Mr Scott Wilson v CPB Contractors Pty Limited
[2017] FWCFB 5387
•18 OCTOBER 2017
| [2017] FWCFB 5387 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
CPB Contractors Pty Limited
(C2017/5021)
DEPUTY PRESIDENT GOSTENCNIK | MELBOURNE, 18 OCTOBER 2017 |
Appeal against decision and order [2014] FWC 5503 of Commissioner Cloghan at Perth on 20 August 2014 in matter number U2013/13665 – extension of time – permission refused.
[1] Mr Scott Wilson has applied for permission to appeal a decision of Commissioner Cloghan issued on 20 August 2014 (the Decision) in which the Commissioner dismissed his application for a remedy for alleged unfair dismissal from his employment with Leighton Contractors Pty Ltd (now CPB Contractors Pty Ltd (CPB)) under s.394 of the Fair Work Act 2009 (FW Act). Mr Wilson was dismissed from his employment on 27 August 2013.
[2] CPB objected to the appeal on the grounds that there was no credible or satisfactory explanation for the delay in filing the appeal, that a Settlement and Release Agreement (Release) had been entered into between the parties and that it was not in the public interest to grant the appeal.
[3] Mr Wilson’s application for permission to appeal and his application that he be allowed a further period within which to lodge the appeal were heard before us on 3 October 2017. Both parties filed written submissions and presented oral argument. In the hearing, Mr Wilson applied for time to file additional materials in support of his application. This request was granted and on 4, 5 and 6 October 2017, Mr Wilson filed further materials in the Commission. CPB was given an opportunity to respond to those materials but did not do so. We have taken those materials into account in our consideration of the application.
Extension of time
[4] The appeal was filed on 15 September 2017, more than three years out of time. The Notice of Appeal included an application for extension of time to appeal on the grounds of Mr Wilson’s medical condition as well as advice that Mr Wilson claims was deficient. 1
[5] Rule 56 of the Fair Work Commission Rules 2013 deals with appeals and the time period for appeals. That rule relevantly provides that an appeal must be lodged in the Commission within 21 days after the date of the decision and/or order appealed against. Rule 56(2)(c) confers a discretion on the Commission to extend the time within which the appeal is to be lodged.
[6] Time limits of the kind in Rule 56 are not extended as a matter of course. There are sound administrative and policy reasons for setting a limit to the time for bringing an appeal and it should only be extended where there are good reasons for doing so. The following matters are relevant to the exercise of the Tribunal’s discretion under Rule 56(2)(b) 2:
- the length of the delay;
- whether there is a satisfactory reason for the delay;
- the nature of the grounds of appeal and the likelihood of their being upheld if time was extended; and
- any prejudice to the respondent if time were extended.
[7] In broad terms the issue for the Commission is whether, in all the circumstances and having regard to the matters set out above, the interests of justice favour an extension of the time within which to lodge the appeal.
Length of delay and reasons for it
[8] In this case the extent of the delay is significant – more than three years.
[9] Mr Wilson explained the delay on several bases. The first related to his medical condition. Mr Wilson contended that his condition was triggered after he made complaints about wages, safety concerns, harassment and intimidation in the workplace. He relied on his significant number of medical appointments since that time as well as his motivation to ensure CPB did not “get away with what they did to me”. 3 However, the material filed in support of the application for permission to appeal does not establish that Mr Wilson was unable to file his appeal over the course of the three year period.
[10] A further reason for delay advanced by Mr Wilson was alleged poor legal advice from his lawyer at first instance, both before, during and after the hearing of his unfair dismissal application. In particular, he relied on the failure of his lawyer to call his witnesses during the unfair dismissal hearing and advice that he should make civil claims in the small claims court and the Magistrates Court of Western Australia – which ultimately led to the signing of the Release referred to above. Mr Wilson said that he had referred these complaints to the WA Legal Profession Complaints Committee. According to Mr Wilson, the Committee found his lawyer “incompetent and negligent”. 4 We invited Mr Wilson to produce evidence to support this contention, and additional time following the conclusion of the hearing within which to do so. No such material was produced.
[11] Mr Wilson also contended that he received poor advice from State and federal politicians and government departments on the avenues available to him to address his concerns, and that he has a low level of education. We do not consider this to be relevant to an explanation of the delay in filing the appeal.
[12] According to Mr Wilson, there is a current investigation by the WA Ombudsman into a separate complaint by Mr Wilson to Worksafe WA. It is unclear how this would explain the delay. It tends rather to show that Mr Wilson was able to instigate complaints, and could have filed an appeal in relation to the Decision had he chosen to do so.
[13] More generally, Mr Wilson said it took him two years of emails and phone calls to the Commission and the Fair Work Ombudsman, until January 2015, to understand the effect of a provision of the Occupational Health and Safety Act 1984 (WA) in relation to his claim. He said the continuing delay was because he was overwhelmed by the matter, unable to function due to his medical condition and not assisted by his continued but unsuccessful attempts to obtain “help” from over 100 law firms and lawyers, as well as from the Commission and Worksafe WA.
[14] CPB submitted that Mr Wilson had nevertheless managed to file a claim with the Fair Work Ombudsman on 27 October 2014 (no evidence of this claim was before us) and a Form 57 civil claim in the Magistrates Court of Western Australia on 19 November 2014 5 (subsequently discontinued). CPB also relied on the Release as a bar to Mr Wilson’s application for permission to appeal.
[15] We accept that Mr Wilson has experienced difficulties in his personal and working life in recent years, and that this may have affected his capacity to file an appeal on time. We also accept that Mr Wilson has a current and ongoing medical condition for which he requires treatment. However, we do not find these matters to be a satisfactory reason or reasons for the delay.
[16] Further, Mr Wilson had access to legal representation in the proceedings at first instance, and was able to commence civil proceedings in the months following the decision subject to appeal against his former employer. In the same period, it was open to him to appeal the Decision and he did not do so.
[17] We are not satisfied that the reasons advanced by Mr Wilson provide a satisfactory reason for the delay, either individually or as a whole.
Nature of appeal grounds and likelihood of any of the grounds being upheld
[18] As to the nature and prospects of the appeal, we make the following observations.
[19] The Decision 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)). The test is a ‘stringent one’. 6 The Commission must not grant permission to appeal unless it considers that it is ‘in the public interest to do so’.
[20] It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated, because an appeal cannot succeed in the absence of appealable error. 7 However, the fact that a member of the Commission at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.8
[21] An application for permission to appeal is not a de facto or preliminary hearing of the appeal. The nature of the grounds of appeal are relevant in deciding whether to grant an extension of time and permission to appeal, but it is neither necessary nor appropriate for the Full Bench to conduct a detailed examination of the grounds of appeal. 9
[22] Mr Wilson’s Notice of Appeal sets out three appeal grounds. The first and second are alleged errors of law. The third involves a question of weight given to a particular matter in proceedings at first instance. In submissions, he added a fourth ground of appeal, alleging misconduct by his legal representative.
[23] Mr Wilson filed a three page submission in support of his request for permission to appeal. At the hearing on permission to appeal, Mr Wilson spoke to each of the grounds in his Notice of Appeal. We have considered the Notice of Appeal and the three page submission as well as the transcript in this matter.
Ground 1 – the Commissioner erred in making a finding of serious misconduct within the meaning of the Fair Work Regulations 2009
[24] Mr Wilson contended in his Notice of Appeal that the Commissioner erred in finding that his conduct was serious misconduct within the meaning of regulation 1.07 of the Fair Work Regulations 2009 (the Regulations). The submissions do not elaborate on the argument, but it was apparent in the hearing that the Notice of Appeal was drafted by his lawyers and Mr Wilson did not fully understand the nature of the ground of appeal, except that he did not believe his conduct leading to dismissal amounted to serious misconduct. 10
[25] The relevant paragraph in the Commissioner’s decision is at [92]. It says:
“I am satisfied that Mr Wilson’s conduct which led to his dismissal, on the plain and ordinary meaning of “serious misconduct”, as set out in subregulations 1.07(2)(a) and 3(c) of the Fair Work Regulations, was serious misconduct.”
[26] In Titan Plant Hire Pty Ltd v Malsen 11, a Full Bench of the Commission confirmed that regulation 1.07 has no application to the question of whether there was a valid reason for dismissal, observing however that a finding of serious misconduct as defined in the Regulations might well support a finding of valid reason for dismissal based on an employee's conduct.12
[27] On our reading of the Notice of Appeal, Ground 1 is a challenge to the Commissioner’s reliance on the Regulations to make a finding of serious misconduct.
[28] We accept that the ground of appeal is at least arguable, but we do not consider it likely to succeed, given the observations of the Full Bench in Titan and having regard to the text of the Decision, which does not demonstrate that consideration of the Applicant’s conduct was limited to whether the alleged misconduct met the definition in regulation 1.07. Ultimately, the Commissioner concluded that Mr Wilson engaged in the conduct alleged by his employer, 13 the conduct was serious,14 the reason for the dismissal was the conduct alleged and that reason was a valid reason.15
Ground 2 – the Commissioner erred in failing to take into account certain relevant matters
[29] Mr Wilson also challenged the Decision on the grounds that four matters were not considered by the Commissioner in reaching his conclusion that the dismissal was not unfair.
[30] The first matter was the Applicant’s mental health in the period from April 2013 – 27 August 2013. However, it is apparent on the face of the Decision that the matters of stress, anxiety as well as the Applicant’s various medical appointments and certificates were considered by the Commissioner in the context of the evidence as a whole. Paragraph [83] of the Decision specifically extracts a response on transcript from the Applicant, referring to his “state of mind at the time”.
[31] The second matter was the harshness of the consequences for the Applicant and being “blacklisted” in the construction industry. However, the Applicant’s case appears to have been run simply on the basis that the penalty of dismissal was disproportionate to the Applicant’s conduct. It is not apparent that any particular consequences for the Applicant flowing from the dismissal were raised, or that the Commissioner had any information before him about the Applicant being “blacklisted”. In those circumstances, it is hard to see how he could have taken it into account.
[32] The third matter was the alleged unlawful nature of his dismissal. . Mr Wilson contended that he had exercised a workplace right by way of at least 118 complaints or inquiries and a workers compensation claim in the 4 months before his dismissal. However, Mr Wilson’s case before the Commissioner focused largely on his claim that he had raised complaints or inquiries and was dismissed for this reason. The Commissioner considered these matters and found that the dismissal in all the circumstances was not unfair.
[33] Finally, there was the apparent contradiction between the Respondent’s dispute resolution procedure and posters displayed at the workplace inviting site participants to use a “Gorgon complaint line” that should have been considered at first instance. On our reading of the Decision, the question of what were the appropriate processes for raising workplace grievances was squarely before the Commissioner and he considered and made findings on this issue. 16
[34] Having regard to each of the matters raised in relation to Ground 2, we do not perceive arguable case of appellable error in the Commissioner’s analysis or conclusions.
Ground 3 – the Commissioner placed undue weight on the Applicant’s reaction to his termination of employment
[35] Mr Wilson challenged the Decision on the basis that the Commissioner placed “undue weight” on his reaction to the termination of his employment. This reaction involved Mr Wilson yelling aggressively at a company representative in an expletive-laden outburst. Before us, Mr Wilson explained this ground as follows:
“The Commissioner did not consider harassment, intimidation, bullying or bribes in his decision. He only considered everything I did. Nothing that I mentioned in that whole day, that I believe the Commissioner disregarded.” 17
[36] The weight given to a particular matter is ultimately a matter for the Commission. As Mason J explained in Minister for Aboriginal Affairs v Peko-Wallsend Ltd 18:
“It follows that, in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power. ... I say "generally" because both principle and authority indicate that in some circumstances a court may set aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance. The preferred ground on which this is done, however, is not the failure to take into account relevant considerations or the taking into account of irrelevant considerations, but that the decision is "manifestly unreasonable".
[37] The Commissioner quite unsurprisingly took into account Mr Wilson’s conduct at the termination meeting, together with other factors, in considering whether there was a valid reason for termination. We do not perceive an arguable case of appellable error in the Commissioner’s analysis or conclusions in this respect.
Purported Ground 4 – misconduct by legal representatives
[38] Mr Wilson made serious allegations against his legal representative at first instance, including that he lied, misled his client, failed to call three witnesses and failed to represent his client to the best of his ability. As noted above, the allegations were unable to be substantiated in these proceedings and we make no finding about them. There is no material before us that would lead us to believe that representative error was a significant factor in this case.
[39] Having regard to the grounds of appeal, we consider that it is most unlikely that any of them would be upheld if the period for filing his appeal were extended.
Prejudice to the respondent
[40] Mr Wilson asserted that there would be minimal prejudice to CPB if permission to appeal was granted. CPB did not assert any prejudice in response. Nevertheless, the events in question occurred more than three years ago. It is to be expected that memories of the events will have faded over time, as Mr Wilson himself seemed to confirm in answer to a question in the hearing on permission to appeal. 19
Conclusion
[41] Having regard to all of the relevant considerations we are not persuaded that it is in the interests of justice to allow further time to Mr Wilson to lodge the appeal. Accordingly we dismiss the application to extend time to lodge the appeal.
[42] Even if we had determined that it was appropriate to allow further time for the lodgement of Mr Wilson’s appeal, we would not have granted permission to appeal. Save for a (barely) arguable error in relation to ground 1, we have identified no arguable case of appellable error on the part of the Commissioner, and the matter does not in our view enliven the public interest. We do not consider that the Decision discloses any manifest injustice and we are unable to identify any issue of broader public interest or significance. Accordingly, we would be required by s.400 of the Act not to grant permission to appeal.
DEPUTY PRESIDENT
Appearances:
Mr Wilson appeared in person
Ms Corica appeared for CPB Contractors Pty Limited
Hearing details:
2017
Melbourne Video Link to Brisbane
3 October
1 PN45
2 Farnhill v Australian Business Academy Pty Ltd[2016] FWCFB 3410.
3 PN43
4 PN54
5 GCLM/20331/2014
6 Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [43]
7 Wan v AIRC (2001) 116 FCR 481 at [30]
8 GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343 at [26]-[27], 197 IR 266; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth[2010] FWAFB 10089 at [28], 202 IR 388, affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663 at [28]
9 Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]
10 PN27
11 [2016] FWCFB 5520
12 Sharp v BCS Infrastructure Support Pty Ltd[2015] FWCFB 1033 at [33]-[34]; O'Connell v Wesfarmers Kleenheat Gas Pty Ltd (t/as Kleenheat Gas)[2015] FWCFB 8205 at [22]-[23].
13 [2014] FWC 5503 at [81] – [87] and [91]
14 Ibid at [93].
15 Ibid at [94] – [95]
16 See, for example, [2014] FWC 5503 at [70]
17 PN34
18 [1986] HCA 40; (1986) 162 CLR 24 at pp 39-41 per Mason J.
19 PN119
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