Portsea Passenger Service Pty Ltd

[2015] FWCFB 3104

[2015] FWCFB 3104

DECISION

Fair Work Act 2009

s.604 - Appeal of decisions

Mustafa Hodzic

v

Bing Lee Electronic Pty Ltd T/A Bing Lee

(C2015/1830)

VICE PRESIDENT CATANZARITI

SENIOR DEPUTY PRESIDENT HARRISON

SYDNEY, 6 MAY 2015

COMMISSIONER BULL

Appeal against refusal to extend time for lodging an unfair dismissal application [2015] FWC

1278 - s.394(3) - no public interest in appeal identified - permission to appeal refused -

appeal dismissed.

[1]        On 24 October 2014, Mustafa Hodzic (the appellant) was dismissed from his

employment with Bing Lee Electronic Pty Ltd T/A Bing Lee (the respondent). Mr Hodzic

subsequently lodged an application for an unfair dismissal remedy pursuant to s.394 of the

Fair Work Act 2009 (Cth) (the Act) on 21 January 2015.

[2]        An application for an unfair dismissal remedy must be made within 21 days after the

dismissal takes effect or within such further time as the Fair Work Commission (the

Commission) allows under s.394(3) of the Act.

[3]        The application was filed outside the statutory time limit. In making the application

the appellant acknowledged the late filing and stated at question 1.4 of the Form F2 - Unfair

Dismissal Application:

“I did not know about 21 days requirement until 17 January 2015 when my daughter

told me to google unfairly sacked at work in NSW. I never (sic) been sacked before

this incident and I was trying to talk to my ex employer to see whether they are willing

to let me go back to my job.”

[4]        Section 396 of the Act provides that before the Commission determines the merits of

an unfair dismissal application, it must first decide a number of jurisdictional matters, one of

which relates to the 21-day period in which to file the application:

“396 The FWC must decide the following matters relating to an application for an

order under Division 4 before considering the merits of the application:

(a) whether the application was made within the period required in subsection

394(2) ..."

[2015] FWCFB 2945

[5]        If an unfair dismissal application is filed out of time, the Commission is able to extend

the time for filing where satisfied that “exceptional circumstances” exist, having taken into

account a number of factors listed in s.394(3) of the Act.

[6]        On 23 January 2015, Deputy President Sams requested in writing that the appellant

provide a written statement within 14 days explaining why the time period for filing should be

extended based on there being “exceptional circumstances”. The matters that the Commission

must take into account were listed in the correspondence to the appellant. The respondent was

not required to make any submission.

[7]        On 28 January 2015, the appellant responded via email stating that he was unaware of

the 21-day time limit until 18 January 2015 and that as soon as he became aware of the time

limit, he lodged the application.

[8]        There were no relevant facts in dispute that would have required the Deputy President

to conduct a conference or hold a hearing under s.397 of the Act.

[9]        On 5 February 2015, the Deputy President issued an order dismissing the appellant’s

application on the basis that he was not satisfied there were “exceptional circumstances” that

would allow him to extend the time for filing. The Deputy President further advised that if

either party required written reasons, they would be provided upon request.

[10]      On 18 February 2015, McDonnell Schroder, solicitors for the appellant, requested the

reasons for the issue of the order to refuse the extension of time for lodgement of the unfair

dismissal application.

[11]      On 26 February 2015, the Deputy President issued his reasons (the Decision). Mr

Hodzic seeks permission to appeal the Deputy President's Decision and order.

Permission to Appeal

[12]      This matter was listed for the purpose of determining whether permission to appeal

should be granted. As the Decision was made under Part 3-2 - Unfair Dismissal of the Act,

permission to appeal must not be granted unless the Commission considers that it is in the

public interest to do so (s.400(1)).

[13]      The task of assessing whether the public interest test is met is a discretionary one

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involving a broad value judgment. 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 issue 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

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with similar matters.”

[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
[2015] FWCFB 2945

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of appealable error. However, the fact that the Member at first instance made an error is not

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necessarily a sufficient basis for the grant of permission to appeal. In such matters, appeals

on a question of fact may only be made on the ground that the decision involved a “significant

error of fact” (s.400(2)).

5  6

[15] In Coal & Allied Mining Services Pty Ltd v Lawler and others, Buchanan J

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characterised the test under s.400 as “a stringent one”.

[16]      Pursuant to s.596(2)(a), both parties were granted permission to be represented by

solicitors.

[17]      The grounds of appeal do not point to any alleged error said to be made by the Deputy

President. Rather, they elaborate on the reasons for the out of time filing of the application

and why the dismissal was unfair. In response to a question from the Full Bench in the current

proceedings, the appellant’s solicitor stated:

“Mr Hodzic doesn’t feel that the Commissioner made an unfair decision based on the

8

information that was to hand.”

[18]      In essence what was submitted was that the appellant’s limited understanding of the

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process and lack of familiarity with the system raised public interest considerations.	In the
appellant’s written submissions it is stated:

“the errors in this matter are based on insufficient information being provided in Mr

Hodzic’s initial application.”

[19]      There are no public interest considerations evident in this appeal. The appellant was

advised his application was out of time and invited to submit why an extension of time should

be granted for reasons that amounted to “exceptional circumstances”. The appellant complied

with the request. Neither the appeal grounds, nor the appellant’s written submissions identify

any error in the Decision of the Deputy President.

[20]      The matters that the appellant now submits should have been placed before the Deputy

President do not sufficiently address the reasons for the late filing of the application, much

less the statutory requirement of constituting “exceptional circumstances”.

[21]      In correspondence to the respondent on 7 December 2014, the appellant stated he

believed his employment had been “unlawfully terminated” and:

“... might seek legal advice with regards to my entitlements arising out of the unfair

dismissal law in NSW.”

[22]      Despite first raising the issue of unfair dismissal law on 7 December 2014, the

application was not made until 21 January 2015, in excess of two months outside the 21-day

time frame.

[23]      In finding that there were no exceptional circumstances justifying an extension of the

time to file, it was not submitted that the Deputy President failed to properly consider all the

matters in s.394(3), nor that he misapplied any of the relevant authorities.
[2015] FWCFB 2945

[24]      The appellant has not identified any public interest considerations that arise out of the

Decision or which are enlivened by the grounds of appeal.

[25]      The Decision of the Deputy President is not one attended by sufficient doubt to

warrant its reconsideration, nor are we persuaded that substantial injustice will result if

permission is refused. Accordingly, s.400 of the Act provides that we must not grant

permission to appeal.

[26]      Permission to appeal is refused, the appeal is dismissed.

VICE PRESIDENT

Appearances:

The Appellant: Ms J Chapman Solicitor.

The Respondent: Mr S Booth Solicitor.

Hearing details:

Sydney

8 April 2015

Printed by authority of the Commonwealth Government Printer

<Price code C, PR566941>

5

[2011] FCAFC 54

6

With whom Marshall and Cowdroy JJ agreed

7

[2011] FCAFC 54 at [43]

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PN24

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PN12

1

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] FCAFC 54 at [44]-[46].

2

(2010) 197 IR 266 at [27]

3

Wan v AIRC [2001] FCA 1803 at [30]

4

GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343 at [26]-[27]; Lawrence v Coal & Allied Mining Services

Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089 at [28], affirmed on judicial review in Coal & Allied

Mining Services Pty Ltd v Lawler [2011] FCAFC 54; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia

represented by the Australian Taxation Office [2014] FWCFB 1663 at [28]