Na (Nicole) Dong v Incitec Pivot Limited
[2023] FWCFB 116
•11 JULY 2023
| [2023] FWCFB 116 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Na (Nicole) Dong
v
Incitec Pivot Limited
(C2023/2732)
| DEPUTY PRESIDENT MILLHOUSE | MELBOURNE, 11 JULY 2023 |
Appeal against decision [2023] FWC 1050 of Commissioner Johns at Melbourne on 5 May 2023 in matter number U2023/3024 – permission to appeal refused.
Ms Na (Nicole) Dong has lodged an appeal under s 604 of the Fair Work Act 2009 (Cth) (Act), for which permission to appeal is required, against a decision[1] and order[2] of Commissioner Johns issued on 5 May 2023.
In the decision, the Commissioner declined to grant Ms Dong an extension of time to file her unfair dismissal application against the respondent, Incitec Pivot Limited, and ordered that Ms Dong’s application be dismissed.
The matter was listed for permission to appeal only. For the reasons that follow, permission to appeal is refused.
Context
Section 394(2) of the Act requires an application for an unfair dismissal remedy to be filed within 21 days after the dismissal took effect or within such further period as the Commission allows under s 394(3). Section 394(3) provides:
(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.
Ms Dong’s application for an unfair dismissal remedy was filed 667 days out of time. The decision records that Ms Dong’s dismissal took effect on 20 May 2021; the 21-day statutory timeframe concluded at midnight on 10 June 2021; and Ms Dong’s application was made on 8 April 2023.
In her Form F2 application for an unfair dismissal remedy, Ms Dong acknowledged that it was filed outside the statutory timeframe. Ms Dong contended that after being made redundant from her position of Treasury Settlements Officer with the respondent in May 2021, she identified in 2023 that her former role had been filled by a new incumbent in June 2022.[3]
The decision under appeal
In the decision, the Commissioner separately addressed each of the matters in s 394(3) of the Act that he was required to take into account.
The Commissioner was not satisfied that the reasons advanced by Ms Dong to explain the delay in filing her application for the purposes of s 394(3)(a) evidenced exceptional circumstances.[4] As to the considerations in s 394(3)(b)-(d), the Commissioner found that paragraph (b) was a neutral consideration,[5] and paragraph (c) weighed in favour of an extension of time,[6] paragraph (d) weighed against the grant of an extension.[7]
As to the merits of Ms Dong’s substantive case, the Commissioner concluded that while Ms Dong’s unfair dismissal application was not without merit or lacking in substance, the Commissioner was unable to reach a concluded view on the overall merits in the absence of hearing the parties’ respective evidentiary cases. Accordingly, the Commissioner concluded that paragraph (e) was a neutral consideration,[8] and there were no matters of fairness relevant to take into account in relation to paragraph (f).[9]
After noting, correctly, that exceptional circumstances are circumstances that are “out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare,” the Commissioner determined that he was not satisfied there were exceptional circumstances giving rise to an extension of time, and dismissed Ms Dong’s application.[10]
Ground of appeal
Ms Dong’s Form F7 Notice of Appeal contains one ground of appeal, being that “[j]ustice should be served based on fact rather than time. Therefore, I appeal the decision.”
In relation to the public interest, Ms Dong states in her Notice of Appeal as follows:
“[c]onsidering that there could be similar situations happen to other people. It’s an opportunity to fill the gap. So, to grant permission for the appeal is for the public interest.”
Ms Dong did not elaborate on these matters by way of written submissions or during her oral submissions before the Full Bench.
Principles – permission to appeal
An appeal under s 604 of the Act is an appeal 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.[11] There is no right to appeal, and an appeal may only be made with the permission of the Commission.
This appeal is one to which s 400 of the Act applies. Section 400 provides:
“(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.”
In the Federal Court Full Court decision in Coal & Allied Mining Services Pty Ltd v Lawler and others,[12] Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s 400 as “a stringent one.” The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[13] A Full Bench of the Commission, in GlaxoSmithKline Australia Pty Ltd v Makin, 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.”
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.[14] 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.[15]
An application for permission to appeal is not a de facto or preliminary hearing of the appeal. In determining whether permission to appeal should be granted, it is unnecessary and inappropriate for the Full Bench to conduct a detailed examination of the grounds of appeal.[16] However, it is necessary to engage with the appeal grounds to consider whether they raise an arguable case of appealable error.
Consideration
We do not consider that it is appropriate to grant permission to appeal.
The time limit that applies to the exercise of a person’s right to bring an application under s 394 of the Act reflects Parliament’s intention that this right be exercised promptly. The Act recognises that there are some cases where a late application should be accepted, namely where there are exceptional circumstances.
The test of exceptional circumstances in relation to extensions of time to lodge applications under s 394(3) establishes a “high hurdle” for an application for an extension. [17] A decision as to whether to extend time under s 394(3) involves the exercise of a broad discretion.[18]
The single appeal ground upon which Ms Dong relies does not identify an arguable case of appealable error in the exercise of the Commissioner’s discretion.[19] Rather, as we discern from Ms Dong’s statement that justice should be served “on fact rather than time,” Ms Dong simply seeks the determination of her substantive application for an unfair dismissal remedy, notwithstanding the statutory time limit prescribed by s 394(2) of the Act for making such an application and irrespective of the Commissioner’s findings in respect of the matters under s 394(3) in the decision.
If, however, Ms Dong’s contention is that the Commissioner erred by determining the application on the basis of time, rather than fact, then such a contention would be fundamentally misconceived. In the absence of the Commissioner granting a further period for Ms Dong’s unfair dismissal application, the application was jurisdictionally incompetent and incapable of proceeding in the Commission.
In any case, the overriding public interest requirement in s 400(1) of the Act provides that the Commission must not grant permission to appeal the decision unless it is in the public interest to do so.
We do not consider that the public interest is enlivened in the absence of any arguable contention of appealable error. The jurisdictional issue was determined on the basis of its own particular facts and, contrary to the contention concerning the public interest test in Ms Dong’s Notice of Appeal, we are not persuaded that the decision raises any issues of wider application.
Conclusion and disposition
We are not satisfied that it would be in the public interest to grant permission to appeal. Accordingly, as required by s 400(1) of the Act, permission to appeal is refused.
DEPUTY PRESIDENT
Appearances:
Ms N. Dong for herself
Mr J. McLean, of Counsel, for the respondent
Hearing details:
2023.
Melbourne (via Microsoft Teams):
July 5.
[1] [2023] FWC 858 (Decision)
[2] PR761645
[3] Form F2 application for an unfair dismissal remedy at [1.6]
[4] Decision at [35]
[5] Ibid at [37]
[6] Ibid at [40]
[7] Ibid at [42]
[8] Ibid at [47]
[9] Ibid at [48]
[10] Ibid at [50]-[52]
[11] This is so because on appeal, the Commission has the 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
[12] (2011) 192 FCR 78 at [43]
[13] O’Sullivan v Farrer [1989] HCA 61; 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch [2011] HCA 4, 243 CLR 506; 85 ALJR 398 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54; 192 FCR 78; 207 IR 177 at [44]-[46]
[14] Wan v AIRC [2001] FCA 1803, 116 FCR 481 at [30]
[15] Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth[2010] FWAFB 10089; 202 IR 388 at [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54; 192 FCR 78; 207 IR 177; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office[2014] FWCFB 1663; 241 IR 177 at [28]
[16] Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]
[17] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21]
[18] Ibid
[19] See, House v The King [1936] HCA 40, 55 CLR 499
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