Ms Eva Elisabeth Johansson v Edge Early Learning Administration Pty Limited
[2024] FWCFB 426
•8 NOVEMBER 2024
[2024] FWCFB 426 FAIR WORK COMMISSION
DECISION Fair Work Act 2009
s.604 - Appeal of decisions
Ms Eva Elisabeth Johansson
vEdge Early Learning Administration Pty Limited
(C2024/3811)
VICE PRESIDENT GIBIAN
DEPUTY PRESIDENT EASTON
DEPUTY PRESIDENT GRAYSONSYDNEY, 8 NOVEMBER 2024
Appeal against decision [2024] FWC 1322 of Commissioner Hunt at Brisbane on 20 May 2024 in matter number C2023/6517 – application under s 365 of the Fair Work Act 2009 (Cth) – application for the Commission to deal with a general protections dispute involving dismissal – application made less than one day out of time – Commissioner held that there were no exceptional circumstances justifying a further period being allowed to make the application – whether error in decision refusing to extend time to make the application – whether denial of procedural fairness by refusing application to cross-examine various persons – whether the Commissioner made erroneous factual findings – no arguable case that the decision was attended by appealable error – permission to appeal refused. ?
Introduction
[1] Ms Eva Elisabeth Johansson (the appellant) has lodged an appeal under s.604 of the Fair Work Act 2009 (Cth) (the Act), for which permission is required, from a decision made by Commissioner Hunt on 20 May 2024. The decision of the Commissioner refused the appellant an extension of time to make an application under s.365 of the Act. For the reasons outlined below, we have decided to refuse permission to appeal.
[2] The appellant worked as an Assistant Educator for Edge Early Learning Administration Pty Limited (respondent) from on or around 1 August 2023 until she was dismissed on 29 September 2023. Prior to her dismissal, the appellant was issued with correspondence which alleged that she had grabbed a child by the wrist (the Allegation) on 22 September 2023 and invited her to attend a meeting in relation to the Allegation. On 29 September 2023 the appellant attended a meeting with representatives of the respondent and was verbally advised that she had been dismissed. Shortly after that meeting the respondent sent correspondence to the appellant confirming her dismissal. At all stages, including before the Full Bench, the appellant vehemently denied engaging in the conduct described in the Allegation.
Decision under Appeal
[3] The decision records that the appellant had been dismissed on 29 September 2023 and had made an application pursuant to s.365 of the Act to deal with a General Protections dispute involving dismissal at 12.06 am on 21 October 2023. The appellant’s application needed to be filed by 20 October 2023 and was filed six minutes outside of the 21-day statutory timeframe prescribed by s.366(1) of the Act.
[4] The Commissioner set out the appellant’s evidence and submissions over 34 paragraphs. The Commissioner referred to the following:
(a)The appellant’s background, including her move from Sweden, a complaint she made to the Australian Financial Complaint Authority (AFCA) concerning fraudulent conduct of a third party in relation to her home loan, and various sensitive matters relating to the appellant’s circumstances;[1]
(b)The process leading up to her dismissal, including the correspondence she received, her distress at the Allegation and the dismissal meeting on 29 September 2023,
(c)Although the appellant had made attempts to obtain new employment, including on 29 September, it had been extremely difficult for the appellant to find employment;
(d)The appellant considered that she was not dismissed until after 29 September 2023;
(e)The appellant had investigated bringing the application from 9 October 2023, and that the appellant was aware that she had ongoing IT issues;[2]
(f)The distress, depression and financial difficulties that the appellant experienced had made it more difficult for her to file her application on time;
(g)The appellant’s activities on 20 October 2023 including making a finding that the appellant was evasive when stating that she had been working on the Application ‘pretty much the whole day’, and that the delay in filing the application arose from issues uploading her documents;
(h)The appellant had repeatedly disputed her dismissal;
(i)That there was no prejudice to the employer caused by her short delay in filing; and,
(j)The merits of the appellant’s application, including that the CCTV footage referred to by the respondent did not support the Allegation, Ms Johannson’s concerns that she had not been provided procedural fairness during the disciplinary process, that the allegation had been made by a Ms Chapman who was new to the respondent’s business and disliked the appellant; and that the appellant considered she had raised valid complaints during her employment and felt she was considered difficult by the respondent as a result.
[5] The Commissioner then proceeded to set out the submissions of the respondent over 14 paragraphs. The Commissioner referred to the following:
(a)The appellant had failed to demonstrate that there were any exceptional circumstances that would warrant an extension of time and that the application should be dismissed;
(b)That the onus of proof was on the appellant and that the test of ‘exceptional circumstances’ is a high hurdle for an applicant to satisfy;
(c)The appellant had not filed any medical material regarding any diagnosis of trauma, anxiety or depression, and that based on the respondent’s formal dealings with the appellant regarding her dismissal prior to filing her application, the appellant was capable of submitting her application in time but failed to do so;
(d)The appellant’s correspondence in disputing her dismissal deflected her conduct, gave various accounts of various other alleged incidents and did not provide any reflective insight in relation to her conduct;
(e)The appellant was afforded procedural fairness in the disciplinary process; and
(f)The appellant’s dismissal was as a result of alleged inappropriate and unacceptable behaviour and had not been associated with any workplace rights exercised by the appellant.
[6] The Commissioner then proceeded to consider whether to allow a further period for the appellant’s application to be made, having regard to the factors in s.366(2) of the Act.
[7] In relation to s 366(2)(a), the Commissioner considered the appellant’s evidence that she was under considerable stress but noted that no medical evidence of incapacity had been relied upon. Further, the appellant had frequently communicated (including post-dismissal) with the Commission, library employees and the respondent that she is not mentally disturbed and does not have any serious mental issues. The Commissioner considered the appellant’s evidence that she preferred to see alternative health providers rather than traditional medical practitioners. However, she noted that no evidence was filed that demonstrated that the appellant had seen any form of health provider during the period 29 September 2023 to 20 October 2023. The Commissioner formed a view that the appellant was not hampered by any debilitating condition during the post-dismissal period, having had regard to the activities of the appellant. These activities included looking for and being interviewed for alternative employment, attempting to sell her home, visiting multiple libraries, emailing the respondent a five-page letter of complaint, seeking counsel from a trusted source and ordering products online.
[8] The Commissioner had regard to the evidence of the appellant regarding her unreliable home internet service, finding that she left herself around 3.5 hours to download, complete and file the necessary forms with the Commission. The Commissioner found that there was no evidence that the appellant sent the lodgement email before midnight and, in any event, ought to have known that it would take some time to transmit a reasonably sized email, including numerous PDF attachments, over her mobile phone internet connection. Ultimately, the Commissioner did not accept that the evidence on these matters provided a satisfactory explanation for the delay, finding that the delay was of the appellant’s own making and that filing the application within time had been within the appellant’s ability and capacity. The reasons for the delay were found not to support an extension of time.
[9] In relation to s 366(2)(b) the Commissioner accepted that the appellant had repeatedly disputed her dismissal. This factor was held to support an extension of time. The Commissioner was satisfied for the purposes of s 366(2)(c) that there would be little, if any, prejudice to the employer and that this factor also supported an extension of time.
[10] As to the merits of the appellant’s substantive application, the Commissioner noted that when assessing merits pursuant to s.366(2)(d), it is ‘not appropriate for the Commission to resolve contested issues of fact going to the ultimate merits’ of the substantive application’.[3] The Commissioner found that the appellant could have brought a support person to the 29 September meeting or requested more time to secure one. The Commissioner also held that the letter of 28 September 2023 did not contain a vague allegation, that the appellant was shown footage during the meeting of 29 September 2023 and that the appellant was dismissive of the Allegation. The decision records that the appellant was dismissed in the morning of 29 September 2023 having been employed for approximately eight weeks. Importantly, the Commissioner stated that she could not determine whether the appellant had engaged in the conduct the subject of the Allegation as the Commissioner had neither seen the CCTV footage of the incident, nor heard evidence from employees of the respondent. The Commissioner then held that there was not much merit to the appellant’s application. Finally, the Commissioner referred to the appellant’s request that the Commission order the attendance of 11 former colleagues to give evidence before the Commission and be cross-examined, and her finding that it would be inappropriate to issue the requested orders.
[11] The Commissioner was not satisfied that the consideration in s.366(2)(d) weighed in favour of the grant of an extension of time. The Commissioner also found the consideration of fairness in s.366(2)(e) to be a neutral matter.
[12] The Commissioner concluded that there were no exceptional circumstances such as to exercise her discretion to extend time and dismissed the appellant’s application.
Grounds of appeal
[13] On appeal, the appellant submitted that the Commissioner should have found that there were exceptional circumstances and should have granted her an extension of time. The appellant’s submissions are discursive and contain numerous contentions concerning the decision at first instance. The submissions do not clearly identify specific appeal grounds. However, the basis for the appeal seems primarily that the Commissioner made the wrong decision at the end of the decision-making process because the Commissioner did not take into account all of the appellant’s evidence, and that the appellant was denied procedural fairness during the proceedings before the Commissioner.
[14] It seems that the appellant does not contend that the Commissioner’s findings with respect to ss.366(2)(c) and (e) were erroneous. With respect to s.366(2)(b), the appellant contends that the Commissioner’s characterisation of the email sent by the appellant on 9 October 2023 as a ‘complaint’ was not correct. However, noting that the Commissioner’s finding in relation to s.366(2)(b) was in the appellant’s favour, we do not understand this submission to be that the ultimate finding was erroneous.
[15] Noting the above, the appellant’s grounds of appeal can be expressed as follows:
1.The appellant was denied procedural fairness by not being provided with leave to cross-examine the respondent’s employees, and/or the Commissioner erred either by finding that the appellant had engaged in misconduct, and/or by failing to properly consider the merits of the appellant’s case;
2.The Commissioner made errors of fact in relation to the:
i.Date of the appellant’s termination;
ii.Date and nature of a determination made by AFCA; and,
iii.Finding that the appellant had emailed a 5-page ‘letter of complaint’ to the respondent;
3.The Commissioner failed to take into account alleged ‘unlawful action’ by the respondent, which the appellant says is a relevant consideration;
4.The decision of the Commissioner either made an error of fact or failed to take into account a relevant consideration in relation to findings made as to the timing and duration of actions taken by the appellant to lodge her application; and
5.The Commissioner erred by granting permission for the respondent to be legally represented.
Submissions on Appeal
Appeal Ground 1 - Denial of procedural fairness; erroneous finding that the appellant engaged in misconduct; failure to properly consider the merits of the appellant’s case
Appellant’s submissions
[16] This ground of appeal appears to relate, broadly, to the basis on which the Commissioner made her findings in relation to the merits of the appellant’s case. The appellant submits that the Commissioner erred by failing to properly assess the merits of the appellant’s case. At least in part, this submission is based on an argument that, in the Commissioner’s selection and consideration of material, she had acted in a manner that was not fair and just. It was also said that the Commissioner had ‘taken sides with the respondent and put much weight to the respondent’s submissions without the respondent providing evidence of witness statements’. The appellant submits that the Commissioner mistook important facts and based her decision on assumptions and her own opinion as opposed to the facts disclosed by the appellant’s evidence. The appellant claimed that the Commissioner wrongly found that the Appellant had been dismissive of the Allegation at the meeting on 29 September. She also submits that the respondent made submissions without evidence, including referring to CCTV footage that was said to be relevant to the Allegation, and that the submissions made by the respondent did not address the merits of the appellant’s application. The appellant submits that the respondent has not provided any evidence that the appellant was provided with procedural fairness in the disciplinary process. The appellant submits that, in doing so, the Commissioner ignored the appellant’s evidence about what occurred on the day of 29 September 2023.
[17] The appellant submits that she was denied procedural fairness because she was not allowed to cross-examine employees of the respondent at the hearing. The appellant asked the Commissioner to make an order that 11 employees of the respondent attend to give evidence. The appellant argued that some of the documents attached to the respondent’s Form F8A were not accurately dated or properly signed/attested to by their authors, that some documents were fabricated or otherwise false, and that the attendance of these employees was required so that the appellant could cross-examine these employees on the truthfulness of the documents and establish that the respondent had engaged in a systematic process to intentionally assassinate the appellant’s character. The Commissioner declined to make the orders sought. During the hearing before the Full Bench, in support of this submission the appellant raised that the respondent submitted its Form F8A on 15 November 2023, which was 20 days after the respondent should have received notification of the appellant’s application and well after the Fair Work Commission Rules 2013 required the filing of a reply. The appellant submitted that this supported her claim that the documents appended to the Form F8A were fabricated. The appellant also submitted that the respondent had not provided these documents to her during her employment and accordingly the appellant was denied procedural fairness during the disciplinary/dismissal process.
[18] The appellant submitted that the decision not to make the order to attend prevented the appellant from establishing the truthfulness of her own case, and from establishing that the respondent had acted dishonestly and unlawfully.
[19] Similarly, the appellant contended that the Commissioner’s conclusion on the merits of the appellant’s application was erroneous.[4] The appellant submitted that the Commissioner’s consideration of the merits could not have been correct without the appellant having been provided the opportunity to test the evidence of the respondent. The appellant submitted that the Commissioner had accepted the respondent’s contentions in relation to her alleged misconduct in the absence of properly tested evidence, and in doing so had fallen into error. Further, the appellant says that the Commissioner misunderstood the appellant’s submission that the meeting request during the disciplinary process was vague.
[20] At the appeal hearing, the appellant relied on Julian Nicolas Jr v Nortask Pty Ltd [2014] FWCFB 1263 (Nicolas v Nortask) at [37] in support of her procedural fairness submissions, and on Qantas Airways Limited v David Dawson [2017] FWCFB 41 (Qantas v Dawson) generally in relation to purported dishonesty by the respondent regarding information and submissions made in the conduct of the matter. The appellant also referred to Wayne Stuart Walker v Mittagong Sands Pty Limited T/A Cowra Quartz [2010] FWA 9440 (Walker v Mittagong Sands) in relation to what the appellant described as an employer obtaining evidence illegally or unlawfully.
Respondent’s submissions
[21] The respondent submitted that the Commissioner did not make any finding that the appellant had engaged in misconduct nor about the merits of the appellant’s general protections claim. Rather, the respondent relies on paragraphs [76] and [80] of the decision, at which the respondent says the Commissioner expressly confirmed she was not required to resolve the contest as to whether the appellant had engaged in serious misconduct. To the extent that the appellant submitted that the Commissioner’s findings on merits were erroneous, the respondent contended that the Commissioner’s findings were correct.
[22] The respondent submitted that the appellant’s claim that she had been dismissed ‘for unknown reason’ but also that she was dismissed in contravention of Part 3-1 of the Act were speculative. The respondent also submitted that the appellant’s claim that she had been dismissed ‘because of’ her making protected complaints or enquiries was inconsistent with the appellant having been offered permanent employment some four weeks after making those complaints or enquiries. The respondent contended that in these circumstances there was little logical connection between the complaints or enquiries and the appellant’s dismissal. When questioned on this by the Commissioner at the hearing at first instance, the appellant had been unable to provide a satisfactory explanation as to their inconsistency. Accordingly, the respondent submitted that the Commissioner’s finding that the application had little merit was not in error.
[23] The respondent submitted that the Commission is not required to conduct a ‘mini trial’ of the merits of a claim when considering an extension of time application. In this context the respondent submitted that the Full Bench ought to exercise caution in reviewing a procedural decision about ordering witnesses to attend a hearing. The respondent submitted that the Commissioner’s decision to dismiss the application for orders to attend was an orthodox exercise of discretion. The respondent says that given the Commission was not seeking to make findings about whether the allegations could be made out, the appellant could not have been and was not denied procedural fairness by the making of this decision. It submitted that the cross-examination sought by the appellant could not have made any material difference to the outcome of the extension of time application.
Appeal Ground 2 - Errors of fact - Date of termination, letter of complaint and AFCA Determination
Appellant’s submissions
[24] The appellant submitted that the Commissioner had erred when she found that the date of the appellant’s dismissal was 29 September 2023. The appellant contended that on 29 September 2023, in response to her receiving what she describes as an unlawful termination letter, she took immediate action to dispute her treatment by the respondent. She submitted that this both represented the exercise of a workplace right and created uncertainty as to whether her termination had been effected. Rather, the appellant submitted that her employment remained on foot as demonstrated by her active Bluecard being linked to the respondent, and that her termination was not effective until at least 9 October 2023, when she received an email which referred to her termination and contained a link to an exit questionnaire. The appellant refers to this exit questionnaire as representing directions from the respondent to provide feedback concerning the circumstances of the end of her employment, which she provided by email on 9 October 2023. Although the appellant does not expressly claim that her employment continued to be on foot between 29 September 2023 and 9 October 2023, we understand this to be the effect of the submissions on this ground of appeal.
[25] The appellant also submitted that the Commissioner made an error of fact in finding that the appellant had emailed a 5-page letter of complaint to the respondent on 9 October 2023. The appellant disputes the characterisation of that email as a ‘complaint’. The appellant submits that this is an error of fact because the appellant sent this email to the respondent by way of her response to the exit questionnaire, rather than as a complaint of her own volition.
[26] The appellant also submitted that the Commissioner had made a significant error of fact at [12] of her decision when the Commissioner found that the appellant ‘claimed that in around 2011 she was subject to a fraudulent transaction relating to her home loan.’
[27] The appellant submitted that the correct date, as demonstrated by the evidence was May 2012. It was also said that the AFCA Determination was not as described by the Commissioner and, instead, was that the changes to the Applicant’s home loan were fraudulent and/or in breach of the National Consumer Credit Protection Act 2009. The appellant’s submissions refer to a connection between the activity referred to in the AFCA Determination and an alleged connection between the respondent and the appellant’s previous employer.
Respondent’s submissions
[28] The respondent submitted that the finding of the Commissioner regarding the date of the dismissal was correct and consistent with the appellant’s understanding that she had been terminated on 29 September 2023. The respondent relied on both the documentary evidence (being the letter of termination on 29 September 2023 as well as the appellant’s subsequent emails to the respondent) and the appellant’s oral evidence at hearing.[5] The respondent submitted that there could be no error in fact as to this finding when the appellant’s own evidence had accepted that her employment had been terminated on 29 September 2023.[6] The respondent did not make specific submissions responding to the appellant’s claim that the Commissioner made an error of fact in relation to the email she sent on 9 October 2023 or the AFCA Determination.
Appeal Ground 3- Failure to take into account relevant consideration – ‘Unlawful action’ by the respondent
Appellant’s submissions
[29] The appellant submitted that the Commissioner had ignored alleged unlawful actions undertaken by the respondent, contrary to the evidence that was before the Commissioner at first instance. This ground was not further identified nor were the unlawful actions to which the ground referred.
Respondent’s submissions
[30] The respondent, in its submissions, indicates that it assumes the appellant’s ground refers to the alleged contravention of the General Protections provisions of the Act claimed in the substantive application. The respondent submits that the Commissioner’s finding in the decision that the underlying merits of the application were not to be determined (as described in [10] above) was correct.
Appeal Ground 4 - Error in fact or failure to take into account relevant consideration – Findings in relation to actions taken by appellant to lodge her application
Appellant’s submissions
[31] The appellant submits that the Commissioner’s findings that she had only commenced working on her application forms at the time they were downloaded, which was between 7:29 PM and 8:28 PM on 20 October 2023, was erroneous. The appellant submits that during the hearing at first instance, the appellant repeatedly and honestly responded to questions from both the Commissioner and the respondent’s representative as to when she had commenced working on the application. Her responses were that she had worked on the application for the entirety of the day on 20 October 2023. The appellant also refers to having completed online research and spoken to professionals concerning her application from 9 October 2023 onwards.
[32] Further, the appellant contends that the Commissioner’s findings as to the time that it would have taken the appellant to upload her application forms is incorrect, due to the appellant experiencing internet connection disruptions throughout the evening of 20 October 2023. The appellant submitted that the Commissioner’s description of her as ‘evasive’ in relation to her evidence on this point was unfair and that she had been repeatedly questioned by both the Commissioner and the respondent’s representative without having the exact time at which she downloaded the application forms to hand. The appellant referred to evidence submitted which she says shows that she has been a victim of ongoing IT issues, including viruses and that she has been a victim of hacking by a previous employer. The appellant also submitted that the Commissioner’s conclusion that there were no exceptional circumstances to extend the timeframe for the appellant’s substantive application was inconsistent with the Commissioner’s finding that the respondent would experience little, if any, prejudice by virtue of the short duration of the delay (less than one day).
Respondent’s submissions
[33] The respondent submits that during the hearing at first instance, the appellant was repeatedly asked to provide an explanation as to what had occurred between when the forms were downloaded and the time at which they were filed. The respondent says that the appellant was unable to provide a satisfactory explanation of what had occurred in the intervening period. The respondent submitted that the findings in relation to these issues were correct, particularly in circumstances where the appellant submitted evidence indicating that she was aware of the ongoing issues with her internet connection and that this was not sufficient to explain the delay in the submission of the forms to the Commission.
Appeal Ground 5 - Commissioner erred in granting permission for the respondent to be legally represented
[34] The appellant’s submissions refer to the respondent having been given permission to be represented by a lawyer. The appellant submits that she is from a non-English speaking background, had financial difficulties which prevented her engaging a lawyer and has had no training or experience in law or workplace relations. In these circumstances, the appellant was self-represented and submits that this was both difficult and highly time-consuming. The appellant submits that she objected to the respondent being legally represented on a number of occasions due to the creation of a power imbalance between the appellant and the respondent and that the decision to grant the respondent permission to be represented created an injustice. The appellant says that the respondent is capable of representing itself effectively and that the decision to give permission to be represented was made without considering the appellant’s situation. The respondent did not provide specific written submissions on this point, nor were submissions provided at the appeal hearing concerning the issue.
Further matters
[35] The appellant’s submissions canvass a number of further issues which, while not appearing to be formal grounds of appeal, have been noted by the Full Bench. These may be summarised as submissions that the Commissioner failed to have regard to the following matters:
(a)The respondent’s representative and the respondent’s contact person as identified on the Form F8A did not have any personal knowledge of the circumstances of the appellant’s dismissal;
(b)The respondent’s Form F8A indicated that the respondent objected to the application on the basis that it had been filed one day out of time, which was incorrect (as the length of the delay was seven minutes, not one day, having been filed at 12:06 AM on the 22nd day from the day of the appellant’s dismissal);
(c)What the appellant described as a connection between the respondent and a previous employer, who had been the subject of an application to the Commission by the appellant in 2013;
(d)The respondent having answered ‘Yes’ to a section on the Form F8A dealing with whether the respondent consented to participate in a conference before the Commission (with the section stating it was only to be completed if the form was to be filed in response to a Form F8C – General protections application not involving dismissal) and a subsequent settlement offer;
(e)The Form F53 filed on behalf of the respondent by their representative included the contact person for the respondent and had not been completed at part 4 dealing with permission to be represented in conference[s] or hearing[s]; and,
(f)The Form F8A had been filed more than 7 days from the date that the appellant’s application had been provided to the respondent.
[36] Additionally, the appeal grounds raised in the appellant’s Notice of Appeal claim that the Commissioner failed to refer to evidence of the complaint made on 9 October 2023 and the appellant’s obligations as a mandatory reporter.
[37] The relevance of the points above has not been further identified by the appellant in relation to the appeal at large, and the respondent did not provide submissions on these points.
Public Interest
[38] The appellant submitted that the appeal was in the public interest because she has been subjected to ongoing false accusations since employment with her previous employer (as distinct from the respondent in this application) came to an end. This has resulted in two applications to the Commission. One of these applications resolved by way of agreement subject to a deed of release, which the appellant says has been breached in the circumstances of this application by a current employee of the respondent. The alleged breach of any deed with a former employer has not been further particularised.
[39] The balance of the appellant’s public interest grounds largely restate the grounds of the appeal itself. These include that the appellant was denied procedural fairness by not being able to cross-examine employees of the respondent and that the Commissioner acted favourably towards the respondent by describing false and unsubstantiated accusations against the appellant. The appellant also says that the Commissioner ignored a purported connection between the respondent and the appellant’s prior employer and that the seriousness of the circumstances of the appellant were not taken into account.
[40] In respect of both categories of submissions, the appellant did not otherwise identify how the matters raised matters of public interest.
[41] The respondent did not make specific submissions addressing the public interest.
Consideration
[42] An appeal under s 604 of the Act is an appeal by way of rehearing and the Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision maker.[7] There is no right of appeal. An appeal may only be made with the permission of the Commission.
[43] 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] 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.[9]
[44] Subsection 604(2) requires the Commission 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.[10] The public interest is not satisfied simply by the identification of error[11], or a preference for a different result.[12] 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...[13]
[45] Otherwise, the Commission has a broad discretion as to whether permission to appeal should be granted.[14] 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 so as to warrant its reconsideration, and that substantial injustice may result if leave is refused.[15]
Appeal Ground 1
[46] At the hearing before the Commissioner, and in the appeal proceedings, the appellant focused on the reason for her dismissal and various ways in which she said that her dismissal was unlawful or unfair. The appellant was employed as an Assistant Educator in a childcare centre and was accused of misconduct towards a child. The appellant’s focus on the alleged misconduct is understandable because the Allegation put against her was a serious one and because she vehemently denied engaging in any misconduct.
[47] In the appeal proceedings, the appellant made extensive submissions about events that occurred during her employment, the allegation that was made against her, and various procedural fairness concerns that were said to have undermined the Commissioner’s consideration of the alleged misconduct and the merits of the application. The appellant’s submissions focused almost exclusively on the merits of her claim which she contends were ignored in the decision at first instance.
[48] The appellant is aggrieved at the fact that none of the respondent’s employees who had provided statements to the respondent about the alleged misconduct were made available for cross examination at the hearing of the application for an extension of time. The appellant had sought an order from the Commissioner requiring these employees to attend, however the Commissioner declined to make such an order. The appellant says that the opportunity to cross-examine these employees was directly relevant to the merits of the application, because it would have established that the documents appended to the Form F8A were false.
[49] An order for attendance may only be granted in circumstances where the attendance by the individuals sought would assist the Commission in the resolution of the matter before it. Further, issuing an order to attend may not be appropriate in circumstances where a person who would be required to attend by the issuing of the order is not likely to be able to give evidence of apparent relevance and/or the evidence they would give would relate to agreed or uncontested facts.[16] Orders to attend are not to be issued where the evidence capable of being given by an individual is of limited probative value to the Commission.[17] Any evidence given by the individuals who the appellant wished to appear at the hearing could only relate to the merits of the appellant’s substantive application.
[50] The Commissioner was ultimately considering whether it was appropriate to inform herself in relation to the extension of time application by requiring various persons associated with the respondent to attend the Commission for cross-examination.[18] In doing so, the Commissioner was exercising a broad discretionary power.[19] In our opinion, no arguable error has been identified in the discretionary decision of the Commissioner not to require persons associated with the respondent to appear before the Commission to be cross-examined.
[51] While the merits of the substantive application form a part of the consideration of whether to grant an extension of time under s 366(2)(d), the Commission does not embark on a detailed consideration of the substantive case.[20] There are cogent reasons why the Commission should not receive evidence or make findings on contested issues of fact at this stage of the proceedings, most notably because parties should not have to present their evidentiary case twice.[21] This is especially important when considering the merits of a general protections claim as the role of the Commission in dealing with these applications is ordinarily limited to conciliation.[22]
[52] The respondent made a forensic decision to only rely on documents and not on sworn witness testimony in support of its jurisdictional objection. We understand that the appellant contests a number of factual matters referred to by the respondent in its Form F8A response and also the respondent’s position that she engaged in misconduct. However, it is apparent from the decision that the Commissioner also understood these matters to be contested, and properly formed a view that at the interlocutory stage of the proceedings, she should not determine the factual contests between the parties, nor the merits of the application. This is because the Commissioner was not dealing with the appellant’s substantive application. Rather, the hearing was convened for the purposes of determining a threshold issue, being whether to grant the appellant an extension of time.
[53] Quite properly, the Commissioner did not make any findings that the appellant had engaged in the alleged misconduct. At [76] of her decision the Commissioner said:
It is well established that “it will not be appropriate for the Commission to resolve contested issues of fact going to the ultimate merits for the purposes of taking account of the matter in s.366(2)(d).”
[54] This approach by the Commissioner was both orthodox and correct. Whilst the annexures to the Form F8A filed by the respondent were admitted into evidence, the Commissioner indicated during the hearing at first instance that she would ascribe to them minimal or relevant weight. That is what the Commissioner proceeded to do in her decision. The Commissioner’s decision summarised the respondent’s evidence at [79] and specifically noted that the Commissioner had not seen the CCTV footage to which the respondent’s evidence referred. The Commissioner made her findings in relation to the merits of the application on the strength of the links between the protected attributes claimed by the appellant, and her dismissal at [80]:
Not having seen the CCTV footage of the incident, nor heard evidence of the many employees who complained to the respondent about her conduct, I am unable to say whether Ms Johansson did mishandle the child involved. I do not consider, however, that there is much merit to Ms Johansson’s application where she has argued that adverse action has been taken against her, by dismissing her, because she has a s.340 workplace right protection, nor s.343 coercion, as completed by Ms Johansson in her application.
[55] The Commissioner concluded her consideration of the alleged misconduct and the merits of the appellant’s application (for the purposes of the extension of time application) as follows:
I do not consider, on the information before the Commission the merits in Ms Johansson’s application to support the granting of an extension of time.
[56] The appellant submits that the Commissioner did not act in a fair and just manner in the selection and consideration of material before the Commission at the time of the decision, and that the Commissioner took sides with the respondent and accepted their submissions in the absence of witness statements. The Commissioner set out the evidence and submissions of the appellant at great length in her decision and then proceeded to consider them in an appropriate manner given the interlocutory stage of the proceedings.
[57] Having had regard to these matters, we do not consider that an arguable case of appealable error in the Commissioner’s approach has been identified.
Appeal Ground 2
[58] The appellant argues that the Commissioner made three errors of fact in relation to the date of her dismissal, the characterisation of the letter sent on 9 October 2023 and the date and characterisation of the AFCA Complaint.
[59] The Commissioner’s analysis of the effective date of the dismissal is set out in her decision at [60]. She noted the appellant’s submissions that she had been employed following 29 September at [8], and her evidence concerning this point at [21] - [22] and [24] of the decision. We consider, based on the evidence before the Commission,[23] that the Commissioner’s finding that the date of the dismissal was 29 September 2023 was correct. The subsequent dispute and correspondence by the appellant was a relevant factor in the Commissioner’s consideration of s 366(2)(b). But this did not undermine the evidence nor the Commissioner’s finding that the dismissal of the appellant was effective on 29 September 2023.
[60] The appellant also disputes the Commissioner’s characterisation at [67] of the 5-page letter emailed by the appellant to the respondent on 9 October 2023 as a ‘complaint’. The document detailed concerns about unlawful action and breaches of procedural fairness. A fair reading of the Commissioner’s decision indicates that the Commissioner was simply outlining and considering the activity of the appellant after the dismissal and before 20 October 2023. The preparation and sending of the 5-page letter was properly part of that assessment, no matter how it was described by the Commissioner. The characterisation of the letter as a ‘complaint’ is of no significance.
[61] With respect to the contention identified at [26] above, it is accepted that the correct date, as demonstrated by the evidence was May 2012, and that the AFCA Determination was imperfectly described by the Commissioner. However, the discrepancy arising from the Commissioner’s reference to ‘2011’ and her characterisation of the AFCA Determination is not an error which could have had any bearing on the decision to refuse to extend time. In our view, no reasonable argument could be made that this error materially bore upon the Commissioner’s consideration of the criteria under s 366(2) of the Act or the outcome of the decision.
Appeal Ground 3
[62] The appellant submits that the Commissioner erred by failing to determine that the appellant had been subjected to ‘unlawful action’ by the respondent. It is not clear from the appellant’s submissions what ‘unlawful actions’ are being referred to. To the extent that the reference to ‘unlawful actions’ is a reference to the alleged contravention of Part 3-1 of the Act, it was appropriate that the Commissioner only considered the merits of the application in a preliminary manner in dealing with the application for an extension of time. To have determined that matter would have amounted to a determination of the appellant’s substantive claim that she had been dismissed in breach of Part 3-1 of the Act. That is a matter that the Commission is not able to determine (absent consent of the parties) and, in any event, should not be subject of final determination in the context of the application for an extension of time. We are not persuaded that there is any arguable appealable error in the approach adopted.
Appeal Ground 4
[63] The appellant submits that the Commissioner’s findings that she had only commenced working on her application forms at the time they were downloaded, which was between 7:29 PM and 8:28 PM on 20 October 2023, was erroneous and that the evidence that she had given had been truthful. The Commissioner’s findings in relation to this matter are set out at paragraphs [26] and [68] – [70] of the Decision as follows:
[26] During the hearing, I asked Ms Johansson what she was doing on 20 October 2023, and why she had left it until close to and then after midnight to make her application? Ms Johansson was evasive, at one point suggesting that she was working on the document ‘pretty much the whole day’. She could not assist as to whether it was around 6:00pm or 10:00pm or 11:00pm when she logged on and accessed the Commission’s forms.
…
[68] When it came to actually bringing the application, Ms Johansson knew that she did not have a reliable source of internet at home, relying on her mobile phone internet. She left herself around 3.5 hours download the Commission’s forms, complete them and send them to the Commission.
[69] The Form F8 was not completed and saved as a PDF document until 11:59pm or thereabouts. There were numerous attachments to the email Ms Johansson wished to attach to make the application. Ms Johansson ought to have known that it would take some time to transmit a reasonable sized email, including attachments over her mobile phone internet connection. There is no evidence that Ms Johansson actually pressed send on the email before midnight, or she did so shortly thereafter. Even if the form was completed and the email pre- drafted, Ms Johansson would still needed to have attached eight PDF documents from her computer before sending the email over an unreliable internet connection.
[70] Having regard to the known technological issues experienced by her, and leaving the lodging of her application literally until the last minute, I consider that the delay in bringing the application is entirely of Ms Johansson’s making and her failure to complete the application within time which was within her ability and her capacity with all other matters she was engaged in during the 21-day period.
[64] The decision makes clear at [26] that the Commissioner did not accept the evidence that the appellant had been working on the application all day. A review of the transcript of the hearing before the Commissioner demonstrates that the appellant avoided answering this question until ultimately saying that she had spent the day working on the application. On appeal, the factual findings made by a member at first instance should generally stand, unless it can be shown that the member has failed to use the advantage of the hearing of the evidence or has acted on evidence which was inconsistent with facts incontrovertibly established by the evidence or which was ‘glaringly improbable’[24] at least where the findings are likely to have been influenced by the decision-maker having directly seen and heard the evidence being given.[25] An appeal to a Full Bench exists for the correction of error. It is not a hearing de novo. There are natural limitations that apply to the hearing of an appeal and the member at first instance is usually in a better position than the appeal bench to make findings of fact.[26]
[65] The findings of the Commissioner were open to her and not ‘glaringly improbable’. The appellant had known internet and IT issues, had sought professional advice much earlier, yet had commenced work on her application on the final day for it to be filed and had left the downloading, finalising and sending of the requisite forms and attachments until the last hours and minutes of the statutory time limit. Whilst we appreciate that the appellant filed her application only minutes outside of the 21-day time limit, those circumstances required the Commissioner to consider and make findings as to, among other things, the reason for the delay. In our opinion, the Commission made relevant factual findings and considered those findings as part of an overall discretionary assessment of whether exceptional circumstances existed so as to warrant further time being allowed for the appellant to make her application.
[66] The appellant also submits that it was not open to find that there were no exceptional circumstances in circumstances where the respondent would experience little, if any, prejudice by virtue of the short duration of the delay. However, the consideration of prejudice is but one of the criteria to be examined pursuant to s.366(2)(a) –(e) of the Act. The Commissioner was required to consider each of these criteria, individually and collectively, in order to determine whether exceptional circumstances exist that would warrant a grant of further time to file the application. That is what the Commissioner did, and we are not persuaded that there is any arguable appealable error in the approach adopted.
Appeal Ground 5
[67] The appellant seeks to challenge the Commissioner’s decision to grant the respondent permission to be legally represented. The decision to grant permission for the respondent to be represented by a lawyer under s 596 of the Act involved an exercise of discretion.
[68] With respect to the Commissioner’s decision to grant permission to be represented, decisions of this nature should not be disturbed by a Full Bench in the absence of a demonstrable error such as the denial of natural justice.[27] The construction of the discretionary power to grant permission pursuant to s.596 was discussed by Flick J in Warrell v Walton [2013] FCA 291 at [24] to [25], as follows:
A decision to grant or refuse “permission” for a party to be represented by “a lawyer” pursuant to s 596 cannot be properly characterised as a mere procedural decision. It is a decision which may fundamentally change the dynamics and manner in which a hearing is conducted. It is apparent from the very terms of s 596 that a party “in a matter before FWA” must normally appear on his own behalf. That normal position may only be departed from where an application for permission has been made and resolved in accordance with law, namely where only one or other of the requirements imposed by s 596(2) have been taken into account and considered. The constraints imposed by s 596(2) upon the discretionary power to grant permission reinforce the legislative intent that the granting of permission is far from a mere “formal” act to be acceded to upon the mere making of a request. Even if a request for representation is made, permission may be granted “only if” one or other of the requirements in s 596(2) is satisfied. Even if one or other of those requirements is satisfied, the satisfaction of any requirement is but the condition precedent to the subsequence exercise of the discretion conferred by s 596(2): ie, “FWA may grant permission …”. The satisfaction of any of the requirements set forth in s 596(2)(a)–(c) thus need not of itself dictate that the discretion is automatically to be exercised in favour of granting “permission”.
The appearance of lawyers to represent the interests of parties to a hearing runs the very real risk that what was intended by the legislature to be an informal procedure will be burdened by unnecessary formality. The legislative desire for informality and a predisposition to parties not being represented by lawyers emerges, if not from the terms of s 596, from the terms of the Explanatory Memorandum to the Fair Work Bill 2008 …
[69] The respondent sought permission to be represented in the proceedings before the Commissioner. The appellant submits that she repeatedly opposed the grant of permission on the grounds of injustice and the power imbalance between the parties.[28] The Commissioner advised the parties of her decision to grant permission on 22 December 2023. That decision was made on the basis that the Commissioner had taken into account and formed the view that the requirement in s.596(2)(a) was satisfied and that she should exercise her discretion to grant permission.
[70] Whilst not required to give reasons, she provided short written reasons for her decision. Those reasons disclose that the Commissioner’s decision was not perfunctory nor a mere ‘formal’ act to be acceded to upon the making of the request. The Commissioner had regard to the impact that a grant would have had on the appellant and how the hearing would be handled by the Commission so as to ensure procedural fairness to the appellant. The hearing then proceeded in a procedurally fair way despite the respondent being granted permission to be represented. We have not identified any arguable case of appealable error in the findings of the Commissioner, or the exercise of the Commissioner’s discretion and we do not consider that there was any denial of natural justice in relation to the decision to grant permission.
Additional matters raised in submissions
[71] The Full Bench acknowledges the appellant’s reliance at the appeal hearing on Qantas v Dawson and Walker v Mittagong Sands. The former concerns a failure by a Commission member to take into account the dishonesty of the respondent as disclosed by inconsistencies in witness evidence. Given the respondent in this case did not provide witness evidence, and in circumstances where the relevance of this authority has not been more clearly identified, we consider that it is unable to support the appeal. As to the latter, which concerned illegally obtained evidence relied upon to establish a valid reason for dismissal (in this case, seeking to prove that an employee unlawfully stole a drum of oil from their employer) we make the same observation and conclusion. The appellant has not identified the evidence which she claims was illegally obtained.
[72] The appellant raises other concerns in her written outline of submissions that are not clearly addressed in her appeal notice and contends that the decision at first instance ignored the various matters outlined at [35] to [36] above. The appellant has not further particularised or identified the aspects of the Commissioner’s decision that are said to have amounted to appealable error or demonstrate public interest in overturning the decision. The appellant has not connected these concerns to any alleged error in the decision, and accordingly we are not persuaded that they demonstrate an arguable case of appealable error in the decision.
Conclusion
[73] For the reasons given, we do not consider that an arguable case has been advanced that the decision was attended by appealable error. Nor are we satisfied that the appeal attracts the public interest. The appeal does not raise any genuine issue of law, principle or wider application. It follows that we must refuse permission to appeal.
[74] The Full Bench orders that permission to appeal is refused.
VICE PRESIDENT
Appearances:
Ms E Johansson, Appellant.
Mr C Massy, of counsel, instructed by Cooper Grace Ward for the RespondentHearing details:
Sydney.
2024.
16 August 2024.[1] The appellant’s evidence was that she had been a victim of workplace bullying, identity theft, stalking, organised crime, abuse, break-ins, the hacking and crashing of her IT equipment. The appellant also gave evidence that she had experienced financial difficulties following her dismissal.
[2] The Commissioner referenced a previous application to the Commission made by the appellant and noted that metadata for the documents filed demonstrated that the documents were saved between 7.29 PM and 11.58:58 PM on 20 October 2023.
[3] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [36].
[4] Transcript – 16 August 2024 at PN149 – PN172.
[5] See [21] and [60] of the decision at first instance.
[6] Transcript - 18 January 2024 at PN113 – PN142.
[7] This is so because on appeal FWC has the power to receive further evidence, pursuant to s.607(2); see Coal and Allied v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.
[8] Wan v AIRC [2001] FCA 1803, 116 FCR 481 at [30].
[9] Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth[2010] FWAFB 10089, 202 IR 388, [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54, 192 FCR 78, 207 IR 177; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office[2014] FWCFB 1663, 241 IR 177 at [28].
[10]O’Sullivan v Farrer [1989] HCA 61, 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch [2011] HCA 4, 243 CLR 506, [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54, 192 FCR 78, 207 IR 177 at [44]-[46].
[11] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343, 197 IR 266 at [24]-[27].
[12] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343, 197 IR 266 at [26]-[27], Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/ Warkworth[2010] FWAFB 10089, 202 IR 388 at [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54, 192 FCR 78, 207 IR 177; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office[2014] FWCFB 1663, 241 IR 177 at [28].
[13] [2010] FWAFB 5343, 197 IR 266, [27].
[14] Wan v Australian Industrial Relations Commission [2001] FCA 1803; (2001) 116 FCR 481 at [30] (Spender, Kiefel, Dowsett JJ); Ferrymen Pty Ltd v Maritime Union of Australia[2013] FWCFB 8025; (2013) 238 IR 258 at [9]-[12].
[15] Also see CFMEU v Australian Industrial Relations Commission [1998] FCA 1404, 89 FCR 200, 84 IR 314 at 220; and Wan v Australian Industrial Relations Commission [2001] FCA 1803, 116 FCR 481 at [26].
[16] Thomas v Serco Australia Pty Limited[2023] FWC 386 at [9].
[17] Uijland v Airservices Australia[2020] FWC 3613 at [23].
[18] Fair Work Act 2009 (Cth), s 590(1).
[19] Kennedy v Qantas Ground Services[2018] FWCFB 3847 at [23].
[20] Kyvelos v Champion Socks Pty Ltd (2000) Print T2421 at [14].
[21] Long v Keolis Downer T/A Yarra Trams[2018] FWCFB 4109 at [72].
[22] Fair Work Act 2009 (Cth) s.368(1) and (2).
[23] Transcript – 18 January 2024 at PN122, 129, 166; Appeal Book at 318; Exhibit #A1 - Emails 1 of 6 to 6 of 6 with attached documents; Witness statement of Eva Johansson dated 6 December 2023.
[24] See Blagojevic v AGL Macquarie Pty Ltd[2018] FWCFB 4174 at [48] and the decisions at footnote 45 and Australian Education Union v Bendigo Kangan Institute of TAFE[2021] FWCFB 2152 at [38].
[25] Lee v Lee [2019] HCA; 266 CLR 129 at [55] (Bell, Gageler, Nettle and Edelman JJ).
[26] Australian Education Union v Bendigo Kangan Institute of TAFE [2021] FWCFB 2152 at [38].
[27] Findley v Diamond Protection Pty Ltd T/A Diamond Protection[2016] FWCFB 1066 at [8].
[28] Appellant’s Outline of Submissions dated 1 August 2024 at [38].
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