Ms Rebecca Marie Shellum v Grill'd Pty Ltd T/A Grill'd Healthy Burgers
[2017] FWCFB 3898
•25 JULY 2017
| [2017] FWCFB 3898 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Ms Rebecca Marie Shellum
v
Grill’d Pty Ltd T/A Grill’d Healthy Burgers
(C2017/2798)
| justice ross, president DEPUTY PRESIDENT COLMAN COMMISSIONER CIRKOVIC | SYDNEY, 25 JULY 2017 |
Application for permission to appeal – appeal – general protections application filed ‘out of time’
Background
Ms Shellum (the Appellant) was dismissed from her employment with Grill’d Pty Ltd t/as Grill’d Healthy Burgers (the Respondent) on 22 January 2017. On 1 March 2017 Ms Shellum filed an application pursuant to s.365 of the Fair Work Act 2009 (Cth) (the FW Act) alleging that her dismissal contravened Part 3-1 – General Protections.
Section 366 of the FW Act provides that applications of the type made by Ms Shellum must be made within 21 days after the dismissal took effect, or within such further period as the Commission allows under s.366(2).
Section 366(2) sets out the circumstances in which the Commission may grant an extension of time, as follows:
‘(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) any action taken by the person to dispute the dismissal; and
(c)prejudice to the employer (including prejudice caused by the delay); and
(d) the merits of the application; and
(e) fairness as between the person and other persons in a like position.’
Ms Shellum’s s.365 application was made some two weeks ‘out of time’. In a decision issued on 4 May 2017[1] Commissioner Ryan refused the Appellant’s application to extend the time within which to file her s.365 application (the Decision). Ms Shellum seeks permission to appeal the Decision and that is the matter before us.
The Decision at first instance
In the Decision the Commissioner gave consideration to each of the matters specified in s.366(2)(a) to (e), that were relevant to the matter before him, and concluded that there were no exceptional circumstances such as to warrant an extension of time.
In relation to s.366(2)(a), the reason for the delay, the Commissioner summarised the reasons advanced as including ‘mental health issues, difficulty in getting the correct advice, confusion as to the role of the Fair Work Ombudsman (FWO) and the FWC’.[2] The Commissioner addressed the reasons for the delay at paragraphs [8] to [18] of the Decision:
‘[8] The Applicant was given an opportunity of filing with the Commission any medical evidence as to her mental health issues. The only medical certificate provided by the Applicant was one dated 20 April 2017 from her treating medical practitioner. The medical certificate identifies that the Applicant has been seen by the medical practitioner “since 2015 and is being managed for stress, anxiety-depression mostly as a result of work place issues. She was also diagnosed with pseudo-dementia which can be associated with depression and leads to forgetfulness.”
[9] The Commission accepts the accuracy of the medical certificate but of itself it does not explain the delay in making the application in this matter. The Applicant in her material in support of an extension of time appears to contend that her mental health issues have been present for a reasonable period of time prior to her dismissal as well as during the period from the dismissal to the date the application was made.
[10] Whilst the medical certificate identifies a diagnosis of pseudo-dementia it does not give any information as to the when this commenced nor does it identify the severity of the pseudo-dementia nor does it identify what medication (if any) the Applicant is being prescribed to treat the pseudo-dementia. By its very name pseudo-dementia is not dementia and pseudo-dementia is treatable.
[11] The mental health issues of the Applicant do not explain the delay in making the application in this matter.
Difficulty in getting advice and confusion as to roles of FWO and FWC
[12] Ordinarily these two reasons would not give rise to the existence of exceptional circumstances. When Parliament first enacted the Fair Work Act2009, Parliament considered that the appropriate time frame in which, in ordinary circumstances, a person should be able to make a general protections application involving dismissal was 60 days. At the same time Parliament considered that the appropriate time frame in which, in ordinary circumstances, a person should be able to make an unfair dismissal application was 14 days. Parliament later changed its view and determined that 21 days was the appropriate time frame in which, in ordinary circumstances, a person should be able to make either, a general protections application involving dismissal, or, an unfair dismissal application.
[13] The ordinary circumstances facing a person who has been dismissed includes a level of stress, anxiety and includes the issues around trying to find new employment and meeting existing financial obligations as well as trying to find out what legal rights the person may have to challenge the dismissal and then to initiate such a challenge. Parliament has determined that in the ordinary circumstances facing a dismissed employee that 21 days is sufficient time to make an application to the Commission.
[14] The Applicant describes her own circumstances in such a way that they appear to be within the ordinary circumstances facing a person who has been dismissed.
[15] Further the Applicant’s circumstances post dismissal must be seen in light of the Applicant’s conduct prior to the dismissal.
[16] The Respondent identifies that in the 8 month period prior to being dismissed that the Applicant had been stood down from work and that in that period the Applicant had made a complaint to the Fair Work Ombudsman which led to mediation occurring in relation to that complaint and that the Applicant had also approached Worksafe WA and made allegations of bullying against the Respondent which led to a Worksafe WA investigation.
[17] Unlike many persons who are dismissed the Applicant had practical experience of contacting and using different statutory bodies in relation to workplace issues.
[18] Nothing put to the Commission by the Applicant in relation to this issue would explain the delay in making the application.’
The Commissioner dealt with the remaining matters specified in s.366(2)(b)-(d) at paragraphs [19] to [25] of the Decision as follows:
ØMs Shellum did not take any action to dispute her dismissal other than making the s.365 application (s.366(3)(b));[3]
Øthe Commissioner was not persuaded that the Respondent would suffer any prejudice if an extension of time was granted (s.366(2)(c));[4] and
Øthe merits of the substantive application were a neutral issue in the Commissioner’s consideration of the extension of time application (s.366(2)(d)).[5]
The consideration in s.366(2)(e) was not relevant in the present matter as there were no other persons in a like position to the applicant.[6]
Having considered the factors in s.366(2), insofar as they were relevant, the Commissioner concluded that he was not satisfied that there were any exceptional circumstances in the present matter that would give rise to the need for the Commission to consider exercising its discretion to grant an extension of time. On that basis, Ms Shellum’s application was dismissed.
The Appeal
An appeal under s.604 is 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 to appeal and an appeal may only be made with the permission of the Commission. Section 604 provides:
(1) A person who is aggrieved by a decision:
(a) made by the FWC (other than a decision of a Full Bench or an Expert Panel); or
(b) made by the General Manager (including a delegate of the General Manager) under the Registered Organisations Act;
may appeal the decision, with the permission of the FWC.
(2) Without limiting when the FWC may grant permission, the FWC must grant permission if the FWC is satisfied that it is in the public interest to do so.
Note: Subsection (2) does not apply in relation to an application for an unfair dismissal (see section 400). (2) A person may appeal the decision by applying to the FWC.
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.[8] The public interest is not satisfied simply by the identification of error[9], or a preference for a different result.[10] 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...”[11]
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 to warrant its reconsideration and that substantial injustice may result if leave is refused.[12] 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.[13] 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.[14]
We would observe at the outset that a decision as to whether to extend time under s.366(2) involves the exercise of a discretion[15] and the test of ‘exceptional circumstances’ establishes a ‘high hurdle’ for an applicant for an extension.[16]
The essence of the Decision subject to appeal is set out at paragraph [26] of the Decision:
‘Having taken into account each of the criteria in s.366(2) which are relevant the Commission is not satisfied that there are any exceptional circumstances in the present matter which would give rise to the need for the Commission to consider exercising its discretion to grant an extension of time. As the application in this matter was not filed within the time specified by s.366(1)(a) the application is out of time and out of jurisdiction. The application is dismissed.’
In support of her application for permission to appeal, Ms Shellum argued that the Commissioner erred in concluding that her mental health issues did not provide an explanation for the delay in filing the application. In particular, Ms Shellum submitted that:
‘I clearly wasn’t the full ticket at the time, during the three week, 21 day period, but I probably didn’t realise I wasn’t the full ticket’[17]
Ms Shellum attached a substantial number of documents to her Notice of Appeal and filed further material after the permission to appeal hearing. As was pointed out during the hearing,[18] the difficulty for the Appellant is that none of the material provided specifically identifies the mental/physical health issues she was confronting which are said to have adversely affected her capacity to lodge the s.365 application during the 21 days after the termination of her employment. Nor was there any such material before the Commission at first instance.
We would also observe that in the proceedings at first instance the Commissioner made it clear that Ms Shellum needed to produce:
‘… a certificate from a health practitioner of some description which expresses that person’s professional opinion as to whether or not you had an illness, whether it’s physical or mental… which impacted upon your ability to file an application’.[19]
The Commissioner made the same point a number of times[20] and provided Ms Shellum with a further opportunity to provide a medical certificate ‘as to your state of health between 22 January and 13 February and whether or not whatever condition you’ve got would have prevented you from making an application on time’.[21] No such material was provided.
We are not persuaded that Ms Shellum has established that it is in the public interest to grant permission to appeal. Nor are we persuaded that she has established an arguable case of error in relation to the Decision or that there are any other considerations that warrant the grant of permission to appeal. Accordingly permission to appeal is refused.
PRESIDENT
Appearances:
Ms Shellum in person
No appearance by Respondent
Hearing details:
2017
Melbourne;
12 July.
[1] [2017] FWC 2429
[2] Ibid
[3] [2017] FWC 2429 at [19]-[22]; Ms Shellum spoke to the FWO in respect of this matter but only after the 21 day time period in s.366(1)(a) had passed: [2017] FWC 2429 at [20]-[2]
[4] [2017] FWC 2429 at [23]-[24]
[5] [2017] FWC 2429 at [25]
[6] [2017] FWC 2429 at [6]
[7] This is so because on appeal the Commission has 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] 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, Crennan, Kiefel and Bell JJ; Coal & Alllied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [44]-[46]
[9] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343, 197 IR 266 at [24]-[27]
[10] 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 at [28], affirmed on judicial review; Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 178; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663, 241 IR 177 at [28]
[11] [2010] FWAFB 5343, 197 IR 266 at [24] – [27]
[12] Also see CFMEU v AIRC (1998) 89 FCR 200 at 220; and Wan v AIRC (2001) 116 FCR 481 at [26]
[13] Wan v AIRC (2001) 116 FCR 481 at [30]
[14] Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth[2010] FWAFB 10089 at [28], 202 IR 288, affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office[2014] FWCFB 1663, 241 IR 177 at [28]
[15] Halls v McCardle and Ors [2014] FCCA 316
[16] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21]
[17] Transcript 11 July at [100]
[18] Transcript 11 July 2017 at [209]
[19] Transcript 18 April 2017 at paragraphs [13] – [15]
[20] Ibid at paras [102], [111], [119] and [133]-[141]
[21] Ibid at para [149]
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