found that the failure to comply with the requirements of s.397 in circumstances where the contested fact is a critical issue enlivens the public interest. 16 It is in the public interest that applications to the Commission are dealt with in accordance with the Act.
Conclusion
[26] Permission to appeal is granted.
[27] The appeal is listed for hearing pursuant to directions made by the Commission.
VICE PRESIDENT
Appearances:
J. Costello on his own behalf.
E. Mentiplay and A. de Wit for Origin Energy Resources Limited T/A Origin Energy
Hearing details:
2017.
Melbourne:
March 6.
1 [2017] FWC 214.
2 PR589048.
3 Fair Work Act 2009 s.394(2).
4 Joseph Costelloe v Origin Energy Resources Limited T/A Origin Energy at [8].
5 Ibid at [9].
6 Ibid at [10] - [15].
7 Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission and Others (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.
8 (2011) 192 FCR 78 at [43].
9 O’Sullivan v Farrer and Another (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].
10 [2010] FWAFB 5343 at [27], 197 IR 266.
11 Wan v Australian Industrial Relations Commission (2001) 116 FCR 481 at [30].
12 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 and Others (2011) 192 FCR 78; New South Wales Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663 at [28].
13 Form F7 at 2.1.
14 A v Commonwealth of Australia as represented by the Australian Bureau of Statistics[2016] FWCFB 2634.
15 [2015] FWCFB 2945.
16 [2015] FWCFB 2945, [26].
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