Pellegrino Coppola v Independent Cleaning WA Pty Ltd
[2015] FWCFB 5262
•9 SEPTEMBER 2015
| [2015] FWCFB 5262 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
Independent Cleaning WA Pty Ltd
(C2015/4405)
VICE PRESIDENT HATCHER |
|
Permission to appeal sought against decision [2015] FWC 3070 of Deputy President Gooley at Melbourne on 4 May 2015 in matter number U2014/15801.
Introduction
[1] Mr Pellegrino Coppola has lodged a notice of appeal in which he seeks permission to appeal and appeals a decision issued by Deputy President Gooley on 4 May 2015 1 (Decision). The effect of the Decision was to refuse Mr Coppola an extension of time to lodge an unfair dismissal remedy application under s.394 of the Fair Work Act 2009 (FW Act) and to dismiss the application that had been received by the Commission. A separate order dismissing Mr Coppola’s application was also published on 4 May 2015 to give effect to the Decision.2
[2] Section 394(2) of the FW Act requires an unfair dismissal remedy application to be lodged within 21 days after the dismissal took effect or within such further period as the Commission allows under s.394(3). Section 394(3) provides:
(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) whether the person first became aware of the dismissal after it had taken effect; and
(c) any action taken by the person to dispute the dismissal; and
(d) prejudice to the employer (including prejudice caused by the delay); and
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.
[3] Mr Coppola lodged his unfair dismissal remedy application on 9 December 2014. There is no dispute that the dismissal the subject of the application took effect on 5 November 2014. The application was therefore lodged thirteen days out of time.
[4] The circumstances attending Mr Coppola’s late filing of his application, and Mr Coppola’s explanation of the delay, were described in the Decision as follows:
“[5] Mr Coppola said he did not lodge his application within 21 days because he was not aware of the 21 day time limit. He further submitted that there was delay because the form had to be sent out to him and he needed assistance completing the form. He also said that this clashed with his already planned and paid for holiday. He said he did not have a computer while he was away. However, Mr Coppola did not go on holiday until after he had lodged the application.
[6] Mr Coppola said he tried to contact Fair Work but it was difficult to get through. He then spoke to someone at Fair Work and was told that he had until the following day to lodge his application. He found that hard to do so he let it go. He then rang the Perth office a few days later and he was told to come in and get the forms, which he did, and then he got someone to help him complete the form.
[7] Mr Coppola’s application had to be filed by 26 November 2014. On his own evidence, he knew on 25 November 2014 that he had 21 days to complete the form and it needed to be lodged the next day. However, he did not lodge it until 9 December 2014.
[8] Mr Coppola submitted that he was in shock as a result of his dismissal. He submitted he was depressed, had sleepless nights and felt useless. He also gave evidence of some personal problems.”
[5] The Deputy President did not accept, for the purpose of the consideration required by s.394(3)(a), that Mr Coppola had a reasonable explanation for the delay:
“[10] I do not consider that Mr Coppola has a reasonable explanation for the delay. It is not unusual for employees to be ignorant of the time limits which apply. Further, Mr Coppola then became aware of the time limit but still delayed lodging his application. It is also not unusual for employees to be distressed at losing their job. However, in this case Mr Coppola had been on notice from 22 October 2014 that his employment would end on 5 November 2014 and he therefore had additional time to make enquiries about his rights and to get help with the process.”
[6] In considering the other matters required to be taken into account under s.394(3), the Deputy President concluded that:
- Mr Coppola was aware of his dismissal before it took effect, which weighed against an extension of time;
- there was no evidence that Mr Coppola took any action to dispute his dismissal, which weighed against an extension of time;
- although the making of a reinstatement order in Mr Coppola’s favour would cause prejudice to the employer, this did not weigh against an extension of time;
- because the facts of the matter were in dispute, it was not possible to make an assessment of the merits of Mr Coppola’s unfair dismissal remedy application, with the result that this was a neutral consideration; and
- there were no submissions concerning fairness between Mr Coppola and other persons in a similar position.
[7] The Deputy President’s ultimate conclusion was that there were no exceptional circumstances.
[8] Mr Coppola represented himself in respect of his application for permission to appeal. His written submissions did not assert any appealable error in the Decision either as a matter of form or substance. The submissions did not refer to the Decision at all, but briefly canvassed some matters connected with the merits of his unfair dismissal remedy application. The gravamen of the submissions was that the Commission should hear his case because of the unfairness of his dismissal. Mr Coppola’s oral submissions at the hearing of his application were brief and did not add anything of substance to the written submissions.
[9] Mr Coppola’s notice of appeal was lodged on 19 June 2015. 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. Mr Coppola’s notice of appeal was filed 25 days after the prescribed 21-day time period had expired. Accordingly it is necessary for the Mr Coppola to be granted an extension of time in order for the appeal to be competent.
[10] Mr Coppola’s written submission as to why an extension of time for him to file his appeal should be granted was as follows:
“I am bad to understand of forms cause I cannot read or right. All my life, forms are filled by help of my … sister. I tryed to fill the forms in but I could not do it so. I waited for sister she came back 2 days before I file, and I had no money for lawyers and no one else in family could help with money or filling form.”
Consideration
[11] An appeal under s.604 of the FW Act is an appeal by way of rehearing and the Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision maker. 3 There is no right to appeal and an appeal may only be made with the permission of the Commission.
[12] This appeal is one to which s.400 of the FW Act applies. Section 400 provides:
(1) Despite subsection 604(2), the FWC must not grant permission to appeal from a decision made by the FWC under this Part unless the FWC considers that it is in the public interest to do so.
(2) Despite subsection 604(1), an appeal from a decision made by the FWC in relation to a matter arising under this Part 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.
[13] In the Federal Court Full Court decision in Coal & Allied Mining Services Pty Ltd v Lawler and others, Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s.400 as “a stringent one”. 4 The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment5. 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
[14] 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
[15] The usual principles applying to consideration of an application to extend time to lodge an appeal were summarised in the Full Bench decision in Jobs Australia v Eland 9as follows:
- 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.”
“[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):
[16] We have sympathy for the literacy and other personal difficulties which confronted Mr Coppola in attempting to prepare and lodge his notice of appeal. Those difficulties were fully apparent from Mr Coppola’s written and oral submissions. We would be inclined to accept that Mr Coppola had a satisfactory explanation for his considerable delay in lodging his appeal and to extend time if his appeal had any reasonable degree of merit. However, it does not have any merit. If an extension of time were to be granted, there is no reasonable prospect that Mr Coppola would succeed in obtaining permission to appeal.
[17] The test of “exceptional circumstances” in s.394(3) of the FW Act establishes a “high hurdle” for an applicant for an extension, and a decision as to whether to extend time under s.394(3) involves the exercise of a broad discretion. 10 Mr Coppola has not identified any appealable error in the Decision, and we cannot ourselves identify any such error. The Deputy President considered all the matters she was required to take into account under s.394(3), and on the facts found by her (which were not the subject of any challenge by Mr Coppola in his appeal), the conclusions she reached on each matter, as well as the overall conclusion she reached that there were no exceptional circumstances, were reasonably open to her in the exercise of her discretion.
[18] No arguable case of appealable error has been demonstrated. The appeal does not raise any issue that is of importance or general application or which requires consideration at the appellate level. Nor does the decision manifest an injustice, involve a counter intuitive result, or apply legal principles in a manner that is disharmonious when compared with other decisions under s.394(3). Permission to appeal could not therefore be granted under s.400(1) because the Commission could not be satisfied that it was in the public interest to do so.
[19] The grant of an extension of time would therefore be a futility. The pointless inconvenience to the respondent which would thereby be occasioned would cause it prejudice. We can identify no other relevant matter which supports the grant of an extension of time.
[20] An extension of time to file the appeal is refused. The appeal is therefore incompetent and is dismissed.
VICE PRESIDENT
Appearances:
P. Coppola on his own behalf
A. Thorpe for Independent Cleaning WA Pty Ltd
Hearing details:
2015.
Melbourne:
25 August.
1 [2015] FWC 3070
2 PR567019
3 Coal and Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ
4 (2011) 192 FCR 78 at [43]
5 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, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [44] -[46]
6 [2010] FWAFB 5343 at [27], 197 IR 266
7 Wan v AIRC (2001) 116 FCR 481 at [30]
8 GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343 at [26]-[27], 197 IR 266; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth[2010] FWAFB 10089 at [28], 202 IR 288, affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663 at [28]
9 [2014] FWCFB 4822
10 Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21]
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