Mr Mark Sweeney v Ace Insurance Limited T/A Ace Insurance
[2016] FWCFB 3561
•1 June 2016
| [2016] FWCFB 3561 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
ACE Insurance Limited T/A ACE Insurance
(C2016/708)
VICE PRESIDENT CATANZARITI | BRISBANE, 1 JUNE 2016 |
Appeal against decision [2016] FWC 1515 of Commissioner Platt at Melbourne on 1 March 2016 in matter number U2016/243 – public interest not enlivened – permission to appeal refused.
[1] Mr Mark Sweeney (the Appellant) was dismissed from his employment with ACE Insurance Limited T/A ACE Insurance (the Respondent) on 17 December 2015 and subsequently lodged an application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Cth) (the FW Act). The application was lodged on 18 January 2016, 11 days outside the statutory time limit.
[2] Under s.394(2) of the FW Act, an unfair dismissal remedy application must be made within 21 days after the dismissal took effect or within such further time as the Commission allows under s.394(3). Section 394(3) allows the Commission to allow a further period for the application to be made where it is satisfied that there are “exceptional circumstances” taking into account a number of specified matters. As Mr Sweeney’s application was lodged outside of the statutory time limit it was necessary for him to obtain an extension of time under s.394(3).
[3] On 1 March 2016 Commissioner Platt dismissed the Appellant’s application for an extension of time for the lodgement of his application. Mr Sweeney seeks permission to appeal the Commissioner’s decision and that was the matter before us.
[4] An appeal under s.604 of the FW Act is an appeal by way of rehearing and the Fair Work Commission’s (FWC) powers on appeal are only exercisable if there is error on the part of the primary decision maker. 1 There is no right to appeal and an appeal may only be made with the permission of the FWC. Section 604 provides:
(1) A person who is aggrieved by a decision:
(a) made by the FWC (other than a decision of a Full Bench or an Expert Panel); or
(b) made by the General Manager (including a delegate of the General Manager) under the Registered Organisations Act;
may appeal the decision, with the permission of the FWC.
(2) Without limiting when the FWC may grant permission, the FWC must grant permission if the FWC is satisfied that it is in the public interest to do so.
Note: Subsection (2) does not apply in relation to an application for an unfair dismissal (see section 400).
(3) A person may appeal the decision by applying to the FWC.
[5] The decision, the subject of the appeal was made under Part 3-2 – Unfair Dismissal of the Act. Section 400(1) provides that permission to appeal must not be granted from such a decision unless the Commission considers that it is in the public interest to do so. Further, in such matters, appeals on a question of fact may only be made on the ground that the decision involved a ‘significant error of fact’ (s.400(2)). 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’. 2 The Commission must not grant permission to appeal unless it considers that it is ‘in the public interest to do so’.
[6] Subsection 604(2) requires the FWC to grant permission to appeal if satisfied that it is ‘in the public interest to do so’. The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment. 3 The public interest is not satisfied simply by the identification of error, or a preference for a different result.4 In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of Fair Work Australia identified some of the considerations that may attract the public interest:
“... the public interest might be attracted where a matter raises issue 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...” 5
[7] Other than the special case in s.604(2), the grounds for granting permission to appeal are not specified. Considerations which have traditionally been adopted in granting leave and which would therefore usually be treated as justifying the grant of permission to appeal include that the decision is attended with sufficient doubt to warrant its reconsideration and that substantial injustice may result if leave is refused. 6 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.7
[8] As we have mentioned s.394(3) provides that the Commission may extend the time within which a s.394 application may be lodged provided it is satisfied that there are ‘exceptional circumstances’, as follows:
394 Application for unfair dismissal remedy
...
(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 like position.
[9] In the decision subject to appeal the Commissioner considered each of the matters specified in d.394(3)(a) to (f) that were relevant to the matter before him and concluded that there were no exceptional circumstances such as to warrant an extension of time and accordingly the application was dismissed.
[10] The Commissioner addressed the reasons for the delay (s.394(3)(a)) at paragraph [23]-[27] of his decision:
“[23] With respect to his lack of knowledge of the termination until the receipt of the communication from ACE until 25 December 2015, I do not regard this circumstance as exceptional.
[24] I believe that Mr Sweeney was aware of the termination no later than 25 December 2015 Having become aware of the termination Mr Sweeney failed to take any action to contest the termination until he contacted his representative on 11 January 2015, some 17 days later.
[25] Mr Sweeney has not satisfactorily explained his lack of action in pursuing the matter between 25 December 2015 and 11 January 2016. Whilst Mr Sweeney asserts he took “the earliest steps available given the Christmas period,” he has failed to adequately explain why he took so long to lodge the application.
[26] There is no evidence that Mr Sweeney pursued the termination of his employment with Mr Carey, the decision maker and author of the termination letter, or Mr Quinlan who sent the termination email. Mr Sweeney only appears to have seriously pursued the non-payment of his commissions.
[27] Whilst the Commission was closed on the Public Holidays during the Christmas New Year period there was ample opportunity for Mr Sweeney to seek advice and/or lodge an application within the 21 day period and certainly well prior to the 18 January 2016."
[11] As to s.394(3)(b) the Commissioner noted that the Appellant’s evidence was inconsistent:
- he left Australia and travelled to Thailand on 11 December 2015;
“[10] Mr Sweeney provided the following information relevant to his extension of time application:
- he first became aware of the termination letter on either 28 December 2015 (Form F2) or 30 December 2015 (written submission) or three days after his return to Australia (written submission);
[13]After the conference, Mr Sweeney provided a certified extract from his Passport to confirm his absence from Australia. The Passport extract indicated that Mr Sweeney left Thailand on 24 December and not 29 December as previously submitted. Mr Sweeney subsequently confirmed that he returned to Australia on 25 December 2015 and submitted that the holiday break prevented him from seeking advice until 29 December 2015.”
[12] The Commissioner noted, pursuant to s.394(3)(c), that there is no evidence that Mr Sweeney pursued the termination of his employment with Mr Carey, the decision maker and author of the termination letter, or Mr Quinlan who sent the termination email. Mr Sweeney only appears to have seriously pursued the non-payment of his commission. 8
[13] As to the merits of the application (s.394(3)(e)) the Commissioner said:
“[29] In terms of the merits of the application, information which allows a definitive conclusion in this respect is not before me and I have regarded the merits of the application as a neutral factor relative to the extension of time issue.”
[14] No submissions were advanced in relation to any prejudice to the employer (s.394(3)(d)) or the question of fairness as between the Appellant and other persons in a similar position (s.394(3)(f)).
[15] Having considered all of the factors set out in s394(3) the Commissioner concluded that he was not satisfied that there were exceptional circumstances warranting the grant of a further period for the making of a s.394 application. For that reason the Appellant’s application was dismissed and an order was subsequently issued to that effect. 9
[16] The essence of the Commissioner’s decision is set out at paragraph [11] of his reasons:
“[11] Mr Sweeney submitted that the unfair dismissal application was required to be lodged within 21 days from the date the dismissal took effect, but also submitted that the date upon which he became aware of the termination and the interaction with the holiday period should be considered as an extenuating circumstance.”
As well as paragraphs [10] and [13] set out earlier in this decision.
[17] The Commissioner concluded that the disparity between Mr Sweeney’s original submission, as to his date of return to Australia, and the date he actually returned to Australia one week earlier, raised concerns as to his credibility generally, and in particular the reliability of the evidence given by Mr Sweeney as to his inability to receive emails in Thailand. Such being the case, the Commissioner concluded that the alternative view that Mr Sweeney was in fact aware of his termination on or about 17 December 2015 was the more likely. In which case his application was even further out of time. The Commissioner concluded that even if he was wrong about that, Mr Sweeney was aware of the termination of his employment on his return to Australia on 25 December 2015, in which case his application was still out of time.
[18] The Notice of Appeal lodged by the Appellant contains numerous grounds that are said to demonstrate an appealable error. It is unnecessary for us to recite those grounds and it is sufficient for present purposes to note, in support of his application for permission to appeal Mr Sweeney sought – in essence – to rerun the case he advanced before the Commissioner. In particular, he submitted that while the Commissioner identified the reasons for the delay in lodging the application, he reached the wrong conclusion and should have found that the reasons provided constituted ‘exceptional circumstances’ within the meaning of s.394(3). We are not persuaded that there is an arguable case that Commissioner erred in the manner suggested by the Appellant or otherwise.
[19] We are not persuaded that Mr Sweeney has established that it is in the public interest to grant permission to appeal. Nor are we persuaded that he has established an arguable case of appellable error in relation to the decision subject to appeal or that there are any other considerations that warrant the grant of permission to appeal. Accordingly, permission to appeal is refused.
VICE PRESIDENT
1 This is so because on appeal FWC has power to receive further evidence, pursuant to s.607(2); see Coal and Allied v AIRC
(2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.
2 (2011) 192 FCR 78 at [43].
3 O’Sullivan v Farrer (1989) 168 CLR 210; Coal & Alllied v Lawler [2011] FCAFC 54 at [44]-[46].
4 GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343 at [26]-[27]; Lawrence v Coal & Allied Mining Services
Pty Ltd t/as Mt Thorley Operations/ Warkworth [2010] FWAFB 10089 at [28], affirmed on judicial review; Coal &
Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54; Ferrymen Pty Ltd v Maritime Union of Australia [2013]
FWCFB 8025; and NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian
Taxation Office [2014] FWCFB 1663.
5 (2010) 197 IR 266 at [27].
6 Also see CFMEU v AIRC (1998) 89 FCR 200; and Wan v AIRC (2001) 116 FCR 481.
7 Wan v AIRC [2001] FCA 1803 at [30].
8 Sweeney v [2016] FWC 1515, par [26]
9 PR577900
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