Pedro Kayias Pty Ltd T/A Petes Vehicle Transport v Mr Desmond Smith
[2015] FWCFB 1519
•18 MARCH 2015
| [2015] FWCFB 1519 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
Mr Desmond Smith
(C2015/1885)
JUSTICE ROSS, PRESIDENT | MELBOURNE, 18 MARCH 2015 |
Appeal against decision [2014] FWC 8798 of Deputy President Bartel at Adelaide on 5 December 2014 in matter number U2014/5959.
[1] Pedro Kayias Pty Ltd T/A Petes Vehicle Transport (the appellant, Petes Vehicle Transport) has filed a notice of appeal under s.604 of the Fair Work Act 2009 (the FW Act) seeking permission to appeal a decision of Deputy President Bartel issued on 5 December 20141 (Decision). In the Decision, the Deputy President found that the dismissal of Mr Desmond Smith (the respondent) was harsh, unjust or unreasonable under s.394 of the Act and ordered 2 the appellant to pay an amount of compensation in the sum of $8440, less appropriate tax.
[2] On the 2 March 2015 the appellant filed a Form F7 - Notice of Appeal seeking to both stay and appeal the Deputy President’s decision and order and that is the matter before us.
[3] Rule 56(2) of the Fair Work Commission Rules 2013 (Rules) relevantly provides that a notice of appeal under s.604 must be filed within 21 calendar days after the date of the decision the subject of the appeal or within such further time allowed by the Commission on application by the appellant. The appellant’s notice of appeal was filed on 2 March 2015, some 10 weeks after the prescribed 21-day time period had expired. Accordingly it is necessary for the appellant to apply for an extension of time.
[4] We would infer that the appellant’s notice of appeal contains an application for an extension of time, in that under the section of the notice headed “Extension of time”, the appellant, although he ticked “Yes” to the question asking whether the application had been made within 21 days of the decision, then went on to say in response to the further requirement in the form to “Explain the reason for the delay and the grounds on which you say an extension of time should be granted” if “No” had been the answer to the previous question, said:
“1. At all material times I was abroad and outside Australia.
2. Upon my return I did NOT have access to this decision and further delays occurred via the Registry to obtain these “Appeal” documents.
3. We a Transport Company NOT Lawyers”
[5] The usual principles applying to the consideration of an application to extend time to lodge an appeal were summarised in the Full Bench decision in Jobs Australia v Eland (Eland)3as follows:
“[5]Time limits of the kind in Rule 56 should not simply be extended as a matter of course. There are sound administrative and industrial reasons for setting a limit to the time for bringing an appeal and it should only be extended where there are good reasons for doing so. The authorities indicate that the following matters are relevant to the exercise of the Tribunal’s discretion under Rule 56(2)(c):
• 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.”
[6] We will consider the relevant matters identified in Eland in the order set out above.
[7] In the course of oral argument Mr Timms (the Corporate Services Manager for Petes Vehicle Transport) advanced the following submissions in relation to the reason for the delay in filing the appeal:
(i) he had been overseas “on and off” between mid November 2014 until mid January 2015 and it was only upon his return to Australia in January that he became aware of Deputy President Bartel’s decision and order of 5 December 2014; 4
(ii) in the period between mid January and the lodgement of the appeal he had sought to reopen the decision at first instance and when that was unsuccessful he sought to obtain information from the Commission about the process for lodging an appeal; and
(iii) the Form F7 - Notice of Appeal was completed within 3 or 4 days of receiving the relevant information from the Commission.
[8] The day after the hearing Mr Timms forwarded an email to the Commission (from the same email address provided to the Commission by the appellant in the proceedings at first instance) in which he provided some additional clarification. In particular Mr Timms states:
- he returned from overseas on 19 January 2015; and
- the Commission forwarded the Form F7 - Notice to Appeal, to the appellant on 6 February 2015 and Mr Timms received the document a few days later.
[9] We do not consider that the appellant has provided a satisfactory reason for the delay in filing the appeal. Three points may be made in this regard.
[10] The first concerns the notification provided to the appellant of the decision and order sought to be appealed. The Form F3 filed by the appellant in the proceedings at first instance identifies the contact person as Mr Peter Kayias and provides an email address. It is apparent from the Commission’s records that on 5 December 2014 a copy of the decision and order was sent by the Deputy President’s Associate to the email address which had been provided by the appellant. While we accept that Mr Timms personally did not become aware of the Deputy President’s decision and order until late January, it is clear that these documents were sent to the email address provided by the appellant on 5 December 2015.
[11] The second point is that no satisfactory explanation is provided for the whole of the delay between late January (when Mr Timms became aware of the Deputy President’s decision and order) and 23 February 2015, when he completed and signed the Notice of Appeal. In his email of 13 March 2015 Mr Timms acknowledges that the appellant received the Form F7 from the Commission on 6 February; that he received the document ‘a few days later’ and that he signed the Notice of Appeal on 23 February 2015. Accordingly, on his own submission, Mr Timms took over 10 days to complete the Notice of Appeal after he had received all of the relevant information from the Commission. No satisfactory explanation is provided for this delay.
[12] Finally, the Notice of Appeal was completed and signed on 23 February 2015 but was not lodged until 2 March 2015, some 7 days later. In his email of 13 March 2015 Mr Timms says this delay was ‘because the staff did not have the fax number for the Commission’. We do not consider the reason provided to be a satisfactory explanation for this 7 day delay.
[13] As to the second of the relevant matters identified in Eland, we note that the delay in filing the notice of appeal is lengthy - 10 weeks - particularly when compared to the 21-day time period for filing prescribed by rule 56(2).
[14] Before turning to the third relevant matter, the merits of the appeal, it is necessary to say something about the proceedings at first instance. The relevant background is set out at paragraphs [2]-[5] of the Decision,:
“[2] The application was initially listed for hearing on 20 and 21 August 2014. The parties had indicated a willingness to participate in conciliation before a member of the Commission and this occurred on 24 July 2014. Terms of agreement were reached between the parties and the trial dates were vacated. However advice was then received that the respondent had failed to execute the deed of agreement and the matter was referred back to me for further directions.
[3] A new trial date of 25 and 26 November 2014 was set. The applicant, through his representative Mr Lawrie of the Transport Workers Union of Australia, SA/NT Branch, filed his documents as directed by 10 October 2014. Mr Peter Kayias, the proprietor of the respondent, was to file his documents and witness statements by 14 November 2014, but failed to do so. He was contacted by my Chambers on 19 November 2014 and requested to file his documents as a matter of urgency. 5 Nothing was received. My Chambers then contacted him by phone on 21 November 2014, wherein Mr Kayias advised that his documents were on the computer of a person who was overseas and if that person did not return by 24 2014 November he will seek an adjournment. He was advised that he should not assume that an adjournment would be granted or that late documents would be admitted.
[4] On 24 November 2014 the respondent sent an email attachment formally requesting an adjournment as the Corporate Services Manager was unable to return to Adelaide from abroad until 26 November 2014. My Chambers emailed Mr Kayias, confirming receipt of his email and advising him to attend the hearing the following day to put his case for an adjournment. He did not attend. When contacted by phone he advised that he had not read the email sent from Chambers the previous day; that he was busy; and that he would not be attending the proceedings.
[5] I was satisfied that the respondent’s actions and inactions had already delayed this matter for some 3 months and that despite the significant amount of time within which to file his documents, he had failed to comply. In his correspondence requesting an adjournment Mr Kayias requested that he be advised in relation to the matter but then failed to read the advice provided. Mr Kayias has not demonstrated an appropriate level of diligence in relation to this matter over a long period of time and I decided that in all the circumstances it would be unfair to the applicant to further adjourn the proceedings. Accordingly, the application was heard in the employer’s absence.”
[15] The Deputy President’s decision then proceeds to deal with the circumstances of the dismissal (at [6]-[13]) and the relevant statutory considerations, including the Small Business Dismissal Code (at [14]-[29]), before concluding (at [30]) that the dismissal was harsh, unjust or unreasonable. The Deputy President then considered the question of remedy, found that reinstatement was inappropriate (as the applicant had obtained alternative employment) and applied the criteria for determining the amount of compensation in s.392 of the FW Act.
[16] At the hearing Mr Timms submitted that the appellant sought to pursue a constitutional challenge to the power of the Commonwealth Parliament to enact Part 3-2 of the FW Act (dealing with unfair dismissals) and to establish a tribunal (the Commission) to deal with such matters. We note that no such argument was advanced in the proceedings at first instance 6 and, further, the issue of constitutional power was effectively determined by the High Court in the Work Choices case.7
[17] The prospects of success of the appeal, if an extension of time was to be granted, must be assessed as negligible. On our reading of the Decision, it is apparent to us that in concluding that the dismissal was unfair the Deputy President considered all the matters she was required to take into account under s.387 and made findings about those matters which were reasonably open on the evidence. It is also apparent that the Deputy President properly considered the statutory criteria in relation to remedy and calculated the amount of compensation ordered taking into account the criteria in s.392.
[18] Additionally, a consideration of the prospects of success of the appeal must include a consideration of the prospects of permission to appeal being granted. Because The appellant’s appeal is one against a decision made under Part 3-2 of the FW Act, s.400(1) would apply to the appeal if an extension of time is granted. Section 400(1) prohibits the grant of permission to appeal unless the Commission considers it is in the public interest to do so. This provision imposes a stringent test for the grant of permission to appeal.8 Examples of where the public interest might be attracted include where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance such that guidance from an appellate tribunal 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.9 None of these elements manifests itself in the appellant’s case, and there is nothing else raised in the appellant’s appeal which would otherwise attract the public interest.
[19] Finally, as to the issue of prejudice to the respondent, we are satisfied that Mr Smith would be prejudiced if an extension of time was granted.
[20] Having regard to all of the relevant considerations we are not persuaded that it is in the interests of justice to extend time to file the appeal. Accordingly, we have concluded that an extension of time should not be granted.
[21] The appellant’s notice of appeal is therefore incompetent and is dismissed.
PRESIDENT
Appearances:
The Appellant: Mr R. Timms
The Respondent: Mr E. Lawrie of the Transport Workers Union of Australia SA/NT Branch
Hearing details:
Sydney
11 March 2015
1 [2014] FWC 8798
2 PR558658
3 [2014] FWCFB 4822
4 Mr Timms further explained that he returned to Australia around 28 November 2014 and went abroad again in late December 2014
5 Email dated 19 November 2014, on file.
6 By way of written material as the appellant did not attend the hearing
7 (2006) 229 CLR 1 at [276]-[278] per Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ).
8 Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54 at [43] per Buchanan J, with whom Marshall and Cowdroy JJ agreed.
9 GlaxoSmithKline Australia Pty Ltd v Colin Makin[2010] FWAFB 5343 at [27]
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