Mr Todd Perry v Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine
[2016] FWCFB 5120
•28 JULY 2016
| [2016] FWCFB 5120 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine
(C2016/1283)
DEPUTY PRESIDENT SAMS | SYDNEY, 28 JULY 2016 |
Appeal against decision [[2016] FWC 2972] of Deputy President Kovacic at Melbourne on 12 May 2016 in matter number C2015/6627; arguable case of appellable error established; public interest enlivened; permission to appeal granted.
[1] Prior to his dismissal in early October 2015, Mr Todd Perry (Appellant) had been employed by Rio Tinto Shipping Pty Ltd (Respondent) since August 2006. On 16 November 2016 the Appellant lodged with the Fair Work Commission (Commission) an application under s.365 of the Fair Work Act 2009 (Act), that it deal with a general protections dispute involving a dismissal. On the facts as found by the Member at first instance relating to the date the Appellant was dismissed, 1 in order for the application to be progressed, the Appellant required the Commission to exercise its discretion under s.366(2) of the Act to allow a further period within which the application could be lodged. That matter was determined by Deputy President Kovacic on 12 May 2016.
[2] The Deputy President refused to allow a further period within which the application could be lodged and dismissed the application. The Appellant has lodged a Notice of Appeal, for which permission is necessary, against the Deputy President’s decision 2 and order.3 The question whether permission to appeal should be granted is the matter before us.
[3] We must grant permission to appeal if we are satisfied that it is in the public interest to do so. We otherwise have a general discretion to grant permission to appeal in relation to a decision other than one that was made under Part 3-2 – Unfair Dismissal of the Act.
[4] 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 Makin5 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.” 6
[5] It will rarely be appropriate to grant permission to appeal unless an arguable case of appellable error is demonstrated. This is so, because an appeal cannot succeed in the absence of appellable error. 7 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.8
[6] In relation to extensions of time to lodge applications under s.365(2) or s.394(3), the test of “exceptional circumstances” establishes a “high hurdle” for an applicant for an extension to be granted, and a decision as to whether to extend time under s.365(2) or s.394(3) involves the exercise of a broad discretion. 9 Therefore it will be necessary, in an application for permission to appeal against a decision made under s.365(2) or s.394(3) to demonstrate that there is an arguable case of appellable error in the exercise of the discretion. This will require the identification of an error of the type described in House v The King10. 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 in relation to decisions made under s.394(3), s.400(2) requires that it must be a significant error of fact together with the overriding public interest requirement of s.400(1) always remaining.
[7] The Notice of Appeal lodged by the Appellant sets out the following grounds of appeal. The Appellant contends that the Deputy President erred:
- in not allowing a further period of time for the Appellant to make his application under s.365 of the Act;
- by not being satisfied that the reason for the delay in the Appellant making his application constituted exceptional circumstances. In particular, the Deputy President:
- by not being satisfied that the action taken by the Appellant to dispute the dismissal constituted exceptional circumstances. In particular, the Deputy President failed to take into consideration material passages from the Appellant’s correspondence with the Respondent on 4 October 2015.
(a) erroneously held that the decision in Gao v Department of Human Services [2011] FWAFB 5605 was relevant to the question of whether exceptional circumstances existed in the present case;
(b) failed to consider the existence and terms of the Rio Tinto Fair Treatment System, and the actions of the respective parties under the System;
(c) failed to consider the evidence of the Appellant as to his health;
(d) failed to consider the evidence of the Appellant as to his living arrangements; and
[8] It is unnecessary for us to deal with each of the grounds raised by the Appellant as we are satisfied that the Appellant has made out an arguable case that the Deputy President erred in the manner suggested in the third dot point noted above. The Deputy President dealt with this issue in his decision as follows:
(b) Any action taken by the person to dispute the dismissal
[35] Mr Perry submitted that he had disputed his dismissal by way of his Fair Treatment System claim, adding that the requirement to take into account any such action by Mr Perry was to be considered by reference to the period after the dismissal was finally communicated and took effect: Annear v Centaurus Investments Pty Ltd t/a Bayside Day Procedure Centre (Centaurus).
[36] Rio submitted that it was clear from Mr Perry’s Fair Treatment System claim that he had concerns about monetary payments due to him on being made redundant. Rio further contended that Mr Perry’s general protections application therefore involved different issues to those raised in his Fair Treatment System claim, adding that as a result the Commission should find that Mr Perry took no action to challenge his dismissal.
[37] An analysis of Mr Perry’s 15 June 2015 Fair Treatment System Issue Statement indicates that Mr Perry raised five issues. The issues raised by Mr Perry together with his preferred outcome are set out below:
(1) Issue: Duration of the contract assignment; Preferred Outcome: That the term of the assignment be paid out.
(2) Issue: Demotion; Preferred Outcome: Reporting lines be reinstated at least on paper.
(3) Issue: Reduction in take home pay; Preferred Outcome: Reinstate me to the same position I would have been in if my spendable income remained constant (adjusted for increases in my salary) up until the termination of my assignment.
(4) Issue: Obligation to provide maximum notice of termination; Preferred Outcome: Pay compensation equal to 5 weeks’ salary.
(5) Issue: Integration period; Preferred Outcome: That the Term of the Assignment Be Paid out five weeks contractual notice be paid out at the end of the three month integration period.
[38] None of the above appears to directly dispute Mr Perry’s impending retrenchment. Similarly, Mr Perry’s 4 October 2015 request to escalate his Fair Treatment System claim does not appear to directly dispute his dismissal. The closest that it comes to in that regard is in the context of discussing the issue of the duration of Mr Perry’s Singapore assignment (Issue 1 above) where Mr Perry’s request states as follows:
“I agree there was no absolute guarantee given as to the term of my assignment, however, there was a guarantee that my assignment would not be cut short due to the restructuring of my role. …
To conclude that no guarantee was given ignores the clear understanding created by remaining silent.
The reason given for the early termination of my assignment is the restructuring of the Business Analysis function within Marine. I have been retrenched as a result. This is a clear breach of the agreement struck.”
[39] Mr Perry goes on later in his request 4 October 2015 to state:
“The Fair Treatment System policy is based on a number of principles, including “all employees are entitled to be treated fairly and with dignity”. I have suffered a number of indignities since Bold was appointed to the position of Managing Director Marine…”
[40] In short, the above extracts do not point to Mr Perry directly disputing his dismissal through his Fair Treatment System claim. Relying on the decision in Centaurus, only Mr Perry’s 4 October 2015 request to escalate his Fair Treatment System claim could be relied upon as action to dispute his dismissal. Based on the above analysis, I consider that possibility to be marginal at best.
[41] This does not point to the existence of exceptional circumstances. 11 [Endnotes omitted, our emphasis]
[9] We have reviewed the Appellant’s 4 October 2015 correspondence 12 and it seems to us arguable that the correspondence amounts to a step taken by the Appellant to dispute his dismissal. We are also satisfied it is arguable that the Deputy President erred in concluding that that which is relevant for the purposes of s.366 (2)(b) of the Act is a direct step to dispute the dismissal. In these circumstances it seems to us that the Appellant has been able to identify an arguable case of appellable error of the type described in House v The King.13
[10] As we have earlier stated, the fact that a Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal. 14 However, in the present case, the appellable error identified in the context of the weighing process apparent from the Deputy President’s decision might have resulted in an injustice. This is because it is apparent that the Deputy President concluded that three of the five matters that he took into account were neutral, with the reason for the delay apparently weighing against the Appellant.15
[11] If the arguable case of error identified by the Appellant is upheld on appeal and putting aside for present purposes the other grounds of appeal, this will result in one factor weighing in favour of the Appellant, one against and three remaining neutral. In the weighing of those factors a different conclusion might be reached. In the circumstances where the effect of the Deputy President’s decision, which is arguably attended by appellable error, is not only to deny the Appellant the benefit of the conference before the Commission, but also to preclude the Appellant from agitating his general protections grievance in the Federal Circuit Court or the Federal Court of Australia, we are persuaded that the public interest is enlivened. We therefore propose to grant permission to appeal.
[12] Permission to appeal is granted. The parties will be separately advised of the date on which the appeal will be heard and directions for the conduct of the appeal will also be separately issued.
DEPUTY PRESIDENT
Appearances:
Mr E Gisonda, Counsel for the Appellant.
Mr S Dewberry, Solicitor for the Respondent.
Hearing details:
2016.
Sydney/Melbourne:
July, 12.
1 We note that the Deputy President's finding as to the date of the Appellants’ dismissal was not sought to be agitated on appeal.
2 [2016] FWC 2972.
3 PR580270.
4 O’Sullivan v Farrer (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch (2011) 85 ALJR 398 at [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) 197 IR 266.
6 Ibid at [27].
7 Wan v AIRC [2001] FCA 1803 at [30].
8 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].
9 Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21].
10 (1936) 55 CLR 499.
11 [2016] FWC 2972 at [35]-[41].
12 AB207 – AB214.
13 (1936) 55 CLR 499.
14 See note 8.
15 [2016] FWC 2972 at [36].
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