Mr Mark Jeffrey Bullen v Melba Support Services
[2022] FWCFB 96
•9 JUNE 2022
| [2022] FWCFB 96 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
Mr Mark Jeffrey Bullen
v
Melba Support Services
(C2022/2544)
| Vice PResident hatcher | SYDNEY, 9 JUNE 2022 |
Appeal against decision [2022] FWC 717 of Commissioner Wilson at Melbourne on 31 March 2022 in matter number U2022/1723 – permission to appeal refused.
Introduction
Mr Mark Jeffrey Bullen (appellant) has lodged an appeal against the decision of Commissioner Wilson of 31 March 2022 (Decision)[1] to dismiss his application for relief from unfair dismissal pursuant to s 399A of the Fair Work Act 2009 (FW Act). Permission to appeal is required under s 604 of the FW Act. The appeal is one to which s 400(1) of the FW Act applies.[2] Under s 400(1), permission to appeal may only be granted if we are satisfied that it would be in the public interest to do so.
Rule 56(2) of the Fair Work Commission Rules 2013 (FWC Rules) provides that a notice of appeal under s 604 of the FW Act must be filed within 21 calendar days after the date of the decision the subject of the appeal or within such further time as may be allowed by the Commission on application by the appellant. In this case, the 21st day was 21 April 2022. On 20 April 2022, the appellant sent an email which stated that it attached a completed Form F7 notice of appeal against the Decision. The attachment was not in a format which readily permits it to be readable on the Commission’s computer system, but it can dimly be discerned with some effort that it does constitute a notice of appeal. The Commissioner’s chambers forwarded the email to the Melbourne registry and, on the same day, the registry sent an email to the appellant which acknowledged the receipt of his email, stated that the attachment could not be accessed and therefore could not be actioned, and requested that it be resent in one of a number of identified formats. The registry’s email also said: “There are strict time limits for some application types. Some applications are dismissed if they aren’t lodged within the time limits.” The appellant re-sent his notice of appeal in a readable format to the registry on 25 April 2022, four days beyond the 21-day time limit.
In the circumstances described, we will proceed upon the basis that Mr Bullen filed an appeal that was irregular in its form on 20 April 2022 and waive that irregularity under s 586(b) of the FW Act.[3] Accordingly, no extension of time is required under rule 56(2).
However, for the reasons that follow, we are not satisfied that the grant of permission to appeal would be in the public interest.
Background
On 8 February 2022, the appellant filed an application for an unfair dismissal remedy pursuant to s 394 of the FW Act in which he claimed he was unfairly dismissed by Melba Support Services (respondent). In his Form F2 application the appellant states that his dismissal took effect on “either the 7th January or 15th of January” 2022.[4] As both these dates result in the Application being lodged outside of the 21 day statutory time limit, the matter was programmed for an extension of time hearing.
On 22 February 2022, the application was allocated to the Commissioner to program for an extension of time hearing. Directions were issued by the Commissioner on 24 February 2022 listing the matter for an extension of time hearing at 2:00pm on Tuesday, 22 March 2022. The appellant was directed to file and serve an outline of argument, statement of evidence and other documentary material in support of the application by 4:00pm Thursday, 3 March 2022.
In light of the appellant’s submission as to the effective date of termination, the Commissioner sent updated directions to the parties on 28 February 2022 requesting that the Respondent “file material indicating when it says [the appellant’s] employment ended” by 4 March 2022 and that the appellant would have until 4:00pm 10 March 2022 to file his materials. The hearing date remained 22 March 2022. We note that the respondent lodged a Form F3 – Employer Response on 4 March 2022.
The appellant did not file materials in accordance with the directions on 10 March 2022. On 11 March 2022 at 10:31am, the Commissioner’s Associate contacted the appellant by telephone. The file note of that conversation notes that a voice mail was left advising the appellant of his non-compliance, asking him to contact the Commissioner’s chambers as soon as possible and warning he was at risk of a non-compliance hearing.
At 10:55am that day, email correspondence was sent to the parties (the non-compliance email). We have reproduced this correspondence below:
“Dear Mr Bullen,
RE: U2022/1723 - Mr Mark Jeffrey Bullen v Melba Support Services
I refer to the above matter and the Directions issued to you on 28 February 2022.
You were Directed to file an outline of argument(s), statement(s) of evidence and other documentary material you intended to rely on in support of your application by no later than 4PM 10 March 2022.
To date nothing has been received from you by the Fair Work Commission.
Your application is at risk of being listed for a Non-Compliance hearing and you must urgently take steps to provide your materials.
You are directed to file your materials today, and if that cannot be done you must contact the Fair Work Commission by reply email to seek an extension. The request must be made in writing to [email protected] and must include substantial reasons as to why you require an extension to file. You will also need to indicate the additional time that you require.
While the Commission will consider any request you make, it must not be assumed by you that any request for an extension will be granted.
Any request for an extension to file must also be provided to the Respondent.”
At 12:08pm the appellant contacted the Commissioner’s chambers. The file note of the conversation between the appellant and the Commissioner’s Associate indicates that the appellant stated that he had “already sent through documents” but was unable to provide information as to where the documents had been sent. The appellant was then asked to review his records and advise Chambers by the end of the day as to the filing of the documents. The Commission’s record of the conversation also notes that the appellant was again reminded that failure to comply with the directions could lead to the matter being listed for non-compliance hearing.
At 2:24pm the appellant sent an email to chambers attaching his Form F2 application and a medical certificate dated 15 November 2021 from a psychologist, Ms Kim Gillbee, requesting extended leave for the appellant for the period “15 November 2021 to 01 February 2021” (sic).
At 2:46pm the appellant contacted the Commissioner’s chambers. The record of that conversation between the appellant and the Commissioner’s Associate indicates that the appellant was distressed and was under the impression that he had already sent through his material to the Commission in an email of 27 February 2022.
At 12:50pm on 15 March 2022, the Commissioner sent a notice of listing to the parties, via email, for a non-compliance hearing scheduled for 9:30am on Thursday 17 March 2022. At 1:16pm on 15 March 2022, an amended notice of listing was sent to the parties correcting the listing date to 9:30am, 16 March 2022. The email containing the notice of listing stated that “Commissioner Wilson has determined that due to the Applicant in the above referenced matter’s failure to comply with his Directions issued on 28 February 2022 (attached) the matter will proceed to non-compliance hearing.”
The appellant did not attend the non-compliance hearing. The Commission’s records indicate that three phone calls were made to the appellant and messages left that “his attendance was urgently required at the non-compliance hearing listed this morning at the FWC before Wilson C.”
On 16 March 2022 at 10:30am, the appellant called the Commissioner’s chambers. The file note of that conversation indicates that the Appellant had not received the telephone messages from the Commission, was not aware of the non-compliance hearing and had not checked his emails. The appellant was reminded that it was very important that he checked his email regularly and that the Commission would be forwarding further correspondence to the Appellant that day.
At 4:28pm the same day, the appellant was sent a letter, via email, entitled “399A Letter”. We have reproduced the body of this letter below:
“Dear Mr Bullen,
We write in relation to the above referenced matter.
We refer to your non-compliance with the Amended Directions dated 28 February 2022. The Amended Directions required you to file your materials regarding your Extension of Time Application by no later than 4PM 10 March 2022. To date these have not been received by the Fair Work Commission.
As a result of this, a non-compliance hearing was listed for 9:30AM 16 March 2022. Three calls were made to you upon your non-attendance at this hearing, and messages were left.
The Respondent, Melba Support Services has now made an application under section 399A of the Fair Work Act 2009 (FW Act).
Section 399A of the FW Act provides as follows:
399A Dismissing applications
(1) The FWC may, subject to subsection (2), dismiss an application for an order under Division 4 if the FWC is satisfied that the applicant has unreasonably:
(a) failed to attend a conference conducted by the FWC, or a hearing held by the FWC, in relation to the application; or
(b) failed to comply with a direction or order of the FWC relating to the application; or
(c) failed to discontinue the application after a settlement agreement has been concluded.
Note 1: For another power of the FWC to dismiss applications for orders under Division 4, see section 587.
Note 2: The FWC may make an order for costs if the applicant’s failure causes the other party to the matter to incur costs (see section 400A).
(2) The FWC may exercise its power under subsection (1) on application by the employer.
(3) This section does not limit when the FWC may dismiss an application.
The Respondent has applied to have your application dismissed due to his failure to comply with Directions of the Fair Work Commission (the Commission).
As such, Commissioner Wilson directs you to file with the Commission, and serve on Melba Support Services submissions providing reasons as to why the Commission should not dismiss your application, with evidence or other documentary material you have to support the reasons. This material is required by no later than 4:00pm on 23 March 2022.
If you file material by the due date the Commission will consider the submissions and may deal with the application on the papers.
If you no longer wish to pursue this application for unfair dismissal and do not intend to address the Directions above, please file a completed Form F50 - Notice of Discontinuance (see attachment).
If you do not provide reasons by 4:00pm on 23 March 2022, it is very likely that your case will be dismissed without further notice.”
The appellant responded to the s 399A letter above at 10:57pm on 19 March 2022 via email repeating his earlier comments that he was unaware of the 16 March 2022 hearing and that he was unable to return the phone calls from 16 March 2022 as he did not have the ID number that was required. The appellant also states that he was seeing his mother who had recently fallen and was in hospital at the time of the hearing and that he had no access to a computer and that he was unfamiliar with the “whole procedure.”
On 21 March 2022, the Commissioner issued directions to the respondent to respond to the appellant’s correspondence of 21 March 2022 by 4:00pm, 24 March 2022. Following the receipt of the respondent’s submissions, on 24 March 2022 at 3:29pm the Commissioner emailed further directions to the appellant providing him with a further opportunity to respond to the respondent’s submissions by 10:00am, 28 March 2022.
The appellant responded to the above request by email at 4:00pm on 25 March 2022, in which he stated inter alia that he was “still undertaking therapy for mental health issues”, repeating his earlier statements as to his unfamiliarity with the law and the legal process involved in making an application to the Commission and repeating much of the material canvassed in his F2 application.
We note that the appellant emailed Chambers at 5:41pm on 30 March 2022 enquiring as to the status of a purported listing for 2:00pm on 31 March 2022. At 9:01am on 31 March 2022, the appellant was advised by telephone that there were no upcoming listings in the matter.
The Commissioner issued his decision dismissing the Appellant’s application pursuant to s 399A of the FW Act on 31 March 2022. In the decision, after outlining the chronology of events, the Commissioner said:
“[12] Upon consideration of all relevant matters, I have determined that the reasons given for non-attendance were inadequate. I consider his claim to not have been aware of the listing of the non-compliance hearing to be implausible. Those considerations, taken with the other matters of non-compliance leaves me I satisfied that Mr Bullen has unreasonably failed to attend and unreasonably failed to comply with directions.
[13] After considering all the material, Mr Bullen’s application for remedy from unfair dismissal is dismissed. An order giving effect to this decision will be issued today.”
Appeal grounds
The appellant’s Notice of Appeal contains the following appeal grounds:
“1.) Writer is now functioning somewhat better and would be able to adhere to deadlines and also scan document evidence of correspondence between writer and Melba clearly showing that dismissal was due to reasons other than those stipulated by Melba Support Services.
2.) At time of previous hearing writer struggling to cope with day to day let alone deal with the case and requirement to scan/attach evidence. Writer is continuing with therapy with a professional which is helping deal with treatment from employer and also stressful workplace situations that occurred.
3.) Writer had never had any dealings with legal matters before not understanding how the whole process worked or requirement for strict deadlines. Writer has a better understanding of this now.
4.) Writer will continue to advocate for the truth to come out about staff mistreatment which will directly benefit residents within Melba Support Services. If this matter is heard in Fair work it makes the whole process easier rather than hiring lawyers/media attention etc if matter can be resolved quicker.”
It is clear that the appellant’s appeal grounds deal chiefly with his unfamiliarity with the legal process and contentions that his mental health was preventing him from being able to properly prosecute his unfair dismissal application.
Consideration – permission to appeal
As earlier stated, s 400(1) applies to this appeal and requires that permission to appeal must not be granted unless the Commission considers it is in the public interest to do so. This test is a stringent one.[5] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[6] Some of the considerations that may attract the public interest are where a matter raises issues of importance and general application, or there is a diversity of decisions at first instance so that appellate guidance is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters.[7] It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated.[8] 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.[9]
As to appeal grounds one and two, the appellant contends that he was suffering from an impairment that prevented him from being able to fully prosecute his case (which is at least in part at variance with the explanation given to the Commissioner on 19 March 2022 as outlined in paragraph [17] above). We note the appellant submitted a medical certificate dated 15 November 2021 to the chambers of the Commissioner in response to the non-compliance correspondence he received on 11 March 2022. The certificate, from the Psychologist Kim Gillbee at Nook Psychology, states that the Appellant was “referred to me by his GP Dr. Gerald Tong and presented for treatment with symptoms of Post-Traumatic Stress Disorder” and requested that the Appellant be “granted extended leave from work as of 15/11/2021 to 01/02/2021 (sic) as in my opinion this will be necessary for him to appropriately address his mental health.” We note that no other medical evidence was submitted by the appellant, either at first instance or in the appeal, that applied to the period following the lodgement of his unfair dismissal application on 8 February 2022. As such, the appellant has not provided any probative medical evidence to substantiate any incapacitating mental impairment at any time during the unfair dismissal process despite having been provided with several opportunities to do so. We also note that on the day before the hearing of the appeal, the appellant filed additional materials late. These included medical evidence already outlined above and additional medical evidence that was unrelated to the periods relevant to the appeal matter. Further, the remainder of the new materials concerned the merits of the appellant’s unfair dismissal application and did not address the matter of whether permission to appeal should be granted.
With respect to appeal ground three, the essence of which appears to relate to the appellant’s unfamiliarity with the legal process, that cannot explain let alone excuse the appellant’s failure to provide any response to communications from the Commission or to attend (remotely) hearings before the Commission. Additionally, we note that the Commission’s website provides detailed information and assistance for self-represented litigants about the Commission’s processes in relation to unfair dismissal applications.
Appeal ground four does not relate to the s 399A decision issued by the Commissioner and as such is without merit.
We do not consider that any of the appeal grounds disclose a reasonably arguable case of appealable error. Nor do the appeal grounds otherwise raise any issue of law or policy of wider application that might attract the public interest. Accordingly, we are not satisfied that the grant of permission to appeal would be in the public interest,
Conclusion
Because we are not satisfied that the grant of permission to appeal would be in the public interest, permission must be refused in accordance with s 400(1).
VICE PRESIDENT
Appearances:
The appellant appeared in person together with D Poldrugo
P Harris for the respondent
Hearing details:
Sydney (by video)
10:30am 7 June 2022
[1] [2022] FWC 717
[2] See Australian Postal Corporation v Gorman [2011] FCA 975, 196 FCR 126 at [37]
[3] See Hambridge v Spotless Facilities Services Pty Ltd[2017] FWCFB 2811, 271 IR 360 at [26]-[31]
[4] Applicant’s Form F2, 8 February 2022, question 1.4.
[5] Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54, 192 FCR 78, 207 IR 177 at [43] per Buchanan J (with whom Marshall and Cowdroy JJ agreed)
[6] O’Sullivan v Farrer [1989] HCA 61, 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch [2011] HCA 4, 243 CLR 506 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54, 192 FCR 78, 207 IR 177 at [44]-[46]
[7] GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, 197 IR 266 at [27]
[8] Wan v AIRC [2001] FCA 1803, 116 FCR 481 at [30]
[9] Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth[2010] FWAFB 10089, 202 IR 388 at [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54, 192 FCR 78, 207 IR 177; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office[2014] FWCFB 1663, 241 IR 177 at [28]
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