Norman Wong v Cubic Transportation Systems (Australia) Pty Ltd T/A Cubic Transportation Systems (Australia) Pty Ltd
[2022] FWCFB 108
•17 JUNE 2022
| [2022] FWCFB 108 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Norman Wong
v
Cubic Transportation Systems (Australia) Pty Ltd T/A Cubic Transportation Systems (Australia) Pty Ltd
(C2022/402)
| VICE PRESIDENT CATANZARITI | SYDNEY, 17 JUNE 2022 |
Appeal against decisions [2021] FWC 6684 & [2021] FWC 6352 of Deputy President Cross & Commissioner Bissett at Sydney & Melbourne on 23 December 2021 & 16 November 2021 in matter numbers U2021/10660 & U2021/8200 – permission to appeal refused.
Background
Mr Norman Wong (the Appellant) has lodged an appeal under s.604 of the Fair Work Act 2009 (Cth) (the Act), for which permission to appeal is required, against the decisions of Commissioner Bisset on 16 November 2021 (the First Decision)[1] and Deputy President Cross on 23 December 2021 (the Second Decision).[2]
An appeal filed under s.604 of the Act must be filed within 21 calendar days after the date of the decision being appealed against, or within such further time allowed by the Fair Work Commission (the Commission).[3] The Form F7 – Notice of Appeal was lodged on 10 January 2022 in relation to both decisions The First Decision was issued on 16 November 2021, and the prescribed 21-day period ended on 7 December 2021. The appeal in relation to the First Decision was therefore commenced 34 days out of time. The Second Decision was issued on 23 December 2021 and appeal in relation to the Second Decision was lodged in time. Accordingly, the appeal of the First Decision cannot proceed unless the Commission grants the Appellant an extension of time.
This matter was listed for hearing concerning the issues of the necessary extension of time to lodge the application and permission to appeal. Directions were set for the filing of material by the Appellant. The Respondent was not required to file material. Accordingly, the matter was heard on 8 March 2022.
For the reasons that follow, extension of time and permission to appeal are refused.
The Decisions Under Appeal
First Decision
The First Decision dealt with an application for an unfair dismissal remedy that the Appellant purports to have made in relation to his alleged dismissal by Cubic Transportation Systems (Australia) Pty Ltd T/A Cubic Transportation Systems (Australia) Pty Ltd (the Respondent).
On 13 September 2021, the Appellant made an application by telephone to the Commission for a remedy for unfair dismissal.
Rule 9 of the Fair Work Commission Rules 2013 (Rules) governs applications made by telephone in the Commission and states:
“9 Telephone applications
(1) This rule applies to a person wanting to:
(a) make an application under section 365 of the Act to the Commission; or
(b) make an unfair dismissal application to the Commission.
(2) The person may, as an alternative to lodging the application in the approved form, make the application by telephone to a telephone number approved for that purpose by the General Manager.
Note: The telephone numbers approved by the General Manager for making a telephone application are available at The Commission must prepare a written application for the person, based on the telephone application, and give the written application to the person.
(4) The person must, within 14 calendar days after the day on which the Commission gives the written application to the person, complete and sign the written application and lodge it with the Commission and:
(a) pay:
(i) for an application under section 365 of the Act—the fee mentioned in regulation 3.02 of the Regulations; or
(ii) for an application under section 394 of the Act—the fee mentioned in regulation 3.07 of the Regulations; or
(b) apply for a waiver of the fee.
(5) If the person applies for a waiver, and the Commission refuses that application, the person must pay the application fee within 7 calendar days of being notified of the refusal by the Commission.
(6) If:
(a) either:
(i) the person pays the application fee; or
(ii) the Commission approves a fee waiver; and
(b) the person completes and signs the written application and lodges it with the Commission;
the application is taken to have been made on the day that the person telephones the Commission to make the application in accordance with subrule (2).
(7) The process of telephoning the Commission in accordance with subrule (2), and lodging the completed and signed written application, are taken to be the application.”
On 14 September 2021, the Commission sent correspondence to the Appellant’s email address requiring him to, within 14 days, complete a ‘Form F2 – Unfair Dismissal Application’ (Form F2) and pay the filing fee or complete a fee waiver form.
On 28 September 2021, the Appellant contacted the Commission by telephone and enquired if the Commission had received his fee waiver application. No completed Form F2 or waiver form had been received by the Commission. On the same day, the Appellant then lodged a completed waiver form by email, but no Form F2.
On 29 September 2021, the Commission attempted to contact the Appellant on his nominated telephone number as no completed Form F2 had been filed. The Appellant did not answer the call. A voicemail message was left requesting that the Appellant contact the Commission.
On 1 October 2021, the Commission attempted to contact the Appellant on his nominated telephone number as no completed Form F2 had been filed. The Appellant did not answer the call. A voicemail message was left requesting that the Appellant contact the Commission. On the same day, the Commission sent the Appellant an email requesting he return a completed Form F2.
Section 585 of the Act provides:
“585 Applications in accordance with procedural rules
An application to the FWC must be in accordance with the procedural rules (if any) relating to applications of that kind.
Note 1: Certain provisions might impose additional requirements in relation to particular kinds of applications (see for example subsection 185(2)).
Note 2: The FWC may, under section 587, dismiss an application that is not made in accordance with the procedural rules.”
Further, s.587(1) of the Act provides:
“587 Dismissing applications
(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:
(a) the application is not made in accordance with this Act; or
(b) the application is frivolous or vexatious; or
(c) the application has no reasonable prospect of success.”
Accordingly, the Commissioner dismissed the application pursuant to s.587(1)(a) of the Act because, at the time of the decision, the Appellant had failed to file a completed Form F2 and therefore “failed to make his application in accordance with the FW Act.”[4]
Second Decision
On 22 November 2021, the Appellant filed a Form F2 in relation to his dismissal. Again, both the Appellant and Respondent nominated 25 August 2021 as being the date of the dismissal.
Section 394(2) of the Act states that an application for an unfair dismissal remedy must be made ‘within 21 days after the dismissal took effect,’ or within such further period as the Commission allows pursuant to s.394(3). The period of 21 days ended at midnight on 15 September 2021 and the application was therefore filed 68 days outside this period.
The matter was allocated to Deputy President Cross who considered whether the Commission should extend the period of the making of the application. Section 394(3) of the Act provides that the Commission may allow a further period for the application to be made if the Commission is satisfied that there are exceptional circumstances, taking into account:
(a)the reason for the delay;
(b)whether the person first became aware of the dismissal after it had taken effect;
(c)any action taken by the person to dispute the dismissal;
(d)prejudice to the employer (including prejudice caused by the delay);
(e)the merits of the application; and
(f)fairness as between the person and other persons in a similar position.
The Deputy President considered each of these matters in his Decision.
Reason for the delay – s.394(3)(a)
The Appellant provided the following as reasons for the delay in lodging his application:[5]
· he had lodged his original application, being the application dismissed in the First Decision, within the 21 days of being terminated;
· he had tried to process the Application online but was unsuccessful due to “not owning word on my phone and laptop and (being) unable to complete it”;
· as he is unvaccinated for COVID-19, he was only allowed to travel within 5 km from his house, but Office Works at Fairy Meadow was nearly 10 km away from where he lives, and he did not want to risk a large fine;
· he had changed his mobile phone number and did not receive some or all of the telephone calls and the letter from the Commission referred to in the First Decision; and
· the COVID-19 restrictions and Government Health Orders were extraordinary and exceptional circumstances.
The Deputy President concluded as follows in respect of the Appellant’s explanation for the delay in filing the application:
“[14] I do not consider the Applicant’s reasons, individually or together, to be acceptable or reasonable explanations for the delay. It is clear that the Applicant was aware that he needed to lodge his application within 21 days of his dismissal because he filed an application by telephone on 13 September 2021.
[15] While the Applicant alleges computer difficulties relating to the failure to originally file the Form F2, I note that the Applicant suffered no such difficulties in lodging a completed fee waiver form by email on 28 September 2021. I conclude that the Form F2 could have been completed with similar ease, and note that the Applicant did not respond to an email from the Commission requesting that the Form F2 be returned.
[16] If the applicant failed to receive communications from the Commission because he had changed his telephone number, the cause of such failure rests solely with the Applicant and his failure to advise the Commission of his changed details.
[17] Regarding the alleged travel difficulties arising from COVID 19 restrictions, I note that residents of New South Wales, regardless of vaccination status or Local Government Area residency, have been able to travel beyond the 5km limit from their home since 11 October 2021. Further, the Office Works at Fairy Meadow is within the Applicant’s Local Government Area.
[18] The absence of an acceptable explanation weighs against the Applicant and a conclusion that there are exceptional circumstances.”
Whether the person first became aware of the dismissal after it had taken effect – s.394(3)(b)
The Deputy President determined that the Appellant was notified of the dismissal on the same day that it took effect and therefore had the full period of 21 days to lodge the application and that this was a neutral consideration.[6]
Action taken to dispute the dismissal – s.394(3)(c)
In relation to s.394(3)(c) of the Act, the Deputy President found:
“This consideration enquires as to whether the Respondent was somehow forewarned of the Application in the period between dismissal and the Application. In all the circumstances, I do not find that the Applicant took any action to dispute the dismissal because the Applicant did not file a Form F2 until 22 November 2021. I consider this factor is a neutral consideration.”[7]
Prejudice to the employer – s.394(3)(d)
In relation to s.394(3)(d) of the Act, the Deputy President found:
“The Respondent did not suggest any prejudice would be caused to it in the event the Commission extended the time for the Application to be made. It is not in dispute, and I so find that, in the circumstances, there would be no prejudice to the Respondent if an extension of time were to be granted, however the mere absence of prejudice is not necessarily a factor which weighs in favour of the Applicant for an extension of time. I consider this factor is also a neutral consideration.”[8]
Merits of the application – s.394(3)(e)
In considering s.394(3)(e) of the Act, the Deputy President found that the merits of the application turn on contested points of fact which would need to be tested if an extension of time were granted and the matter were to proceed. Consequently, the Deputy President found it was not possible to make a firm or detailed assessment of the merits and that he considered the merits to be a neutral consideration.[9]
Fairness as between the person and other persons in a similar position – s.394(3)(f)
In considering s.394(3)(f) of the Act, the Deputy President found that neither party brought to his attention any relevant matter concerning this consideration and, being unaware of any relevant matter, treated this as a neutral consideration.[10]
The Deputy President’s conclusion
In considering the matters that he was required to take into account under s.394(3) of the Act, the Deputy President was not satisfied that there were exceptional circumstances and therefore found there was no basis for him to allow an extension of time.
Principles on appeal
The decisions subject to appeal were made under Part 3-2 of the Act. Section 400(1) of the Act provides that permission to appeal from a decision made under Part 3-2 of the Act must not be granted unless the Commission considers that it is in the public interest to do so.
Further, s.400(2) of the Act provides that an appeal from a decision made by the Commission in relation to a matter arising under Part 3-2 of the Act 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.
In Coal & Allied Mining Services Pty Ltd v Lawler, Buchanan J (with whom Marshall and Cowdry JJ agreed) characterised the test under s.400 of the Act as “a stringent one”.[11] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[12] The public interest test in s.400(1) is not satisfied simply by the identification of an error or the preference for a different result. In GlaxoSmithKline Australia Pty Ltd v Makin, 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 instances so that guidance from an appellate court is required, or where the decision at first instance manifests as injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions regarding similar matters.”[13]
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.[14] However, that the Member of the Commission at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.[15]
Grounds of Appeal
By way of summary, the Appellant has set out the following grounds of appeal in his ‘Form F7 - Notice of appeal’:
· The first lodgment of the initial unfair dismissal application in the First Decision was within 21 days of dismissal.
· The email of the Commission dated 1 October 2021 had already exceeded 21 days after the dismissal took effect and had no further cut off date listed.
The Appellant filed submissions on 15 February 2022, in which he submitted that:
· in reference to s.400(a) of the Act, it is in the public interest to grant permission to appeal because if “this practice was to continue then the injustice of procedural fairness will impact the entire FWC reason for existence of justice to the workers of Australia and also the repucations (sic) of any international precedent set”; and
· in reference to s.400(b) of the Act and in addressing whether the appeal relates to an error of fact involved in the decision, it “would be a substantial injustice to ask for a F2 Form to be filled out within 21 days if the form was only emailed for the first time to me the applicant after the 21 day deadline had already passed, in fact this would be impossible for anyone to process without having the relevant information documents at hand. This clearly shows a question of fact and a significant error of fact involved in the decisions made”.
Consideration
First Decision – Extension of Time
The Appellant’s submissions do not address the issue of extension of time to lodge his appeal. The factors relevant to the Commission’s discretion to allow an extension of time are:[16]
·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.
Considering the factors set out above and given there is nothing in the material provided by the Appellant that would justify the granting of an extension, we are not satisfied that an extension of time should be granted in relation to the First Decision.
However, having regard to the fact that the Appellant’s submissions discuss the reason for the delay in filing the Appellant’s Form F2 related to the First Decision, we will briefly deal this below for completeness.
The Appellant submits that the lodgment of his initial application was within 21 days of dismissal. However, while the Appellant made a telephone application within 21 days, he did not file his Form F2 within 14 days of 14 September 2021, after the Commission sent correspondence to the Appellant’s email address requiring him to file a Form F2. The Appellant points to the Commission’s follow up correspondence of 1 October 2021, noting that it did not provide a cut off date for the filing of the Form F2 and that, as at 1 October 2021, it had already been more than 21 days since the dismissal took effect. However, this submission does not take into account that the Appellant had already been put on notice that his Form F2 needed to be filed and that the timeframe for doing so, being 14 days from 14 September 2021, had already passed. Further, the Commission also attempted to contact the Appellant on his nominated telephone number as no completed Form F2 had been filed, he did not answer the call and a voicemail message was left requesting that the Appellant contact the Commission. There is no evidence that, following receipt of the Commission’s email or voicemail message of 1 October 2021, the Appellant made any effort to file his Form F2 or contact the Commission if he was unclear about the requirements to file his Form F2.
As at the date of the First Decision, being 16 November 2021, which was over two months since the Commission’s correspondence of 14 September 2021, the Appellant had still not made an application that complied with the Rules and the Act. It is clearly within the power of the Commission to dismiss applications that are not made in accordance with the Rules and therefore the Act and the Commissioner did so.
Second Decision – Permission to Appeal
Turning to the Second Decision and the issue of permission to appeal, the Deputy President approached the task of determining the extension of time application by taking into account and weighing each of the criteria within s.394(3) of the Act in arriving at his conclusion. We have not identified any significant error in the reasoning or conclusion reached by the Deputy President in the Second Decision. Absent the identification of appealable error, there is no basis to grant permission to appeal.
We do not consider that the Second Decision raises any issue of importance or general application that would enliven the public interest. It concerned the dismissal of an employee who was found by the Deputy President to have filed an application for an unfair dismissal remedy outside the 21 day period set out in s.394(2)(a) of the Act and that there were no exceptional circumstances that warranted an extension of time being granted. The matter turned on its own facts. There is no diversity of decisions at first instance in relation to the issues raised on appeal, so that guidance from a Full Bench is required. We do not consider that the result of the Second Decision is counter-intuitive or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters.
We are not persuaded that it would be in the public interest to grant permission to appeal or that the Second Decision involves a significant error of fact. Accordingly, as required by s.400(1) of the Act, permission to appeal is refused.
Conclusion
Having regard to the First Decision, extension of time is refused.
Having regard to the Second Decision, permission to appeal is refused.
VICE PRESIDENT
Appearances:
Mr N Wong for the Appellant.
Ms A McCulloch for the Respondent.
Hearing details:
2022.
Microsoft Teams (Video).
8 March.
[1] Norman Wong v Cubic Transportation Systems (Australia) Pty Ltd T/A Cubic Transportation Systems Australia Pty Ltd[2021] FWC 6352.
[2] Norman Wong v Cubic Transportation Systems (Australia) Pty Ltd T/A Cubic Transportation Systems Australia Pty Ltd [2021] FWC 6684.
[3] Rule 56(2) of the Fair Work Commission Rules 2013.
[4] [2021] FWC 6352, [7].
[5] Ibid, [13].
[6] Ibid, [19].
[7] Ibid, [20].
[8] Ibid.
[9] Ibid, [21].
[10] Ibid, [22].
[11] (2011) 192 FCR 78; (2011) 207 IR 177, [43].
[12] 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 (2011) 192 FCR 78; (2011) 207 IR 177, [44]-[46].
[13] [2010] FWAFB 5343, [27]; (2010) 197 IR 266.
[14] Wan v AIRC (2001) 116 FCR 481, [30].
[15] 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; (2011) 207 IR 177; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office[2014] FWCFB 1663, [28], 241 IR 177.
[16] Stevenson-Helmer v Epworth Hospital, Print T2277; 19 October 2000; SPC Ardmona Operations Ltd v Esam and Organ (2005) 141 IR 338; Tokoda v Westpac Banking Corporation[2012] FWAFB 3995.
Printed by authority of the Commonwealth Government Printer
<PR742779>
0
9
0