Peter Massie v Norco Co-operative Limited t/a Norco
[2015] FWCFB 8206
•18 DECEMBER 2015
| [2015] FWCFB 8206 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
Norco Co-operative Limited t/a Norco
(C2015/6952)
VICE PRESIDENT HATCHER |
|
Permission to appeal against an order [PR572232] on 23 September 2015 and reasons for decision [[2015] FWC 6896] on 7 October 2015 of Senior Deputy President Drake at Sydney in matter number U2015/11298.
Introduction
[1] On 23 September 2015 Senior Deputy President Drake issued an order 1 (Order) dismissing an application made by Mr Peter Massie for an extension of time in which to lodge an application for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (FW Act). On 16 October 2015 Mr Massie lodged an appeal against the Order. The Senior Deputy President issued reasons for her decision to issue the Order on 7 October 20152 (Reasons).
[2] The matter was listed for hearing on 27 November 2015 and a notice of listing, information sheet and directions were sent to Mr Massie and Norco Co-operative Limited t/a Norco (Norco). Mr Massie did not lodge any written submissions in accordance with the directions and, at the hearing, only made some short comments by way of oral submissions.
[3] Mr Massie’s appeal against the Order was lodged two days outside of the time limit required by rule 56(2) of the Fair Work Commission Rules 2013 (Rules). Pursuant to rule 56(2) an appeal must be filed within 21 days of the decision appealed against, or within such further time as the Commission allows.
[4] Rule 56(2) provides:
(2) The notice of appeal must be lodged:
(a) within 21 calendar days after the date of the decision being appealed against; or
(b) if the decision was issued in the form of an order - within 21 calendar days after the date of the order; or
(c) within such further time allowed by the Commission on application by the appellant.
Consideration
[5] Time limits of the kind in rule 56(2) are not simply 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 the 21 day period specified in the Rules will only be extended where there are good reasons for doing so. The Commission has considered the issue of an extension of time in a number of decisions 3, and matters which are relevant to the exercise of the Tribunal’s discretion under rule 56(2) include:
- 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 would be upheld if time was extended; and
- any prejudice to the respondent if time were extended.
[6] In this case Mr Massie stated that the reason for his late appeal was that:
“I sent for reason for rejection and received it on the 12th or 13th October. Mail deliveries slow, still ill, no income, payment newstart 16/10/2015.”
[7] The reference to sending “for reasons for rejection” is a reference to the procedure followed by the Senior Deputy President in rejecting Mr Massie’s application for an extension of time. The Senior Deputy President forwarded the Order to him on 23 September 2015 accompanied by a short letter which stated that reasons for decision would be provided if Mr Massie requested them. The letter also stated:
“If either party wishes to appeal my Order they must do so within 21 days from the date of the Order. This must be done by lodging an application with the Registry.”
[8] Mr Massie requested reasons for decision, and these were provided, on 7 October 2015. Mr Massie lodged his appeal on 16 October 2015, and stated that the decision he was appealing against was dated 23 September 2015.
[9] The appeal is lodged against the Order of 23 September 2015, not the Reasons later reasons for decision. Mr Massie was aware shortly after 23 September 2015 that his application had been dismissed, and that he had 21 days from that date to file an appeal. Notwithstanding that advice and knowledge, Mr Massie was late in filing his appeal. Even taking into account receipt of the Reasons after 7 October 2015, when they were posted to Mr Massie, he still had a period after receipt of the Reasons in which he could have lodged an appeal within time. He could have lodged his appeal up to 14 October 2015, and been within time. There is no suggestion that the post would have taken the entire period between 7 October and 14 October 2015, even if we disregard the Senior Deputy President’s earlier warning to lodge an appeal within 21 days of the Order.
[10] Even taking into account his continuing illness there is no satisfactory reason for the delay.
[11] The length of the delay is not in this case significant.
[12] In assessing the appeal’s prospects of success, account needs to be taken of the fact that it would be necessary for Mr Massie to obtain permission to appeal, and of the nature of appeals under the FW Act. An appeal under s.604 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. 4 There is no right to appeal and an appeal may only be made with the permission of the Commission.
[13] As the decision was made under Part 3-2, Unfair Dismissal of the FW Act, the right to appeal is further qualified by s.400 (underlining added):
(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.
[14] 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”. 5 The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment6. 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.” 7
[15] 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. 8 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.9
[16] In relation to extensions of time to lodge applications under s.394(3), the test of “exceptional circumstances” establishes a “high hurdle” for an applicant for an extension to be granted, and a decision as to whether to extend time under s.394(3) involves the exercise of a broad discretion. 10 Therefore it will be necessary, in an application for permission to appeal against a decision made under s.394(3) to demonstrate that there is an arguable case of appealable error in the exercise of the discretion. This will require the identification of an error of the type described in House v The King11. That is that the decision-maker has acted on a wrong principle, has mistaken the facts, has taken into account an irrelevant consideration or failed to take into account a relevant consideration, or has made a decision which is unreasonable or manifestly unjust. Additionally, where an error of fact is alleged, s.400(2) requires that it must be a significant error of fact. The overriding public interest requirement of s.400(1) always remains.
[17] The grounds of appeal do not disclose any arguable case of appealable error. They are, in summary, a repetition of the case put to and rejected by the Senior Deputy President, which she summarised as ignorance of the time limits, lack of assistance, and medical incapacity. To this perhaps may be added the distance of Mr Massie’s residence from town, the lack of internet and slow mail deliveries. However, no attempt is made to identify an error of fact, principle or law in the decision under appeal. There is no basis on which we can be satisfied that there is an error of the type identified in House v The King 12, or an error of fact, let alone the significant error of fact required by s.400(2) of the FW Act. The notice of appeal does not otherwise identify any issue of the type referred to in GlaxoSmithKline Australia Pty Ltd v Makin13 which might attract the public interest.
[18] Finally, there appears to be little prejudice to the employer. The period in which the appeal is out of time is a short one.
[19] We are not persuaded to extend the time in which the appeal may be lodged in this matter. Although the period for which an extension is sought is only a short one, the appeal’s lack of any reasonable prospects of success would make the grant of such an extension a futility.
Conclusion
[20] We refuse to grant an extension of time to appeal. The appeal is therefore incompetent and must be dismissed.
VICE PRESIDENT
Appearances:
P. Massie on his own behalf.
B. McPaul and Y. Lawrence for Norco Co-operative Limited t/a Norco.
Hearing details:
2015.
Sydney:
27 November.
1 PR572232
2 [2015] FWC 6896
3 Stevenson-Helmer v Epworth Hospital, Print T2277 19 October 2000; SPC Ardmona Operations Ltd v Esam and Organ, (2005) 141 IR 338; Tokoda v Westpac Banking Corporation[2012] FWAFB 3995; Jobs Australia v Eland [2014] FWCFB 4822
4 Coal and Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ
5 (2011) 192 FCR 78 at [43]
6 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]
7 [2010] FWAFB 5343 at [27], 197 IR 266
8 Wan v AIRC (2001) 116 FCR 481 at [30]
9 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]
10 Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21]
11 (1936) 55 CLR 499
12 (1936) 55 CLR 499
13 [2010] FWAFB 5343 at [26]-[27], 197 IR 266
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