Perry Stork v ABN Group Vic Pty Ltd

[2023] FWCFB 68

[2023] FWCFB 68

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.604—Appeal of decision

Perry Stork
v

ABN Group Vic Pty Ltd

(C2023/895)

VICE PRESIDENT CATANZARITI
DEPUTY PRESIDENT CROSS
COMMISSIONER MCKINNON SYDNEY, 3 APRIL 2023

Appeal against directions and orders issued by Commissioner Yilmaz at Melbourne on 20 January 2023 in matter number SO2022/541 – application filed out of time – extension of time not granted.

Background

1. On 20 February 2023, Mr Perry Stork lodged a notice of appeal in which he seeks permission to appeal and appeals directions and orders issued on 20 January 2023 by Commissioner Yilmaz (Decision) in connection with an application by Mr Stork for orders to stop bullying at work under s.789FC of the Fair Work Act 2009 (Act).

1. The Decision under appeal can be summarised as follows:

1. A decision to list Mr Stork’s substantive application for further Conference/Directions Hearing on 7 February 2023 by video via Microsoft Teams. (The listing date was subsequently amended to 28 February 2023 and a short conference was held on that date).
2. Orders for the purpose of seeking to narrow the issues between the parties for any arbitration, requiring:
1. Mr Stork to attend the listing on 7 February 2023.
2. Mr Stork to pause communication by email and raise further issues or concerns in relation to the matter at the listing.
3. Mr Stork to attend any Independent Medical Evaluation (IME) scheduled for him prior to the listing.
4. Any findings from the outcome of the IME in relation to Mr Stork’s capacity and/or any consideration relating to his return to work to be presented to the Commission.
5. The attendance of Ms Hall and Mr Vallence only at the listing on behalf of the respondents.
6. The parties to consider whether the matters for arbitration can be narrowed having regard to the Form F72 and attachments.
3. A direction that failure to comply with the orders above may be considered non-compliance with directions and may result in the application being dismissed.

Extension of time

1. An application for permission to appeal must be lodged within 21 days after the decision was issued.[1] Rule 56(2) of the Fair Work Commission Rules 2013 relevantly provides that a notice of appeal under s.604 must be filed within 21 calendar days after the date of the decision that is the subject of the appeal, or within such further time allowed by the Commission on application.

1. Mr Stork’s notice of appeal was filed at the earliest on 20 February 2023, which was 10 days after the prescribed 21-day time had expired. Accordingly, it is necessary for Mr Stork to be granted an extension of time for the application to proceed.

1. Principles relevant to consideration of an application to extend time to lodge an appeal were summarised in the Full Bench decision in Jobs Australia v Eland[2] as follows (footnotes omitted):

“[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.”

1. Reason for delay: The reason given for delay is that Mr Stork is a self-represented litigant who has been overwhelmed, anxious and disappointed by his treatment by ABN Group (Vic) Pty Ltd (ABN Group) and the imbalanced conduct of his application for orders to stop bullying despite the evidence. Mr Stork submits that he mistakenly thought the 21-day time limit was calculated on working days, not including weekends. He points to his objections on 24 November 2022 to the Form F73 response to his application for orders to stop bullying at work, including the failure of persons named in his application to contest the application. Mr Stork submits that he was not aware that he could apply to have the Form F73 response dismissed under s.587 of the Act, and the Commission failed to respond or provide guidance about his right of appeal under the Act.

1. None of these are persuasive reasons for the delay of Mr Stork in lodging his application. Mr Stork’s feelings and experience as a self-represented litigant must be balanced against the Commission’s obligation to perform its functions in a manner that is fair, just and quick[3] and the express duty to promptly deal with applications to stop bullying at work.[4] A mistaken belief that the 21‑day period did not include weekends implies that Mr Stork was at least aware of the existence of the lodgement period. Miscounting by the exclusion of weekends was a mistake that could have been avoided by making reasonable enquiries. Even if Mr Stork did not know about the 21-day period until after it expired, mere ignorance of the law would not be a sufficient basis for the grant of additional time. The Commission’s file indicates that Mr Stork was regularly in contact with the Commissioner’s chambers during the 21-day period and thereafter. There is simply no satisfactory explanation for why Mr Stork waited until 20 February 2023 to lodge an appeal against Directions that had been issued one month earlier.

1. Length of delay: The length of delay is, taking Mr Stork’s submission at its highest, 10 days. It is neither a long nor an insignificant period of delay.

1. Grounds of appeal: As to the nature of the grounds of appeal, Mr Stork seeks permission to appeal an interlocutory decision – that is, directions and orders for the conduct of the proceeding. Many of the appeal grounds are directed to background observations made by the Commissioner about the nature of the dispute before her, rather than the directions and orders that constitute the Decision. On a plain reading of the Decision, the directions and orders were limited in scope to efforts to resolve the dispute other than by arbitration.

1. Mr Stork challenges the Decision on the basis that “this proceeding and the orders that have been issued are so manifestly unreasonable and unjust, that it warrants reconsideration by the Commission; or a substantial injustice will be the result.” It is, however, uncontroversial that courts and tribunals have generally discouraged appeals of interlocutory decisions, and permission to appeal is rarely granted in such cases. There is a further question in this matter of the utility of an appeal, given that the directions and orders to which the application is directed have now lapsed following the conference between the parties on 28 February 2023. This includes the direction for Mr Stork to attend any independent medical evaluation “scheduled for him prior to the listing” (referring to the conference on 28 February 2023). We consider it unlikely that permission to appeal would be granted in this case if an extension of time were granted. We also consider it unlikely that the substantive appeal would succeed if permission were granted.

1. Prejudice to ABN Group: There is no apparent prejudice to ABN Group if time were extended for Mr Stork to apply for permission to appeal and appeal, particularly in circumstances where the Decision no longer has any operative work to do.

1. Whether these matters are considered separately or together, none of the relevant considerations weigh in favour of additional time being granted to Mr Stork to lodge his application for permission to appeal and appeal. As a result, no extension of time is granted.

1. It follows that it is not necessary to deal with whether permission to appeal should be granted to Mr Stork.

Conclusion

1. The application for permission to appeal and appeal is dismissed.

VICE PRESIDENT
Appearances:
Mr P Stork on his own behalf.
Mr M Vallence, Solicitor for the Respondent.
Hearing details:

2023. 
March 21.
Sydney.

[1] Rule 56(2) of the Fair Work Commission Rules 2013 (Rules).

[2] [2014] FWCFB 4822. See also Fox v Kangan TAFE Print S0253, 25 October 1999 at [36]; Stevenson-Helmer v Epworth Hospital Print T2277, 19 October 2000; Dundovich v P&O Ports Print PR923358, 8 October 2002; SPC Ardmona Operations Ltd v Esam and Organ (2005) 141 IR 338; Farnhill v Australian Business Academy Pty Ltd [2016] FWFBC 3410 and Logan City Electrical Services Division Pty Ltd t/as Logan City Electrical v Christopher Antonarkis [2018] FWCFB 3815.

[3] Fair Work Act 2009 (Cth), s.577.

[4] Fair Work Act 2009 (Cth), s.789FE.

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