Mr Rodney Price v CDC Ballarat Pty Ltd
[2020] FWCFB 4301
•14 AUGUST 2020
| [2020] FWCFB 4301 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
Mr Rodney Price
v
CDC Ballarat Pty Ltd
(C2020/5085)
VICE PRESIDENT HATCHER | SYDNEY, 14 AUGUST 2020 |
Appeal against ex tempore decision of Commissioner Lee at Melbourne on 19 June 2020 in matter number U2020/7646
Introduction and background
[1] Mr Rodney Price has lodged an appeal, for which permission to appeal is required, against a decision issued ex tempore by Commissioner Lee on 19 June 2020 to refuse Mr Price an extension of time to lodge an unfair dismissal application. The decision was published on 2 July 2020. 1 The background to the matter is that Mr Price was employed by the respondent, CDC Ballarat Pty Ltd (CDC) until he resigned from his employment with effect from 5 March 2020. On 3 June 2020, Mr Price lodged an application for an unfair dismissal remedy in the Commission pursuant to s 394 of the Fair Work Act 2009 (FW Act). In bringing this application, Mr Price contended that he was “driven to resignation” by various matters which occurred during his employment and what he described as a “culture of bullying”.
[2] Section 394(2) of the FW Act requires that an unfair dismissal application must be made within 21 days of the dismissal or such further period as the Commission may allow under s 394(3). Mr Price’s application was filed 69 days after the 21-day period expired on 26 March 2020. Accordingly it was necessary for him to obtain an extension of time to file his application pursuant to s 394(3). Section 394(3) provides:
(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 similar position.
[3] Mr Price stated in his unfair dismissal application that the reason for his delay in lodging his application was: “I have been in contact with legal personal and was told due to Covid restrictions it would be placed on hold”. He subsequently filed a letter from a medical practitioner dated 11 June 2020 which stated:
“Rodney has been a patient of mine for many years and I have managed his medical conditions as they have arisen throughout that time.
Rodney came to me on the 6th March 2020, where he had a very difficult situation at work and he had reluctantly resigned. Rodney had been there for 18 years and there had been some systematic bullying that had been going for several months prior, of which I had provided him with ongoing counselling in relation to how to address this.
Rodney has always been a very honest and ethical person of the highest standard, and I have found this to be most disturbing and distressing that a workplace could bully a dedicated employee as they have.
I referred Rodney to a colleague of mine for counselling to help him throughout this process. In discussion with Sr. Lee, it became very apparent between both of us that the workplace situation was one of bullying and harassment which led Rodney to leave with some sense of dignity. In addition, this is not part of the reason, but there are contributing factors to Rodney's dedication. Rodney had a significant loss in the family of his son four years ago, which was very tragic. Rodney has persisted and continued to work all the way through and has been a very committed, and well-liked staff member.
Unfortunately, throughout the episode of Covid19, as you would be aware there was difficulties trying to gain information and get appointments. We were waiting on a barrister that we know to see whether we could help Rodney in any way. We finally made contact and he recommended that Rodney had a very strong case and to go to WorkSafe.
I would gratefully appreciate your support to assist Rodney. We apologise for any delays in getting this through to you and we take full responsibility for that delay.”
[4] In the hearing before the Commissioner, Mr Price gave evidence that:
• on 6 March 2020, his doctor arranged for him to meet with what he referred to as “Mind@Health” (apparently a psychological consultancy);
• a person at “Mind@Health” named Lorraine arranged for him to meet with a Queens Counsel (QC), who would review a 7-page document that Mr Price had prepared concerning his situation;
• this was put on hold because the QC went into quarantine as a result of the COVID-19 pandemic “around the end of March”;
• Mr Price went to the Trades Hall in Ballarat, but was unable to receive assistance because he was no longer a union member;
• he was told the QC had taken ill, but also that the QC had read his document and believed Mr Price had a strong case;
• contact was eventually made with the QC, who recommended that Mr Price go to WorkSafe;
• WorkSafe told him he need to contact “Fair Work”; and
• Mr Price took no other steps to contest his application between the end of March and when he lodged his application “because I'd left it in the hands of my doctor and the Mind@Health lady and they were dealing with the QC who was giving advice. But as I said, everything got put into lockdown and I was just left on hold, waiting”
[5] Mr Price also gave the following evidence (in answer to a question from the Commissioner:
“On what basis are you going to argue that it was termination at the initiative of the employer?---No, I didn't say that the employer sacked me. I resigned but I resigned, if you read like the seven page document it explains everything that's been going on there, you know, why I resigned. It wasn't something that I wanted to do.
Yes, but you had to - - -?---It was my own - - -
You had to do it?---Well, if I didn't I would have - yes, my doctor's orders were, if you don't - I was actually off work that week. My doctor had - I was off work on leave. I had certificates. I went back to work against my doctor's orders because I knew they were short there. So I went back to work and, you know, the rest is history.
Okay, so your argument will be that you had no choice but resign?---No, because I had no support. Every time - I went to HR in Melbourne, I went to management at the depot there, and every time I went for support or there was issues I was shut down and told it is what it is, you need to reconsider your position, et cetera, and so on it went for a long, long time.
All right?---I even got told by Marcelle Davis to stop taking my job so seriously.” 2
The decision
[6] In his decision, the Commissioner dealt with each of the matters he was required to take into account under s 394(3) of the FW Act. In relation to s 394(3)(a), the Commissioner reviewed the material and evidence before him and concluded:
“[12] …I have to give consideration as to whether despite the fact that even in circumstances where the Applicant has not met with a legal representative but seems to be relying on his doctor to take care of the matter, whether or not this is a case of representative error. I note that when considering representative error that late lodgement of an application due to representative error may be grounds for an extension of time but there is a distinction between a delay caused by a representative where the employee is blameless, and when the employee has contributed to the delay, and it is the actions of the employee that are the central consideration.
[13] There is no evidence that the Applicant has given clear instructions to lodge an application and that a representative has failed to do so. It is not a situation which I think would fall into the representative error category, in any case, and I so find. The applicant could have taken steps in April or May 2020 to lodge the application. I accept that COVID-19 caused difficulties in many respects but there was ample time for the Applicant to take action having become aware that the QC was on lockdown, for him to do something but he did not. Taking all of those factors into consideration I am not satisfied that the Applicant has provided an acceptable explanation for the delay and that is a matter that weighs against the Applicant in this case.”
[7] As to s 394(3)(b), the Commissioner found that Mr Price became aware of the (alleged) dismissal when he resigned on 5 March 2020, and that this was a neutral consideration. 3 In relation to s 394(c), the Commissioner found that there was no evidence that Mr Price took action to dispute the alleged dismissal (such as by seeking to rescind his resignation) beyond lodging his unfair dismissal application, and this weighed slightly against granting an extension of time.4 In relation to s 394(3)(d), the Commissioner found that there was some prejudice to CDC given the length of the delay, and this weighed slightly against Mr Price.5 In relation to the merits of Mr Price’s application, the Commissioner’s assessment for the purpose of s 394(3)(e) was as follows:
“[18] To succeed on jurisdiction the applicant would need to make out that his resignation was forced due to conduct or a course of conduct engaged in by the Respondent sufficient to meet the legislative test for constructive dismissal as was put by the Respondent, and I agree with that, or that alternatively that he resigned in the heat of the moment. In the exchange that I had in terms of the questions I asked the Applicant today, it seems clear and he referred me to the seven page document that he has provided in this case which certainly sets out in some detail the litany of concerns that the Applicant had about the manner in which the company conducted the workplace, the work pressures he was under, the amount of work he was doing, and so on and so forth, such that it's apparent to me that while the unrepresented Applicant has not made it crystal clear it's apparent that his view is that he was indeed forced to resign due to conduct or a course of conduct engaged in by the Respondent.
[19] The circumstances are that of course having regard to the statement that I made at the outset of considering this part of the criteria, the merits of the application, I don't fully examine or make a full assessment of the merits of the case but I would make these observations, that generally an employer is entitled to accept a resignation when it's in clear terms and it can be a difficult road for an Applicant to demonstrate that they had no choice but resign and they were forced to because of the conduct of the employer. But that said, that case can be made out. Overall, having considered this factor I don't think that this is a strong case for the reasons, and rate it as a weak case purely on the basis that the resignation is in such clear terms. However, I am not in a position to say that it is a case where the merits are such that it would lead me to find that this was a factor that weighed against the Applicant. I am just not in a position on the evidence I've got to say that. And so in considering the merits of the application I find that this is a matter that is neutral.”
[8] The Commissioner found that s 394(3)(f) was a neutral consideration. 6 The Commissioner’s overall conclusion was that he was not satisfied that there were exceptional circumstances in Mr Price’s case warranting a conclusion that he should exercise his discretion to allow a further period to lodge his application. The Commissioner said:
“[23] Looking at all of the factors it is apparent that three of them weigh against the applicant, two of them only slightly against but certainly acceptable reason is a matter that weighs against the Applicant, and all of the other factors are neutral. There are no factors weighing in favour of the Applicant. So having taken into account all of those factors, as I have indicated I am not satisfied that there are exceptional circumstances and therefore there is no basis on which to consider whether I should exercise my discretion to extend the time allowed for making the application. An extension of time is therefore refused and the application for an unfair dismissal remedy made by the Applicant is dismissed…”
Appeal grounds and submissions
[9] Mr Price’s notice of appeal contained the following grounds of appeal:
“The original application was beyond the 21 days, and in total 69 days.
I was under the instructions by my Doctor David Birch and also Loraine from Health an Mind Ballarat who was also advised by a QC with whom read my 7 page document advising I have a strong case against CDC.
The QC and Loraine where both to meet with me to Discuss all obtaining to the 7 page document.
Covid 19 took effect and made all possible meetings postponed until further notice.
The QC with who was going to meet with me was placed in Quarantine and also took ill after quarantine.
All beyond our control, I didn’t know where else to go.
I was also of the belief that Premier of Victoria Daniel Andrews put exemptions in place due to Covid 19.”
[10] Mr Price contended in his notice of appeal that the grant of permission to appeal would be in the public interest because of the following matters:
“I resigned from my 18 years at this depot, my 7 page document that I forwarded to Comissioner Lee earlier on explains what was taking place towards me over the 10 years with CDC and why I was eventually forced to resign due to the ongoing health and well being issues due to work college’s [sic] and Management negative treatment towards me, it has also been happening to other staff at Ballarat depot, which in turn led to their bad performance and attitude on the job while dealing with public.”
[11] In his written submissions in support of his application for permission to appeal, Mr Price for the most part repeated the factual matters he had advanced at first instance, but his submissions included the following additional contentions of fact:
• he was a lay person without higher education who did not know of all the services available;
• at the time of his resignation, Mr Price “had known of fair work as a name only”;
• when the QC was placed in quarantine, Mr Price considered going to someone else but was advised to stick with someone with whom he had a pending appointment;
• he contacted Legal Aid by phone but they advised him they did not deal with “these type of cases”; and
• Trades Hall “point[ed] me in the direction of Fair Work”.
Consideration
[12] An appeal under s 604 of the FW Act is an appeal by way of rehearing and the Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision maker.7 There is no right to appeal and an appeal may only be made with the permission of the Commission.
[13] This appeal is one to which s 400 of the FW Act applies. Section 400 provides:
(1) Despite subsection 604(2), the FWC must not grant permission to appeal from a decision made by the FWC under this Part unless the FWC considers that it is in the public interest to do so.
(2) Despite subsection 604(1), an appeal from a decision made by the FWC in relation to a matter arising under this Part can only, to the extent that it is an appeal on a question of fact, be made on the ground that the decision involved a significant error of fact.
[14] In the Federal Court Full Court decision in Coal & Allied Mining Services Pty Ltd v Lawler and others, 8Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s 400 as “a stringent one”. The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.9 A Full Bench of the Commission, in GlaxoSmithKline Australia Pty Ltd v Makin, 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.” 10
[15] 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.11 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.12
[16] An application for permission to appeal is not a de facto or preliminary hearing of the appeal. In determining whether permission to appeal should be granted, it is unnecessary and inappropriate for the Full Bench to conduct a detailed examination of the grounds of appeal. 13 However it is necessary to engage with those grounds to consider whether they raise an arguable case of appealable error.
[17] The test of “exceptional circumstances”, in relation to extensions of time to lodge applications under s 394(3), establishes a “high hurdle” for an application for an extension, and a decision as to whether to extend time under s 394(3) involves the exercise of a broad discretion. 14 Therefore it will be necessary, in an application for permission to appeal against a decision made under s 394(3), to demonstrate that there is an arguable case and that there was appealable error in the exercise of the discretion. This will require the identification of error of the type described in House v The King15 – that is, that the decision-maker has acted on a wrong principle, has mistaken the facts, has taken into account an irrelevant consideration or failed to take into account a relevant consideration, or has made a decision which is unreasonable or manifestly unjust. Additionally, where an error of fact is alleged, s 400(2) requires that it must be a significant error of fact. The overriding public interest requirement of s 400(1) remains.
[18] We do not consider that Mr Price has in his notice of appeal or submissions identified any contention of House v The King error. He does not identify that the Commissioner’s decision involved any error of fact (let alone any significant error of fact), or that the Commissioner failed to take into account any relevant consideration or had regard to any irrelevant consideration, or that there was any error of principle. Mr Price’s appeal, in substance, involves no more than an invitation to us to determine for ourselves whether he should be granted an extension of time, and does not advance any contention of error of the type necessary for an appeal under s 604 to be reasonably arguable. For those reasons, the appeal is clearly lacking in merit.
[19] We have taken account of the fact that Mr Price is self-represented and accordingly we have assessed whether we can ourselves identify any arguable case of appealable error in the decision, notwithstanding that Mr Price has not pleaded any such error. As earlier stated, the Commissioner had express regard in his decision to all of the matters required to be taken into account under s 394(3), and his decision involves an accurate summation of the evidence before him as it relates to each consideration. It is not reasonably arguable that the discretionary judgment made by the Commissioner under s 394(3) was unreasonable or unjust; indeed we consider that the Commissioner’s conclusion on the basis of the material before him was entirely unremarkable.
[20] In respect of the reason for the delay (s 394(3)(a)), although Mr Price relied upon the quarantine and subsequent illness of the QC he was meant to see, he did not suggest that this lasted from late March 2020 (when he became aware of the difficulty) until 3 June 2020 (when he filed the application). Indeed, it is difficult to see what the point of waiting to see the QC was; the QC had already read Mr Price’s document summarising his case, had conveyed the advice that he had a strong case, and had referred him to WorkSafe. There is no basis to conclude that the QC had actually been instructed to act on behalf of Mr Price or was ever going to initiate proceedings on Mr Price’s behalf; indeed at the hearing before us Mr Price (not surprisingly) disavowed any notion that he could have been able to afford to engage the QC to represent him. We also note that Mr Price advanced no coherent explanation as to how he was able to file his unfair dismissal application on 3 June 2020, but not at any earlier time.
[21] The new factual matters raised by Mr Price in his appeal submissions would not have assisted his case, even if they had been raised at first instance. We particularly note the contention that the Trades Hall in Ballarat pointed Mr Price “in the direction of Fair Work”. Mr Price did not specify when he went to the Trades Hall, but we infer from the evidence Mr Price gave before the Commissioner that it occurred shortly after the QC went into quarantine – that is, in late March 2020. This simply begs the question, which is not answered in the evidence or submissions at first instance or appeal, as to why Mr Price then waited until 3 June 2020 to file his application.
[22] For these reasons, we do not consider that any finding was reasonably available under s 394(3)(a) other than that Mr Price did not advance a reasonable explanation for his delay in filing his application. The Commissioner’s conclusions as to the other s 394(3) considerations appear to us to be uncontroversial. Indeed, his conclusion that the merits of the application (s 349(3)(e)) was a neutral consideration seems to us to be generous to Mr Price’s position. The Commissioner assessed that Mr Price’s case was weak given that he resigned from his employment and would have difficulty demonstrating a dismissal within the meaning of s 386(1)(b) of the FW Act, and we agree with this assessment having regard in particular to the evidence given by Mr Price which we have set out in paragraph [5] above. On one view, that should have led to the conclusion that the s 394(3)(e) consideration weighed against the grant of an extension. In any event, the final position was that none of the s 394(3) conclusions weighed in favour of the grant of an extension, which meant that there was no proper basis for satisfaction as to the existence of exceptional circumstances.
[23] Mr Price’s matter turned on its own facts. His appeal raises no question of law or issue of importance or general application. The principles to be applied under s 394(3) have been established in a number of Full Bench authorities, and those principles were applied in an orthodox way by the Commissioner. The appeal is entirely lacking in merit. For these reasons, we are not satisfied that the grant of permission would be in the public interest. Permission to appeal must therefore be refused as required by s 400(1).
VICE PRESIDENT
Appearances:
Mr R Price on his own behalf.
Mr R Turner on behalf of the Respondent.
Hearing details:
2020.
Sydney (via video-link).
3 August.
Final written submissions:
Printed by authority of the Commonwealth Government Printer
<PR721855>
1 [2020] FWC 3390
2 Transcript, 19 June 2020, PNs 124-128
3 [2020] FWC 3390 at [14]
4 Ibid at [15]
5 Ibid at [16]
6 Ibid at [20]
7 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 AIRC [2000] HCA 47, 203 CLR 194, 99 IR 309 at [17] per Gleeson CJ, Gaudron and Hayne JJ
8 [2011] FCAFC 54, 192 FCR 78, 207 IR 177 at [43]
9 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]
10 [2010] FWAFB 5343, 197 IR 266 at [27]
11 Wan v AIRC [2001] FCA 1803, 116 FCR 481 at [30]
12 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]
13 Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]
14 Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21]
15 [1936] HCA 40, 55 CLR 499
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