Mrs Renee Gutzeit v Liquorland (Qld) Pty Ltd T/A Spirit Hotels Liquorland (South East Queensland)
[2015] FWCFB 5389
•2 SEPTEMBER 2015
| [2015] FWCFB 5389 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
Liquorland (Qld) Pty Ltd T/A Spirit Hotels Liquorland (South East Queensland)
(C2015/4336)
VICE PRESIDENT CATANZARITI | SYDNEY, 2 SEPTEMBER 2015 |
Appeal against order PR567778 of Senior Deputy President Drake at Perth on 26 May 2015 in matter number U2014/10681.
Introduction
[1] This decision concerns an application for permission to appeal against an order 1 (Order) of Senior Deputy President Drake issued on 26 May 2015 and a decision2 (Decision) issued on 5 June 2015. The Order and Decision concerned an application for extension of time for lodgement of an application for unfair dismissal remedy made by Ms Renee Gutzeit (Appellant) pursuant s.394 of the Fair Work Act 2009 (the Act).
[2] At the hearing of the appeal Mr Chapman, the Appellant’s husband, appeared as her authorised representative and Mr Pollock sought permission to appear on behalf of Liquorland (Qld) Pty Ltd T/A Spirit Hotels Liquorland (South East Queensland) (Respondent). The Appellant objected to the Respondent being represented. The issue of permission to appear was not necessary to determine as the Respondent was content to rely on its written submissions.
Background
[3] The matter before the Senior Deputy President was referred to her for determination by a Full Bench of the Commission. The date of termination of employment was in dispute and required determination. The Appellant’s application was lodged on 8 July 2014. The Senior Deputy President made a finding that the Applicant’s employment was terminated with the Respondent on 13 June 2014. 3
[4] Section 394(2) of the Act provides that unfair dismissal applications must be made within 21 days after the dismissal took effect or within such further period as the Commission allows under s.394(3). The Senior Deputy President, proceeding on the basis that the Appellant’s employment was terminated on 13 June 2014, found that the application was lodged 4 days outside the statutory time limit. The Senior Deputy President was then obliged to make a determination on whether an extension of time should be granted.
[5] The Appellant provided the following reasons for delay in lodgement:
● Her misunderstanding as to the date of termination of employment;
● Her very great upset at the termination of her employment; and
● Her husband’s concurrent illness with her application and her obligation to care for him.
[6] If an unfair dismissal application is filed out of time, the Commission is able to extend the time for filing where satisfied that "exceptional circumstances" exist, having taken into account a number of factors listed in s.394(3) of the Act.
[7] Subsection 394(3) 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.”
[8] The Senior Deputy President relied on the leading authority of Nulty v Blue Star Group Pty Ltd 4and taking into account the provisions of s. 394(3) of the Act, refused Ms Gutzeit’s application for an extension of time and issued the Order dismissing her application.5
Grounds of Appeal
[9] The Appellant raised numerous grounds of appeal in the Form F7 – Notice of Appeal that were further addressed in written submissions. In summary, the Appellant submitted that there were serious procedural errors in the conduct of the matter at first instance and errors of fact, such to enliven the public interest for the following reasons:
● the FWC has ignored information referring to evidence in the Respondent’s possession that has possibly allowed multiple violations of s.678 of the Act to occur;
● by directing the Respondent to provide further evidence in the matter, the FWC has introduced further contested facts that required a further hearing under s.397 of the Act;
● the issue of which of the Respondent’s documents regarding the use of CCTV footage applies in the workplace has significant weight in determining the merits of the case;
● the Respondent has failed to meet the regulations test for what constitutes serious misconduct as per the Fair Work Regulations 2009 REG 1.07 and hence justify an immediate dismissal effective 13 June 2014; and
● the Respondent’s actions following the termination lead to a normal termination in accordance with the employment agreement the Appellant was employed under, including payment of notice, and the Respondent’s decision for the Appellant not to work any further shifts was of its own prerogative and cannot be successfully argued as evidence of an immediate termination.
[10] The Respondent filed lengthy written submissions that in essence, contend that the Appellant does not raise any substantive matters in her submissions which demonstrate that it is in the public interest to grant permission to appeal and the grounds raised do not point out any appealable errors. 6 Moreover, the Respondent submitted that even if the Appellant could establish one of the grounds of error alleged, none of those errors would have let to a different result and as such, granting permission to appeal would have no utility in such circumstances.
Consideration
[11] An appeal in relation to an unfair dismissal matter is governed by the provisions of sections 604 and 400 of the Act. Section 604 of the Act deals with appeals generally. These requirements are modified with respect to unfair dismissal appeals by section 400 of the Act which provides:
“400 Appeal rights
(1) Despite subsection 604(2), FWA must not grant permission to appeal from a decision made by FWA under this Part unless FWA 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.”
[12] 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’ 7. The Commission must not grant permission to appeal unless it considers that it is ‘in the public interest to do so.’
[13] The test for determining the public interest has been described as follows: 8
“[26] Appeals have lain on the ground that it is in the public interest that leave should be granted in the predecessors to the Act for decades. It has not been considered useful or appropriate to define the concept in other than the most general terms and we do not intend to do so. The expression ‘in the public interest’, when used in a statute, classically imports a discretionary value judgment to be made to be made by reference to undefined factual matters, confined only by the objects of the legislation in question. [Comalco v O’Connor (1995) 131 AR 657 at p.681 per Wilcox CJ & Keely J, citing O’Sullivan v Farrer (1989) 168 CLR 210]
[27] Although 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, it seems to us that none of those elements is present in this case.”
[14] It is also important to note that the decision under appeal is of a discretionary nature. Usually, such a decision can only be successfully challenged on appeal if it is shown that the discretion was not exercised correctly. 9 It is not open to an appeal bench to substitute its view on the matters that fell for determination before the Commissioner in the absence of error of an appealable nature in the decision at first instance. As the High Court said in House v The King:10
“The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.”
Conclusion
[15] We have taken into account all material before the Commission, including the party’s submissions and all relevant authorities. We consider that the Senior Deputy President correctly noted that exceptional circumstances were required. In her reasons she set out extracts from court authority dealing with the meaning of exceptional circumstances. 11 Her Honour then considered each of the criteria in s.394(3) relevant to the determination of whether exceptional circumstances existed12 and concluded that the Appellant’s circumstances were not out of the ordinary course, unusual, special or uncommon.13
[16] In our view the Appellant has not demonstrated that the approach of the Senior Deputy President was in error or that there is any aspect of this case which suggests that it is in the public interest to grant permission to appeal. The Respondent has described the Appellant’s appeal grounds as “opaque” and simply complaining about the decision as first instance rather than raising issues that enliven the public interest. 14 We accept the Respondent’s submissions in this regard. The Appellant’s submissions merely suggest dissatisfaction with the result of the proceedings at first instance and that is an insufficient basis for a successful appeal. In our view the Decision represents a correct exercise of the Commission’s discretion applied in an entirely appropriate manner. The conclusion reached was not unreasonable or plainly unjust. The application for permission to appeal is dismissed.
VICE PRESIDENT
Appearances:
J C Chapman for the Appellant.
A Pollock for the Respondent.
Hearing details:
14 July
2015
Sydney with a video link to Brisbane.
1 PR567778
2 Renee Gutzeit v Liquorland (Qld) Pty Ltd T/A Spirit Hotels Liquorland (South East Queensland)[2015] FWC 3806
3 Decision at [6] – [10].
4 [2011] FWAFB 975.
5 Decision at [12]-[23].
6 That is, errors of the Type in House v The King (1936) 55 CLR 499.
7 (2011) 192 FCR 78 at paragraph 43.
8 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343.
9 House v The King (1936) 55 CLR 499 at [504]-[505] per Dixon, Evatt and McTiernan JJ.
10 Ibid.
11 Decision at [13]; see Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975.
12 Decision at [16] – [21].
13 Decision at [23].
14 Respondent’s outline of submissions dated 13 July 2015, paragraph 5.
Printed by authority of the Commonwealth Government Printer
<Price code C, PR570511>
0
4
0