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

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).

The Decision under appeal can be summarised as follows:

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).
Orders for the purpose of seeking to narrow the issues between the parties for any arbitration, requiring:

Mr Stork to attend the listing on 7 February 2023.
Mr Stork to pause communication by email and raise further issues or concerns in relation to the matter at the listing.
Mr Stork to attend any Independent Medical Evaluation (IME) scheduled for him prior to the listing.
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.
The attendance of Ms Hall and Mr Vallence only at the listing on behalf of the respondents.
The parties to consider whether the matters for arbitration can be narrowed having regard to the Form F72 and attachments.

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

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.

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.

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] FWCFB 68
Decision Date: 3 APRIL 2023

CaseChat Overview and Summary

Perry Stork sought an extension of time to appeal a decision of Commissioner Yilmaz in relation to an application for orders to stop bullying at work. The Commissioner had issued directions and orders concerning the conduct of the proceeding, which Stork appealed as manifestly unreasonable and unjust. The appeal was lodged 10 days after the 21-day period for appeal had expired. The Fair Work Commission considered whether an extension of time should be granted under rule 56(2) of the Fair Work Commission Rules 2013. The principles relevant to the exercise of the discretion to extend time were set out in Jobs Australia v Eland, which indicated that time limits should not be extended as a matter of course and that an extension should only be granted where there were good reasons for doing so. The relevant matters to be considered were whether there was a satisfactory reason for the delay, the length of the delay, the nature of the grounds of appeal and the likelihood of success if time was extended, and any prejudice to the respondent if time was extended. Stork's reasons for delay were not persuasive, and the length of delay was neither long nor insignificant. The grounds of appeal were interlocutory directions and orders, and the directions and orders had lapsed following a conference between the parties. There was no apparent prejudice to ABN Group if time were extended. The Commission concluded that the application for an extension of time should be dismissed.

The application for permission to appeal and appeal was dismissed. The Fair Work Commission found that there were no good reasons for granting an extension of time for Stork to lodge his appeal. The reasons for delay were not satisfactory, the length of delay was not significant, and the likelihood of success of the substantive appeal was low. There was no prejudice to ABN Group if time were extended. The directions and orders had already lapsed, and it was unlikely that permission to appeal would be granted or that the substantive appeal would succeed if permission were granted. The appeal was dismissed, and no extension of time was granted.

Orders