Natalya Romanowska v Corangamite Shire Council
[2020] FWCFB 4928
•14 SEPTEMBER 2020
| [2020] FWCFB 4928 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Natalya Romanowska
v
Corangamite Shire Council
(C2020/5932)
VICE PRESIDENT CATANZARITI | SYDNEY, 14 SEPTEMBER 2020 |
Appeal against decision [2020] FWC 3609 of Deputy President Cross at Sydney on 9 July 2020 in matter number C2020/3928. Section 365 application, extension of time sought to file application.
Background to the appeal
[1] Ms Natalya Romanowska (the Appellant) has lodged an appeal, for which permission to appeal is required under s 604 of the Fair Work Act 2009 (Cth) (the Act), against a Decision of Deputy President Cross issued on 9 July 2020. 1 In the Decision the Deputy President declined to extend time for lodgement of a general protections dismissal application (Application) made by the Appellant pursuant to s 365 of the Act. The Respondent in this matter is Corangamite Shire Council.
[2] Section 366(1) requires an Application to be made within 21 days after the dismissal took effect or within such further period as the Fair Work Commission (the Commission) allows under s 366(2) of the Act. The latest date in which the Appellant could have lodged her Application was on 6 April 2020. In lodging the application on 25 May 2020, the Appellants’ Application was 43 days late. It was therefore necessary for the Appellant to obtain an extension of time under s 366(2) of the Act in order to make her Application.
[3] This matter was subject to a telephone hearing on 4 September 2020. The hearing was scheduled to commence at 9:00am on Friday 4 September 2020. At 8:58am on 4 September 2020, the Appellant noted that she would be running late to the hearing, that she would arrive at no later than 9:30am and she would be happy for the hearing to begin in her absence. The Full Bench determined to not commence the hearing until the Appellant was available. At 9:30am on 4 September 2020, a number of attempts were made to contact the Appellant. At 9:31am on 4 September 2020, the Appellant sent correspondence to the Chambers of Vice President Catanzariti stating:
“Dear Associate Westley,
I am unfortunately unable to attend the hearing. I consent to the Full Bench determining all matters in my absence at the oral hearing. I ask that my written appeal and submissions be read aloud and the recording and be provided to me afterwards. Thank you in advance
Yours sincerely,
Tali (Natalya) Romanowska”
[4] The Respondent sought permission to be legally represented. The Full Bench granted the Respondent’s application for permission to be represented pursuant to s 596(2)(a) of the Act in the hearing. The Respondent did not wish to make oral submissions in the hearing.
[5] After the hearing concluded, at 10:06am the Chambers of Vice President Catanzariti sent correspondence to the parties which stated:
“Dear Ms Romanowska,
We refer to your correspondence below.
The Full Bench considered your request and the Full Bench was not prepared to read aloud your grounds of appeal and submissions in the hearing that proceeded.
All of your material will be considered by the Full Bench before it issues its decision.”
[6] The Full Bench has now heard the parties on permission to appeal and the substantive appeal.
Legislative provisions and permission to appeal principles
[7] Section 366(2) of the Act 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.”
[8] The test of “exceptional circumstances” establishes a “high hurdle” for an application
for an extension. 2 A decision as to whether to extend time under s 366(2) involves the
exercise of discretion. 3
[9] The meaning of “exceptional circumstances” in s 366(1) was considered by a Full Bench of the then Fair Work Australia in Nulty v Blue Star Group Pty Ltd 4 (Nulty) as follows:
“[13] In summary, the expression “exceptional circumstances” has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.
[14] Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance.”
[10] 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. 5 There is no right to appeal and an appeal may only be made with the permission of the Commission.
[11] Subsection 604(2) of the Act 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. 6 The public interest is not satisfied simply by the identification of error, or a preference for a different result.7 In GlaxoSmithKline 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.” 8
[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. 9 However, that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.
The Decision
[13] In the Decision, the Deputy President considered each of the matters he was required to take into account under s 366(2) of the Act and concluded that there were no exceptional circumstances such as to warrant an extension of time. Before considering s 366(2) of the Act, the Deputy President noted the prior unfair dismissal application made by the Appellant. The Deputy President observed that this application was subsequently withdrawn due to a jurisdictional error arising from the Appellant not meeting the required minimum employment period necessary to progress the application.
[14] In respect of s 366(2)(a) of the Act, the Deputy President reviewed the material and evidence and observed:
“[19] This matter involves a somewhat extraordinary state of affairs where the Applicant was aware of the 21 day limitation period, and the minimum employment period for unfair dismissals, and explained that knowledge to her experienced representatives, only to have “the legal representatives at ASU” give her flawed advice upon which she thereafter relied. I am not prepared to find that the Applicant has no acceptable explanation for all of the 43 day period of delay. That is because it is understandable that the Applicant relied on the advice of legal representatives.
[20] I do not accept, however, that the Applicant has an acceptable explanation for all of the 43 day period of delay.”
[15] The Deputy President considered the fact that the Respondent’s legal representatives alerted the Appellant, and the Appellant’s representative at the time, to their jurisdictional objection on the grounds of the minimum employment period on 23 April and 5 May 2020. The Deputy President stated that ‘both those pieces of correspondence should have alerted the Appellant to the fatal error in the UD (unfair dismissal) Application.’ 10 Furthermore, the Deputy President noted that the Appellant received ‘further advice’ from her legal representatives regarding her ineligibility for an unfair dismissal remedy due to the minimum employment period.11
[16] The Deputy President then concluded that:
“[23] Even taking 8 May 2020, as the point of reference, being the most generous consideration for the Applicant, there is no acceptable reason for the Applicant’s delay thereafter in commencing the Application. It took seventeen further days for the Applicant to commence the Application. I consider, however, that the Applicant should have taken steps to commence the Application shortly after 23 April 2020, when the jurisdictional objection on the grounds of the minimum employment period was raised by the legal representatives of the Respondent.
[24] While I accept that the Applicant has an acceptable explanation for a part of the 43 day period of delay, I find there is no acceptable explanation for the delay in application after 23 April 2020, or in the alternative 8 May 2020. Accordingly, this factor weighs in the Respondent’s favour.”
[17] In respect of action taken by the Appellant to dispute her dismissal, the Deputy President noted:
“It is abundantly clear that the Applicant did take action to dispute her dismissal by the UD Application. Accordingly, this factor weighs in the Applicant’s favour.”
[18] In respect of the other matters specified in s 366(2)(c)-(e) of the Act, the Deputy President dealt with them as follows:
• It was undoubted that the Respondent would incur costs and expenses in defending the claim, therefore this factor weighed slightly in the Respondent’s favour (s 366(2)(c)) 12;
• Noting that he could not make findings on contested matters without a hearing on the evidence, the Deputy President was unable to make a finding that the case either lacks merit or has significant merit. Accordingly, the question of the merits of the application was of neutral consideration (s 366(2)(d)) 13; and
• As neither party made any material submissions on this issue, nor did either party direct the Deputy President to any relevant decisions, no weight was given to this consideration (s 366(2)(e)) 14.
[19] The Deputy President ultimately made the following conclusion:
“I am persuaded therefore that, in the overall balance, there are not exceptional circumstances. The Application for extension of time is dismissed.”
Consideration
[20] In broad summary, we understand the Appellant’s grounds of appeal as follows:
• the Deputy President made significant errors of fact;
• the Deputy President failed to take into account material evidence. This included the advice of the Appellant’s representative regarding her eligibility to file a general protections;
• section 345 of the Act (concerning misrepresentations regarding workplace rights) was breached by the Appellant’s representative;
• the Deputy President made a significant error of fact in stating that all of the matters were contested in the matter, as not all matters have been contested by the Respondent, including alleged breaches of sections within the Act.
[21] We have carefully considered the Appellant’s Form F7 – Notice of Appeal and her written submissions filed on 18 August 2020 in support of her appeal. Many aspects of the Appellant’s written submissions were not relevant to the matters we need to consider in deciding whether to grant permission to appeal. However, we broadly distil her submissions as follows:
• the Respondent’s oral submissions in the hearing before the Deputy President were misleading;
• the Respondent ought not to have been granted their application to be legally represented
• the public interest is enlivened in this matter having regard to the fact that the Appellant’s former legal representatives breached s 345 of the Act; and
• Several allegations concerning alleged breaches of sections of the Act should be addressed.
[22] The Respondent provided detailed written submissions, and in summary contended that:
• the Appellant has not established that it is in the public interest to be granted permission to appeal;
• the Appellant has not established an arguable case of error in relation to the Decision; and
• there are no other considerations which warrant the grant of permission to appeal the Decision.
[23] The Appellant contended that the Deputy President failed to consider particular evidence before him, including the communications between the Appellant and her representative regarding the Appellant’s ineligibility to file an Application. To this extent, it would appear that the Appellant contends that the Deputy President’s findings at [23] – [24] in the Decision, which were in the context of considering the reason for the delay in filing the Application, where made without having regard to the evidence before him. When the Decision is read fairly and as a whole, it is clear that the Deputy President took into account all of the relevant evidence before arriving at his conclusion. This included the text message exchanges between the Appellant and her representative. 15 In any event, that the Deputy President did not reproduce all of the evidence in the Decision, including the text messages between Mr Walmsley and the Appellant after 8 May 2020, does not give rise to appealable error. There is no obligation on the part of a decision-maker to summarise all evidence in making a decision.16
[24] We accept the Respondent’s submission that it was reasonably open for the Deputy President to consider that there was no acceptable reason for the Appellant’s delay in commencing her Application after 8 May 2020. Relevantly, we note the following exchange that occurred between the Deputy President and the Appellant in the hearing before the Deputy President:
“THE DEPUTY PRESIDENT: All right. Now, I'm just going to ask you a question. By 8 May you in your – an unfortunate series of advices that you received which I accept you relied upon and which I accept were vastly incorrect, at least by 8 May though you knew you were on the wrong track and you needed to get on the right track.
MS ROMANOWSKA: Yes, that's correct.
THE DEPUTY PRESIDENT: Why did you take until 25 May to do so?
MS ROMANOWSKA: I was still waiting for legal advice on the general protections dismissals. So I was going through two paths with that.
…
THE DEPUTY PRESIDENT: The thing that I'm getting to that you've just confirmed is that as of 8 May you knew that the 21 day limitation period was a very key factor.
MS ROMANOWSKA: Yes.
THE DEPUTY PRESIDENT: But you didn't commence until 25 May.” 17
[25] It was reasonably open for the Deputy President to consider that, after the Appellant was made aware of the jurisdictional defects of her unfair dismissal application, it was not an acceptable explanation that it took the Appellant until 25 May 2020 to file her Application. It is evident at [21] of the Decision that the Deputy President balanced the fact that the Appellant had received flawed advice from her representatives against the fact that she was made aware of the problem with her unfair dismissal application:
“On both 23 April, and 5 May 2020, the legal representatives of the Respondent clearly outlined to the Applicant and the ASU the jurisdictional objection on the grounds of the minimum employment period. Notwithstanding the Applicant’s previous reliance of the advice of the ASU’s legal representatives, both those pieces of correspondence should have alerted the Applicant to the fatal error in the UD Application.”
[26] Furthermore, the Appellant submitted that ‘[t]here are no proceedings in the transcript on s.366(2)(b),(c),(d)&(e)’ and that she ‘remember[s] these proceedings occurring’. This submission fails to identify where the Deputy President’s approach fell into error, or where the Deputy President failed to consider the evidence before him. In any event, as stated earlier in this decision, the Deputy President dealt with ss 366(2)(b)-(e) of the Act in the Decision.
[27] In respect of other submissions advanced by the Appellant, we would observe that:
• In relation to the Appellant’s submission that the ‘second lot of bad advice’ from her representative was never mentioned in the Decision, we would again note that the Deputy President was under no obligation to summarise all evidence in his Decision and this submission on its own does not disclose any error in the Deputy President’s approach;
• the Appellant’s extract of the transcript of the hearing before the Deputy President does not identify how the Respondent’s oral submissions were misleading, nor how in any event such submissions gave rise to error in the Deputy President’s approach;
• that the Deputy President granted the Respondent permission to be represented does not enliven the public interest to grant permission to appeal;
• there is no substance in the submission that the Appellant’s former representatives breached s 345 of the Act; and
• that the Deputy President did not address allegations of various breaches of the Act and whether such matters were contested by the parties is immaterial, the question before him was whether there existed exceptional circumstances that would warrant an extension of time to file a general protections application, it was not to make a finding on the merits of the Appellant’s claim. We see no substance in the submission that the Deputy President made significant errors of fact.
[28] Having considered the matters raised by the Appellant with respect to permission to appeal, we are not persuaded that the public interest is enlivened. More specifically, we are not satisfied that:
• there is a diversity of decisions at first instance so that guidance from an appellate body is required of this kind;
• the appeal raises issues of importance and/or general application;
• the decision at first instance manifests an injustice, or the result is counter intuitive; or
• the legal principles applied by the Deputy President were disharmonious when compared with other decisions dealing with similar matters.
Conclusion
[29] For the reasons set out above, we are not satisfied that the Appellant has established that there is an arguable case of error in relation to any aspect of the Decision or that the conclusion reached by the Deputy President was attended with sufficient doubt to warrant its reconsideration.
[30] Accordingly, permission to appeal is refused.
VICE PRESIDENT
Appearances:
Mr G Katz, for the Respondent.
Hearing details:
2020.
Telephone hearing:
4 September.
Final written submissions:
Appellant’s written submissions dated 18 August 2020.
Respondent’s written submissions dated 1 September 2020.
Printed by authority of the Commonwealth Government Printer
<PR722763>
1 Natalya Romanowska v Corangamite Shire Council [2020] FWC 3609 (the Decision).
2 Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace
Relations [2014] FWCFB 2288 at [21].
3 Halls v McCardle and Ors [2014] FCCA 316.
4 [2011] FWAFB 975.
5 Coal and Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 [17] per Gleeson CJ, Gaudron and Hayne JJ.
6 O’Sullivan v Farrer and another (1989) 168 CLR 210 [216] – [217] per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch (2011) 243 CLR 506 [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78; (2011) 207 IR 177 [44]-[46].
7 GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343 [26]-[27], 197 IR 266 (‘GlaxoSmithKline’); Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth[2010] FWAFB 10089 [28], 202 IR 388, 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 [28].
8 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343 [27]; (2010) 197 IR 266.
9 Wan v AIRC (2001) 116 FCR 481 [30].
10 Decision [21].
11 Decision [22].
12 Decision [28].
13 Decision [31].
14 Decision [32].
15 Decision [20] – [22].
16 Baranadurage v Waverley Forklifts Pty Ltd [2013] VSCA 307 at [24] (citing Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, 280; Franklin v Ubaldi Foods Pty Ltd [2005] VSCA 317 [38]; and Transport Accident Commission v Kamel [2011] VSCA 110 [71]).
17 Transcript, PN451-454 and PN462-464.
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