Ms Sharon Gamble v Monash City Council T/A City of Monash
[2016] FWCFB 6424
•18 NOVEMBER 2016
| [2016] FWCFB 6424 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
Monash City Council T/A City of Monash
(C2016/4762)
SENIOR DEPUTY PRESIDENT DRAKE | SYDNEY, 18 NOVEMBER 2016 |
Appeal against decision [[2016] FWC 85] of Deputy President Kovacic at Canberra on 6 January 2016 in matter number U2015/2950; appeal lodged outside of the time prescribed; consideration of whether time should be extended; absence of a satisfactory explanation for delay; not likely that permission to appeal would be granted; application to extend time to lodge appeal refused.
[1] Ms Sharon Gamble lodged a Notice of Appeal, for which permission is necessary, against a decision 1 and order2 of Deputy President Kovacic dismissing her application under s.394 of the Fair Work Act 2009 (the Act) made to the Fair Work Commission (the Commission) for an unfair dismissal remedy. Prior to her dismissal on 3 February 2015, Ms Gamble had been employed by Monash City Council trading as City of Monash (City of Monash) as a Librarian, based at the Glen Waverley Library. Ms Gamble commenced employment with the City of Monash on or about 29 July 1986. She was dismissed on the basis of alleged misconduct, all of which was disputed by Ms Gamble.
[2] The Notice of Appeal was lodged by Ms Gamble on 4 August 2016. The decision and order the subject of that notice were made on 6 January 2016. Rule 56 of the Fair Work Commission Rules 2013 (FWC Rules 2013) deals with appeals and the time period for instituting appeals. That rule relevantly provides that an appeal must be instituted within 21 days after the date of the decision appealed against. Ms Gamble’s appeal was instituted 190 days outside of the time prescribed. 3 Rule 56(2)(c) confers a discretion on the Commission to extend the time within which the appeal is to be lodged.
[3] Time limits of the kind in Rule 56 should not simply be extended as a matter of course. There are sound reasons for setting a limit to the time for bringing an appeal. Time limits in relation to the institution of appeals must be treated seriously and should only be extendedwhere there are good reasons for doing so.
[4] The authorities 4 indicate that the following matters are relevant to considering whether to exercise the Commission’s discretion under Rule 56(2)(c):
- whether there is a satisfactory reason for the delay;
- the length of the delay;
- the nature of the grounds of appeal and the likelihood that one or more of those grounds being upheld if time was extended; and
- any prejudice to the respondent if time were extended.
[5] In broad terms, the issue we need to consider is whether, in all the circumstances and having regard to the matters set out above, the interests of justice favour an extension of the time within which to lodge the appeal. 5 We address these matters below.
[6] In support of her application to extend time for the institution of the appeal, Ms Gamble included the following reasons for delay in her Notice of Appeal:
- the serious illness and subsequent death of my mother;
- marriage breakdown as a direct result of dismissal;
- difficulty securing food and accommodation;
- housing crisis;
- issues relating to my marital separation which are a direct result of the loss of my job;
- significant hardship;
- I am also the mother of 3 children who need parenting, and an income to purchase food and rent; and
- Centrelink complications.”
“Since the decision has been handed down, (and since my job loss) I have been overwhelmed with issues to deal with, including:
[7] At the hearing of her application for permission to appeal on 5 September 2016, Ms Gamble affirmed these reasons for her delay and provided additional information in relation to some of them. In particular, Ms Gamble emphasised in her oral submissions her dire financial situation and the consequences of it, the breakdown of her marriage, the illness and death of her mother, the extensive time she has spent at Centrelink offices dealing with various matters, and the fact that she was busy in January 2016 getting her children ready for school. Ms Gamble also explained that she only has access to the internet, and therefore her emails, at the library. She does not go to the library often, and was too busy in January 2016 to go to the library. A copy of the Deputy President’s decision was sent to Ms Gamble by email on 6 January 2016.
[8] Following the hearing of the application for permission to appeal, Ms Gamble filed two sets of further written submissions 6, to which she attached a spreadsheet summarising many of the activities in which she was involved in the period between January and June 2016, including time spent by Ms Gamble volunteering for various organisations, dealing with school related matters for her children, travelling on public transport, addressing consumer related problems, undertaking household tasks, attending to administration matters, dealing with Centrelink, parenting, attending to personal and medical matters, undertaking professional development, and being involved with community agencies. We have considered both Ms Gamble’s additional written submissions and the information in her spreadsheet.
[9] Although we have sympathy for Ms Gamble’s personal, financial and other difficulties, she has not provided a satisfactory explanation for the whole of the 190 day delay in lodging her Notice of Appeal. Accordingly, this factor weighs against granting an extension of time.
[10] The period of the delay was extensive (190 days). This factor weighs against granting an extension of time.
[11] Before considering the nature of the grounds of appeal and the likelihood of permission to appeal being granted, we will address the question of prejudice to the City of Monash if time were extended.
[12] If time for lodging the Notice of Appeal were extended, the City of Monash would be prejudiced by reason of the time and cost involved in defending an appeal, but it has not pointed to any other prejudice. In those circumstances, we consider that prejudice to the City of Monash is a neutral factor in this case.
[13] As to the likelihood of permission to appeal being granted and the nature of the grounds of appeal and the likelihood of one or more of those grounds being upheld if time were extended, we make the following observations.
[14] The decision which is the subject of the application for permission to 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 7, Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s.400 as “a stringent one”.8 The Commission must not grant permission to appeal unless it considers that it is “in the public interest to do so”.
[15] The task of assessing whether the public interest test is met, is a discretionary one involving a broad value judgment. 9 In GlaxoSmithKline Australia Pty Ltd v Makin10 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.” 11
[16] 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 appellable error. 12 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.13
[17] The Notice of Appeal lodged by Ms Gamble sets out the following grounds of appeal:
(a) First, Ms Gamble had no legal representation;
(b) Secondly, the Deputy President had no knowledge or understanding of the Spydus database;
(c) Thirdly, nobody asked Ms Gamble why she was late back from her lunch break. Ms Gamble had an important reason to be late;
(d) Fourthly, Ms Gamble had previously borrowed a car overnight from work, and she had not been told that the rules had changed;
(e) Fifthly, the library was only very recently granted access to the City of Monash intranet where the rules concerning use of vehicles were located. Those rules were never communicated to library staff; and
(f) Sixthly, the CEO of the City of Monash assured Ms Gamble that she had made the right decision by reporting to her the breach of privacy by the library. Ms Gamble says the CEO told her she would personally contact her with the result, but she did not do so because she was dismissed the following week.
[18] Ms Gamble expanded on these grounds of appeal in her supplementary written submission filed on 23 September 2016.
[19] For the reasons set out in paragraphs [20] to [26] below, we are not persuaded that Ms Gamble will be able to make out an arguable case that the Deputy President erred in any of the ways suggested by her.
[20] As to the first ground of appeal, Ms Gamble did not seek permission to be represented by a legal practitioner at the hearing before the Deputy President, nor has Ms Gamble appealed against the Deputy President’s decision to grant permission to the City of Monash to be represented by counsel at the hearing of Ms Gamble’s unfair dismissal case. In any event, there is no arguable error in the Deputy President’s decision to grant permission to the City of Monash to be represented by a legal practitioner.
[21] As to the second ground of appeal, the Spydus database is the library management system used by the City of Monash. On 12 March 2014, Ms Gamble received a warning for making unauthorised changes to the library management system parameters. 14 It was not alleged by the City of Monash, or found by the Deputy President, that the City of Monash had a valid reason to dismiss Ms Gamble on the basis of her conduct in making unauthorised changes to the library management system parameters. The City of Monash argued that regard should be had to the history of warnings issued to Ms Gamble in assessing whether her dismissal was harsh.15 The Deputy President found that regard should be had to the first and final warning issued to Ms Gamble on 14 July 2014, but did not make any such finding in relation to the earlier warning issued on 12 March 2014.16 It is apparent from the Deputy President’s reasons for Decision that he did not rely on the conduct the subject of the warning given to Ms Gamble on 12 March 2014 to dismiss her unfair dismissal application. For those reasons, there is no arguable case that the Deputy President made an appellable error in his Decision in relation to the Spydus database.
[22] As to the third ground of appeal, Ms Gamble gave evidence that she was 30 minutes late back from her lunch break on 27 January 2015 because “a carer’s errand took longer than I expected”. 17 In light of her evidence in that regard, there is no arguable appellable error in relation to Ms Gamble’s contention that nobody asked her why she was late back from her lunch break.
[23] As to the fourth and fifth grounds of appeal, one of the matters addressed in the written warning issued to Ms Gamble on 12 March 2014 was her unauthorised use of one of the City of Monash’s vehicles. In particular, on 3 March 2014 Ms Gamble admits that she took a City of Monash vehicle home because she could not locate her keys and she could not seek permission to take the vehicle because the library managers were at an offsite leadership meeting. For the reasons set out in paragraph [21] above, the Deputy President did not take the conduct the subject of this earlier warning into account in deciding to dismiss Ms Gamble’s unfair dismissal application.
[24] As to the sixth ground of appeal, prior to her dismissal Ms Gamble says she raised concerns about what she believed to be a breach of privacy by the library. There is no reference to the alleged breach of privacy issue in the Decision. It is not suggested in the Notice of Appeal that the Deputy President failed to have regard to the alleged breach of privacy in making his Decision to dismiss Ms Gamble’s unfair dismissal application. We are satisfied that no arguable case of appellable error is disclosed in relation to this ground of appeal.
[25] In her supplementary submission filed on 23 September 2016, Ms Gamble contends that the Deputy President erred in not exercising his power to order the City of Monash to produce various documents. However, no application was made for the production of such documents.
[26] Many of the arguments raised by Ms Gamble are an attempt to reargue the case put below and seek a different outcome. It is not open to an appeal bench to substitute its view of the matters that fell for determination before the Deputy President in the absence of error of an appealable nature in the decision at first instance
[27] We have not been able to identify any matter in the appeal that might enliven the public interest. 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 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.
[28] For these reasons, we are not persuaded that there is a likelihood of permission to appeal being granted, nor is it likely, having regard to the nature of the grounds of appeal, that one or more of those grounds would be upheld if time was extended. This is a matter that weighs against Ms Gamble’s application for an extension of time to lodge her Notice of Appeal.
[29] After considering all of the circumstances we are not persuaded that it is in the public interest or the interests of justice to extend time to institute the appeal. Accordingly, we refuse the application to extend the time for the institution of the appeal and dismiss the appeal.
SENIOR DEPUTY PRESIDENT
Appearances:
S. Gamble on her own behalf;
M. Albert, of counsel, for the City of Monash
Hearing details:
2016.
Sydney:
September, 5.
1 [2016] FWC 85 (Decision)
2 PR575851
3 21 days after 6 January 2016, not including 6 January 2016, is 27 January 2016. 4 August 2016 is 190 days after 27 January 2016.
4 See for example Fox v Kangan TAFE Print S0253, 25 October 1999 at [36]; Stevenson-Helmer v Epworth Hospital, Print T2277, 19 October 2000; Dundovich v P&O Ports, Print PR923358, 8 October 2002 per; SPC Ardmona Operations Ltd v Esam and Organ (2005) 141 IR 338; Jobs Australia v Eland[2014] FWCFB 4822; Farnhill v Australian Business Academy Pty Ltd [2016] FWFBC 3410
5 Jobs Australia v Eland[2014] FWCFB 4822
6 Filed on 23 September 2016 and 13 November 2016 respectively
7 (2011) 192 FCR 78
8 Ibid at [43]
9 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].
10 (2010) 197 IR 266
11 Ibid at [27]
12 Wan v AIRC [2001] FCA 1803 at [30]
13 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]
14 Decision at [5]
15 Decision at [55]
16 Decision at [57]-[58]
17 Ex G1 (third bullet point on final page); Decision at [22]
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