Ms Rosita Dris v St Luke's Family Practice Management Trust
[2015] FWCFB 2168
•31 MARCH 2015
| [2015] FWCFB 2168 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.400 – Appeal rights
s.604 - Appeal of decisions
v
St Luke's Family Practice Management Trust
(C2015/1371)
SENIOR DEPUTY PRESIDENT ACTON |
|
Appeal against decision [[2015] FWC 3] and order [PR559611] of Commissioner Cloghan at Perth on 5 January 2015 in U2014/14615 – disputed facts – conference or hearing required – permission to appeal in public interest.
[1] Ms Rosita Dris made an unfair dismissal remedy (UDR) application to the Fair Work Commission (FWC) on 26 October 2014 pursuant to s.394(1) of the Fair Work Act 2009 (Cth) (the FW Act).
[2] In the UDR application, Ms Dris stated that she was notified of her dismissal and dismissed from her employment on 24 September 2014. Her employer was St Luke’s Family Practice Management Trust (St Luke’s).
[3] Section 394(2) of the FW Act provides that a UDR application must be made within 21 days after the dismissal took effect or within such further period as the FWC allows.
[4] Section 394(3) of the FW Act provides that the FWC may allow a further period for the UDR application to be made by a person if the FWC is satisfied there are exceptional circumstances, taking into account certain prescribed factors. Section 394(3) of the FW Act is as follows:
“394 Application for unfair dismissal remedy…
(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC 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.”
[5] The UDR application of Ms Dris was referred to Commissioner Cloghan. On 3 November 2014, Commissioner Cloghan issued a Statement and Directions in the matter.
[6] The Statement and Directions advised that Ms Dris had made a UDR application stating that her dismissal from St Luke’s had taken effect on 24 September 2014, that the UDR application was not made within 21 days after the dismissal took effect and that he intended to deal with the issue of whether he should allow Ms Dris to lodge her UDR application on 26 October 2014 by way of written submissions.
[7] The Statement and Directions then required Ms Dris to provide to the FWC and St Luke’s by 18 November 2014 her material addressing the matters in s.394(3) of the FW Act, St Luke’s to provide its material in the matter to the FWC and Ms Dris by 2 December 2014 and Ms Dris to provide any response to St Luke’s material by 9 December 2014.
[8] The Statement and Directions went on to advise that:
“[10] Having received the written submissions, the Commission will make a determination as to whether it is satisfied there are exceptional circumstances to allow the application to be filed beyond the statutory timeline of 21 days – that is, on 26 October 2014. Should the Applicant not provide any submission pursuant to paragraph [7], the application will be dismissed for want of prosecution.
[11] Should the Commission not be satisfied that there are exceptional circumstances to extend the time to file the application on 26 October 2014, the application will be dismissed.
[12] Should the Commission determine that there are exceptional circumstances to allow the application to be filed on 26 October 2014, the application will proceed to a hearing on the merits of whether the dismissal was fair or unfair.”
[9] Ms Dris subsequently provided material to the FWC, which was then forwarded to St Luke’s, in accordance with the directions. The material of Ms Dris stated, amongst other things, that her UDR application was not made within 21 days “as I have not actually been told I have the sack”. St Luke’s provided its material on 9 December 2014, having been given an extension of time by the FWC for the provision of their material. The St Luke’s material stated, amongst other things, that it “never formally advised [Ms Dris] of her dismissal”. 1 The St Luke’s material also disputed much in the material of Ms Dris in respect of the reason for her delay in making her UDR application.
[10] Ms Dris did not provide any material in reply.
[11] On 5 January 2015, the Commissioner issued a decision in the matter, without holding a conference or hearing.
[12] The decision began as follows:
“[1] On 26 October 2014, Ms Rosita Dris (Ms Dris or Applicant) made application to the Fair Work Commission (Commission) seeking a remedy for alleged unfair dismissal from her former employer, St Luke’s Family Practice (Employer).
[2] Ms Dris states in her application that her dismissal took effect on 24 September 2014.
[3] The application was made pursuant to s.394 of the Fair Work Act 2009 (FW Act).
[4] For the Commission to have jurisdiction to hear and determine the matter, it is necessary for the application to be made within 21 days after the dismissal took effect, pursuant to paragraph 394(2)(a) of the FW Act.
[5] Ms Dris has not made the application within 21 days after the dismissal took effect. However, the Commission can allow for a further period for the application to be made (that is, 26 October 2014), if it is satisfied that there are exceptional circumstances.” 2
[13] The decision also set out the material provided by the parties in response to the Statement and Directions of the Commissioner of 3 November 2014, noting that Ms Dris had provided no response to the St Luke’s material.
[14] The Commissioner then went on to consider the matters in s.394(3) of the FW Act.
[15] In respect of the reason for the delay in the making of the UDR application, the Commissioner said:
“Paragraph 394(3)(a) - what was the reason for the delay in lodging the application?
[21] As I apprehend Ms Dris’ submission, the delay in filing the application was due to the fact that she had not been advised by the Employer that her employment has been terminated. The Employer agrees that it did not inform Ms Dris that her employment had been terminated. Notwithstanding these circumstances, Ms Dris asserts that her employment was terminated on 24 September 2014. This date was fortuitous or unplanned as it was the date of the Employer’s enquiry as to when Ms Dris would be returning from a period of unpaid absence. After this date, I have no reason, valid or otherwise, as to why the Applicant could not file an application in the Commission within the statutory timeline except for the fact that Ms Dris had not been dismissed from her employment.” 3
[16] The Commissioner subsequently noted that neither Ms Dris nor St Luke’s had addressed the matters in s.394(3)(b) to (f) of the FW Act and went on to say:
“[24] As I apprehend the Applicant’s actions, she claims that she was dismissed on 24 September 2014 for the purposes of making her application. However, for the purposes of the reasons for delay in filing the application, the Applicant claims that she was not formally dismissed. This situation is even more complex as the Employer has submitted that it has not dismissed the Applicant.
[25] The parties are in agreement with respect to the material elements surrounding the circumstances leading to Ms Dris’ application.
[26] Clearly, Ms Dris made herself unavailable for employment for good reason. I have not been provided with the commencement date of her unavailability.
[27] Importantly, the Employer’s uncontested submission is that the ongoing employment arrangements of Ms Dris would be discussed when she was available to return to work.
[28] As I have already noted, it was the Employer who initiated a telephone call to ascertain when the Applicant intended to return to work; that fact is not in dispute.
[29] What is in dispute between the parties is what was discussed during the telephone conversation. The parties agree that the Employer was satisfied with the person who was carrying out the current cleaning duties.
[30] If, as the Applicant asserts in her application, that she was dismissed on 24 September 2014, because the Employer was satisfied with her replacement and that the General Practice was not busy, she has provided no valid reason for the delay in filing the application.
[31] While Ms Dris infers in her submission that, on or around 24 September 2014, she was still grieving over the passing of her father, she acknowledges that notwithstanding her grief, she was sufficiently able to make a telephone call to her Employer on 8 October 2014. With the exception of this telephone call, the Applicant has provided no explanation as to what prevented her from making an application to the Commission within 21 days from the date of the alleged dismissal on 24 September 2014.
[32] It is notable that on receipt of Ms Dris’ application, Directions were issued by the Commission on 3 November 2014 and forwarded by postal mail to bother [sic] parties on the same date. Notwithstanding this situation, the Applicant submits that she made a telephone call to her Employer on 10 November 2014 ‘to ask if I still have my job’. Such an action appears to be a contradiction, if not a denial to Ms Dris’ statement, that she was dismissed on 24 September 2014.
[33] The uncontradicted submission from the Employer is that Ms Dris was given leave of absence from her employment as a casual cleaner at the General Practice, subject to a review of the current working arrangements. That review did not take place. For that reason, Ms Dris has either not been dismissed, or if she has been dismissed, she considered herself dismissed on 24 September 2014.
[34] In view of the circumstances of the application, I find that the Applicant considered her employment ceased on 24 September 2014, when the Employer determined to continue with its current cleaning employment arrangements notwithstanding its intention to conduct a review of these arrangements. In addition, in view of the applicant’s submission, I have considered the possibility that the Applicant’s employment ceased on 1 October 2014. With respect to this date of dismissal, the Applicant also failed to provide the application within 21 days of the date of dismissal.” 4
[17] The Commissioner concluded as follows:
“CONCLUSION
[35] In conclusion, for the reasons set out above, I am not satisfied that exceptional circumstances existed which led to a delay in Ms Dris filing her application. An Order to this effect will be issued jointly with this Decision.” 5
[18] The Commissioner went on to issue the following order in the matter:
“In accordance with the Decision issued by the Fair Work Commission on 5 January 2015, [2015] FWC 3, and pursuant to s.587(3)(a) of the Fair Work Act 2009, I hereby order that this application be dismissed.” 6
[19] Ms Dris has lodged a notice of appeal in the FWC against the Commissioner’s decision 7 and order.8 In response to the notice of appeal and its subsequent listing for hearing, St Luke’s submitted in writing on 4 March 2015 that it is not in the public interest for permission to appeal to be granted, they did not propose appearing at the hearing or making any further submissions and they would defer to any decision of the Full Bench of the FWC.
[20] Section 400 of the FW Act deals with appeal rights in respect of decisions made under Part 3-2 – Unfair Dismissal of the FW Act. Section 400 provides as follows:
“400 Appeal rights
(1) Despite subsection 604(2), the FWC must not grant permission to appeal from a decision made by the FWC under this Part unless the FWC considers that it is in the public interest to do so.
(2) Despite subsection 604(1), an appeal from a decision made by the FWC in relation to a matter arising under this Part can only, to the extent that it is an appeal on a question of fact, be made on the ground that the decision involved a significant error of fact.”
[21] In Coal & Allied Mining Services Pty Ltd v Lawler and Others, 9 Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s.400 as “a stringent one”.10 The Commission must not grant permission to appeal unless it considers that it is “in the public interest to do so.”
[22] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment. 11 In GlaxoSmithKline Australia Pty Ltd v Makin,12 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.” 13
[23] For the following reason, we consider that it is in the public interest that we grant permission to appeal from the Commissioner’s decision and order.
[24] There is no finding by the Commissioner in his decision as to the date of the dismissal of Ms Dris by St Luke’s. A matter which was in dispute between the parties.
[25] The Commissioner’s finding that “Ms Dris has not made the application within 21 days after the dismissal took effect” 14 was therefore not open to him.
[26] Accordingly, the Commissioner’s consequential consideration of the matters in s.394(3) of the FW Act, failure to be satisfied as to the exceptional circumstances in s.394(3) and resultant dismissal of the UDR application of Ms Dris was founded on error.
[27] The dismissal of the UDR application of Ms Dris on such a basis is plainly unjust and we grant permission to appeal in the public interest from the Commissioner’s decision and order as a result.
[28] We add that s.397 of the FW Act concerns matters involving contested facts, requiring the FWC to conduct a conference or hold a hearing in certain circumstances. Section 397 is as follows:
“397 Matters involving contested facts
The FWC must conduct a conference or hold a hearing in relation to a matter arising under this Part if, and to the extent that, the matter involves facts the existence of which is in dispute.”
[29] Whether an application was made within the time period prescribed in s.394(2) is clearly “a matter arising” under Part 3-2 of the FW Act. Section 396 is relevant in this regard, it provides:
“396 Initial matters to be considered before merits
The FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:
(a) whether the application was made within the period required in subsection 394(2) …”
[30] The type of conference envisaged by s.397 is a conference at which the parties have the opportunity to make submissions and call evidence and respond to the evidence and submissions of the other party in relation to the disputed facts.
[31] As we have indicated, it is apparent from the material before the Commissioner and his decision that the matter of whether the UDR application of Ms Dris was made within the period required in s.394(2) involved facts the existence of which is in dispute. The disputed facts included whether Ms Dris had been dismissed and/or the date of her dismissal.
[32] However, notwithstanding the disputed facts in the matter, the Commissioner did not hold a conference or hearing in the matter prior to deciding it and ordering the dismissal of the UDR application of Ms Dris.
[33] It matters not that neither party requested a conference or hearing. The requirements of s.397 are clear and the statutory obligation on the FWC cannot be abrogated by the consent or acquiescence of the parties.
[34] We consider the Commissioner’s failure to comply with s.397 of the FW Act in circumstances where the disputed facts were critical issues in the proceeding provides another basis for us to grant permission to appeal in the public interest from the Commissioner’s decision and order.
[35] Having granted permission to appeal and also having regard to the nature of the errors made by the Commissioner, it may be appropriate, pursuant to s.607(3) of the FW Act, to quash the Commissioner’s decision and order and refer the extension of time matter in respect of the UDR application of Ms Dris to another FWC member to deal with it.
[36] However, we will afford the parties the opportunity of advising us, by 9 April 2015 by email to [email protected] as to whether they object to that course. If there is no objection, we will adopt that course.
[37] We note that in the event Ms Dris was dismissed by St Luke’s after her UDR application was made to the FWC, as was suggested before us, the principles in Mihajlovic v Lifeline Macarthur 15may be relevant to any future proceeding before the FWC.
SENIOR DEPUTY PRESIDENT
Appearances:
R. Dris on her own behalf.
Hearing details:
2015.
Melbourne and Perth (video hearing):
March 19.
1 Written submission of Rosita Drisin matter U2015/14615 of 17 November 2014.
2 Ms Rosita Drisv St Luke’s Family Practice, [2015] FWC 3.
3 Ibid.
4 Ibid.
5 Ibid.
6 Ms Rosita Dris v St Luke’s Family Practice, PR559611.
7 Ms Rosita Dris v St Luke’s Family Practice [2015] FWC 3.
8 Ms Rosita Dris v St Luke’s Family Practice, PR559611.
9 (2011) 192 FCR 78.
10 Ibid at paragraph 43.
11 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 paragraph 69 per Gummow, Hayne, Heydon, Crennon, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and Others [2011] FCAFC 54 at paragraphs 44 - 46.
12 [2010] FWAFB 5343.
13 Ibid at [27].
14 Ms Rosita Drisv St Luke’s Family Practice, [2015] FWC 3 at [5].
15 [2014] FWCFB 1070.
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