Nikhil Challa v Australia and New Zealand Banking Group Ltd t/a ANZ Bank

[2017] FWCFB 436

[2017] FWCFB 436

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Nikhil Challa
v
Australia and New Zealand Banking Group Ltd t/a ANZ Bank
(C2016/6589)

VICE PRESIDENT HATCHER
DEPUTY PRESIDENT GOSTENCNIK
COMMISSIONER CRIBB MELBOURNE, 20 JANUARY 2017

Permission to appeal against decision [2016] FWC 7397 and order PR586464 of Commissioner Johns at Sydney on 13 October 2016 in matter number U2016/13319.

Introduction

[1] Mr Nikhil Challa has lodged an appeal, for which permission to appeal is required, against a decision of Commissioner Johns issued on 13 October 2016 (Decision) 1 and the associated order issued by him on the same day.2 In the Decision, Commissioner Johns declined to grant an extension of time to the appellant, Mr Challa, to file an application to deal with an unlawful termination dispute under section 773 of the Fair Work Act 2009 (FW Act). Mr Challa filed his unlawful termination application on 4 September 2016, 17 days outside the 21 day time limit for making the application.

[2] The respondent requested that Mr Challa's application for permission to appeal be determined without holding a hearing i.e. on the papers, in accordance with s.607(1) of the FW Act. The appellant consented to this request on the basis that he be permitted to submit a further written submission. We considered that the appeal could be adequately determined without requiring the parties to make oral submissions, and accordingly we agreed to the respondent’s request. Directions were issued to both parties by the Commission on 24 November 2016 in relation to the filing and serving of brief outlines of submissions. The appellant filed and served further submissions on 13 December 2016 and the respondent on 7 December 2016.

[3] Section 774(2) 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.

[4] In the Decision, 3 the Commissioner set out the factual background to Mr Challa's unlawful termination application as follows:

● on 16 February 2016, the applicant commenced employment with the respondent

● the applicant was employed on a casual basis as a Client Service Consultant.

● on 28 July 2016, the respondent terminated the applicant's employment.

● on 18 August 2016, the applicant lodged an application for an unfair dismissal remedy (unfair dismissal application).

● on 2 September 2016, the unfair dismissal application was dismissed because the applicant had not completed the minimum employment period.

● on 4 September 2016, the applicant lodged an application to deal with an unlawful termination dispute (the current application).

[5] The Commissioner in the Decision gave consideration to each of the matters he was required to take into account under s.774 (2). In relation to s.774(2)(a), the reason for the delay, the Commissioner considered the reasons for the delay advance by Mr Challa. He summarised the reasons and made findings as follows:

“[17]In the present matter there are a number of relevant periods:

a) between 18 August 2016 (by which time the application should have been filed in order for it to be within time) and 2 September 2016 (when his UFD Application was dismissed) (First Period); and

b) between 2 September 2016 (when his UFD Application was dismissed) and 4 September 2016 (when the present application was filed) (Second Period).

[18] In relation to the First Period the reason for delay is that applicant had filed the wrong application. It is well recognised that ignorance of the law is not an exceptional circumstance.

[19]The applicant's evidence is that he attended the Commission registry and was,

... told that since I was employed for less than 6 months, there is a strong chance that this application will be unheard, however was assured that if this occur[red}, that I will receive a full refund of the application fee, and may be able to submit another application under exceptional circumstances. Based on this information, and overall lack of time, I went ahead and submitted an unfair dismissal application

[20]The respondent submitted that

Ultimately, the Applicant decided to take the risk that, if his unfair dismissal application was dismissed (which, based on his own material, the Commission Registry advised was a "strong chance" of happening), he would nonetheless be able to submit another application out of time because he believed he could demonstrate exceptional circumstances.

[21]The Commission, as presently constituted, accepts that submission. Although it is not the role of the Commission to provide advice, in the face of the information provided by the Registry it is surprising that the applicant elected, of his own volition, to file the UFD Application. He bears the responsibility for making that decision. Consequently, there is nothing concerning the First Period that is exceptional.

[22] In relation to the Second Period, noting that the UFD Application was dismissed on a Friday, no criticism can be made of the applicant filing the present application 2 days later on a Sunday.

[23] Overall, the Commission, as presently constituted, is not satisfied that exceptional circumstances arise in the present matter.

[24]Therefore, this factor weighs against considering whether to exercise the discretion to allow a further period for the applicant to lodge his application.”

[6] The Commissioner went on to consider and make findings about the remaining matters specified in s.774(2) as follows:

“Any action taken by the person to dispute the dismissal

[25] It is common ground that the applicant filed the UFD Application within 21 days following the termination of his employment.

[26] This factor weighs in favour of considering whether to exercise the discretion to allow a further period for the applicant to lodge his application.
…
Prejudice to the employer (including prejudice caused by the delay)

[28]It is difficult to discern any real prejudice to the respondent beyond the usual prejudice associated with delay. Consequently, this factor is a neutral factor in exercising the discretion to allow a further period for the applicant to lodge his application.
…
The merits of the application

[32]In considering whether to grant an extension of time the Commission is not in a position to make findings of fact on contested issues. That is an assignment to be undertaken by the Commission during a substantive hearing.

[33] For present purposes the Commission, as presently constituted, is satisfied that the applicant's case is not one that is without merit or lacking in any substance.

[34]Because the applicant's case is not without merit or lacking in any substance this factor weighs in favour of granting him a further period to make his application.
…
Fairness as between the person and other persons in a similar position

[35]This factor does not appear to be relevant in the circumstances as there are no persons in a similar position.”

[7] The Commissioner's overall conclusion was that the exceptional circumstances, envisaged by s.774(2), did not arise in this case and so an extension of time was not granted.

[8] In his Notice of Appeal, the appellant contended that the Commissioner wrongly found that there were not exceptional circumstances warranting an extension of time. The appellant stated that he genuinely believed that there were exceptional circumstances and that he was very puzzled as to why an extension of time was not granted.

[9] The appellant submitted that his circumstances are indeed exceptional and referred the Full Bench to a number of authorities in support of this contention. It was argued that visiting a terminally ill 16-year-old cousin was a family emergency and therefore not routine, normally encountered and was outside the usual course of events. The appellant explained that, due to these exceptional circumstances, he was unable to obtain proper and timely legal advice or to consult with his family. As a result, it was stated that he incorrectly made the wrong application (an unfair dismissal application). The unfair dismissal application was dismissed on 2 September 2016. Despite further exceptional circumstances (his grandfather suddenly passed away and he had to fly to India on 2 September 2016), the appellant explained that he was able to electronically make another application within 48 hours (on 4 September 2016). Reference was made by the appellant to a further authority in support of his submissions.

[10] It was also stated by the appellant that being terminated for making a misconduct claim against his employer had caused a great deal of anxiety, stress and extreme depression. This stress was said to have been magnified by his best friend cutting all contact with him due to him tarnishing his friend's reputation by being terminated.

[11] Finally, the appellant submitted that, if the extension of time is not granted, he will never have the opportunity of receiving justice.

Consideration

[12] An appeal under s.604 of the FW Act is an appeal by way of rehearing and the Fair Work Commission’s (Commission) powers on appeal are only exercisable if there is error on the part of the primary decision maker. 4 There is no right to appeal and an appeal may only be made with the permission of the Commission. Section 604 provides:

(1) A person who is aggrieved by a decision:

(a) made by the FWC (other than a decision of a Full Bench or an Expert Panel); or

(b) made by the General Manager (including a delegate of the General Manager) under the Registered Organisations Act;
may appeal the decision, with the permission of the FWC.

(2) Without limiting when the FWC may grant permission, the FWC must grant permission if the FWC is satisfied that it is in the public interest to do so.

Note: Subsection (2) does not apply in relation to an application for an unfair dismissal (see section 400). (2) A person may appeal the decision by applying to the FWC.

[1] Subsection 604(2) 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. 5 The public interest is not satisfied simply by the identification of error6, or a preference for a different result.7 In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of Fair Work Australia 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

[2] Other than the special case in s.604(2), the grounds for granting permission to appeal are not specified. Considerations which have traditionally been adopted in granting leave and which would therefore usually be treated as justifying the grant of permission to appeal include that the decision is attended with sufficient doubt to warrant its reconsideration and that substantial injustice may result if leave is refused. 9 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.10 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.11

[3] 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. 12 

[4] The test of “exceptional circumstances” establishes a “high hurdle” for an applicant for an extension. 13 A decision as to whether to extend time under s.774(2) involves the exercise of a discretion.14

[5] We are not persuaded that the grounds of appeal on which the appellant relies raise an arguable case of appealable error on the part of the Commissioner. The appellant challenges the Commission's decision that there were not exceptional circumstances which justified an extension of time. He disagrees with the Commission's conclusion that the situation that existed for the appellant, between 18 August 2016 and 2 September 2016 (first period) and 2 September 2016 and 4 September 2016 (second period) did not amount to exceptional circumstances. Further, the appellant has not identified clearly, in his Notice of Appeal, the appealable errors that he contends were made by the Commissioner.

[6] In the Decision, in relation to the first period, the Commissioner found that the appellant bore responsibility for making the decision to proceed with making an unfair dismissal application, in light of advice that there was a strong chance that the unfair dismissal application would be dismissed. The Commissioner found that there was nothing concerning the first period that was exceptional. The Commissioner, in relation to the second period, found that no criticism could be made of Mr Challa's filing of the unlawful termination application two days later. However, overall, the Commissioner was not satisfied that exceptional circumstances arose.

[7] Further, the Commissioner found, in relation to s.774(2)(b), that the applicant filed the unfair dismissal application within time and that this factor weighed in favour of considering whether to exercise discretion. In terms of any prejudice to the employer, the Commissioner considered this to be a neutral factor. With respect to the merits of the application (s.774(2)(d)), the Commissioner was satisfied that the applicant's case was not without merit or lacking in any substance. Therefore, the Commissioner found that this factor weighed in favour of granting an extension of time. Section 774(2)(e) was found to not be relevant in this case.

[8] Finally, the Commissioner found, in relation to all of the factors set out in s.774(2), that it was not enough for the applicant to establish an acceptable explanation for the delay without also establishing that the reason is an exceptional circumstance or part of a number of factors which, when viewed together, represent exceptional circumstances.

[9] Simply disagreeing with the decision at first instance does not provide a basis for satisfying the public interest test for the grant of permission to appeal. On the material before us, we are not persuaded that the matters set out in the grounds of appeal raise an arguable case of error in the Commissioner’s exercise of his discretion, of the kind discussed in House v King. 15 We also do not consider that the Commissioner's conclusion was unreasonable, manifested by any injustice or counter – intuitive. Nor are we persuaded that the appeal raises issues of importance or general application or that there is a need for Full Bench guidance on the question of what constitutes 'exceptional circumstances' for the purposes of s.774. Therefore, we do not consider that there is any basis that would justify the grant of permission to appeal in the public interest or otherwise. In accordance with s.400(1) of the FW Act, permission to appeal must therefore be refused.

VICE PRESIDENT

Appearances:

N. Challa on his own behalf.

D. Natenzon for Australia and New Zealand Banking Group Ltd t/a ANZ Bank.

 1  [2016] FWC 7397

 2  PR586464

 3   Decision at [2]

 4  This is so because on appeal the Commission has 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

 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 [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Alllied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [44]-[46]

 6   GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343, 197 IR 266 at [24]-[27]

 7  GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, 197 IR 266 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; Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 178; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663, 241 IR 177 at [28]

 8  [2010] FWAFB 5343, 197 IR 266 at [24] – [27]

 9   Also see CFMEU v AIRC (1998) 89 FCR 200 at 220; and Wan v AIRC (2001) 116 FCR 481 at [26]

 10   Wan v AIRC (2001) 116 FCR 481 at [30]

 11   Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089 at [28], 202 IR 288, 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, 241 IR 177 at [28]

 12   Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]

 13   Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288 at [21]

 14   Halls v McCardle and Ors [2014] FCCA 316

 15   [1936] HCA 40, (1936) 55 CLR 499

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