Mr Mark Jeffrey Bullen v Melba Support Services - [2022] FWCFB 96

[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
DEPUTY PRESIDENT YOUNG
COMMISSIONER CIRKOVIC

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] FWCFB 96
Decision Date: 9 JUNE 2022

CaseChat Overview and Summary

In the Fair Work Commission, Mr Mark Jeffrey Bullen has appealed against a decision by Commissioner Wilson that dismissed his application for relief from unfair dismissal. The appeal hinges on whether permission to appeal should be granted under section 400(1) of the Fair Work Act 2009, which requires the Commission to be satisfied that it would be in the public interest to grant such permission. The appellant, represented by D Poldrugo and P Harris, argued that he should be granted permission to appeal on the grounds that he had not been functioning well and was undergoing mental health treatment, which impaired his ability to adhere to deadlines and respond to the Commission's correspondence. He also stated that he was unfamiliar with the legal process and had never dealt with legal matters before. The respondent, Melba Support Services, opposed the appeal on the basis that the appellant had not demonstrated any reasonably arguable case of appealable error and that his grounds for appeal did not raise any issues of law or policy of wider application.

The Commission considered the appellant's grounds for appeal and found that they did not disclose a reasonably arguable case of appealable error. The Commission noted that the appellant had not provided any probative medical evidence to substantiate any incapacitating mental impairment during the unfair dismissal process, despite being provided with several opportunities to do so. Additionally, the appellant's unfamiliarity with the legal process could not explain or excuse his failure to respond to communications from the Commission or to attend hearings before the Commission. The Commission also noted that its website provides detailed information and assistance for self-represented litigants about the Commission's processes in relation to unfair dismissal applications. The appellant's final ground for appeal did not relate to the decision under section 399A of the Fair Work Act and was therefore without merit.

Based on the above considerations, the Commission concluded that the grant of permission to appeal would not be in the public interest. The appeal grounds did not raise any issues of law or policy of wider application that might attract the public interest, and the appellant had not demonstrated any reasonably arguable case of appealable error. Accordingly, the Commission refused permission to appeal in accordance with section 400(1) of the Fair Work Act. The appellant appeared in person and the hearing was held by video conference on 7 June 2022. The respondent was represented by their legal counsel.

Orders