Nick Benedetto vCarbridge Pty Ltd trading as Carbridge Airside Transportation
[2015] FWCFB 1263
•26 MARCH 2015
| [2015] FWCFB 1263 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
Carbridge Pty Ltd trading as Carbridge Airside Transportation(C2015/1389)
SENIOR DEPUTY PRESIDENT ACTON | MELBOURNE, 26 MARCH 2015 |
Appeal against decision [[2015] FWC 198] and order [PR559865] of Deputy President Gooley at Melbourne on 9 January 2015 in matter U2014/15312 - public interest not enlivened - permission to appeal refused.
[1] Mr Nick Benedetto (Mr Benedetto) was dismissed from his employment with Carbridge Pty Ltd trading as Carbridge Airside Transportation (Carbridge) on 20 October 2014 and subsequently lodged an application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Cth) (FW Act). The application was lodged on 20 November 2014.
[2] Under s.394(2) of the FW Act, an unfair dismissal remedy application must be made within 21 days after the dismissal took effect or within such further period as the Commission allows under s.394(3). Section 394(3) allows the Commission to allow a further period for the application to be made where it is satisfied that there are “exceptional circumstances” taking into account a number of specified matters. Mr Benedetto’s application was lodged 10 days outside the 21-day time limit, and accordingly it was necessary for him to obtain an extension of time under s.394(3).
[3] On 9 January 2015 Deputy President Gooley issued an order dismissing Mr Benedetto’s application. 1 The Deputy President published reasons for her decision to dismiss the application.2 In her reasons, the Deputy President indicated that she had refused to grant Mr Benedetto an extension of time and had dismissed his application on that basis. Mr Benedetto seeks permission to appeal the Deputy President’s order and decision and that is the matter before us.
[4] The decision and order subject to appeal was made under Part 3-2 – Unfair Dismissal – of the FW Act. Section 400(1) provides that permission to appeal must not be granted from such a decision and order 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 and order involved a “significant error of fact” (s.400(2)). In Coal & Allied Mining Services Pty Ltd v Lawler and Others, 3 Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s.400 as “a stringent one”.4 The Commission must not grant permission to appeal unless it considers that it is “in the public interest to do so”.
[5] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment. 5 In GlaxoSmithKline Australia Pty Ltd v Makin,6 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.” 7
[6] 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. 8 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.9
[7] In his notice of appeal, Mr Benedetto wrote that the public’s interest “would be they do not want to see anyone treated unfairly”. He otherwise did not identify any other matters as making it in the public interest to grant permission to appeal.
[8] Mr Benedetto’s employment was terminated on 20 October 2014 and he lodged his unfair dismissal application on 20 November 2014. As mentioned earlier, Mr Benedetto’s unfair dismissal application was lodged 10 days outside the statutory time limit.
[9] Subsection 394(3) deals with applications to extend time, it provides:
“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.”
[10] In the decision subject to appeal the Deputy President considered each of the matters specified in s.394(3)(a) to (f). The decision of the Deputy President set out the reasons advanced by Mr Benedetto for the delay in lodging his unfair dismissal application:
“Mr Benedetto said he did not consider lodging an unfair dismissal application until he received his final pay 16 days later and he found that Carbridge had not paid his long service leave. He then received a letter from Mr Bruce White, the operations manager, dated 11 November 2014 explaining why he was not paid his LSL. Mr Benedetto also explained that he attempted to contact the Commission and the Fair Work Ombudsman on numerous occasions but on each occasion the phone was not answered and there was no capacity to leave a message.” 10
[11] The Deputy President set out her assessment of the reasons advanced by Mr Benedetto for the delay in lodging his application:
“Even if it were reasonable for Mr Benedetto to decide to wait until he received his final pay to decide if he was going to lodge an application for unfair dismissal he had no satisfactory explanation for why, after being told by Mr White that he would not be paid LSL on 11 November 2014, he took another nine days to lodge his application. Even if I accept that Mr Benedetto was not able to speak to someone at either the Commission or the Ombudsman that does not explain why he did not promptly lodge the application.” 11
[12] Consequently, the Deputy President found “that the reasons for the delay provided by Mr Benedetto weigh against extending time.” 12
[13] In her decision the Deputy President also dealt with other matters referred to in s.394(3) and made the following findings:
● Mr Benedetto became aware of the dismissal when it took effect (s.393(3)(b));
● Mr Benedetto did not in the period between 12 October and 20 October 2014 seek to withdraw his resignation and other then disputing the non payment of his LSL did not dispute his dismissal (s.393(3)(c));
● No specific prejudice to the employer if an extension was granted was identified (s.393(3)(d));
● Whether a unilateral change of hours of work meant that Mr Benedetto was forced to resign because of this conduct by Carbridge is not able to be determined without a full hearing. On the material before her, the Deputy President found that Mr Benedetto had an arguable case. However, the Deputy President said she was not able to make a final determination of the merits of the claim as this would require an examination of all of the evidence. The Deputy President concluded: “That this claim is not without merit weighs in favour of extending time” (s.393(3)(e)); and
● There was no issue of fairness in relation to any other person in a similar position (s.393(3)(f)).
[14] The Deputy President concluded that having regard to all of the matters which the Commission is required to take into account under s.394(3) of the FW Act she was not satisfied that there were exceptional circumstances such as to warrant the grant of an extension of the statutory time period for Mr Benedetto’s unfair dismissal application. On that basis Mr Benedetto’s application was dismissed.
[15] In support of his appeal Mr Benedetto did not identify any significant errors of fact as grounds for his appeal. His notice of appeal reargued the matters that he had already put before the Deputy President. In summary he says he “could not have [made his application for an unfair dismissal remedy] any quicker.” He reiterated that he “was ringing the Fair Work Commission for 3 weeks before they answer [his] call, they sent [me] the forms, I fill[ed] them in, and I sent them back.”
[16] We are not persuaded that Mr Benedetto has established that it is in the public interest to grant permission to appeal. The Deputy President addressed the relevant statutory criteria and we are not persuaded that the decision and order subject to appeal discloses any error of principle or any significant error of fact. Nor are we persuaded that Mr Benedetto has established an arguable case of error in relation to any aspect of the decision and order subject to appeal.
[17] As we have mentioned, s.400(1) provides that permission to appeal must not be granted unless the Commission considers that it is in the public interest to do so. We do not consider that it is in the public interest to grant permission to appeal and accordingly we refuse permission to appeal.
SENIOR DEPUTY PRESIDENT
Appearances:
N. Benedetto on his own behalf.
B. White with L Todd for Carbridge Pty Ltd trading as Carbridge Airside Transportation.
Hearing details:
2015.
Melbourne and Perth (video hearing):
March 19.
<Price code A, PR561308>
1 Nick Benedetto v Carbridge WA T/A Connect Buses, PR559865.
2 Nick Benedetto v Carbridge WA T/A Connect Buses, [2015] FWC 198.
3 (2011) 192 FCR 78.
4 Ibid at paragraph 43.
5 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.
6 (2010) 197 IR 266.
7 Ibid at paragraph 27.
8 Wan v Australian Industrial Relations Commission, [2001] FCA 1803 at paragraph 30.
9 GlaxoSmithKline Australia Pty Ltd v Makin, [2010] FWAFB 5343 at paragraphs [26]- [27]; Lawrence v Coal & Allied Mining Services Pty Ltd T/A Mt Thorley Operations/Warkworth, [2010] FWAFB 10089 at paragraph [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler and Others, [2011] FCAFC 54; New South Wales Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office,[2014] FWCFB 1663 at paragraph [28].
10 Nick Benedetto v Carbridge WA T/A Connect Buses, [2015] FWC 198 at paragraph [5].
11 Ibid at paragraph [7].
12 Ibid at paragraph [8].
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