Ms Cassandra Chloe Kent v Direct Chemist Outlet Lucas
[2024] FWCFB 281
•7 JUNE 2024
| [2024] FWCFB 281 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
Ms Cassandra Chloe Kent
v
Direct Chemist Outlet Lucas
(C2024/2879)
| DEPUTY PRESIDENT MILLHOUSE | MELBOURNE, 7 JUNE 2024 |
Appeal against decision [2024] FWC 1039 and order PR773748 of Deputy President Masson at Melbourne on 22 April 2024 in matter number C2024/1015 – permission to appeal refused.
Ms Cassandra Chloe Kent has lodged an appeal under s 604 of the Fair Work Act 2009 (Cth) (Act), for which permission to appeal is required, against a decision[1] and order[2] of Deputy President Masson issued on 22 April 2024. In the decision, the Deputy President declined to grant Ms Kent an extension of time to file a general protections application against the respondent, Direct Chemist Outlet Lucas, and ordered that the application be dismissed.
The matter was listed for permission to appeal only. The parties consented to the application being determined without holding a hearing pursuant to s 607(1)(b) of the Act. We are satisfied that the question of permission to appeal can be adequately determined without the need for oral submissions. For the reasons that follow, permission to appeal is refused.
Decision under appeal
Ms Kent was employed by the respondent as a pharmacy assistant from 1 May 2023. Ms Kent made a general protections application under s 365 of the Act on 19 February 2024.
In the decision, the Deputy President first determined the effective date of dismissal, relevantly finding that the events of 10 January 2024 demonstrated that the dismissal took effect on that date. The Deputy President was satisfied that Ms Kent’s general protections application had been made outside the 21-day statutory timeframe for lodgement, as it should have been made by midnight on 31 January 2024 to have been within time.
The Deputy President turned to consider whether to allow a further period for the application to be made having regard to the matters in s 366(2) of the Act, and made findings as follows:
(a)Ms Kent did not provide an acceptable explanation for the delay in filing her application. Ms Kent’s lack of awareness of the process or filing timeframes is neither unusual nor out of the ordinary, and in the circumstances, the respondent’s failure to provide written notice of termination, or its delay in responding to the request for a separation certificate, were not barriers to the application being filed. Further, while accepting that Ms Kent attended hospital on two occasions in the week following 25 January 2024, there was no evidence supporting a conclusion that the hospital attendance precluded the preparation and filing of an application at any earlier stage (s 366(2)(a)).
(b)While Ms Kent’s representative sent emails to the respondent between 12 February and 16 February 2024 seeking information regarding the dismissal, Ms Kent did not take any action to contest her dismissal after it took effect (s 366(2)(b)).
(c)The respondent did not identify any prejudice it would incur by an extension, and this was therefore a neutral consideration (s 366(2)(c)).
(d)The merits of Ms Kent’s substantive general protections application may turn on contested points of fact. In the absence of hearing the evidence, a firm or detailed assessment of Ms Kent’s application could not be made. The Deputy President concluded that Ms Kent’s application is “not without merit” but that the respondent has raised a prima facie defence. Accordingly, the merits of were found to be neutral (s 366(2)(d)).
(e)There were no matters advanced by the parties that were relevant to the consideration of fairness (s 366(2)(e)).
Having regard to these findings, the Deputy President proceeded to consider whether there were exceptional circumstances and found that there were not, either when the circumstances are considered individually or together. The Deputy President dismissed the application.
Grounds of appeal and public interest
The Form F7 Notice of Appeal identifies three grounds of appeal, which are explained in Ms Kent’s written submissions and addressed in our analysis below. These grounds are that (1) the application has merit as outlined in the decision, (2) the appeal is in the public interest, and (3) the application was not made out of time as Ms Kent was not provided with written notice of termination as provided in her employment contract and pursuant to the National Employment Standards (NES).
Ms Kent submits that it is in the public interest that her application proceeds because the respondent did not adhere to the terms of Ms Kent’s employment contract or the NES as they relate to the requirement to provide written notice of termination of employment.
Principles – permission to appeal
There is no right to appeal, and an appeal may only be made with the permission of the Commission. Without limiting when the Commission might grant permission, s 604(2) of the Act provides that the Commission must grant permission if the Commission is 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.[3] The public interest is not satisfied simply by the identification of error or a preference for a different result.[4] Considerations that may attract the public interest include that the matter raises issues of importance and general application, that the decision manifests an injustice or that the result is counterintuitive.[5]
It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. However, that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.
An application for permission to appeal is not a preliminary hearing of the appeal. In determining whether to grant permission to appeal, it is unnecessary and inappropriate to conduct a detailed examination of the appeal grounds.[6] However, it is necessary to engage with the grounds to consider whether they raise an arguable case of appealable error.
Consideration
At the outset, we observe that in the determination of whether to grant an extension of time, the Deputy President considered each of the factors required to be taken into account by s 366(2) of the Act and applied standard legal principles in the exercise of his discretion.
At the heart of Ms Kent’s application for permission to appeal is her contention that the respondent failed to produce, upon her request, a copy of her contract of employment or provide any written notice of termination. Ms Kent submits that in the absence this material, the out of time objection could not be accurately determined as the date of dismissal was not known.[7] This issue forms the basis of appeal ground (3).
Ms Kent contends that the Deputy President erred by not compelling the respondent to produce this material.[8] Even assuming there exists a contract of employment between Ms Kent and the respondent, we are not persuaded that an arguable appealable error arises. The Deputy President was required to resolve the factual contest between the parties about the effective dismissal date so as to identify when the 21-day lodgement period for making the application concluded (and therefore, whether the application was filed out of time).
To inform himself, the Deputy President issued the respondent with an order for the production of certain documents on 15 April 2024. It is apparent from [3]-[32] of the decision that the Deputy President considered this material in detail, together with the evidence of the parties as to their respective conduct, and made a finding as to the date Ms Kent’s dismissal took effect. While Ms Kent argues that the 10 January 2024 dismissal date determined by the Deputy President is “incorrect,”[9] no arguable error is apparent in relation to this analysis noting, amongst other matters, that Ms Kent did not perform any further shifts after this date.
It follows that we do not consider it to be arguable that Ms Kent has been denied the opportunity for a fair hearing or otherwise disadvantaged in relation to this issue, as contended. Ms Kent’s arguments that she felt confused by the events of 10 January 2024, including because she did not receive written notice of termination, were taken into account by the Deputy President.[10]
To the extent that Ms Kent’s concerns involve the question of whether she was entitled to a payment in lieu of notice following her dismissal, we observe that this was not the subject matter of the decision, and it remains open to Ms Kent to pursue this matter with the respondent, in a court of competent jurisdiction, or with the Fair Work Ombudsman.
By appeal ground (1), Ms Kent contends that the Deputy President gave insufficient weight to the merit of her substantive application.[11] We do not consider this contention to be arguable. As the Full Bench observed in Snyder v Helena College Council, Inc t/as Helena College,[12] the Commission is unable to make findings on contested matters without hearing the evidence. Accordingly, the merits will typically be a “neutral consideration”[13] in the assessment of whether to grant an extension of time. The Deputy President’s approach to the merits consideration and the conclusion reached discloses no arguable error on appeal.
Further, while not specifically advanced as an appeal ground, Ms Kent submits that the state of her health is an exceptional circumstance that should have been taken into consideration.[14] However, it is apparent from the decision that the Deputy President did take Ms Kent’s health, including her hospital attendance, into account in his consideration of the delay. We agree with the Deputy President’s finding that the evidence produced by Ms Kent in relation to this matter did not demonstrate that she was unable to file her application within time or on an earlier date. No arguable appealable error arises.
Appeal ground (2) contends that the appeal is in the public interest. We are not persuaded, for the purposes of s 604(2) of the Act, that the appeal attracts the public interest. The appeal does not raise any genuine issue of law, principle or wider application.
Order and disposition
For the reasons given, an arguable case has not been advanced that the decision was attended by appealable error. Nor are we satisfied that the appeal attracts the public interest. Accordingly, permission to appeal is refused.
DEPUTY PRESIDENT
Matter determined on the papers
[1] [2024] FWC 1039
[2] PR773748
[3] O’Sullivan v Farrer (1989) 168 CLR 210 at 216-217 per Mason CJ, Brennan, Dawson and Gaudron JJ: applied in Hogan v Hinch (2011) 243 CLR 506 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]
[4] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343; 197 IR 266 at [24]-[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) 192 FCR 178; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663; 241 IR 177 at [28]
[5] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343, 197 IR 266 at [24]-[27]
[6] Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]
[7] Appeal Book 3
[8] Appeal Book 5
[9] Appeal Book 3
[10] Decision at [32] and [41]
[11] Appeal Book 4
[12] Snyder v Helena College Council, Inc. t/as Helena College[2019] FWCFB 815
[13] Ibid at [39]
[14] Appeal Book 4
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