Ms Eva Johansson v Avcom Pty Ltd T/A Avcom Staging
[2013] FWCFB 8017
•14 OCTOBER 2013
[2013] FWCFB 8017 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
Avcom Pty Ltd T/A Avcom Staging
(C2013/5185)
VICE PRESIDENT CATANZARITI | SYDNEY, 14 OCTOBER 2013 |
Appeal against decision [[2013] FWC 4159] of Senior Deputy President Richards at Brisbane on 27 June 2013 in matter number U2013/7279.
[1] This is an appeal by Eva Elisabeth Johansson (Appellant) against a decision of Senior Deputy President Richards in relation to an application made under s.394 of the Fair Work Act 2009 (the Act).
[2] The Appellant’s employment with Avcom Pty Ltd T/A Avcom Staging (Respondent) was terminated on 29 November 2012, as her position had become redundant (although the question of whether that redundancy was genuine is contested). The appellant filed an application for an unfair dismissal remedy with the Fair Work Commission (the Commission) on 7 March 2013. At the time of the Appellant’s termination, applications under s.394 of the Act were required to be filed within 14 days of the date the dismissal took effect or within such further period as the Commission may allow. Accordingly, the Appellant’s unfair dismissal remedy application was filed some 84 days out of time.
[3] In the decision below, his Honour declined to exercise his discretion to extend the time for filing the application and it is against that decision that the Appellant has filed this appeal.
Background
[4] In his decision, his Honour noted that there was no dispute between the parties as to the chronology of events. That chronology, as summarised by his Honour, is as follows:
● In June 2012, the Appellant had grievances in relation to her employment with the Respondent. The Appellant had received a warning letter from the Respondent in relation to her manner in the workplace and its perceived impact on other employees.
● In July 2012, the Appellant contacted the Queensland Working Women’s Service about her circumstances in the workplace.
● Several weeks before her termination took effect, the appellant made an application to Workplace Health and Safety Queensland (WHSQ) due to conduct in the workplace, which she perceives to be bullying and harassment in contravention of work health and safety laws.
● On 29 November 2012, the Appellant’s termination took effect.
● In December 2012, the Appellant conducted research into applications to the Commission, including investigation on the Commission’s website and telephone enquiries to the Commission. The Appellant’s evidence was that from December 2012 she was aware that issues could arise from having applications in two different jurisdictions at the same time.
● During the period from December 2012 to January 2013, the Appellant monitored the progress of the application made to WHSQ.
● By mid January 2013, it was indicated to the Appellant that the investigation had concluded, though the Appellant did not have access to the completed investigation report until late February 2013.
● The Appellant was “disappointed” (a term used by his Honour, which the Appellant took issue with at the hearing of the appeal) with the outcome of the WHSQ investigation.
● On or about 4 March 2013, the Appellant attended a community legal centre, seeking advice as to whether she could seek a review of the WHSQ result and whether she could make an application to the Commission in relation to her termination.
● The Appellant filed her application with the Commission on 7 March 2013.
[5] It was submitted by the Appellant, at first instance, that the reason for the delay in filing the unfair dismissal application with the Commission was because she had already filed a complaint with WHSQ and had relied on that to ventilate her concerns following her termination, anticipating that the complaint may result in her reinstatement. Although the Appellant was aware of the jurisdiction of the Commission, having investigated the website and having contacted the Commission by telephone, the Appellant submitted that she was under the impression that she could not have two applications to different regulatory bodies on foot at the same time. The Appellant also noted that she had been suffering from depression for a lengthy period of time and was being medically treated for that condition. The Appellant also claimed that her application was meritorious as the voluminous materials filed with the Commission reveal that her redundancy was not a genuine redundancy but was fabricated to ensure that she was removed from the business because the Respondent thought she was an undesirable employee. Accordingly, it was submitted that time to file the application should be extended.
[6] Having considered the factors outlined in s.394(3) of the Act, and the Appellant’s submissions at first instance, his Honour found that although the Appellant was under some adverse mental health circumstances during the relevant period, her conduct indicated that she was of sufficiently composed mind to make an application to the Commission within time. 1 His Honour held that the delay in the making of the application was attributable not to a lack of understanding about jurisdiction, capacity to access the bureaucracy or mental health issues, but rather due to the Appellant’s judgment about which course was the correct course to remedy her dismissal.2 Further, he noted that because of the Appellant’s concerns regarding her employment since June 2012 and her contact with the Queensland Working Women’s Service, she was poised to question the Respondent’s conduct at the time of the termination.3 Notably, his Honour made no finding on the merits of the application, noting that the merits were a “neutral consideration”.4
[7] Accordingly, his Honour found that there were no exceptional circumstances relating to the Appellant’s failure to lodge her application within time, and that the time to file the application should not be extended.
Submissions
[8] In the appeal, the Appellant submitted that his Honour erred as he had:
● “Mistaken facts and failed to take important material consideration into account”; and
● Not afforded the Appellant procedural fairness.
[9] It was the Appellant’s submission that significant explanations were provided for the delay in filing the application, including that the Appellant did not file the application in time because:
● The Respondent had provided information that the business was in a difficult financial state;
● She was worried that she would not receive a fair reference;
● A claim had been filed with the WHSQ and the Appellant was “aware” that two claims cannot be made for the same matter; and
● WHSQ did not notify the Appellant until February 2013 of its finding that the Respondent had not breached the Work Health and Safety Act 2011.
[10] The Appellant also submitted that his Honour had erred in his summary of the factual background and that he had “made assumptions and speculations instead of considering evidence submitted by the Appellant”. The Appellant took strong objection to his Honour’s finding that the merits were a “neutral consideration” as she was of the view that the evidence filed indicated that the merits were strongly in her favour, particularly in circumstances where the Respondent had not filed any evidence in support of its claim that she was terminated on a “genuine redundancy” basis.
[11] During the hearing of the appeal, the Appellant further substantiated her submission regarding the lack of procedural fairness by submitting that his Honour did not give the Appellant an opportunity to be heard orally at the hearing on each of the factors outlined in s.394(3) and because his Honour allegedly interrupted her if she attempted to discuss factors beyond the reason for the delay. 5 It was the Appellant’s submission that the hearing at first instance fell short of a ‘fair hearing’.
[12] In response, the Respondent submitted that:
● The staff and management of the Respondent did not have any influence over the Appellant’s delay in the filing of her unfair dismissal application;
● The Appellant did not attend work during the notice period of her termination (between 15 and 29 November 2012), and therefore she had ample time to compete an unfair dismissal application;
● Any personal issues existing between the Appellant and her colleagues and managers were completely separate to the reason for making her position redundant; and
● Despite the Appellant’s submissions, her position was made redundant due to a down turn in business which led to multiple redundancies by the Respondent over the past 12 months.
Consideration
[13] In order to grant the Appellant permission to appeal, the Full Bench must be satisfied that it is in the public interest to do so. 6 In GlaxoSmithKline Australia Pty Ltd v Colin Makin7 a Full Bench summarised the concept of public interest in the following terms:
“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...”
[14] In this instance, as best as we can understand it, the Appellant is claiming that it is in the public interest to grant her permission to appeal the decision below as the decision was manifestly unjust, or perhaps, counter intuitive. It was submitted that this was the case because his Honour did not consider the evidence, made errors of fact and did not afford the Appellant procedural fairness.
[15] If the error of the decision maker relied upon by the Appellant is an error of fact, then the Full Bench must be satisfied it is a significant error of fact. 8 It is not enough that the Full Bench would have arrived at a different conclusion to that of the original decision maker; the relevant question is whether the finding made by the decision maker was reasonably open to him or her.
[16] Although it may be said that his Honour did not correctly, or fully, summarise the factual background to the Appellant’s claims, there is nothing in the transcript, the decision, or the Appellant’s submissions on which to form the view that his Honour had made a significant error of fact which resulted in a finding that was not reasonably open to him.
[17] When considering whether to exercise his discretion to extend time for filing the s.394 application, his Honour was required to take into account the factors contained in s.394 of the Act. At the time of the dismissal, that section was in these terms:
“394 Application for unfair dismissal remedy
(2) The application must be made:
(a) within 14 days after the dismissal took effect; or
(b) within such further period as FWA allows under subsection (3).
(3) FWA may allow a further period for the application to be made by a person under subsection (1) if FWA 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.”
[18] In terms of the decision itself 9, we are satisfied that his Honour considered, as was required, each of the circumstances set out in s.394(3) of the Act. In the appeal, the Appellant placed an emphasis on the fact that she had provided reasons for the delay in filing the application, the main reason being that she had filed the WHSQ claim and was under the impression that she could not have two applications on foot simultaneously. His Honour considered this explanation and gave it appropriate weight. We should note that the Appellant’s understanding of the law was incorrect as she could have filed a complaint with WHSQ regarding any alleged breaches of the work health and safety laws and at the same time challenge the validity of her redundancy in the Commission. Indeed, these two applications relate to completely different claims, one relating to bullying and the other to her termination. Once the Appellant was aware of the strict time limits for filing an application for an unfair dismissal remedy in December 2012, had she made enquiries about the ability to file an application with the Commission while her claim with WHSQ was being considered, she would have been told undoubtedly that she could do so.
[19] We are of the view that his Honour did not err in his consideration and in his findings with respect to the explanation provided by the Appellant for the delay. His Honour appropriately weighed the factors outlined in s.394(3) to reach the conclusion that exceptional circumstances were not established to warrant an extension of time.
[20] The Appellant took particular issue with his Honour’s finding with respect to the merits of the application. Although his Honour noted that a large volume of material had been filed by the Appellant in support of the merits of her case, he ultimately found the merits of the application to be a “neutral consideration” for the purposes of the extension of time application, as these were not proceedings in which the merits could be “ventilated comprehensively”. 10
[21] We see no error with his Honour’s approach. It is well established that the Commission cannot make any findings on contested matters without hearing evidence, and that evidence on the merits is rarely called at an extension of time hearing. 11 As a result, the Commission “should not embark on a detailed consideration of the substantive case”.12 In this instance, it was clearly contested whether the redundancy of the Appellant’s position with the Respondent was “genuine” for the purposes of the Act, which ultimately would determine whether the Appellant had the protection of the unfair dismissal regime of the Act. Accordingly, it was appropriate for his Honour not to make a finding on merit without hearing evidence, and that evidence being tested.
[22] The Appellant also submitted that she was not afforded a fair hearing by his Honour as his Honour would at times interrupt the Appellant as she was making submissions and did not expressly discuss with her at the hearing all of the factors contained in s.394(3) of the Act, specifically s.394(3)(f).
[23] The provision of a fair hearing is at the very heart of the Commission’s obligations to the parties who appear before it. A fair hearing involves the opportunity for all parties to put their case and to have that case determined impartially and according to law. However, we do not accept that the Appellant was not afforded procedural fairness on the basis that his Honour would at times interrupt the Appellant as she was making submissions and did not expressly discuss with her at the hearing s.394(3)(f) of the Act. The relevant duty imposed on the Commission is to ensure that a party is given a reasonable opportunity to present his or her case. In this instance, the Appellant was afforded the opportunity to file written submissions, which she took up, and attend a hearing where she made oral submissions to supplement the filed written submissions. Although Members should limit any interruptions during oral submissions, interruptions may be necessary to ensure that relevant, and only relevant, issues are covered and to minimise repetition. In light of the above, and having reviewed the transcript of the hearing before his Honour, we consider that procedural fairness was afforded to the Appellant.
Conclusion
[24] We are not satisfied that it is in the public interest to grant the Appellant permission to appeal the decision of his Honour at first instance. The conclusions reached by his Honour were reasonably open to him, and accordingly, the Full Bench cannot interfere with that decision. 13 There is nothing in the decision or on the transcript to suggest that the Appellant was not afforded a fair hearing. Accordingly, we do not grant permission to appeal, and therefore the appeal must be dismissed.
VICE PRESIDENT
Appearances:
E. Johansson appearing for herself.
L. George appearing on behalf of Avcom Pty Ltd.
Hearing details:
2013.
Brisbane:
September 24.
1 [2013] FWC 4159 at [25]-[26].
2 Ibid at [30].
3 Ibid at [31].
4 Ibid at [21].
5 Transcript (C2013/5185), PN 456 and PN 458.
6 Fair Work Act 2009, s.400(1).
7 [2010] FWAFB 5343 at [27].
8 Fair Work Act 2009, s.400(2).
9 [2013] FWC 4159 at [6]-[22].
10 Ibid at [21].
11 Kyvelos v Champion Socks Pty Ltd (AIRCFB, Giudice J, Acton SDP, Gay C, 10 November 2000) Print T2421 at [14].
12 Ibid.
13 House v The King (1936) 55 CLR 499.
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