Ms Angela Iurato v Crossmark Australia Pty Limited
[2017] FWCFB 2607
•16 MAY 2017
| [2017] FWCFB 2607 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
Crossmark Australia Pty Limited
(C2017/1515)
VICE PRESIDENT CATANZARITI | MELBOURNE, 16 MAY 2017 |
Appeal against decision [[2015] FWC 3248] of Commissioner Ryan at Melbourne on 12 May 2015 in matter number U2015/4172. Permission to appeal only, extension of time, Fair Work Commission Rules 2013 r56(2)(c), Fair Work Act 2009 s400, permission to appeal refused.
[1] On 12 May Commissioner Ryan issued a Decision on 12 May 2015 (Decision) 1 which determined that Ms Angela Iurato (Appellant) was unjustly dismissed within the meaning of s.387 of the Fair Work Act 2009 (Cth) (Act). As a result, the Commission ordered compensation to be paid to Ms Iurato, equal to 38 hours of pay.
[2] The Appellant lodged this appeal with the Commission on 21 March 2017, almost 2 years after the Decision of Commissioner Ryan was issued. In order to grant permission to appeal in this instance we must consider whether an extension of time should be granted for the lodgement of the notice of appeal.
Submissions
[3] Submissions made by the Appellant in writing and during oral submission were confusing and difficult to follow, we summarise them as follows, the Appellant:
A. Submits that she was not provided with all the information that the employer discussed in private (sic).
B. Submits that the Employer didn’t provide the legal name of relevant persons for her to provide to her lawyer.
C. Is concerned with the way she was represented by the Employer during the matter at first instance, and claims that the Employer’s conduct in this regard was incorrect and illegal. Ms Iurato is concerned that the material filed at first instance will “stay on her records (sic)”, in turn, this might impact her current employment.
D. Claims that the delay between the Decision at first instance and her lodgement of the notice of appeal is a consequence of her choosing to take the time to complain multiple times about the material filed at first instance and the way she was represented at first instance by the Employer
E. Is not happy with the compensation given to her at first instance.
Extension of time
[4] Rule 56 of the Fair Work Commission Rules 2013 (FWC Rules) deals with appeals and the time period for instituting appeals. That rule relevantly provides that an appeal must be instituted within 21 days after the date of the decision appealed against. The decision was published on 12 May 2015. Ms Iurato had until 2 June 2015 to institute an appeal, however, the appeal was lodged on 21 March 2017, which was not within the 21 day time constraint stipulated. Nevertheless, rule 56(2)(c) confers a discretion on the Commission to extend the time within which the appeal is to be lodged.
[5] The authorities indicate that the following matters are relevant to considering whether to exercise the Commission’s discretion under Rule 56(2)(c): 2
● Whether there is a satisfactory reason for the delay;
● The length of the delay;
● The nature of the grounds of appeal and the likelihood that one or more of those grounds being upheld if time was extended; and
● Any prejudices to the Respondent if time were extended.
Reasons for delay
[6] It was submitted that the Appellant delayed lodging an appeal against the Decision at first instance, because she took the time to complain, and as we understand, to attempt to resolve her issues with the matter at first instance, without having to lodge an appeal.
[7] We are not satisfied that the reasons provided by the Appellant are satisfactory reasons for delay.
Length of delay
[8] The Decision at first instance was issued on 12 May 2015. The time limit for Appeal was on 2 June 2015. The appeal was lodged with the Commission on 21 March 2017, almost 2 years after the time limit for an appeal in this matter. This is a very substantial delay.
Nature of the grounds of appeal and the likelihood of one or more to those grounds being upheld if time was extended.
[9] This requires an assessment of whether the Appeal is likely to succeed.
[10] The appeal grounds, as we understand them, are summarised above at [3], we now turn to consider the question of permission to appeal.
[11] 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.
[12] In the Federal Court Full Court decision 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(1) as “a stringent one”.3
[13] 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 Makin 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. 5
[14] 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. 6 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.7
[15] In relation to submissions A and B. It is on record that the Appellant received all important correspondence that occurred between the Commission and the parties. As a result, we are not satisfied that the Appellant was under any disadvantage in the matter at first instance and we do not consider that the appeal grounds A and B are sufficient to grant permission to appeal.
[16] In relation to the submission C, the Appellant does not raise any grounds that go to permission to appeal. The Appellant expresses her concern that the material filed at first instance by the Respondent is illegal, incorrect and could be damaging to her current employment. Having considered all the material before us, we are not satisfied that the Commissioner erred in admitting any of the evidence used in the Decision at first instance. Although the Appellant may not be happy with the claims made and evidence filed by the Respondent at first instance, this is not sufficient grounds to allow permission to appeal.
[17] We have addressed submission D which is the Appellant’s explanation for delay, above at [6] – [8].
[18] In relation to E, the Appellant indicates that she is not happy with the amount of compensation she was granted at first instance. The Appellant does not submit any grounds showing appealable error in the Decision at first instance. We are satisfied that the Commissioner correctly applied s.394, s.396, s.386, s.387 of the Act to determine that the Appellant’s dismissal was unjust. We are also satisfied that the Commissioner correctly applied s.392 of the Act to exercise the Commission’s discretion to order a remedy in the matter.
[19] The Commissioner addressed the relevant statutory criteria and we are not persuaded that there is an arguable case that the Decision was attended by any error of principle or significant error of fact. Even if an extension of time were to be granted, we are not satisfied that we would have granted permission to appeal.
Any prejudice to Crossmark.
[20] There were no submissions or any evidence of prejudice to Crossmark if an extension of time was to be granted.
Conclusion
[21] We are not satisfied that the Appellant has provided a satisfactory explanation for the delay in lodging the appeal. A lack of prejudice to Crossmark is not sufficient to extend the time for appeal. Further, given our findings on permission to appeal, we are not satisfied that the appeal raises any public interest considerations.
[22] Accordingly the application for extension of time to lodge an appeal against the Decision is dismissed.
[23] On this basis, permission to appeal is refused.
VICE PRESIDENT
Appearances:
Ms A Iurato, the Appellant.
Hearing details:
3 May
2017
Sydney
1 [2015] FWC 3248.
2 See for example Fox v Kangan TAFE Print S0253, 25 October 1999 at [36]; Stevenson-Helmer v Epworth Hospital, Print T2277, 19 October 2000; Dundovich v P&O Ports, Print PR923358, 8 October 2002 per; SPC Ardmona Operations Ltd v Esam and Organ (2005) 141 IR 338; Jobs Australia v Eland [2014] FWCFB 4822; Farnhill v Australian Business Academy Pty Ltd [2016] FWFBC 3410.
3 (2011) 192 FCR 78 at [43].
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, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [44] -[46].
5 [2010] FWAFB 5343 at [27], 197 IR 266.
6 Wan v AIRC (2001) 116 FCR 481 at [30].
7 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 288, 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].
Printed by authority of the Commonwealth Government Printer
<Price code A, PR592854>
0
6
0