Mr Sriram Sivaram v Caddy Van Storage Systems (Vic) Pty Ltd T/A Caddy Storage Systems
[2016] FWCFB 4066
•12 JULY 2016
| [2016] FWCFB 4066 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
Caddy Van Storage Systems (Vic) Pty Ltd T/A Caddy Storage Systems
(C2016/3511)
SENIOR DEPUTY PRESIDENT DRAKE | SYDNEY, 12 JULY 2016 |
Appeal against decision [2016] FWC 2154 of Deputy President Lawrence at Sydney on 6 April 2016 in matter number C2016/2453.
Introduction
[1] Mr Sriram Sivaram applied for permission to appeal a decision issued by Deputy President Lawrence on 6 April 2016 1 (the Decision). The Decision refused Mr Sivaram an extension of time to lodge a general protections application for the Commission to deal with a dismissal dispute under s.365 of the Fair Work Act 2009 (the Act) and dismissed the application that had been received by the Commission.
[2] Section 366(1) of the Act requires that an application under s.365 of the Act must be made within 21 days after the dismissal took effect or within such further period as the Commission allows under s.366(2).
[3] Mr Sivaram filed his general protections application on 2 February 2016. That application identified the date of the dismissal as being 26 August 2015. The Deputy President found in the Decision that Mr Sivaram’s general protections application was lodged some 136 days outside of the time required by s. 366(1) of the Act. It was not in dispute before the Deputy President that Mr Sivaram’s application was lodged out of time.
[4] The reasons for the delay advanced by Mr Sivaram at first instance, and the Deputy President’s consideration of those reasons pursuant to s.366(2)(a), are set out in the Decision as follows:
“The Applicant is disabled and did not understand the processes for lodgement of the application. He had assistance from Mr Vijayakumar and his father in the ultimate lodging of the form. There is no explanation for the long delay in acting so that work was not done on the application until January 2016. I accept that the Applicant’s disability should be allowed for, but he did have some support for the ultimate lodgement of the claim. No reason is provided for this not happening much sooner.
Accordingly, the reasons for delay cited by the Applicant fall short of establishing exceptional circumstances.” 2
[5] In considering the other matters required to be taken into account under s.366(2), the Deputy President concluded that:
● A number of representations made by Mr Sivaram disputing his dismissal with Caddy Storage Systems were not significant in the circumstances of the case;
● Caddy Storage Systems would be prejudiced by the time and costs involved in further litigation;
● The merits of the application weighed against the existence of exceptional circumstances, particularly given that Mr Sivaram resigned his employment and it would be difficult for him to establish that he was forced to resign.
[6] The Deputy President’s Decision also states that Mr Sivaram made a number of allegations relating to discriminatory treatment on the basis of his race, carer’s responsibilities, age and mental impairment.
Grounds of Appeal
[7] The grounds set out in the Form F7 Notice of appeal filed by Mr Sivaram can be summarised as follows:
● The conclusion in the Decision is an error of law;
● Failure to give adequate reasons;
● Failure to properly consider all of the circumstances in examining the reasons for the delay and misapplication of the test for exceptional circumstances;
● Failure to properly consider non-compliance with Directions on the part of Caddy storage systems;
● Failure to properly consider the merits of Mr Sivaram’s case and his prospects for success if the matter went to hearing;
● Failure to take into account that Caddy Storage Systems did not comply with the Fair Work Commission Rules 2013 and Directions issued by the Deputy President in responding to Mr Sivaram’s general protections application and application for an extension of time in which to make it; and
● The decision is contrary to the overwhelming weight of the evidence and contains errors of fact.
[8] Mr Sivaram submits that the public interest is engaged such that permission to appeal should be granted because he is a young, intellectually disabled person with difficult family responsibilities and it is in the public interest that permission to appeal be granted to give guidance to the community at large in how to deal with such vulnerable persons. Mr Sivaram also submits that there is a diversity of first instance decisions in respect of exceptional circumstances as it relates to persons with a disability and that the Decision is disharmonious when compared with other recent decisions dealing with similar cases.
[9] Further, Mr Sivaram submits that the Decision manifests an injustice to him as it is submitted that the Deputy President failed to “appreciate” that Mr Sivaram was constructively dismissed by the Respondent and that his application was attended with reasonable prospects of success. It is also submitted by Mr Sivaram that the Decision exhibits an inflexible application of the law and finds that Mr Sivaram’s reason for the delay was not acceptable without a proper basis for that conclusion. Mr Sivaram submits that the Deputy President “would have been aware” of the difficulties faced by unrepresented applicants making applications under the Act.
Legislative Provisions
[10] 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. 3 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.”
[11] 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. 4 The public interest is not satisfied simply by the identification of error, or a preference for a different result.5 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...” 6
[12] 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. 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.8
[13] As we have mentioned, s.366(2) provides that the Commission may extend the time within which a s.365 application may be lodged provided it is satisfied that there are ‘exceptional circumstances’, and is in the following terms:
“366 Time for application
(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) any action taken by the person to dispute the dismissal; and
(c) prejudice to the employer (including prejudice caused by the delay); and
(d) the merits of the application; and
(e) fairness as between the person and other persons in a like position.”
Consideration
[14] It is convenient to deal first with the circumstances relied on by Mr Sivaram as constituting exceptional circumstances. At first instance, and in the permission to appeal hearing, Mr Sivaram detailed a series of events said to have been the reasons for his late filing of the application. These include: the loss of Mr Sivaram’s father’s employment and the requirement for Mr Sivaram to be the sole breadwinner for the family; illness suffered by Mr Sivaram’s mother, father and grandmother; Mr Sivaram making a complaint to New South Wales Industrial Relations Commission about employment matters and awaiting a response to that claim; and Mr Sivaram’s attendance on a medical practitioner and subsequent referral to a specialist for anxiety and depression. Mr Sivaram also states that he suffers from a moderately severe intellectual disability and that he is from a culturally and linguistically diverse background.
[15] Several letters from Dr Tony Zahra-Newman were tendered by Mr Sivaram. Dr Zahra-Newman states that he has “over forty years’ experience in general practice, clinical surgery, skin cancer and management of complicated medical and surgical conditions, including post-traumatic disablements and syndromes, and their rehabilitation, especially involving Cognitive Behaviour Rehabilitation techniques and including factors such as post-menopausal syndromes.” Dr Zahra-Newman states that Mr Sivaram suffered from childhood jaundice, with resultant moderately severe intellectual handicap.” Dr Zahra-Newman states that Mr Sivaram has been burdened with family problems described as “mother with health problems, grandparents, family debts, father’s job terminated suddenly” and states that Mr Sivaram was unable to file his application in the Commission within 21 days because of his involvement in supporting family members.
[16] A chronology of events said to be relevant to the application being filed outside the required time, tendered by Mr Sivaram in the hearing before the Deputy President and in the appeal, indicates that Mr Sivaram’s employment ended on 19 August 2015 and that an Employment Separation Certificate and a letter confirming Mr Siravam’s employment were respectively issued on 16 and 18 September 2015. The chronology of events also indicates that Mr Siravam’s father’s employment was terminated on 23 December 2015; Mr Sivaram’s complaint to the New South Wales Industrial Relations Commission was made on 30 December 2015; symptoms of Mr Sivaram’s mother’s illness occurred from 5 January 2016; his father sought treatment from a specialist for a range of illnesses including depression and anxiety on 12 January 2016; and Mr Sivaram’s grandmother had a shoulder replacement on 19 January 2016. Further, on 21 January 2016, Mr Sivaram was informed that the New South Wales Industrial Commission had decided to take no further action in relation to his complaint. Mr Siravam sought treatment for anxiety and depression on 12 February 2016 and was referred to a specialist on that date.
[17] We accept that Mr Siravam and his family have suffered from an unfortunate series of events, and we have carefully considered the evidence about the impact of those events that was put before the Commission at first instance and referred to in the appeal. After hearing the appeal, we allowed Mr Sivaram an opportunity to file further written submissions which we have also considered. In addition to reiterating previous submissions, Mr Sivaram also contends that the Deputy President incorrectly considered the whole period of the delay instead of confining his consideration to the period after the 21 days in which to file the application had expired.
[18] We do not accept that this is the case. It is clear that the Deputy President properly considered the reason for the whole of the period of the delay in making the application and found that none of the reasons for the delay advanced by Mr Sivaram constituted exceptional circumstances. In doing so his Honour set out the established meaning of the term “exceptional circumstances” and applied it to the facts in Mr Sivaram’s case. His Honour also correctly noted that the onus is placed on an applicant to establish that there are credible reasons for the entire period of the delay and that the circumstances from the time of the dismissal must also be considered. 9
[19] We agree with the Deputy President’s conclusion that Mr Sivaram did not provide a credible explanation for the delay. In particular, we note that the events relied on by Mr Sivaram to establish that there were exceptional circumstances occurred well outside the time that Mr Siravam was required to file his application, and we agree with the conclusion reached by the Deputy President that these matters fall short of establishing exceptional circumstances. Those matters do not explain Mr Sivaram’s failure to take any action to file his general protections application until 27 January when he obtained the form F8 from the Commission and filed it on 2 February 2015. Some of the events relied on by Mr Sivaram occurred after he had filed his application.
[20] Notwithstanding this, the Deputy President did give consideration to Mr Sivaram’s disability. We agree with the Deputy President that in the context of this case, it did not provide a basis for finding that there were exceptional circumstances justifying an extension of time. As the Deputy President observed in his decision, Mr Sivaram was ultimately able to file an application in the Commission notwithstanding his medical, family and language issues and none of the matters referred to by Mr Sivaram explain the full extent of his delay in doing so. Mr Sivaram was also able to file an application in the New South Wales Industrial Commission in December 2015. We note that this application related to a claim for long service leave. Any reliance on an outcome to that claim does not explain Mr Sivaram’s failure to file a general protections application in the required time.
[21] We discern no error of law or fact in his Honour’s Decision. The reasons given are adequate and address all of the required matters. We do not accept that there are important issues of general application raised by Mr Sivaram in his appeal. We also do not accept Mr Sivaram’s submission that the Decision by the Deputy President to refuse to extend the time in which to make his application manifests injustice so that the public interest is engaged or that the decision is plainly unjust so that we should infer that his Honour has failed to properly exercise the discretion to extend time. We also do not accept that the Deputy President considered the question of whether an extension of time should be granted in an inflexible manner.
[22] With respect to Mr Sivaram’s submission that the Deputy President failed to take into account the Respondent’s failure to comply with the Rules or file material in response to Mr Sivaram’s application for an extension of time, there is no arguable case for permission to appeal on this ground. The Deputy President was not satisfied that he should exercise his discretion to extend time on the basis of Mr Sivaram’s evidence. This finding by the Deputy President could not be altered by the Respondent’s failure to file material in reply to Mr Sivaram’s application. The onus at all times rested with Mr Sivaram to make out his case for an extension of time and we agree with the Deputy President that Mr Sivaram did not do so.
[23] Although Mr Sivaram made allegations of discrimination and inappropriate conduct, the matter before the Deputy President was an application for an extension of time to file a general protections application under s.365 of the Act. In deciding not to extend time, the Deputy President considered those matters under s.366(2) that he was required to take into account.
[24] We are also not persuaded that the Deputy President’s decision manifests an injustice, is counter-intuitive or that the legal principles otherwise appear disharmonious. The Deputy President’s Decision is a conventional application of the relevant principles.
Conclusion
[25] We are not satisfied that it is in the public interest to grant Mr Sivaram permission to appeal. We are not satisfied that an arguable case of appealable error is demonstrated. Mr Sivaram’s application for permission to appeal is dismissed.
SENIOR DEPUTY PRESIDENT
Appearances:
T. Vijayakumar for the Appellant.
No appearancefor the Respondent.
Hearing details:
2016.
Melbourne and Sydney (via video link)
June 15.
Final written submissions:
Appellant, 6 July 2016.
1 [2016] FWC 2154.
2 Ibid at [14] – [15].
3 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] HCA 47; (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.
4 O’Sullivan v Farrer[1989] HCA 61; (1989) 168 CLR 210; Coal & Alllied v Lawler[2011] FCAFC 54 at [44]- [46].
5 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.
6 [2010] FWAFB 5343; (2010) 197 IR 266 at [27].
7 Also see CFMEU v AIRC[1998] FCA 1404; (1998) 89 FCR 200; and Wan v AIRC[2001] FCA 1803; (2001) 116 FCR 481.
8 Wan v AIRC[2001] FCA 1803 at [30].
9 Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers [2010] 197 IR 403; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic [2016] FWCFB 349.
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