Ms Glenda Saville v Biripi Aboriginal Medical Service T/A Biripi Aboriginal Corporation Medical Centre
[2016] FWCFB 5064
•27 JULY 2016
| [2016] FWCFB 5064 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
Biripi Aboriginal Medical Service T/A Biripi Aboriginal Corporation Medical Centre
(C2016/3973)
DEPUTY PRESIDENT SAMS | SYDNEY, 27 JULY 2016 |
Appeal against an order PR580476 of Senior Deputy President Drake at Sydney on 18 May 2016 in matter number U2016/6591; whether permission to appeal should be granted; no arguable case of appellable error established; public interest not enlivened; permission to appeal refused.
[1] Prior to her dismissal on 30 March 2016, Glenda Saville (Appellant) had been employed by the Biripi Aboriginal Corporation Medical Centre (Respondent) since 2011. The Appellant was dismissed for reasons which appear to relate to allegations of misconduct in which she had earlier engaged.
[2] The Appellant lodged an unfair dismissal remedy application under s.394 of the Fair Work Act 2009 (Act) on 27 April 2016 1 with the Fair Work Commission (Commission) after earlier attempts to lodge the application electronically were unsuccessful. In order for the application to be progressed, the Appellant required the Commission to exercise its discretion under s.394(2) of the Act, to allow a further period within which the application could be lodged. That matter was determined by Senior Deputy President Drake on 18 May 2016.
[3] The Senior Deputy President refused to allow a further period within which the application could be lodged and dismissed the application. The Appellant lodged a Notice of Appeal, for which permission is necessary, against the Senior Deputy President’s decision and order. 2 Reasons for the decision were published on 25 May 2016.3 The question whether permission to appeal should be granted is the matter before us.
[4] The decision, the subject of the appeal was made under Part 3-2 – Unfair Dismissal of the Act. Section 400(1) provides that permission to appeal must not be granted from such a decision unless the Commission considers that it is in the public interest to do so. Further, in such matters, appeals on a question of fact may only be made on the ground that the decision involved a ‘significant error of fact’ (s.400(2)). In Coal & Allied Mining Services Pty Ltd v Lawler and others, 4 Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s.400 as ‘a stringent one’.5 The Commission must not grant permission to appeal unless it considers that it is ‘in the public interest to do so’.
[5] The task of assessing whether the public interest test is met, is a discretionary one involving a broad value judgment. 6 In GlaxoSmithKline Australia Pty Ltd v Makin7 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.” 8
[6] 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. 9 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.10
[7] In relation to extensions of time to lodge applications under s.394(3) of the Act, the test of “exceptional circumstances” establishes a “high hurdle” for an applicant for an extension to be granted, and a decision as to whether to extend time under s.394(3) involves the exercise of a broad discretion. 11 Therefore it will be necessary, in an application for permission to appeal against a decision made under s.394(3) to demonstrate that there is an arguable case of appellable error in the exercise of the discretion. This will require the identification of an error of the type described in House v The King12. That is that the decision-maker has acted on a wrong principle, has mistaken the facts, has taken into account an irrelevant consideration or failed to take into account a relevant consideration, or has made a decision which is unreasonable or manifestly unjust. Additionally, where an error of fact is alleged, s.400(2) of the Act requires that it must be a significant error of fact. The overriding public interest requirement of s.400(1) always remains.
[8] The Notice of Appeal lodged by the Appellant attaches a document setting out the grounds of appeal. In essence the Appellant contends that the Senior Deputy President erred in refusing to allow a further period within which the Appellant’s unfair dismissal application could be brought, because she did not take into account the “main reason” explaining the delay in lodgement. That main reason is said to be “computer technical difficulties”.
[9] We are not persuaded that the Appellant has made out an arguable case that the Senior Deputy President erred in the manner suggested. First, to now describe “computer technical difficulties” as the main reason explaining the delay in the lodgement of the application, is with respect, to seek to rewrite the way in which the explanation was given by the Appellant in her written submission to the Senior Deputy President of 5 May 2016. The explanation appears at the end of the submission and is but one of a number of reasons given by the Appellant with no particular emphasis given to it as the main reason.
[10] Secondly, it seems to us that the published reasons for the decision indicate that the Senior Deputy President took into account the whole of the Appellant’s submission of 5 May 2016 13, In summarising the reasons provided by the Appellant for her late lodgement,14 the Senior Deputy President noted one of the reasons as “she had a meltdown and panic attack trying to lodge the application”.15 It seems to us, that this was a direct reference to the Appellant’s submission to the Senior Deputy President to the effect that she had desperately tried to lodge the application online and by email and that when these attempts failed this caused her to have a “meltdown and panic attack”.16
[11] During the course of the hearing of the application for permission to appeal, the Appellant contended that a further reason for the delay was that she had been suffering from anxiety and depression, but conceded that she did not proffer any medical evidence to the Senior Deputy President in support of that proposition. 17 The Senior Deputy President can hardly be criticised for not taking into account evidence that was not before her. No arguable case of error in this regard has been made out.
[12] The remainder of the matters sought to be agitated on appeal by the Appellant, seem to us to involve no more than a plea to rehear the case in the hope of a different result, without the Appellant pointing to any area of arguable appellable error in the decision at first instance. The Senior Deputy President appears to us to have properly addressed each of the matters in s.394(3) of the Act that she was required to take into account and appears to have made appropriate findings. The approach to the specific requirements of s.394(3) appears to us to be entirely conventional and unremarkable, and no arguable case of appellable error is disclosed. The error in identifying the date on which the application was lodged is not, in our view one that can be said in the circumstances of this case, to be an arguable case of a significant error of fact.
[13] For these reasons, we are not persuaded that any arguable case of appellable error has been made out.
[14] The public interest basis upon which it is said that permission should be granted is set out in correspondence to the presiding Member of 3 July 2016. Without repeating that which is submitted in the correspondence, we are not persuaded that any of the matters raised enliven the public interest. Furthermore, we are not persuaded that the appeal raises any issues of importance or general application, nor does it identify any relevant diversity of decisions at first instance. We do not consider that it is arguable that the decision of the Senior Deputy President manifests an injustice, or that the result is counterintuitive. The legal principles applied do not appear to us to be disharmonious when compared with other recent decisions dealing with similar matters.
[15] Therefore, we are not satisfied that it is in the public interest to grant permission to appeal. Permission to appeal is refused.
DEPUTY PRESIDENT
Appearances:
Ms G Saville on her own behalf.
Ms J Mackay, Solicitor on behalf of the Respondent.
Hearing details:
2016.
Sydney.
July, 12.
1 It appears, contrary to the suggestion in the Senior Deputy President's decision, the application was received by the Commission in Newcastle on 27 April 2016 and date stamped accordingly. The application was then sent from Newcastle to the Sydney registry at which time a further date stamp indicating receipt on 28 April 2016 was applied to the application.
2 PR580476.
3 [2016] FWC 3363.
4 (2011) 192 FCR 78.
5 Ibid at [43].
6 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, Crennon, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54 at [44] – [46].
7 (2010) 197 IR 266.
8 Ibid at [27].
9 Wan v AIRC [2001] FCA 1803 at [30].
10 GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343 at [26]-[27]; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth[2010] FWAFB 10089 at [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler; [2011] FCAFC 54; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663 at [28].
11 Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21].
12 (1936) 55 CLR 499.
13 [2016] FWC 3363 at [3].
14 Ibid at [8].
15 Ibid.
16 Appellant's submission to Senior Deputy President Drake of 5 May 2016 at p.2.
17 Transcript PN73 – PN75.
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