Patrick Reynolds v Bunnings Group Limited
[2020] FWCFB 3764
•20 JULY 2020
| [2020] FWCFB 3764 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Patrick Reynolds
v
Bunnings Group Limited
(C2020/3419)
DEPUTY PRESIDENT DEAN | SYDNEY, 20 JULY 2020 |
Appeal against decision [2020] FWC 775] of Deputy President Cross on 20 April 2020 in matter number C2019/5731.
[1] Mr Patrick Reynolds (the Appellant) has lodged an appeal, for which permission to appeal is required, against a Decision of Deputy President Cross issued on 20 April 2020 1. In the decision the Deputy President declined to extend time for lodgement of a general protections dismissal application made by Mr Reynolds pursuant to s.365 of the Fair Work Act 2009.
[2] The question of whether permission to appeal should be granted is the matter before us.
[3] At the hearing of the application for permission to appeal, Mr Polleycutt appeared for the Appellant and Mr Fuimaono-Page of Victorian Chamber of Commerce and Industry appeared for Bunnings Group Limited (the Respondent).
Background
[4] Mr Reynolds made a general protections dismissal dispute application to the Commission on 13 September 2019. His employment was terminated with effect from 19 February 2019.
[5] Section 366(1) of the Act provides that an application under s.365 must be made:
“(a) within 21 days after the dismissal took effect; or
(b) within such further period as FWC allows under subsection (2).”
[6] Section 366(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.”
[7] Mr Reynolds’ general protection dismissal application was filed 185 days after the 21 day time period ended, and it was therefore necessary for him to obtain an extension of time under s.366(2) in order to make the application.
[8] In the Decision, the Deputy President set out the sequence of events between the dismissal and the filing of Mr Reynolds’ application. The relevant extracts of the Deputy President’s decision are as follows:
“[6] On 8 March 2019, the Applicant’s former support person, Mr Polleycutt, filed the UD Application. The UD Application consisted of a 6-page Form F2 – Unfair Dismissal Application and a 5-page accompanying document titled ‘F2 point 3.2. Why was the dismissal unfair?’.
[7] I note that it was the Applicant’s case that he also simultaneously submitted a Form 8 General Protections Application Involving Dismissal on 6 March 2019 (“the March GP Claim”). The Applicant submitted:
a. Applicant lodged an F8 Application 6/3/19 The Administrative procedural advice from FWC was confused and as such the F8 was a duplicate of reasons F2 and referred directly to the F2 that was being submitted before the FWC in compliance of the procedures received;
b. An Application for unfair dismissal F2 lodged 6/3/19 along with the F8 in a. above.
c. Both F8 and F2 " Form" duplicates were instructed that the F8 was before the FWC in " Form" regardless, but as the Dismissal had taken place the F2 was the correct " Form" administered by the Reception in Civic of FWC.
[8] The March GP Claim that the Applicant claimed to have filed on 6 March 2019, apparently simply annexed the UD Application, and listed in answer to Questions 3.1 and 3.3 of the Form F8 “Please see attached document ‘F2. 3.2 Why is dismissal unfair?’”.
[9] On 11 April 2019, the parties attended a conciliation conference conducted by the Fair Work Commission. The matter did not settle and was subsequently referred to Deputy President Kovacic for determination.
[10] Between the time of allocation to the Deputy President and July 2019, the parties attended three Mentions/Conferences with the Deputy President and exchanged various emails regarding the programming and conduct of the matter. The last such mention occurred on 19 July 2019.
[11] Further, on 12 June 2019, the Respondent filed a previously foreshadowed application under s.399A of the Act seeking that the UD Application be dismissed on the basis that Mr Reynolds had “repeatedly failed to comply with directions” made by the Commission. In dismissing that application on 4 July 2019, Deputy President Kovacic observed:
‘Finally, I would strongly encourage Mr Reynolds to contact Legal Aid ACT and/or the ACT Law Society’s pro-bono clearing house to see whether he may be eligible for assistance and/or support/advice in respect of his unfair dismissal application. Beyond this, Mr Reynolds should also, if he has not already done so, examine the range of information/material which is available on the Commission’s website, e.g. the Unfair Dismissal Benchbook, to assist him in preparing his submissions and any associated evidentiary material which he intends to rely on in support of his unfair dismissal application.’
[12] On 22 July 2019, the Deputy President issued the following direction:
‘The Applicant, Mr Patrick Reynolds, is to advise the Fair Work Commission within 14 days (close of business Monday 5 August 2019) as to whether he wishes to proceed with his application for unfair dismissal remedy or alternatively seeks to discontinue his application.’
[13] The Respondent submits that on 22 July 2019, the Deputy President confirmed there was no record of a Form F8 – General Protections Application Involving Dismissal having been filed by or on behalf of the Applicant, and requested that the Applicant advise the Commission “as to whether he wishes to proceed with his application for unfair dismissal remedy or alternatively seeks to discontinue his application” (as set out in Directions dated 22 July 2019). The Respondent alleges that the Deputy President also warned the Applicant that were he to take that course, he would first have to be granted an extension of time by the Commission if he were to discontinue his F2 Application and pursue a general protections dispute instead.
[14] It would seem at the very least that the existence of the March GP Application was the subject of some agitation because on 19 August 2019, the Deputy President’s Associate emailed the Applicant. The relevant part of that email, with some deletions of addresses for privacy, was as follows:
From: Chambers - Kovacic DP [email protected]
Sent: Monday, 19 August 2019 11:59 AM
To: reynolds.patrick
Cc:
Subject: U2019/2581 - Reynolds, Patrick v Bunnings
Attachments: form_f50.pdf
Dear Mr Reynolds
I apologise for the delay in responding, the Deputy President is currently on leave.
The Deputy President notes the Commission has no record of Mr Reynolds filing a General Protections application.
The Deputy President infers from your responses of 22 July and 7 and 13 August 2019 that the Applicant intends to press his unfair dismissal application and directions will shortly be issued for a hearing.
If the Applicant does not wish to continue with his unfair dismissal application please sign the attached notice of discontinuance and return it to the Commission.
Kind regards,
[15] In the absence of discontinuance of the UD Application, it appears to have been understood that the Applicant intended to continue pursuing his F2 Application and on 23 August 2019, a Notice of Listing and Directions document was issued to the parties and stated (in part) as follows:
‘1. The Applicant (Patrick Reynolds) is to file with the Commission and serve on the Respondent an outline of submissions and any evidentiary material (witness statements and other documentary material) on which it intends to rely by close of business on Friday, 13 September 2019.
2. The Respondent (Bunnings) is to file with the Fair Work Commission and serve on the Applicant an outline of submissions and any evidentiary material (witness statements and other documentary material) on which it intends to rely by close of business on Friday, 4 October 2019.
3. The Applicant (Mr Patrick Reynolds) is to file with the Fair Work Commission and serve on the Respondent any submissions and any evidentiary material (witness statements and other documentary material) in reply to the Respondent’s witness statements and documents by close of business on Friday, 11 October 2019.
4. The parties should refer to the information sheet attached which provides explanatory information about these directions.
5. If either party wishes to vary these directions, they can make an application to do so in writing directly to the Member's Chambers.’
[16] On 4 September 2019, the Deputy President’s Associate emailed the Applicant. The relevant part of that email, with some deletions of addresses for privacy, was as follows:
From: Chambers - Kovacic DP <[email protected]>
Sent: Wednesday, 4 September 2019 3:54 PM
To: reynolds.patrick
Cc:
Subject: U2019/2581 - Reynolds, Patrick v Bunnings
Attachments: Notice of Listing and Directions.rtf; form_f50.pdf
Dear Mr Reynolds,
I refer to our conversation on Monday in which you stated you were going to obtain legal advice regarding your options.
If you do not intend on proceeding with your F2 Application please advise Chambers or complete the attached F50 notice of discontinuance.
Should you wish to proceed with your F2 Application you are reminded that you are obligated to comply with the following Directions which were issued on 23 August 2019.
[17] On 6 September 2019, the Applicant emailed the Deputy President’s Associate. The relevant part of that email, with some deletions of addresses for privacy, was as follows:
From: Patrick Reynolds >
Sent: Friday, 6 September 2019 12:15 PM
To: Chambers ‐ Kovacic DP [email protected]
Subject: Copy of all orders in u2019/2581
Hi as discussed with counter staff at fwc office Canberra o need all orders made in this matter so that I can give them to solicitor who is advising me
Thks is an urgent matter and requires immediate attention. Regards Patrick Reynolds
[18] On 13 September 2019, the Applicant filed (but apparently failed to serve on the Respondent until 17 September 2019,) a Form F50 – Notice of Discontinuance (“the Form F50”). The Form F50 indicated the Applicant had decided to ‘Wholly discontinue this matter to pursue an alternate application.’”
[9] The Deputy President gave consideration to each of the matters he was required to take into account under s.366(2) of the Act.
[10] In relation to s.366(2)(a), the Deputy President considered the reasons for the delay advanced by Mr Reynolds and summarised as follows:
“[27] The position of the Applicant is that there was no delay. He says that the March GP Claim was filed on 6 March 2019, though I note that the UD Application, that was said to annexe the March GP Claim, was not filed until 8 March 2019. Nonetheless, as the dismissal date was 19 February 2019, any claim was required to be filed by 12 March 2019. Support for the Applicant’s contention can be derived from the answer to Question 1.6 in the UD Application, where he indicated, contemporaneously, that he had made another claim, being “Form F8 General Protections Application Involving Dismissal”.
[28] The Respondent identifies that the September GP Claim, which is the subject of this Application, was filed 185 days outside the statutory time limit. The Respondent denies there is any evidence of the filing of the March GP Claim.
[29] Other than the notation at Question 1.6 of the UD Application, there is no evidence supporting the actual filing of the March GP Claim. Nonetheless, I am not prepared to find that the Applicant has no acceptable explanation for all of the 185 day period of delay. That is because Mr Polleycutt, and not the Applicant, filed the UD Application. It appears likely that the Applicant may have understood that the March GP Claim had been filed for some period after March 2019.
[30] I do not accept, however, that the Applicant has an acceptable explanation for all of the 185 day period of delay. The Applicant and the Respondent had numerous dealings with the Commission during that period. It is tolerably clear that the issue of the non-existence of the March GP Claim, at least as a filed document, was being squarely raised, as was the associated issue of discontinuance of the UD Application.
[31] On 22 July 2019, Deputy President Kovacic was directly enquiring as to discontinuance, and noted in his email to the Applicant of 19 August 2019, that from the Applicant’s responses of 22 July 2019, and 7 and 13 August 2019, that the Applicant intended to press the UD Application. I am satisfied that the Applicant was aware from either the 19 July 2019 mention of the UD Application, or the 22 July 2019 correspondence from the Deputy President, that the non-existence of the March GP Claim was a live issue. I am further satisfied that from 19 August 2019, the issue of the non-existence of the March GP Claim, was put beyond doubt.
[32] There is no question as to the Applicant’s awareness of the 21 day period for filing applications. By 22 July 2019, it should have been readily apparent to the Applicant that for an abundance of caution a valid Form F8 should be filed. Transposing 22 July 2019, for the termination date, the 21 day period would expire on 12 August 2019, with the Application being filed 32 days after that date.
[33] Even if the Applicant required the absolute statement contained in the email of 19 August 2019, which I do not accept due to the many prior proceedings in the Commission, then transposing 19 August 2019, for the termination date, the 21 day period would expire on 9 September 2019, with the Application being filed four days after that date.
[34] While I accept that the Applicant has an acceptable explanation for a significant part of the 185 day period of delay, I find there is no acceptable explanation for the delay in application after 12 August 2019, or in the alternative 9 September 2019, particularly when in at least the latter stages of that span of dates the Applicant apparently had a Solicitor advising him.”
[11] In relation to s.366(2)(b), the Deputy President said: “The Respondent conceded that the Applicant did take action to dispute his dismissal by the UD Application. Accordingly, this factor weighs in the Applicant’s favour.”
[12] In relation to s.366(2)(c), the Deputy President made the following finding:
“[38] As a key witness for the Respondent is no longer employed by the Respondent, and so is less accessible than he would have otherwise been had the application been filed promptly, and noting the significant amount of time between the dismissal and the filing of the September GP Claim, the Respondent will be moderately prejudiced by the delay. This factor accordingly weighs slightly in the Respondent’s favour.”
[13] In relation to s.366(2)(d), the Deputy President considered the merits of the application a neutral consideration.
[14] In relation to s.366(2)(e), the Deputy President found no relevant circumstances which arose in relation to fairness as between Mr Reynolds and other persons in a like position.
[15] The Deputy President concluded that there were no exceptional circumstances such as to warrant an extension of time and dismissed the application.
Grounds of Appeal
[16] In the Notice of Appeal, Mr Reynolds set out four grounds of appeal, being errors of fact, errors of law, procedural fairness and justice. The matters said to make it in the public interest to grant permission for the appeal were:
a. Administration of the Fair Work Act;
b. Form and procedures used by the Fair Work Commission;
c. Fairness to the parties in a matter before the Fair Work Commission;
d. Public Authority’s administration;
e. Justice
[17] The Appellant filed lengthy written submissions on 8 June 2020 in support of his appeal, which we have carefully considered. Many aspects of the submissions were not relevant to the matters we need to consider in deciding whether to grant permission to appeal. For example,
a. the Appellant complained that the decision was counterintuitive because the Deputy President had not weighed the Respondent’s failure to file its Employer Response (Form F3) within seven days;
b. the Appellant asserted a breach of human rights because there appeared only to be recourse to the Respondent to have the Appellants non-compliance with directions dealt with;
c. the Respondent had not opposed the application for an extension of time sought by the Appellant;
d. unrepresented applicants needed more time to formulate articulate the case they wish to present; and
e. the Deputy President did not consider the views of the conciliator, and had not fully considered each of the matters raised by the Appellant.
Consideration
[18] Section 400(1) provides that permission to appeal must not be granted from such a decision unless the Commission considers that it is in the public interest to do so. Further, in such matters, appeals on a question of fact may only be made on the ground that the decision involved a ‘significant error of fact’ (s.400(2)). In Coal & Allied Mining Services Pty Ltd v Lawler and others, 2 Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s.400 as ‘a stringent one’.3 The Commission must not grant permission to appeal unless it considers that it is ‘in the public interest to do so’.
[19] The task of assessing whether the public interest test is met, is a discretionary one involving a broad value judgment. 4 In GlaxoSmithKline Australia Pty Ltd v Makin5 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
[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. 7 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.8
[21] In relation to extensions of time to lodge applications under s.365 of the Act, the test of ‘exceptional circumstances’ establishes a ‘high hurdle’ for an applicant seeking an extension to be granted, and a decision as to whether to extend time under s.366(2) involves the exercise of a broad discretion. 9 Therefore it will be necessary, in an application for permission to appeal against a decision made under s.365 to demonstrate that there is an arguable case of appealable error in the exercise of the discretion. This will require the identification of an error of the type described in House v The King10. That is that the decision-maker has acted on a wrong principle, has mistaken the facts, has taken into account an irrelevant consideration or failed to take into account a relevant consideration, or has made a decision which is unreasonable or manifestly unjust. Additionally, where an error of fact is alleged, s.400(2) of the Act requires that it must be a significant error of fact. The overriding public interest requirement of s.400(1) always remains.
[22] We have considered all of the matters raised by the Appellant. In our view, the majority of the Appellant’s appeal submissions do not address the matters we need to consider, in that they are either a reiteration of the submissions made at first instance or raise issues which do not address the findings of the Deputy President.
[23] It is clear that the Appellant is dissatisfied with the Decision. However, the appeal process is not intended to provide an avenue for an unsuccessful party to rerun their case simply because he or she is dissatisfied with the outcome at first instance.
[24] In our view, the Deputy President has properly addressed each of the matters in s.366 that he was required to consider, and has made appropriate findings based on the evidence before him.
[25] Having considered all the matters put by the Appellant, and reading the decision as a whole, we are not satisfied that the Appellant has identified any error in the decision which would meet any of the criteria for appealable error in a discretionary decision as enunciated in House v The King.
[26] Further, the conclusion of the Deputy President that the circumstances attending the delay in filing the application did not meet the stringent criterion of ‘exceptional circumstances’ is not counter-intuitive and does not manifest any substantial injustice.
[27] We are not satisfied that any of the matters raised by the Appellant justify the grant of permission to appeal in the public interest or otherwise. The appeal does not raise any issue of law or policy which is novel and/or has broader implications. Further, the decision is not inconsistent with any other relevant Commission decision. The determination of the extension of time application turned entirely on its particular facts.
Conclusion
[28] We are not persuaded that the Appellant has made out an arguable case for any significant error of fact on the part of the Deputy President.
[29] Further, the public interest is not enlivened by dissatisfaction with an outcome where there is no appealable error. None of the matters on which the Appellant relies as public interest grounds persuade us that the public interest is enlivened. On that basis, and as there are no other matters that enliven the public interest, we decline to grant permission to appeal.
[30] The appeal is dismissed accordingly.
DEPUTY PRESIDENT
Appearances:
E Polleycutt for the Appellant.
T Fuimaono-Page for the Respondent.
Hearing details:
2020.
Sydney and Brisbane (By telephone):
June 9.
Printed by authority of the Commonwealth Government Printer
<PR721076>
1 [2020] FWC 775.
2 (2011) 192 FCR 78.
3 Ibid at [43].
4 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, Crennon, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54 at [44] – [46].
5 (2010) 197 IR 266.
6 Ibid at [27].
7 Wan v AIRC [2001] FCA 1803 at [30].
8 GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343 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 in Coal & Allied Mining Services Pty Ltd v Lawler; [2011] FCAFC 54; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663 at [28].
9 Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21].
10 (1936) 55 CLR 499 at [504] – [505] per Dixon, Evatt and McTiernan JJ.
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