Nadia Kose v Moran Furniture Pty Ltd
[2015] FWCFB 2693
•23 APRIL 2015
| [2015] FWCFB 2693 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
Moran Furniture Pty Ltd
(C2015/1928)
VICE PRESIDENT CATANZARITI | SYDNEY, 23 APRIL 2015 |
Appeal against decision of Commissioner Lee at Melbourne on 30 October 2014 in matter number C2014/5880. Section 365 application, extension of time sought to file application, extension of time sought to file appeal against Commissioner’s decision. Extension of time to file appeal not granted.
[1] Ms Nadia Kose (the appellant) has filed a notice of appeal under s.604 of the Fair Work Act 2009 (the FW Act) seeking permission to appeal a decision of Commissioner Lee issued on transcript on 30 October 2014 (the Decision). The Commissioner declined (under s.366) to extend time to the appellant to file a general protections dismissal application made under s.365 of the FW Act.
[2] Ms Kose filed her general protections dismissal application in the Commission on 14 August 2014. In that application she indicated that she was terminated from her employment on 18 August 2009. In 2009, the FW Act allowed for applications made under s.365 to be made within 60 days after the dismissal. The Commission could allow a further period in which to file an application outside the specified 60 days where it was satisfied that exceptional circumstances exist. 1
[3] It was not in dispute that the application was approximately two months short of being five years out of time. The Commissioner declined to grant an extension of time to file the general protections application, holding that he was not satisfied that the required exceptional circumstances existed.
[4] An appeal is required to be filed within 21 days after the date of the decision. This has not occurred and is the first hurdle that the appellant must overcome before this Full Bench can address whether leave to appeal the decision in the first instance should be granted.
[5] Rule 12.3 of the Fair Work Commission Rules 2009 (Rules), which applied at the time and current Rule 56(2) relevantly provide that a notice of appeal under s.604 must be filed within 21 calendar days after the date of the decision the subject of the appeal or within such further time allowed by the Commission on application by the appellant. The Decision was delivered in transcript on 30 October 2014. The 21 day period from the date of the Decision is 20 November 2014, the appellant's notice of appeal was filed on 3 March 2015, one day short of 15 weeks after the prescribed period had expired. Accordingly, it is necessary for the appellant to apply for an extension of time to file her appeal.
[6] The Form F7-Notice of Appeal completed by the appellant ticks “yes” to whether the appeal has been filed within the prescribed time frame, although an explanation of sorts is written in the space provided for giving an explanation for a delay past the 21 days. Ms Kose elaborated on the reasons why the appeal was filed out of time during her oral submissions.
[7] The authorities 2 indicate that the following matters are relevant to the exercise of the Commission’s discretion to extend time to file an appeal:
● 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.
[8] The issue for this Full Bench 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.
Satisfactory Reason for the Delay
[9] On what can be ascertained from the appellant’s written and oral submissions, we are not persuaded that a satisfactory explanation for the delay in filing the appeal exists. The reasons given by the appellant cover much of the same ground provided to the Commissioner in the first instance as to why the time for filing the initial general protections application should be extended. Having been unsuccessful, the appellant was on notice that time was of the essence and yet delayed her application to appeal the Decision past the prescribed time by nearly four months. The reasons provided for this delay are difficult to ascertain with any precision as is demonstrated in the following transcript extract:
“PN66 MS KOSE: I'm simply telling you the racial discrimination and every other discrimination thrown at me by this company since 2009. That it is out of my hand, the timing. I'm going to Dandenong Magistrates Court saying "This is what has taken place. They have shot at my fence. Destroyed my career, terrorised my kids, buried me alive."They're giving me a civil claim form and I can't get one legal representative to file that for me. I'm going to VOCAT saying, "Victims of Crime, this is what this criminal has done, engaged his family at Moran Furniture to do this". My car gets blown up.
This is what I'm trying to say to you, Commissioner. The timing is out of my hands. These people can't get away with what they have done. They've buried me alive. I have to leave my property. I was left homeless. Not only that, that property was burnt by the agent XXXX over this. XXXX was related to the gunman named XXXX who came to shoot me in 2008. This was TAC related and Moran Furniture totally ignored that. I can't be competing with lawyers who have experience and knowledge of five years of university study. I cannot be expected to stand here and defend myself in a proper manner. What I'm saying to you is this is racial and every other discrimination that you're dealing with.
I want Moran Furniture, I'm holding them responsible for burying me alive for the - since 2009, ruining my reputation. My name means - you ruin not only name, I have children who carry my name. Defamation plus, you know? Another car accident on my way to court. Would you like to follow my footsteps with what they have done since 2009? XXXX drove the gunman to my - he was driving me home one afternoon on one occasion. They exchanged glances at the corner with the gunman sitting at the corner of my house. I'm competing with a mega global company's law firms. They're racially abusing me. That's why I'm out of time, Commissioner.”
(Identity of named parties suppressed)
[10] None of the reasons proffered were supported by other than the barest of an oral submission and were not linked in time by the appellant to the expiration of the 21 day period in which the appellant needed to file the appeal. Viewed either separately or in combination the reasons fail to provide a satisfactory basis to justify a 15 week delay in filing the appeal.
Length of the delay
[11] The length of the delay is not insignificant; a period of nearly 4 months requires an explanation of substance.
Grounds of appeal and likelihood of one or more being upheld
[12] The prospects of success of the appeal, if an extension of time was to be granted, must be assessed as slim. On our reading of the Decision, it is apparent that in concluding that an extension of time should not be granted, the Commissioner considered all the matters required to be take into account and made findings about those matters which were reasonably open on the submissions.
[13] The appeal grounds do not identify any error in the Decision and appear unrelated to the Decision under appeal. Ms Kose submitted on the day of the leave to appeal hearing: “I’m not saying that Commissioner Lee made an error.” 3 It is clear the appellant has a number of grievances going back a considerable period of time although what grievance the appellant has with the respondent in respect of a general protections application is not obvious.
[14] The respondent submitted that Ms Kose had been employed for three to four weeks in the middle of 2009 and they had no communication from her until they received the general protections application in August 2014. 4
Prejudice to the respondent
[15] As to the issue of prejudice, the respondent in this matter, Moran Furniture Pty Ltd, submitted that after a period of nearly five years, the respondent would be prejudiced if an extension of time was granted. 5 After that period of time, and in light of the lack of merit in the general protections claim, it should not be required to expend any further time or expense defending it.
[16] Having regard to all of the relevant considerations we are not persuaded that it is in the interests of justice to extend time to file the appeal. Accordingly, we have concluded that an extension of time should not be granted.
[17] The appellant's notice of appeal is therefore incompetent and is dismissed.
VICE PRESIDENT
Appearances:
The Appellant: Ms N Kose in person
The Respondent: Ms E Watt Australian Furniture Association
Hearing details:
Sydney
9 April 2015
1 s.366(2).
2 Stevenson-Helmer v Epworth Hospital, Print T2277, 19 October 2000 per Ross VP, Acton SDP and Simmonds C; Dundovich v P&O Ports, Print PR923358, 8 October 2002 per Ross VP, Hamilton DP and Eaves C; SPC Ardmona Operations Ltd v Esam and Organ (2005) 141 IR 338
3 PN124
4 PN101
5 PN147
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