Patricia Gutterson v Australian Footwear Pty Ltd T/A Munro Footwear Group
[2023] FWCFB 82
•4 APRIL 2023
PR761609
The attached document replaces the document previously issued with the above code on {insert date}.
Print number ID changed from ‘PN’ to ‘PR’
John Cullen
Associate to Deputy President Cross
Dated 4 May 2023
| [2023] FWCFB 82 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Patricia Gutterson
v
Australian Footwear Pty Ltd T/A Munro Footwear Group
(C2023/1298)
| DEPUTY PRESIDENT CROSS | SYDNEY, 4 APRIL 2023 |
Appeal against decision [2023] FWC 408 of Deputy President Masson at Melbourne on 20 February 2023 in matter number U2022/11059.
Ms Patricia Gutterson worked for Australian Footwear Pty Ltd (Australian Footwear) or its predecessors from 2007 until 2022, most recently as a casual employee. In the twelve months prior to her dismissal, Ms Gutterson had not worked many hours. The reasons for this are in dispute.
On 13 October 2022, Ms Gutterson was dismissed. On 18 November 2022, she applied for an unfair dismissal remedy under s.394 of the Fair Work Act 2009. Section 394(2) requires applications to be made within 21 days after a dismissal took effect. Section 394(3) allows the Fair Work Commission to extend the time for making an application if the Commission is satisfied that there are exceptional circumstances.
On 20 February 2023, Deputy President Masson decided not to extend the time for Ms Gutterson to make her unfair dismissal application. In Gutterson v Australian Footwear Pty Ltd T/A Munro Footwear Group [2023] FWC 408, the Deputy President provided his reasons for not granting the extension of time. Ms Gutterson now seeks permission to appeal the Deputy President’s decision.
Under sections 400 and 604 of the Act, Ms Gutterson can only appeal with the permission of the Full Bench. Permission to appeal can only be granted if we are satisfied that it is in the public interest to do so (per s.400). For the following reasons, we have decided not to grant permission to appeal.
The Deputy President’s decision
In his decision the Deputy President:
(a)described the events that led to Ms Gutterson’s dismissal (at [4]-[10]);
(b)described the events after Ms Gutterson’s dismissal, including the communication between Ms Gutterson and Australian Footwear where Ms Gutterson tried to return to employment (at [11]-[16]);
(c)described the events after Australian Footwear declined to change its original decision to dismiss Ms Gutterson, including evidence that Ms Gutterson provided care to her ill brother (at [17]-[18]);
(d)set out the relevant law and legal principles relevant to an extension of time (at [19]-[23]);
(e)applied the law and relevant principles to the evidence before him (at [24]-[39]);
(f)found that he was not satisfied that there were exceptional circumstances (at [40]); and
(g)having found that there were no exceptional circumstances declined to grant the extension of time because there was no basis in the legislation to do so (at [41]).
On appeal Ms Gutterson submits that the Deputy President should have found that there were exceptional circumstances and should have granted her an extension of time. However, Ms Gutterson does not submit that the Deputy President misstated the legal requirements or misconstrued the facts. Ms Gutterson has not identified any apparent error in the decision-making process. The basis for appeal seems only to be that the Deputy President made the wrong decision at the end of the decision-making process.
Ms Gutterson relies on two additional matters. The first is a supplementary reason for the delay in filing her application, which is that she was moving things into storage in November 2022. For present purposes we accept that Ms Gutterson was required to devote time to this task during the relevant period. However, there is no evidence or explanation as to why this prevented her from making her application to the Commission on time. Further, this was information known to Ms Gutterson at the time she made her application but was not raised before the Deputy President. It cannot now be raised only for the first time on appeal.
In her appeal submissions Ms Gutterson also provided further information about her alleged unavailability for work in the last 12 months of her employment. There was a dispute about Ms Gutterson’s alleged unavailability for work and its connection to the reasons for her dismissal. The Deputy President acknowledged this dispute at paragraphs [36] to [37] and found that the merits of the case were a neutral consideration for the purposes of determining the extension of time. Accordingly, this additional information does not take Ms Gutterson’s case on appeal any further.
Conclusion
The public interest test in s.400 of the Act is a stringent one, involving a broad value judgment (per Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78, (2011) 207 IR 177, [2011] FCAFC 54 at [43]-[44]). 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 a Full Bench is required, or where the decision at first instance manifests an injustice, the result is counter intuitive, or the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters (per GlaxoSmithKline Australia Pty Ltd v Makin (2010) 197 IR 266, [2010] FWAFB 5343 at [27]).
In our view this is not an appeal that raises any matter of public interest. The Deputy President correctly identified the relevant law and applied it in an orthodox way to the matters before him. No arguable case of appealable error is apparent in the Notice of Appeal.
Accordingly, permission to appeal is refused.
DEPUTY PRESIDENT
Appearances:
Ms P Gutterson, Applicant
Ms P Preston, for the Respondent
Hearing details:
2023.
Sydney (By Video using Microsoft Teams)
April 4.
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