Peter Cole v The Commissioner for Public Employment, Office Commission Public Employment
[2023] FWCFB 35
•14 FEBRUARY 2023
| [2023] FWCFB 35 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Peter Cole
v
The Commissioner for Public Employment, Office Commission Public Employment
(C2022/7174)
| VICE PRESIDENT CATANZARITI | SYDNEY, 14 FEBRUARY 2023 |
Appeal against decision [2022] FWC 2700 of Commissioner Riordan at Sydney on 11 October 2022 in matter number U2022/7795 – permission to appeal refused.
Mr Peter Cole (the Appellant) has lodged an appeal under s.604 of the Fair Work Act 2009 (Cth) (the Act) against a decision (Decision) of Commissioner Riordan made on 11 October 2022, for which permission to appeal is required. The decision concerned the Commissioner’s refusal to grant an extension of time under s.394 of the Act for the Appellant’s application for an unfair dismissal remedy arising from his employment with the Commissioner for Public Employment, Office Commission Public Employment (the Respondent).
The matter was listed for hearing on the question of permission to appeal only, which was heard on 7 December 2022. As this matter was listed for permission to appeal only, the Respondent was not required to file any material. The Appellant filed written submissions and made further oral submissions at the hearing. With leave, the Appellant also filed further written material following the hearing (which are described below).
For the reasons that follow, permission to appeal is refused.
Decision Under Appeal
The Appellant was dismissed from his employment on 2 March 2022 due to his inability to perform the inherent requirements of his role by not receiving an approved COVID-19 vaccination in accordance with the applicable public health orders in force at that time. The Appellant challenges the lawfulness of that dismissal.
On 22 March 2022, the Appellant’s union filed an unfair dismissal application on his behalf.
On 23 May 2022, following a conciliation conference of that matter, the union filed a ‘Form F50’ Notice of Discontinuance wholly discontinuing that matter (U2022/3441).
On 25 July 2022, the Appellant filed a fresh unfair dismissal application (U2022/7795). That fresh application was filed 124 days late from the original statutory date of 23 March 2022 and 66 days after the original application was withdrawn.
In his ‘Form F2’ filed on 25 July 2022, the Appellant states that the reasons for his late filing were:
“I hereby make a request for extension of time for this application. I had a hearing with the FWC on the 17th May 2022 and at that hearing I found no satisfaction with the outcome and feel that I have been unjustly treated and I am now appealing for late filing. (as per correspondence from Simon Halstead 11th July 2022). I am presenting additional and new information.
In view of the 2 conflicting letters from Djuna Pollard on 17/2/22 and 2/3/22 whereby the spirit of the correspondence was dramatically changed from suspension to termination, I believe that my case deserves another hearing.”
At paragraph [9] of the Decision, the Commissioner set out the requirement under s.394(3) of the Act for there to be “exceptional circumstances” before an extension of time might be granted to make an application for an unfair dismissal remedy outside of the 21-day statutory timeframe. Section 394(3) of the Act is as follows:
“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.”
At paragraph [10] of the Decision, the Commissioner proceeded to consider the reasons for the delay in the application. The Commissioner’s reasons were as follows:
“[10] The Applicant submitted, via his application, that he was disappointed with the outcome of the conciliation and that he deserved better. Mr Balogh made no further submissions in relation to section 394(3) of the Act, except for subsection 3(e). Mr Balogh submitted that the Applicant has a strong case based on the illegal actions of the Respondent by applying a State or Territory law against a federally registered corporation and that the Northern Territory Government did not have the protection of the Crown. Mr Balogh foreshadowed an application in an alternate jurisdiction.
[11] The Applicant did not provide any evidence in the Hearing. The Applicant gave no reason as to why his second application was lodged 66 days after the discontinuance of the original application or why the first application was discontinued by the AMWU.
[12] The Applicant’s disappointment at the result of the first application does not identify an exceptional circumstance. I have taken this into account.”
The Commissioner then proceeded to consider the factors in ss.394(3)(b)-(d) and, as they have no bearing on the application for appeal, need not be repeated.
At paragraph [16] of the Decision, the Commissioner considered the merits of the Appellant’s unfair dismissal application. The Commissioner firstly noted that “[w]hilst the Respondent submitted that the anti-vaccination arguments that the Applicant is seeking to rely upon have been dealt with by the Commission on numerous occasions, the Applicant claims to have an action under section 732 of the Act.”
Following further consideration of the applicable principles regarding what consideration of the merits was required, the Commissioner stated:
“On the basis that the Applicant is raising an argument that I have not considered previously, I am satisfied that there will be contested submissions in a merits-based hearing.”
From this, we infer that the Commissioner considered that the Appellant’s substantive case was potentially arguable. The Commissioner concluded that “I find the merits of the application to be a neutral consideration. I have taken this into account.”
Grounds of Appeal
In the Appellant’s Form F7 – Notice of Appeal, he states his grounds for appeal as follows:
“Refer to my supporting submission and the vast amount of supporting evidence contributed from the Fair Work Commission supporting my claim for Unfair Dismissal. The US Supreme Court has ruled that all vaccinations should cease. The Supreme Court in New Zealand has overturned decision against the Police and Military. Famous world renowned Healt Specialists are advocating daily about the severe risks associated with a trial vaccine. The evidence against these vaccines are coming out daily.
Not only “significant errors of fact” but the very dismissal of facts is a real concern. There are a number of clauses listed in my supporting documentation.
Clauses from the Fair Work Act”
The supporting documentation referred to in the above extract concerned material about human rights laws and the Australian Human Rights Commission.
Similarly, the material filed by the Appellant after the hearing on 7 December 2022 was material directed at (as we understand its purpose) the ineffectiveness of COVID-19 vaccines and the illegality of the laws that underpinned COVID-19 public health orders made in the Northern Territory. That material also indicated it was supportive of a claim the Appellant might have under s.732 of the Act.
Principles on Appeal
An appeal against a decision to dismiss an unfair dismissal remedy application under s.604 of the Act is one to which s.400(1) of the Act applies.[1] Section 400(1) requires that permission to appeal must not be granted unless the Commission considers it is in the public interest to do so. This test is a stringent one.[2]
The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[3] Some of the considerations that may attract the public interest are where a matter raises issues of importance and general application, or there is a diversity of decisions at first instance so that appellate guidance is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters.[4] It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated.[5] 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.[6]
Consideration
It is not entirely clear from the Notice of Appeal what the alleged error of law made by the Commissioner is said to be. It appears to rest on the premise that the Appellant has a strong claim based upon (we perceive) the illegality of public health orders in the Northern Territory or the ineffectiveness or safety of COVID-19 vaccines. However, that misunderstands the nature of the decision required to be made by the Commissioner when deciding whether or not an extension of time ought to have been granted for the Appellant to make his second unfair dismissal claim.
We have reviewed the Decision and discern no error. The Commissioner identified, considered, and applied all the factors in s.394(3) of the Act. The merits of the application was just one of those factors. However, as the substantive merits of the Appellant’s claim was a matter of specific focus in the Notice of Appeal, we will address that briefly.
In relation to the merits of the Appellant’s claim, it is unclear to us why the Appellant was (and continues to be) relying upon s.732 of the Act in connection with his application for an unfair dismissal application. By s.725 of the Act, a person is precluded from making a claim referred to in s.732 of the Act if an unfair dismissal application (described in s.729 of the Act) has been made and not yet relevantly withdrawn or failed. The Commissioner’s conclusion that he would assess the merits of the claim relying on s.732 as a “neutral” factor was arguably generous in the Appellant’s favour.
We have considered whether this appeal attracts the public interest, and we are not satisfied, for the purposes of s.400 that:
· there is a diversity of decisions at first instance so that guidance from an appellate body is required of this kind;
· the appeal raises issues of importance and/or general application;
· the Decision manifests an injustice, or the result is counter intuitive; or
· the legal principles applied by the Commissioner were disharmonious when compared with other decisions dealing with similar matters.
Conclusion
Permission to appeal is refused.
VICE PRESIDENT
Appearances:
D. Balogh for the Appellant.
M. Hathaway from Commissioner for Public Employment.
Hearing details:
2022.
Melbourne (by video via Microsoft Teams):
December 7.
[1] Australian Postal Corporation v Gorman [2011] FCA 975, 196 FCR 126 at [37].
[2] Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54, 192 FCR 78, 207 IR 177 at [43] per Buchanan J (with whom Marshall and Cowdroy JJ agreed).
[3] O’Sullivan v Farrer [1989] HCA 61, 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch [2011] HCA 4, 243 CLR 506 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54, 192 FCR 78, 207 IR 177 at [44]-[46].
[4] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343, 197 IR 266 at [27].
[5] Wan v AIRC [2001] FCA 1803, 116 FCR 481 at [30].
[6] Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089, 202 IR 388 at [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54, 192 FCR 78, 207 IR 177; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office[2014] FWCFB 1663, 241 IR 177 at [28].
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