Ms Ingrid Schodde v ACN 002 717 419 Pty Ltd (formerly Payless Shoes Pty Ltd)

[2013] FWCFB 5375

[2013] FWCFB 5375

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Ms Ingrid Schodde
v
ACN 002 717 419 Pty Ltd (formerly Payless Shoes Pty Ltd)
(C2013/4954)

VICE PRESIDENT HATCHER
DEPUTY PRESIDENT LAWRENCE
COMMISSIONER BULL SYDNEY, 13 AUGUST 2013

Appeal against decision [[2013] FWC 3254] of Commissioner Deegan at Canberra on 23 May 2013 in matter number C2013/3688.

[1] In this decision we reproduce the reasons for decision which we stated on transcript at the conclusion of the hearing of this appeal on 2 August 2013.

[2] This is an appeal, for which permission is required, against a decision of Commissioner Deegan dated 23 May 2013.

[3] We record that at the hearing of the appeal, we granted permission for the respondent to be represented by a legal practitioner. Such permission was not opposed. We considered that the grant of permission would enable the matter to be dealt with more efficiently, taking into account its complexity.

[4] The appellant, Ms Ingrid Schodde, filed an application under s.365 of the Fair Work Act 2009 on 22 March 2013. That application was significantly out of time. There is an issue about the precise date of Ms Schodde’s dismissal by the respondent, but the latest date possible was 5 December 2012. Accordingly, Ms Schodde required an extension of time to be granted under s.366(2). Under that provision, an extension may be allowed if the Fair Work Commission is satisfied that there are exceptional circumstances, taking into account a number of specified matters.

[5] Commissioner Deegan refused to grant the extension of time. The Commissioner in reaching that decision took into account all the matters required to be taken into account under s.366(2). Ms Schodde appeals that decision. The appeal was lodged out of time. Having heard Ms Schodde’s explanation for the delay, we grant an extension of time to appeal.

[6] However, we have determined to refuse to grant permission to appeal. We do not consider that Ms Schodde has demonstrated any appealable error in the Commissioner’s decision. Without re-evaluating all the considerations dealt with in that decision, we note the following facts:

(a) The only relevant action taken by Ms Schodde within the time allowed for filing her application was on or about 14 January 2013 when she copied the Commission into a lengthy written complaint, addressed to a range of persons and authorities, that was primarily concerned with superannuation, and did not advance any specific claim under the Act. We do not detect any general protections complaint in that document.

(b) Ms Schodde was aware on 5 February 2013, at the latest, that she was required to lodge a Form F8 with the Commission to effect an application under s.365.

(c) The application was not lodged until 22 March 2013, over six weeks later.

[7] We consider that on those facts it was clearly open to the Commissioner to conclude that she was not satisfied that exceptional circumstances existed.

[8] Further, Ms Schodde has submitted that the primary purpose of this appeal is to have the decision of Commissioner Deegan removed from the record, on the basis that she considers the decision to be defamatory of her and offensive. We do not think permission to appeal should be granted for that purpose. We would add that there is nothing in the Commissioner’s decision which can be fairly characterised as other than appropriate conclusions on the facts and matters before the Commissioner. By way of example, the Commissioner said at paragraph 9:

“[9] Solicitors for the respondent’s administrators filed submissions objecting to further time being allowed for the application claiming that:

• The applicant commenced employment on 6 August 2012 and the respondent was placed into administration on 21 September 2012;



• The applicant was dismissed for performance reasons on 27 November 2012 and did not work after that date.”

[9] Ms Schodde submitted that that paragraph expressly or impliedly stated that she had failed to perform adequately in her previous position with the respondent. In truth paragraph 9 does no such thing; it merely recites a submission made by the respondent.

[10] Permission to appeal is refused.

VICE PRESIDENT

Appearances:

I. Schodde on her own behalf

K. Horan, solicitor, on behalf of the respondent

Hearing details:

2013.

Canberra:

2, August.

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