Ogechi Barbara Charis v Canberra Health Services
[2023] FWCFB 112
•11 JULY 2023
| [2023] FWCFB 112 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Ogechi Barbara Charis
v
Canberra Health Services
(C2023/3401)
| DEPUTY PRESIDENT MILLHOUSE | MELBOURNE, 11 JULY 2023 |
Appeal against decision [2023] FWC 1222] of Deputy President Dean at Canberra on 31 May 2023 in matter number C2023/1507 – permission to appeal refused.
Ms Ogechi Barbara Charis has lodged an appeal under s 604 of the Fair Work Act 2009 (Cth) (Act) against a decision[1] and order[2] of Deputy President Dean issued on 31 May 2023, for which permission to appeal is required. The decision concerned an application, brought by Ms Charis in relation to general protections claim against Canberra Health Services (respondent) pursuant to s 365 of the Act.
As the initial application for the claim was filed out of time, Ms Charis sought an extension of time. The Deputy President ultimately refused to grant an extension of time and issued an order dismissing the application. The decision records the Deputy President’s reasons for doing so.
This matter was listed for permission to appeal only. For the reasons that follow, permission to appeal is refused.
Decision under appeal
Ms Charis commenced employment with the respondent on 12 December 2022. On 21 February 2023, the respondent terminated Ms Charis’ employment, effective on that day. There was no dispute about the effective date of dismissal.
On 16 March 2023, Ms Charis made an application under s 365 of the Act. The application was filed two days outside the 21-day period required by s 366(1)(a) of the Act and accordingly, a further period of time was required in accordance with s 366(1)(b) if the application was to proceed.
Section 366(2) of the Act is 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.”
The decision records the Deputy President’s conclusions in relation to each of the above matters in subparagraphs 366(2)(a)-(e), as well as the Deputy President’s overall conclusion that there were not “exceptional circumstances.” Having regard to the grounds of appeal, and the matters listed in support of the public interest in Ms Charis’ Notice of Appeal (described further below), it is unnecessary to set out the Deputy President’s findings beyond the following high-level summary.
In respect of the specific factors in s 366(2)(a)-(e), the Deputy President found as follows:
(a) s 366(2)(a) – The reason for delay was that, as set out in Ms Charis’ written statement, Ms Charis “only applied to Employee Dismissal to file my case on the 16th of March because of financial circumstances.” The Deputy President also noted that Ms Charis confirmed, in her oral evidence, a reason for delay was that she was waiting to be paid.
(b) s 366(2)(b) – There was no evidence that Ms Charis had taken any steps to contest the dismissal until filing her application.
(c) s 366(2)(c) – There was no identifiable prejudice to the respondent if an extension of time were granted.
(d) s 366(2)(d) – The Deputy President was unable to make a final determination of the merits of the matter. The Deputy President notes that Ms Charis’ employment was terminated for alleged poor performance, which was a matter that Ms Charis disputed.
(e) s 366(2)(e) – There were no identifiable matters raising issues of fairness between Ms Charis and other persons in a similar position.
For the above matters, the Deputy President concluded that the factors in s 366(2)(a) and (b) weighed against a finding of exceptional circumstances and the factors in s 366(2)(c)-(e) were neutral factors. The decision records that the Deputy President’s overall consideration of the matter led her to concluding that she was not satisfied there were exceptional circumstances to warrant granting an extension of time to the statutory time limit. On that basis, the Deputy President dismissed the application.
Grounds of appeal and public interest
In the section of the Form F7 Notice of Appeal addressing the public interest, Ms Charis stated:
“For FWC to grant me a second hearing to appeal my unfair dismissal [from] Canberra Hospital.”
The grounds of appeal listed in the Form F7 stated:
“As mentioned above the false allegations about me which resulted in my unfair dismissal are false and I want to prove it in court by seeking fairness and justice.”
It is unnecessary to set out the allegations that Ms Charis says are “false,” but her Notice of Appeal lists various allegations that had been made against her and which, clearly, Ms Charis believes to be wrong and wishes to challenge.
Principles – permission to appeal
There is no right to appeal and an appeal may only be made with the permission of the Commission.
By s 604(2), and without limiting when the Commission might grant permission, the Commission must grant permission if the Commission is 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.[3] The public interest is not satisfied simply by the identification of error,[4] or a preference for a different result.[5] 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 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...”[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.[7] However, that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.
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.[8]
Consideration
It is not entirely clear from the Notice of Appeal what the alleged error of law made by the Deputy President is said to be, if any.
Ms Charis has not alleged any matter that would demonstrate an arguable case of appealable error. A decision made under s 366(2) of the Act is a decision involving a “discretion” to which the principles in House v The King[9] apply. For there to be legal error, it would need to be shown that the Deputy President acted on a wrong principle, took into account irrelevant matters, mistook facts, or is manifestly wrong. Ms Charis does not allege such matters.
Ms Charis states she just wants her substantive case to be heard. There is no doubt that this is important for Ms Charis, but it is a preliminary jurisdictional issue that applications be made within time or upon such further time as the Commission allows. The Deputy President did not allow further time because she was not satisfied that there were “exceptional circumstances” warranting an extension. We cannot discern any arguable case of appealable error with respect to the Deputy President’s decision arising from the grounds of appeal in the Notice of Appeal.
Nor does the Notice of Appeal or any aspect of the decision point to any matter in the public interest that might support the grant of permission to appeal. We have considered whether this appeal attracts the public interest, and we are not satisfied, for the purposes of s 604(2) that:
(a) there is a diversity of decisions at first instance so that guidance from an appellate body is required;
(b) the appeal raises issues of importance and/or general application;
(c) the decision at first instance manifests an injustice, or the result is counter intuitive; or
(d) the legal principles applied by the Deputy President were disharmonious when compared with other decisions dealing with similar matters.
Because we are not satisfied that that the grant of permission would be in the public interest or that there are any other grounds that would support the grant of permission to appeal, permission to appeal is refused under s 604(1) of the Act.
DEPUTY PRESIDENT
Appearances:
O. Charis on her own behalf
C. Phillipson of ACT Government Solicitor for the respondent
Hearing details:
2023.
Melbourne (by video via Microsoft Teams):
July 4.
[1] [2023] FWC 1222
[2] PR762474
[3] O’Sullivan v Farrer (1989) 168 CLR 210 at 216-217 per Mason CJ, Brennan, Dawson and Gaudron JJ: applied in Hogan v Hinch (2011) 243 CLR 506 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [44] – [46].
[4] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343, 197 IR 266 at [24]-[27].
[5] 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].
[6] [2010] FWAFB 5343, 197 IR 266 at [24] – [27].
[7] Wan v AIRC (2001) 116 FCR 481 at [30].
[8] Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82].
[9] (1936) 55 CLR 499 at 505
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