Mr K v The Employer
[2024] FWCFB 142
•14 MARCH 2024
| [2024] FWCFB 142 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
Mr K
v
The Employer
(C2023/8248)
| DEPUTY PRESIDENT MILLHOUSE | MELBOURNE, 14 MARCH 2024 |
Appeal against decision [2021] FWC 2132 of Commissioner Platt at Adelaide on 19 April 2021 in matter number U2021/252 – appeal filed out of time – extension of time refused.
This decision concerns an application for permission to appeal filed by Mr K against a Decision of Commissioner Platt at Adelaide on 19 April 2021. This is the second occasion upon which Mr K has sought review of the Decision in the Commission. In the Decision, the Commissioner dismissed Mr K’s application for an unfair dismissal remedy against the Employer on the basis that a binding settlement had been reached.
We refer to the application before us as the Second Appeal in the decision that follows.
The history of litigation between Mr K and the Employer is extensive. Mr K has filed more than 30 applications in the Commission since 2021. The following outlines the relevant context to the Second Appeal and provides a brief summary of the applications made by Mr K in the Commission. Consistent with the approach taken by the Commission in these applications the names of the parties have been restricted in this decision, although it is noted that such an approach has not been adopted in decisions issued by Courts in various jurisdictions concerning related proceedings.
Context
On 22 December 2020, Mr K was dismissed from his employment. On 8 January 2021, Mr K filed an unfair dismissal application in the Commission pursuant to s 394 of the Fair Work Act 2009 (Cth) (Act). The application proceeded to a conciliation conference before Commissioner Hampton[1] on 18 March 2021 at which a settlement was reached between the parties and recorded on transcript.
A dispute subsequently arose concerning the settlement. The Employer made an application pursuant to s 587 of the Act seeking that Mr K’s unfair dismissal application be dismissed. The matter was the subject of a hearing before Commissioner Platt. The Commissioner issued the Decision on 19 April 2021 dismissing Mr K’s application on the basis that a binding settlement had been reached.[2] This is the Decision now under appeal before us.
Mr K appealed the Decision (First Appeal).[3] A differently constituted Full Bench of the Commission refused permission to appeal. In its reasons, issued on 12 August 2021, the Full Bench stated:[4]
“[14] We have had full regard to the Appellant’s submissions and appeal grounds. In those submissions the Appellant makes a number of complaints about the conduct of the Respondent and others including the alleged unfairness of his termination. However, this is not a hearing of the alleged unfairness of the Appellant’s termination. The present matter concerns an appeal against a decision that the Appellant had entered into a binding settlement of the matter.
[15] The decision under appeal sets out the relevant law, the circumstances of the matter, how an agreement was reached, the nature of the agreement, and quotes the Appellant
endorsing the agreement:
“So they are the terms that I have noted. They are the terms that I have communicated between you. And my understand is that that then represents a resolution. So Mr K, can you confirm that is the case?
MR K: I confirm that's the case, Commissioner.”
[16] Little or no attempt was made to challenge the actual decision under appeal and to demonstrate that there was a public interest that should persuade us to grant permission to appeal, having regard to issues of fact or law. The Notices of Appeal and submissions, written and oral, do not identify any matter which satisfies the public interest test.
[17] Voluminous material was provided by the Appellant which the Full Bench has considered. Regrettably, the material filed by the Appellant does not address the issue at the heart of this appeal.”
On 19 August 2021, Mr K filed in the Commission a s 240 application and a s 234 application, each raising issues with the manner in which his unfair dismissal application was dealt with. On 23 August 2021, Mr K filed a further two applications in the Commission, the first seeking immediate reinstatement and the second pursuant to s 448 of the Act. Deputy President Clancy dismissed each of these applications on 2 September 2021.[5]
Mr K filed four further applications in the Commission on 6 September 2021 pursuant to ss 739, 229 and 789FC of the Act, as well as a second s 394 unfair dismissal application. Each application variously raised concerns with the manner in which the initial application for an unfair dismissal remedy was dealt with or sought to relitigate the matter. Deputy President Clancy dismissed the first two of these applications on 8 September 2021.[6] Commissioner Bissett dismissed the second s 394 application on 20 October 2021.[7]
On 7 September 2021, Mr K made two further applications in the Commission. The first sought the Employer’s bank account details for the purposes of repaying the settlement monies and the second concerned an application for orders for persons to attend before the Commission under s 590 of the Act. On 17 September 2021, Commissioner McKinnon dismissed these two applications as well as the 6 September 2021 s 789FC application.[8]
Also on 7 September 2021, Mr K made an application for the waiver of filing fees. That application was granted.[9] As observed by the South Australian Supreme Court,[10] that application is the only success that Mr K has experienced across the numerous applications that he has filed in any court or tribunal.
On 17 September 2021, Mr K filed four further applications in the Commission. These applications concerned orders for persons to attend the Commission and for the production of documents under s 590 of the Act. These applications were related to the s 394 application that Commissioner Bissett ultimately dismissed on 20 October 2021 (see above at [8]). Mr K also filed a s 234 application (which was closed when Mr K failed to respond to correspondence) and a s 773 application (which was discontinued on 22 September 2021 during a hearing before the Commission).
On 9 November 2021 and 19 January 2022, Mr K filed a third and fourth unfair dismissal application pursuant to s 394 of the Act. Commissioner Bissett dismissed the first of these applications of her own motion on 22 November 2021,[11] and the second on 7 February 2022.[12]
On 4 April 2022, Mr K filed a notice of appeal in the Commission but did not respond to the Commission’s enquiry about which decision he was seeking to appeal. Accordingly, this matter did not proceed further.
On 11 May 2022, Mr K filed a fifth unfair dismissal application pursuant to s 394 of the Act, which was dismissed by Commissioner Bissett on 17 May 2022.[13] The Commissioner noted that Mr K “must accept that the Commission can no longer deal with his dismissal” and that further applications for an unfair dismissal remedy, to the extent that they relate to the same dismissal, will be dismissed.[14]
On 10 June and 14 June 2022, Mr K filed two further applications in the Commission seeking reinstatement and broadly referencing ss 343 and 345 of the Act. Commissioner Bissett dismissed each of these applications on 22 June 2022, observing that Mr K’s conduct was taking on all of the characteristics of being vexatious.[15]
On 15 July 2022, Mr K sought judicial review of Commissioner Platt’s 19 April 2021 Decision (being the Decision under appeal before us) in the Federal Court.
On 28 October 2022, Mr K filed a sixth unfair dismissal application under s 394 in the Commission, which Commissioner Bissett dismissed on 14 November 2022.[16]
Also on 14 November 2022, Mr K filed a s 773 application in the Commission which was dismissed by Commissioner Bissett on 25 November 2022.[17] That same day Mr K filed a further two applications, being a seventh s 394 application and a s 739 application. Commissioner Bissett dismissed both of these applications of her own motion on 21 December 2022.[18]
On 11 January 2023, Mr K filed an eighth unfair dismissal application pursuant to s 394 of the Act with the Commission. Commissioner Bissett dismissed this application on 23 January 2023. Commissioner Bissett said as follows:[19]
“[5] For the reasons given in the 7 previous decisions issued by Members of the Commission relating to unfair dismissal applications of the Applicant and in the decision in which the Applicant’s appeals were dismissed, this most recent application for unfair dismissal is dismissed pursuant to s.587(1) of the FW Act on the grounds that it has no reasonable prospect of success.”
On 5 February 2023, Mr K filed a further two applications in the Commission, being a s 365 general protections application and an application for interim orders that he be reinstated pending the outcome of his s 365 application. Commissioner Bissett dismissed these applications on 27 February 2023.[20]
On 20 April 2023, Mr K filed a s 345 application with the Commission. Commissioner Bissett dismissed this application on 19 June 2023.[21]
On 2 May 2023, O’Sullivan J of the Federal Court dismissed Mr K’s application for judicial review.[22] On 9 October 2023, Mr K lodged an application in the Federal Court for an extension of time in which to seek leave to appeal O’Sullivan J’s decision.
On 19 December 2023, Rofe J of the Federal Court dismissed Mr K’s application for an extension of time. The same day, Mr K filed in the Commission the notice of appeal before us seeking that the Commission again review the Decision (that is, the Second Appeal).
Between October 2021 and May 2023, Mr K also commenced multiple applications in the Magistrates’ Court. Various applications were also made in the South Australian Supreme Court. None of these claims have been successful.
In a decision dated 2 February 2024, the Supreme Court of South Australia declared Mr K to be a vexatious litigant pursuant to s 39 of the Supreme Court Act 1935 (SA).[23] Mr K is prohibited from instituting further proceedings in any Court in the State of South Australia without the permission of the Supreme Court.
Extension of time
As earlier stated, this is the Second Appeal that Mr K has filed in the Commission seeking review of the Decision. A Full Bench of the Commission refused Mr K permission to appeal the Decision on 12 August 2021. Mr K’s application for judicial review was unsuccessful and his application for an extension for time to appeal the decision of O’Sullivan J of the Federal Court was refused.
While the First Appeal was lodged within the 21-day time period prescribed by the Fair Work Commission Rules 2013 (FWC Rules), the Second Appeal was not. Rule 56(2) of the FWC Rules requires that an appeal must be instituted within 21 days after the date of the decision appealed against, or within such time as is allowed by the Commission on application. Mr K’s notice of appeal in the Second Appeal was filed on 19 December 2023, being approximately 2 years and 8 months after the Decision. The Second Appeal is therefore out of time.
As is frequently noted, time limits of the kind in Rule 56 of the FWC Rules should not simply be extended as a matter of course.[24] There are sound administrative and industrial reasons for setting a limit to the time for bringing an appeal and it should only be extended where there are good reasons for doing so.
The following matters are relevant in considering whether to exercise the Commission’s discretion to extend time for filing the second appeal before us under Rule 56(2)(c):
whether there is a satisfactory reason for the delay;
the length of the delay;
the nature of the grounds of appeal and the likelihood that one or more of those grounds would be upheld if time was extended; and
any prejudice to the respondent if time were extended.
Taking these matters into account, the exercise of the discretion will be guided by a consideration of whether, in all the circumstances, the interests of justice favour Mr K being granted an extension of the time within which to lodge the Second Appeal. The arguments Mr K advances are considered in the analysis that follows.
The length of the delay
The Second Appeal was lodged on 19 December 2023. The delay is substantial. We consider that the length of the delay weighs against allowing a further period of time to lodge the Second Appeal.
Whether there is a satisfactory reason for the delay
Having regard to Mr K’s written submissions and the matters raised in oral argument before us, we understand that the issues raised by Mr K in respect of his substantive unfair dismissal application continue to cause him concern.
To explain the delay in filing the Second Appeal, Mr K submits that “fraudulent misrepresentation “and “police interference” provide complete grounds for an extension of time. Mr K contends that the fraudulent misrepresentation is apparent from the conduct of the Employer and also the Shop, Distributive and Allied Employees’ Association. Mr K further submits that the settlement agreement and the interference by South Australian police provide exceptional circumstances giving rise to an extension of time. Mr K relies upon an audio file which he says demonstrates that police were called by the Employer on a disingenuous basis.
Mr K further contends that he has made many attempts to remedy his situation, by making various applications in the Commission and in various Courts.
The above matters require consideration within the prism of whether they constitute a satisfactory reason for the delay in filing the Second Appeal. We are not satisfied that Mr K’s repeated and unsuccessful attempts to relitigate his initial unfair dismissal application, and pursue the same or related remedies in Courts and tribunals in various jurisdictions, forms the basis for any credible explanation for the delay.
With respect to the “fraudulent misrepresentation” and “police interference,” these contentions relate to events that preceded the filing by Mr K of the First Appeal (and the First Appeal was filed within time). Accordingly, we do not accept that these events had any material bearing upon Mr K’s capacity to observe and comply with the time requirements in the FWC Rules insofar as it concerns the Second Appeal.
These considerations weigh against allowing a further period of time to lodge the Second Appeal.
Nature of appeal grounds and likelihood that one or more would be upheld if time were extended
In considering the merits of the Second Appeal, it is relevant to observe that an appeal under s 604 of the Act is an appeal by way of rehearing. The Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision maker.[25] There is no right to appeal and an appeal may only be made with the permission of the Commission.
The Decision was made under Part 3-2 (unfair dismissal) of the Act. Section 400(1) of the Act provides that permission to appeal must not be granted from a decision made under Part 3-2 unless the Commission considers that it is in the public interest to do so. Further, in such matters, appeals on a question of fact can only be made on the ground that the decision involved a “significant error of fact” (s 400(2)).
Having regard to the matters advanced in the notice of appeal for the Second Appeal, we discern that the appeal grounds are as follows:
The Employer has engaged in fraudulent conduct during the Commission proceedings and provided false and misleading evidence to the Commission.
The Commission should not have allowed the Employer to make serious allegations against Mr K in proceedings before it.
Contrary to rules of natural justice, the Commission failed to address the Employer’s conduct.
The appeal grounds relied upon by Mr K in the Second Appeal broadly raise similar concerns to the matters raised by Mr K in the First Appeal. Consistent with the position stated by the Full Bench in the First Appeal, Mr K’s contentions largely involve complaints with respect to the Employer’s conduct and the alleged unfairness of the termination. The grounds of appeal do not, as far as we can discern, involve any intelligible challenge to the core finding made by the Commissioner that Mr K had entered into a binding settlement of the matter. Having regard to the above matters which constitute the grounds for the Second Appeal, no arguable contention arises that the Commissioner erred in making this finding.
Further, there is no basis to conclude that the contentions of procedural unfairness are arguable. Mr K has not drawn a connection between his allegation that there has been a breach of the rules of natural justice to any aspect of the Decision. Nor do we consider that any practical injustice is apparent having regard to the Decision and its procedural history.
It follows that we are not persuaded that Mr K’s appeal grounds identify an arguable case of appealable error in the Decision, and so permission to appeal is not likely to be granted even if time were extended. This weighs against extending the time within which to lodge the Second Appeal.
We are also not persuaded that the structure of the Act contemplates an aggrieved person lodging multiple appeals in respect of the same decision.[26] The Act establishes a process whereby a person aggrieved by a decision of the Commission may appeal the decision, with the permission of the Commission (see s 604). Appeals must be determined by a Full Bench (see s 613).
There are sound public policy reasons why the Commission should not readily accede to an application for permission to appeal in circumstances where there has been a previous appeal of the same decision. The public policy benefits associated with providing finality in litigation tells against such a course. As Gleeson CJ observed in Minister for Immigration and Multicultural Affairs v Bhardwaj,[27] albeit in a different context:
“The requirements of good administration, and the need for people affected directly or indirectly by decisions to know where they stand, mean that finality is a powerful consideration.”
It may also erode public confidence in the administration of justice if conflicting decisions were obtainable by differently constituted Full Benches on the same matter.[28] Permitting multiple successive appeals in respect of the same decision is also inconsistent with the manner in which the Commission is directed to perform its functions and exercise its powers under s 577 of the Act. These additional matters also lead us to conclude that permission to appeal is unlikely to be granted even if time were extended.
Any prejudice to the respondent if time were extended
We do not accept Mr K’s contention that the Employer will suffer no prejudice by an extension of time. Mr K has already had the benefit of an appeal of the Decision to a Full Bench of the Commission, and thereafter, a judicial review application to the Federal Court. While Mr K’s applications were not successful, the Employer has been required to invest significant time to its defence.
In these circumstances, we are satisfied that prejudice would accrue to the Employer if an extension of time were granted in respect of the Second Appeal. We consider that this weighs against the grant of an extension of time to lodge the appeal.
Conclusion
The considerable length of the delay in lodging the Second Appeal, the lack of a satisfactory reason to explain the delay, the likelihood that the permission to appeal would not be granted if time were extended, and the prejudice to the Employer all weigh against allowing a further period of time within which to lodge the Second Appeal. Nor do we consider that the Second Appeal enlivens the public interest.
We consider that, in all the circumstances, the interests of justice do not favour Mr K being granted an extension of time within which to lodge the Second Appeal.
Order
For the reasons given, Mr K’s application to extend time to file the Second Appeal is refused.
The application for an extension of time in matter C2023/8248 is dismissed.
DEPUTY PRESIDENT
Appearances:
Mr K, on his own behalf
Ms L Viant of Minter Ellison, for the Employer
Hearing details:
2024.
Melbourne (by video link):
6 March.
[1] Now Deputy President Hampton of the Fair Work Commission
[2] Mr K v The Employer[2021] FWC 2132
[3] Pursuant to two notices of appeal filed on 4 May 2021 and 6 July 2021
[4] Mr K v The Employer[2021] FWCFB 3162
[5] The Applicant [2021] FWC 5489
[6] Mr K v The Employer [2021] FWC 5611; Mr K v The Employer[2021] FWC 5610
[7] Mr K v The Employer [2021] FWC 6097
[8] Mr K [2021] FWC 5943
[9] Ibid
[10] [2024] SASC 12 at [49]
[11] Mr K v The Employer [2021] FWC 6380
[12] K v The Employer [2022] FWC 167
[13] K v Employer [2022] FWC 1148
[14] Ibid at [10]
[15] K v The Employer[2022] FWC 1592
[16] K v The Employer [2022] FWC 3003
[17] Mr K v The Employer[2022] FWC 3085
[18] Mr K v The Employer[2022] FWC 3351
[19] Mr K v The Employer[2023] FWC 152 at [5]
[20] Mr K v The Employer [2023] FWC 456
[21] Mr K v The Employer [2023] FWC 1341
[22] [2023] FCA 379
[23] [2024] SASC 12
[24] See Jeremy Snyder v Helena College Council, Inc. t/as Helena College[2019] FWCFB 815
[25] This is so because on appeal, the Commission has power to receive further evidence, pursuant to s.607(2); see Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ
[26] See Panos Panayiotou v University of Adelaide[2019] FWCFB 8487 at [50]
[27] (2002) 209 CLR 597 at [8], cited in Jeremy Snyder v Helena College Council, Inc. t/as Helena College[2019] FWCFB 815 at [24]
[28] Jeremy Snyder v Helena College Council, Inc. t/as Helena College[2019] FWCFB 815 at [24]
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