Rachel Harrison v Recruitment Solutions (A Division of Chandler Macleod Pty Ltd)
[2022] FWCFB 72
•16 MAY 2022
| [2022] FWCFB 72 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Rachel Harrison
v
Recruitment Solutions (A Division of Chandler Macleod Pty Ltd)
(C2021/8548)
| VICE PRESIDENT CATANZARITI | PERTH, 16 MAY 2022 |
Appeal against decision [2021] FWC 6049 of Deputy President Boyce at Sydney on 15 November 2021 in matter number C2021/4727 – appeal filed out of time – application to extend time dismissed.
Rachel Harrison (the Appellant) has lodged an appeal under s.604 of the Fair Work Act 2009 (Cth) (the Act) against a decision [1](the Decision) and order[2] (the Order) of Deputy President Boyce (the Deputy President) issued on 15 November 2021, for which permission is required.
In the Decision, the Deputy President rejected the Appellant’s request for an extension of time to file a general protections involving dismissal application pursuant to s.365 of the Act (the Application) against Recruitment Solutions (A Division of Chandler Macleod Pty Ltd) (the Respondent). On 15 December 2021, the Appellant lodged a Form F7 – Notice of appeal (Form F7) and sought a stay of the Decision pending the hearing and determination of the appeal, and an expedited hearing of the appeal.
An appeal filed under s.604 of the Act must be filed within 21 calendar days after the date of the decision being appealed against, or within such further time allowed by the Fair Work Commission (the Commission).[3] The Decision was issued on 15 November 2021, and the prescribed 21-day period ended on 6 December 2021. The Appellant therefore lodged the Form F7 nine days out of time. Accordingly, the appeal cannot proceed unless the Commission grants the Appellant an extension of time.
The matter on appeal was listed for a hearing concerning the issues of the extension of time to lodge the appeal, and permission to appeal. Directions were set for the filing of material by the Appellant addressing these issues. The Respondent was not required to file material.
For the reasons that follow, we decline the Appellant’s application for an extension of time within which to lodge the appeal. Having reached this conclusion, it is not necessary to determine the second issue being permission to appeal.
The Decision Under Appeal
At the time of her alleged dismissal, the Appellant had been employed by the Respondent, and placed in a position within the Department of Health. That employment and placement commenced and ceased on the same day, 23 June 2021. The Applicant was made aware by the Respondent that her employment had ceased on 24 June 2021.
The Application was filed on 11 August 2021, and so was filed 27 days outside of the 21-day time limit prescribed by s.366 of the Act. The Applicant needed to have filed the Application on or before 15 July 2021 to be within the 21-day time limit.
The Deputy President applied the criteria set out under s.366(2)(a)-(e) of the Act regarding the extension of time sought by the Applicant to file the Application. The Applicant’s reasons for the delay in filing the Application primarily involved medical conditions suffered by the Applicant, and associated alleged incapacity to advance her claim. The Deputy President found the medical evidence relied upon by the Applicant to be deficient, and not indicative of any incapacity on the part of the Applicant.[4]
Regarding action taken by the Applicant to dispute her dismissal, the Deputy President noted that the Applicant actively disputed her dismissal by way of numerous communications between the Applicant and the Respondent between 23 June and 29 June 2021, including the Applicant asserting in such communications that she would be taking legal action in relation to her dismissal in the Commission and other Tribunals. The Deputy President found that the evidence highlighted the Applicant was aware that she had legal avenues open to her to challenge her dismissal as early as 23 June 2021, and that the Applicant became aware on 29 June 2021, that the Respondent would not be reversing or otherwise changing its position on the Applicant’s cessation of employment. The Deputy President found the evidence did not constitute a basis upon which the Applicant’s delay in filing her Application could be excused, and the criterion weighed against any finding as to the existence of exceptional circumstances.[5]
On the consideration of prejudice, the Deputy President found that, while the Respondent asserted prejudice arising from the time, expense and resources the employer would be forced to expend to defend a meritless application, such prejudice identified was not beyond that encountered by an employer faced with a general protections application filed within time. The Deputy President treated the criterion of prejudice as a neutral consideration.[6]
Regarding the criterion of the merits of the Application, the Deputy President observed that while on the evidence before him it may be appropriate to conclude that there are significant misgivings as to the Applicant’s case, given that he was not in a position to properly resolve all of the relevant facts at that stage of proceedings, the Deputy President treated the merits as a neutral consideration for the purposes of his decision.[7]
On the final criterion of fairness as between the Applicant and other persons in a similar position, the Deputy President noted that neither party made relevant submissions on the issue, and he was not aware of any cases where there had been the same, or similar, characteristics and/or circumstances. As such, the Deputy President treated this criterion as a neutral consideration.[8]
Taking into account the criteria set out under s.366(2)(a)-(e) of the Act, the Deputy President found none of the criteria, considered individually, pointed towards there being any exceptional circumstances, and considering the requisite criteria on a collective basis, there was no basis to find that exceptional circumstances existed. Accordingly, the Deputy President was not satisfied as to the existence of exceptional circumstances warranting the grant of an extension of time for the Applicant to file the Application.[9]
Consideration
Reason for the delay in filing the Appeal
In the Notice of appeal and appeal submissions, the Appellant’s submissions regarding the reasons for the delay, as opposed to the reasons why the discretion to extend time should be exercised, were that the Appellant had been unwell since the Decision was delivered on 15 November 2021, though she notes that she did file an appeal in the Federal Court within the 21 day time limit.
At the hearing, the Respondent took issue with the reason for delay proffered by the Appellant, and noted that far from being ill and/or incapacitated in the period from the receipt of the Decision to the filing of the Appeal, correspondence emanating from the Applicant disclosed that the Appellant knew the date by which the Appeal had to be filed, and was more than capable of prosecuting her appeal in that time. In particular, the Respondent referred to:
(a) An email from the Appellant to the Respondent at 10.35pm on 15 November 2021, the day of the Decision, as follows:
“Subject: Re: Harrison v Recruitment Solutions - Notice of Federal Court Appeal Judgement Federal
Dear Mr Harden,
I refer to above matter and Judgement delivered by Boyce, DP in the FWC.
I wish to advise as the Applicant I will be appealing the FWC Judgement to the Federal Court of Australia shortly within the prescribed time limit as I have been legally advised to do so.
Regards,
Ms Harrison
(Applicant & Appellant)”
(Respondent’s emphasis)
(b) An email from the Appellant to the ACT Registry of the Federal Court, and copied to the Respondent, at 10.05pm on 22 November 2021, as follows:
“Subject: Fwd: FWC Memo - C2021/4727 - Harrison v Recruitment Solutions (A Division of Chandler Macleod Pty Ltd)[DLM=Sensitive:Legal]
Dear ACT Federal Court Registry,
I have recently received the below judgement in the FWC and wish to advise that I will be appealing the judgement shortly within the prescribed timeframe to the ACT Federal Court.
Please advise me of the correct appeal form for this matter so I can file my appeal with the ACT Federal Court asap?
Regards,
Ms Rachel Anne Harrison
(Applicant & Final Yr Juris Doctor ANU Law student)”
(Respondent’s emphasis)
(c) An email from the Appellant to the ACT Registry of the Federal Court, and copied to the Respondent, at 7.08pm on 29 November 2021, as follows:
“Subject: Fwd: Re: Notice of Appeal - FWC Memo - C2021/4727 - Harrison v Recruitment Solutions (A Division of Chandler Macleod Pty Ltd)[DLM=Sensitive:Legal]
Dear ACT Federal Court,
Please be advised that I will be filing my Notice of Appeal from the FWC within the prescribed time limit against the Respondent, Rob Harden from Recruitment Solutions, A Division of Chandler Macleod this week on the correct form.
Please note, I have cc'd in the Respondent, Mr Harden into this email correspondence for the record also so he is aware.
Regards,
Rachel Harrison
(Appellant)”
(Respondent’s emphasis.)
(d) An email from the Appellant to the ACT Registry of the Federal Court, and copied to the Respondent, at 12.51am on 5 December 2021, as follows:
“Subject: RE: Federal Court Appeal Application - appeal from FWC EOT Harrison v Harden, Recruitment Solutions, A Division of Chandler Macleod, Pty Ltd
Dear ACT Federal Court,
See attached copy of the Applicant's Form 075 regarding an appeal from the FWC in relation to orders dated 15 November, 2021 for an EOT application by Boyce, DP.
The applicant advises that the Respondent, Rob Harden, Recruitment Solutions (A Division of Chandler Macleod Pty Ltd) will also be served with this application within the prescribed time limit.
Sincerely,
Ms Rachel Harrison
…
(Final Year JD Law student, ANU)”
(Respondent’s emphasis.)
The Respondent also noted that on 10 December 2021, the Applicant received an email from the Chambers of the Deputy President advising of the manner by which the Decision could be appealed. Notwithstanding the clear instructions therein, including as to the time limit applying, the Appellant took a further five days to file the Appeal. The email from the Deputy President’s Chambers was as follows:
“Dear Ms Harrison,
Re: C2021/4727 - Ms Rachel Harrison v Recruitment Solutions (A Division of Chandler Macleod Pty Ltd)
To appeal a decision, you need to lodge a Form F7- Notice of appeal. This must be lodged within 21 days of the date the decision was issued (i.e. 21 days from 15 November 2021). Chambers notes that it is now 25 days since the date of the decision.
You can access the Form F7 and further information in relation to appeals at the following link:
also note the link to the Workplace Advice Service:Workplace Advice Service | FWC Main Site
In accordance with the Commission policy on open and fair communication I have also copied in the Respondent into this email.”
We agree with the Respondent’s contention that an extension of time should be refused on the basis that the Appellant has not provided an acceptable reason for the delay. Contemporaneous correspondence at the relevant time clearly discloses that the Appellant was not so ill or incapacitated as to be precluded from advancing her appeal. Quite to the contrary, from the date of the Decision the Appellant was agitating her appeal rights and the time limits attaching thereto.
We are not satisfied that the reasons proffered by the Appellant provide a satisfactory explanation for the delay in lodgment. The absence of an acceptable reason for the delay weighs against the grant of an extension of time in respect of the appeal.
Length of delay
The Appellant’s appeal was lodged nine days outside the statutory timeframe for instituting an appeal. While the delay cannot be characterised as a lengthy one, it is not insignificant in the context of the 21-day time period for instituting an appeal prescribed by r.56(2) of the Fair Work Commission Rules 2013 (Cth).
The nature of the grounds of appeal and the likelihood that one or more would be upheld if time were extended
In the assessment of whether to extend time, it is necessary to consider the nature of the grounds of appeal and the likelihood that one or more grounds would be upheld if time was extended.
The Decision subject to appeal was made under Part 3-1of the Act pertaining to General Protections. Section 604(2) of the Act provides that the Commission must grant permission to appeal if it is satisfied that it is in the public interest to do so. The public interest test is not satisfied simply by the identification of error or a preference for a different result. In Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission[10], the High Court held an appellant can be successful only if appealable error is demonstrated. Regarding appeals from discretionary decisions, such as the Decision, the Court stated:
“Because a decision-maker charged with the making of a discretionary decision has some latitude as to the decision to be made, the correctness of the decision can only be challenged by showing error in the decision-making process. And unless the relevant statute directs otherwise, it is only if there is error in that process that a discretionary decision can be set aside by an appellate tribunal. The errors that might be made in the decision-making process were identified, in relation to judicial discretions, in House v The King in these terms:
“If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.””
(Footnotes omitted)
The grounds of appeal in the Form F7 were expressed as follows:
“The Respondent filed a large amount of evidence, particularly case law which was not in compliance with any of the orders of Boyce, DP, as well as being highly prejudicial to the Applicant after raising an abuse of process, where by [sic] he raised a jurisdictional objection 100% refuted by the Applicant in her submissions and evidence filed. Additionally, the Respondent failed to seek leave to file such evidence and case law after the Hearing, which is highly prejudicial to the Applicant. It is in the interests of procedural fairness and natural justice that this EOT decision be appealed due to these above reasons. The Applicant was incapable of filing her s 365 application within time and has sought all avenues to file her medical evidence on time with the FWC in support of her position. This Form F7 has medical documentation attached to it.”
We are not persuaded that the Decision discloses any arguable case of appealable error in the assessment of the Deputy President as to whether to grant an extension of time in the general protections Application. We are also not persuaded the Appellant has identified any public interest considerations that would support the granting of permission to appeal.
Having regard to the nature of the appeal grounds, we are satisfied that they are not reasonably arguable and they do not disclose any public interest concerns that would require the Commission to grant permission to appeal. This weighs against the grant of an extension of time to lodge the appeal.
Conclusion and Disposition
After considering all the circumstances, we are not persuaded that it is in the interests of justice to extend time for the Appellant to lodge the appeal.
For the reasons stated, and having regard to the conclusion reached, we refuse an extension of time to file the appeal and refuse permission to appeal on that basis; and dismiss the application to appeal.
VICE PRESIDENT
Appearances:
Ms R Harrison for the Appellant.
Mr R Harden for the Respondent.
Hearing details:
2022.
Microsoft Teams (Video).
9 March.
[1] Rachel Harrison v Recruitment Solutions (A Division of Chandler Macleod Pty Ltd)[2021] FWC 6049. PR730985.
[2] PR734519.
[3] Rule 56(2) of the Fair Work Commission Rules 2013.
[4] Decision at [26] and [29].
[5] Decision at [34].
[6] Decision at [35] and [36].
[7] Decision at [42].
[8] Decision at [43].
[9] Decision at [44] and [45].
[10] (2000) 174 ALR 585 [21].
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