Mr Noel Scott vCompass Group Healthcare Hospitality Services Pty Ltd (T/A Medicrest Australia)
[2015] FWCFB 1261
•24 MARCH 2015
| [2015] FWCFB 1261 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
Compass Group Healthcare Hospitality Services Pty Ltd (T/A Medicrest Australia)(C2015/1360)
JUSTICE ROSS, PRESIDENT | MELBOURNE, 24 MARCH 2015 |
Appeal against Order PR560205 of Commissioner Cribb at Melbourne on 16 January 2015 in matter U2014/14710 - public interest not enlivened - permission to appeal refused.
[1] Mr Noel Scott (Appellant) was dismissed from his employment with Compass Group Healthcare Hospitality Services Pty Ltd (Respondent) on 28 October 2013. On 30 October 2014 he lodged an application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Cth) (FW Act).
[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. The Appellant’s application was lodged 346 days outside the 21-day time limit, and accordingly it was necessary for him to obtain an extension of time under s.394(3).
[3] In January 2015 the Commissioner Cribb sent an email to the parties advising them of the matters that ‘the Commission is required to address’ in determining any such application. Further, the Commissioner wrote:
“During the hearing, there will need to be evidence and/or submissions on each of the requirements of s394(3) above. For example, Noel, you will need to give evidence particularly on s394(3)(a), (b), (c) and (e).
Having taken account of all s394(3)(a)-(f), the Commission has to be satisfied that it all adds up to ‘exceptional circumstances’. Since the Fair Work Act came into operation, the bar for gaining an extension of time has been raised considerably. The situation has to amount to ‘exceptional circumstances’.”
[4] On 16 January 2015 the Commissioner issued an order dismissing the Appellant’s application. 1 The Commissioner’s reasons for her decision to dismiss the Appellant’s application are to be found in the transcript of proceedings.2 In her reasons, the Commissioner indicated that she refused to grant the Appellant an extension of time and dismissed his application on that basis. Mr Scott seeks permission to appeal the Commissioner’s order and decision and that is the matter before us.
[5] The decision subject to appeal was made under Part 3-2 – Unfair Dismissal – of the FW 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’. 3 The Commission must not grant permission to appeal unless it considers that it is ‘in the public interest to do so’.
[6] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment. 4 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.” 5
[7] 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. 6 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.7
[8] As stated above:
(a) the Appellant’s employment was terminated on 28 October 2013;
(b) he lodged his unfair dismissal application on 30 October 2014; and
(c) therefore the unfair dismissal application was lodged 346 days outside the statutory time limit.
[9] Subsection 394(3) deals with applications to extend time, it provides:
“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 similar position.”
[10] In the decision subject to appeal the Commissioner considered each of the matters specified in s.394(3)(a) to (f). At PN206 of the decision the Commissioner set out the reasons advanced by Mr Scott for the delay in lodging his unfair dismissal application, that is:
“The first requirement of the Act is section 394(3)(a), and that is the reason for the delay. If I recall, there were three grounds on which Mr Scott indicated that there were reasons for the delay in lodging. The first one went to between October 2013 and May 2014. It is Mr Scott’s evidence that, from his perspective, Compass HR department and the area manager refused to respond to his inquiries. Secondly, that during the same period, Compass was being investigated by WorkSafe regarding a bullying and harassment complaint that he’d made. Thirdly, that between May 2014 and October 2014, he had contacted the Fair Work Ombudsman and made a complaint and the investigation took that period of time.
For the company, the company have been very, very clear that they dispute the factual basis for all of the things that Mr Scott said in relation to the reasons for his delay. I need to make it clear that I am not reaching a conclusion in terms of the factual basis or not. What I have before me is the reasons given by the applicant are very clearly disputed by the respondent. But those are the applicant’s reasons. It is acknowledged that, factually, they are challenged absolute by the company.”
[11] At PN213 the Commissioner sets out her assessment of the reasons advanced by Mr Scott for the delay in lodging his application:
“Taking all of those things into account, are there exceptional circumstances? As I indicated earlier in the hearing, Mr Scott, I understand the reasons why you believe, for you, I understand why, based on what you’ve said - and I am not taking it as fact. Ms Holmes, I need to make that really clear: I’m making no findings of fact here, okay? I understand that it’s absolutely disputed by the company. But in terms of where you’re coming from, Mr Scott, I do understand. However, from a Commission perspective and in terms of the requirements of the Act, I have not been satisfied that there are exceptional circumstances, taking into account everything that you’ve said and your written submissions.
I have not been convinced that it’s special, uncommon out of the ordinary or any out of the ordinary cause, unusual, special or uncommon. It doesn’t make it for you, therefore, any less difficult, hurtful, upsetting or anything like that. I understand that. But in terms of the Act and the requirements of the Act, I have reached the conclusion that there are not exceptional circumstances. Therefore, the Commission is not satisfied that there are exceptional circumstances, and therefore, I am not prepared to grant your extension of time.”
[12] At PN208 - PN212 of her decision the Commissioner dealt with other matters referred to in s.394(3) and made the following findings:
- Mr Scott became aware of the dismissal when it took effect (s.393(3)(b)(i));
- Mr Scott disputed his dismissal with both the Company’s HR department and the area manager (s.393(3)(c));
- There would be prejudice to the Respondent because of the delay and the fact that one individual (the area manager) was no longer available to the Respondent (s.393(3)(d));
- The merits of the application was a neutral issue in her consideration of the extension of time application (s.393(3)(e)); and
- There was no issue of fairness in relation to any other person in a similar position.
[13] Having considered the written submission filed by the Appellant, the evidence contained in the witness statement filed by the Appellant, the evidence given by him during the hearing and the oral submissions of the Respondent, the Commissioner concluded that having regard to all of the matters which the Commission is required to take into account under s.394(3) of the FW Act she was not satisfied that there were exceptional circumstances such as to warrant the grant of an extension of the statutory time period for the Appellant’s unfair dismissal application. On that basis the Appellant’s application was dismissed.
[14] In support of his application for permission to appeal Mr Scott submitted that ‘there [had] been an error of fact involved in the’ Commissioner’s decision. 8 However, neither in his written submissions nor in the hearing before the Full Bench was the Appellant able to identify what that error was.
[15] The Appellant further submitted that he was denied procedural fairness. Mr Scott said the Commissioner had (earlier in the hearing) indicated that she would receive evidence from the Appellant then adjourn and allow the parties an opportunity to file written submissions. This did not occur because at the end of the hearing the Commissioner delivered an oral decision. Mr Scott complains that ‘the Commissioner ... ran the hearing in a different format to what was agreed.’ 9 Further, the Appellant submitted that he ‘should have been given the opportunity to ask the respondent some questions to prove to the Commissioner when [the respondent’s representative] is under oath, that she is not telling the truth...’10
[16] To put the Appellant’s submission into context it is necessary to say something about what took place in the proceedings at first instance.
[17] Early in the proceedings the Commissioner accepted the Appellant’s witness statement into evidence (Exhibit A2) and provided the Appellant with an opportunity (which he took) to give further evidence orally. The Respondent objected to parts of the Appellant’s oral evidence - in particular the assertion that he had made an anti-bullying application to the FWC and that WorkSafe was investigating the Respondent and the Respondent had failed to comply with the regulator’s requests. 11 At PN105 of the transcript Ms Holmes, on behalf of the Respondent, said:
‘Given I’m not on notice to test it, I object to any damaging information being taken into account that the company does not have a chance to test.’
[18] The Commissioner responded to the Respondent’s expressed concern, as follows:
“I understand that, Ms Holmes. I did hear you the first time. It means that probably what we’re going to have to do is slightly change the process so that today, it will be Mr Scott’s evidence, which you can choose to ask him questions about, but I think that that’s all we’ll do today and then, on the basis of the transcript, the company will then have the opportunity to make written submissions in response and then, Mr Scott, you can make written submissions in reply and I will then finalise the matter on the papers.” 12
[19] Later in the proceeding the Commissioner asked the Appellant if there was anything further he would like to say and he responded ‘No, I think I’ve presented all the evidence in relation to the matter. That’s all I can do’. 13 The Commissioner then asked the Respondent about the process which had been foreshadowed earlier in the proceeding,:
“Ms Holmes, is the company still comfortable with providing, once the transcript becomes available, of having a period of time in which to file written submissions in response, and then for Mr Scott to file in reply, plus the opportunity – because we’ve still got 15 minutes – given that Mr Scott is here, for you to ask him any questions that you want to? What would you like to do?” 14
[20] Ms Holmes replied in the following terms:
“Commissioner, as you can imagine, the company has already spent a disproportionate amount of time on this matter, so I’m not inclined to need to put written submissions forward, and just pick some of the facts. The company does dispute a number of the facts, and I don’t know whether it’s worthwhile taking the applicant through and disputing some of the facts. The company says that even if – and we don’t say that this is true – the applicant’s version was correct, there are no exceptional circumstances...” 15
[21] The Commissioner then said:
“No. Ms Holmes, I’m fine with that. You have, in essence, done on your feet what you could have done, what was an option for the company in writing and in a more detailed way. But from the Commission’s perspective, I understand, and that is sufficient, thank you.” 16
[22] It is apparent from the foregoing that the Commissioner had initially suggested a process for dealing with the Respondent’s objection to certain contested statements made by the Appellant during the course of his oral evidence. That process involved providing the Respondent with an opportunity to file a further written submission and then for the Appellant to reply to that submission. However, later in the proceedings the Respondent said that it did not wish to avail itself of the opportunity provided because, in essence, even if what the Appellant said was accepted it did not amount to exceptional circumstances within the meaning of s.394(3). The Commissioner then proceeded to issue her decision in the matter.
[23] The complaint made by the Appellant is misconceived, there has been no denial of procedural fairness. The Commissioner provided the Appellant with every opportunity to present evidence and make submissions. She patiently took the Appellant through each element of s.393(3) and the decision accurately sets out the reasons given by the Appellant as to why there was a delay in the filing of his application. While noting that the Respondent had objected to and denied some of the claims asserted by the Appellant the Commissioner did not make any finding adverse to the Appellant. The process initially proposed by the Commissioner was intended to provide the Respondent with an opportunity to make further submissions in relation to matters about which it had been given no notice by the Appellant. Ultimately the Respondent did not seek to avail itself of this opportunity. The process initially proposed by the Commissioner would have given the Appellant the opportunity to reply to any further written submissions made by the Respondent. As no such further written submissions were made the need for a reply did not arise.
[24] We are not persuaded that Mr Scott has established that it is in the public interest to grant permission to appeal. The Commissioner addressed the relevant statutory criteria and we are not persuaded that the decision subject to appeal discloses any error of principle or any significant error of fact.
[25] As we have mentioned, s.400(1) provides that permission to appeal must not be granted unless the Commission considers that it is in the public interest to do so. We do not consider that it is in the public interest to grant permission to appeal and accordingly we refuse permission to appeal.
PRESIDENT
Appearances:
The Appellant: Mr Scott on his own behalf
The Respondent: No appearance
Hearing details:
Melbourne
19 March 2015
1 PR560205
2 Transcript of Proceedings, Mr Noel Stephen Scott v Compass Group Healthcare Hospitality Services Pty Ltd T/A Medicrest Australia (Fair Work Commission, U2014/14710, Commissioner Cribb, 16 January 2015) (First instance transcript)
3 [2011] FCAFC 54; (2011) 192 FCR 78 at [43]
4 O’Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch [2011] HCA 4; (2011) 85 ALJR 398 at paragraph 69 per Gummow, Hayne, Heydon, Crennon, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54 at [44] - [46]
5 [2010] FWAFB 5343; (2010) 197 IR 266 at [27]
6 Wan v AIRC [2001] FCA 1803 at [30]
7 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 in Coal & Allied Mining Services Pty Ltd v Lawler; [2011] FCAFC 54; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663 at [28]
8 Appellant’s submissions, 5 March 2014, at paragraph 1
9 Ibid at paragraph 2
10 Ibid
11 See first instance transcript at PN95
12 Ibid at PN106
13 Ibid at PN191
14 Ibid at PN193
15 Ibid at PN194, also see PN195-PN197
16 Ibid at PN198
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