Nikola Taras v IFM Services Pty Ltd t/a Sodexo
[2019] FWCFB 6833
•11 OCTOBER 2019
| [2019] FWCFB 6833 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
Nikola Taras
v
IFM Services Pty Ltd t/a Sodexo
(C2019/5036)
VICE PRESIDENT HATCHER | SYDNEY, 11 OCTOBER 2019 |
Appeal against decision [2019] FWC 4974 of Deputy President Beaumont at Perth on 1 August 2019 in matter number U2019/1091.
Introduction and background
[1] Mr Nikola Taras has applied for permission to appeal against a decision of Deputy President Beaumont issued on 1 August 2019 1 (Decision) in which the Deputy President declined to extend the period for the lodgment of his unfair dismissal claim. The Deputy President determined that there were no exceptional circumstances warranting an extension of time under s 394(3) of the Fair Work Act 2009 (FW Act). The effect of that decision was that Mr Taras’ application was not properly made and could not proceed.
[2] The general background to the matter is that Mr Taras had worked for IFM Services Pty Ltd t/a Sodexo (Sodexo) since May 2016. On 23 November 2017, he commenced in the position of a full-time Tavern Manager. On 7 November 2018, he saw an advertisement for a position as a service attendant in the Oil and Gas Division of Sodexo (the new position). Mr Taras applied for the new position and, in doing so, on 22 November 2018, resigned from his old position, effective 6 December 2018. Mr Taras contends that his Manager (wrongly) informed him he was required to resign from his old position to take up the new position. Mr Taras also contends that due to issues with Sodexo’s recruitment process he was not immediately appointed to the new position, and it was not until 29 January 2019 that he secured the new work with Sodexo.
[3] The unfair dismissal application was lodged on 4 February 2019 and Mr Taras claims in that application that he was forced to resign and was unfairly dismissed.
[4] Section 394(2)(a) of the FW Act provides a standard time limit of 21 days after the dismissal took effect for lodging an unfair dismissal application. Mr Taras lodged his application outside of that period. However, s 394(2)(b) allows the Commission to permit a further period for lodgment under s 394(3), which provides as follows:
(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.”
[5] Mr Taras’ extension of time request was opposed by Sodexo and the Deputy President conducted a hearing by phone on 18 July 2019 to deal with the matter.
The Decision
[6] In the Decision, after setting out the background sequence of events, the parties’ cases, and the principles to be applied under s 394(3) of the FW Act, the Deputy President discussed each of the relevant considerations.
[7] In relation to the reason for the delay, the Deputy President dealt with a contention advanced by Mr Taras that he consistently engaged with Sodexo to secure his new position between 6 and 27 December 2018 and that this continued up until he signed his (new) employment contract on 29 January 2019. Further, Mr Taras had contended that he had concerns about jeopardising the prospects of his new employment. Sodexo had contended that between 6 December 2018 and Mr Taras’ email dated 14 January 2019, in which he advised the company that he was claiming to be unfairly dismissed and would be pursuing legal advice, Mr Taras had not complained to Sodexo that he believed his dismissal was unfair, sought legal advice on his separation from Sodexo or filed an unfair dismissal application.
[8] The Deputy President concluded that:
“[37] While I am sympathetic to Mr Taras’ circumstances, I am not persuaded that his difficulties were out of the ordinary course, unusual, special, or uncommon. While Mr Taras purports that he was advised to resign, ultimately that was a choice that sat with him. Mr Taras chose to resign from his permanent position in circumstances where he had not been provided with an offer of employment and he had not accepted such an offer through signing an employment contract. At the time he resigned, the recruitment process appeared to have not been initiated. For example, Mr Taras had not undertaken a medical assessment prior to resigning.
… …
[40] However, by email dated 14 January 2019, Mr Taras clearly placed Sodexo on notice that he considered his case to be an unfair dismissal and that Sodexo could be sure that he would seek legal advice. It did not seem, at this point, that Mr Taras had concern about jeopardising his chances of securing employment. And yet, it was not until 4 February 2019 that Mr Taras made his application for an unfair dismissal remedy, and it was not until 30 January 2019 that he sought advice on his case. When questioned why he had not sought advice or made an application, Mr Taras confirmed that he was not working during the period, that it was correct that he was free to seek legal advice, and that there were no constraints on him doing so. When asked if he had plenty of opportunity to seek legal advice he answered in the affirmative.
[41] Between 14 January 2019 and 4 February 2019, the evidence did not show that Mr Taras was suffering from illness or injury, or was impaired in any way that would have prevented him from seeking advice or filing an unfair dismissal application.
[42] I accept that until 14 January 2019, Mr Taras took no action to make an application or seek advice on the same because of concerns of jeopardising his future employment with Sodexo. However, after sending his email dated 14 January 2019, I no longer find this reason for the delay in making the application plausible. Mr Taras has not persuaded me that there is an adequate explanation for the whole period of the delay which extended to the time of making of the application. Further, it cannot be said that it was the case that Mr Taras was unaware of his legal rights concerning unfair dismissal having referred to the term in his email dated 14 January 2019. There was no evidence before me to attribute the delay to representative error.
[43] This factor weighs against granting Mr Taras an extension of time.”
[9] The Deputy President also found that Mr Taras knew that the resignation took effect on 6 December 2018 and that Sodexo did not identify any particular prejudice if the extension of time were to be granted. 2 Further, the Deputy President also found that fairness between Mr Taras and other persons in a similar position was not a relevant consideration.3
[10] In relation to the consideration arising from s 394(3)(c) the Deputy President found as follows:
“[46] Action taken by the employee to contest the dismissal, other than lodging an unfair dismissal application, may favour granting an extension of time. Sodexo submitted that Mr Taras took no action to dispute his termination during the statutory timeframe. However, I accept that by his email dated 14 January 2019, Mr Taras was disputing his termination of employment albeit he had resigned, and Sodexo was placed on notice about this.
[47] I consider that up until 14 January 2019 there was a plausible reason why Mr Taras had not taken action to dispute his dismissal. However, by placing Sodexo on notice, as Mr Taras did regarding his intent to obtain legal advice because he considered his case an unfair dismissal, weighs in favour of a finding that there are exceptional circumstances.” (footnote omitted)
[11] As to the merits of the application arising under s 394(3)(e) the Deputy President concluded:
“[52] The factual contentions and the merits of the application more generally would need to be scrutinised, including under cross-examination, if an extension of time were granted and the matter proceeded. Mr Taras contends that he was instructed to resign, and that the termination of his employment was not at his initiative. However, I am unable to assess the merits as there are factual disputes between the parties that have not been tested. I consider this criterion to be neutral.”
[12] Ultimately the Deputy President refused the extension of time by concluding as follows:
“[55] Having considered the matters referred to in paragraphs [32] – [54] above, I am, on balance, not satisfied that there are exceptional circumstances warranting an extension of time for Mr Taras’ application to be made. Mr Taras’ circumstances were not out of the ordinary course, unusual, special or uncommon and he has not provided a reasonable explanation for the whole of the delay. While one of the criteria weighs in favour of a finding of exceptional circumstances, the totality of the evidence is insufficient to ground such a finding. Further, where exceptional circumstances are found, consideration turns to whether it is fair and equitable that time should be extended. I have not concluded that it is fair and equitable that an extension should be granted. This, however, does not mean that I lack understanding regarding Mr Taras’ frustration concerning the circumstances he found himself in over the Christmas period.”
Appeal grounds and submissions
[13] In his notice of appeal, Mr Taras advanced four grounds which may be summarised as follows:
1. It was a significant error of fact that the Deputy President found that Mr Taras had not provided an adequate explanation for the whole of the delay in bringing the application, including for the period after 14 January 2019. This included a finding that Mr Taras had chosen to resign when the uncontradicted evidence was that he was directed to do so by the employer.
2. It was an error of law for the Deputy President to find that the absence of prejudice to the employer was a neutral factor. The Commission is obliged to take this into account and failed to do so.
3. The Deputy President erred in failing to take into account the fact that Mr Taras had a prima facie case of unfair dismissal and it was an error of law to treat this as a neutral factor.
4. In finding that there were no exceptional circumstances and in not concluding that it was fair and reasonable to grant the extension, the Deputy President erred in law based upon the incorrect application of the considerations under s 394(3) and because the employer had described the circumstances as being uncommon and not ordinary.
[14] As to the public interest, Mr Taras contends that the following aspects mean that the Commission should grant permission to appeal in this matter:
• the appeal raises issues of importance and general application because applications of this kind should be dealt with in accordance with s 394(3) of the FW Act;
• the Decision at first instance manifests an injustice; and
• the decision is disharmonious with other cases dealing with similar matters.
[15] In oral submissions, Mr Taras also contended, in effect, that if any of the considerations under s 394(3) favoured a finding of exceptional circumstances, that finding should be made and the discretion considered.
[16] Sodexo opposed the granting of leave to appeal on the basis that there were no identified significant errors of fact in the Decision and no incorrect exercise of the “broad discretion” made out in the appeal. This included contending that the evidence before the Deputy President supported the notion that by no later than 15 January 2019, Mr Taras had the new job confirmed and had the contract from the employer, and that there was no reason that he could not have made his application at that point, even accepting that his job concerns were valid. Further Sodexo contended that Mr Taras had already sought some legal advice prior to that time and that his alleged concerns about job security were not put to the employer’s witnesses and were not justified. Sodexo also contended that the Deputy President applied the orthodox and correct approach to the matter and weighed the relevant factors as required by s 394(3).
Consideration
[17] An appeal under s 604 of the FW 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. 4 There is no right to appeal and an appeal may only be made with the permission of the Commission.
[18] This appeal is one to which s 400 of the FW Act applies. 5 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.
[19] In the Federal Court Full Court decision in Coal & Allied Mining Services Pty Ltd v Lawler and others, 6 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.7A 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.” 8
[20] 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, the fact that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.10
[21] 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. 11 However it is necessary to engage with those grounds to consider whether they raise an arguable case of appealable error.
[22] We do not consider that Mr Taras has an arguable case that the Deputy President erred in the manner contended.
[23] We commence with the proper approach to the considerations in s 394(3) of the FW Act. The required approach has been conveniently summarised by the Full Bench in Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters 12 and it is not necessary for us to repeat that discussion here. It is sufficient to indicate that the assessment of exceptional circumstances means that the Commission must take into account the matters set out at s 394(3)(a)-(f) and this requires that each of these matters, insofar as they are relevant, must be treated as a matter of significance in the decision making process. Contrary to the position advanced on behalf of Mr Taras, this does not mean that if any one matter favours a finding of exceptional circumstances, that finding must follow. An overall assessment of all of the relevant circumstances and the matter is required.
[24] We also consider that the findings made in relation to the explanation for the delay, the awareness of the timing of the alleged dismissal and the prejudice to the employer were open to the Deputy President and that these matters were taken into account as required. The submissions advanced by Mr Taras in support of his application for permission to appeal concerning his explanation for that period of the delay from 14 January 2019 until his application was filed on 4 February 2019 do not assist his position: they disclose that, being aware of his unfair dismissal rights, Mr Taras made a deliberate tactical decision not to file his application until after he had signed his new contract of employment with Sodexo. While that may have suited his interests in terms of securing the new position, it could not on any view constitute a reasonable or acceptable explanation for the delay in lodgment of the application.
[25] In relation to the merits, the Deputy President in her decision correctly stated how that matter was to be assessed. Given that Mr Taras, based upon his own case, elected to apply for the new position and then resign his existing position for the purpose of taking up the new position, the employer at least had a reasonably arguable case that there was no dismissal within the meaning of s 386 of the FW Act. A finding that this consideration was neutral, in the sense that it neither advanced nor detracted from a finding of exceptional circumstances, was clearly open in the circumstances, and no arguable case of error is apparent.
[26] In summary, the Deputy President considered all the matters required to be considered under s 394(3), made findings that were open in all of the circumstances, and made evaluative judgments that were reasonably open for her to make.
[27] We are not persuaded that any of the matters raised by Mr Taras as justifying the grant of permission to appeal enliven the public interest. The matter turned on its own facts and the appeal does not raise any issue of novelty, importance or general application.
[28] Although not decisive, we observe that if the extension of time were granted, Mr Taras intends to seek only compensation for the period between 6 December 2018 and 1 February 2019, being the period that he was not being paid before the new position commenced in practice. The limited nature of the remedy that might ultimately be sought is further suggestive of the lack of any public interest in the appeal.
[29] Accordingly, we are not satisfied that it would be in the public interest to grant permission to appeal. Having reached this conclusion, permission to appeal must be refused in accordance with s 400(1) of the FW Act. We so order.
VICE PRESIDENT
Appearances:
P Mullally on behalf of the Appellant.
T Lange on behalf of the Respondent.
Hearing details:
2019.
Melbourne with video link to Perth:
3 October.
Printed by authority of the Commonwealth Government Printer
<PR712988>
1 [2019] FWC 4974
2 Decision at [44], [45] and [48] – dealing s 394(3)(b) and (d).
3 Decision at [53] and [54] – dealing with s 394(3)(f).
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] HCA 47, 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.
5 See Australian Postal Corporation v Gorman [2011] FCA 975, 196 FCR 126 at [37].
6 (2011) 192 FCR 78 at [43].
7 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].
8 [2010] FWAFB 5343, 197 IR 266 at [24] – [27].
9 Wan v AIRC [2001] FCA 1803, 116 FCR 481 at [30].
10 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].
11 Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82].
12 [2018] FWCFB 901, 273 IR 156 at [10]-[19].
0
9
0