Rajeshwar Prasad v Hoban Recruitment Pty Ltd
[2024] FWCFB 207
•11 APRIL 2024
| [2024] FWCFB 207 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
Rajeshwar Prasad
v
Hoban Recruitment Pty Ltd
(C2024/1325)
| DEPUTY PRESIDENT MILLHOUSE | MELBOURNE, 11 APRIL 2024 |
Appeal against decision [2024] FWC 401 of Deputy President Roberts at Sydney on 14 February 2024 in matter number U2023/11870
Mr Rajeshwar Prasad has lodged an appeal under s 604 of the Fair Work Act 2009 (Cth) (Act) against a decision[1] and order[2] of Deputy President Roberts issued on 14 February 2024, for which permission to appeal is required. In the decision, the Deputy President declined to grant Mr Prasad an extension of time to file his s 394 application for an unfair dismissal remedy against the respondent, Hoban Recruitment Pty Ltd.
The matter was listed for permission to appeal only. For the reasons that follow, permission to appeal is refused.
Decision under appeal
Mr Prasad was employed as an “on-hire casual employee” with the respondent, a labour hire firm, from in or about February 2022. On 19 September 2023, Mr Prasad contends that he was advised by the respondent’s client, Unitrans, that his assignment was ending due to reduced workload.[3]
It was not in dispute before the Deputy President that Mr Prasad’s employment contract with the respondent contained an express term to the effect that the termination of an assignment did not of itself constitute termination of the employment with the respondent. Despite being advised by the respondent after 19 September 2023 that it could place Mr Prasad on a new assignment with a different client, Mr Prasad asked the respondent for a separation certificate. The respondent provided a certificate and later offered to revoke the certificate if Mr Prasad confirmed that he wished to remain in employment with it.[4] However, Mr Prasad did not provide this confirmation.
The respondent objected to the application on three basis. It said that Mr Prasad was not dismissed, and had not completed the minimum employment period in accordance with
ss 382 and 384(2) of the Act. Further and in any case, the respondent said that the application was made outside the 21-day time limit prescribed by s 394(2) of the Act.
After noting that Mr Prasad accepted that his unfair dismissal application, on his own case, was filed 49 days outside the prescribed time limit, the Deputy President proceeded to determine whether to extend the time limit having regard to the considerations under s 394(3) of the Act.[5] Section 394(3) of the Act provides as follows:
(3) 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.
The decision records the Deputy President’s conclusions in relation to each of the above matters. In respect of s 394(2)(a) of the Act, the Deputy President did not consider that Mr Prasad provided a reasonable or adequate explanation for the 49-day delay, and this weighed against a finding of exceptional circumstances.[6] The Deputy President was satisfied that Mr Prasad had the benefit of the full 21-day period to lodge his application for the purposes of
s 394(2)(b).[7] There was no evidence, for the purposes of s 394(2)(c), of Mr Prasad taking steps that would have put the respondent on notice that the events of 19 September 2023 were being challenged by him. The Deputy President was therefore satisfied that no such steps were taken.[8] In relation to the considerations at ss 394(2)(d) and 394(2(f) of the Act, being the issue of prejudice to the employer and fairness between Mr Prasad and other persons in a similar situation, the Deputy President concluded that these were neutral considerations in his overall assessment.[9]
As to the merits of Mr Prasad’s unfair dismissal application, the Deputy President noted that for the purposes of s 394(2)(e) of the Act, the Commission should not embark upon a detailed consideration of the substantive case. However, having regard to the terms of Mr Prasad’s employment contract with the respondent and the non-disputed facts in the matter, the Deputy President concluded that the merits of Mr Prasad’s application were weak and there were limited prosects of the matter ultimately being successfully prosecuted, weighing against the grant of an extension of time.[10]
Having regard to all the circumstances of the case, the Deputy President was not satisfied that exceptional circumstances existed to warrant an extension of time. Mr Prasad’s application for an unfair dismissal remedy was dismissed.[11]
Grounds of appeal and public interest
Mr Prasad filed two Form F7 Notices of Appeal with the Commission. The first of these was incomplete as it did not identify the respondent, nor did it set out the grounds of appeal or provide a response in relation to why the appeal was in the public interest. Mr Prasad corrected this by filing a completed Notice of Appeal in which a response to each of these matters was provided.
There are two appeal grounds set out in Mr Prasad’s Notice of Appeal in response to the question, “What are the grounds of your appeal?” These grounds, referred to in this decision as ground (1) and ground (2), state as follows:
·acted on the wrong part of the Fair Work Act 2009
·did not consider an important piece of information
Mr Prasad did not file written submissions in support of his application for permission to appeal, despite the facility provided to him to do so pursuant to the Commission’s directions. During the hearing, Mr Prasad was unable to explain either of his appeal grounds and did not address the aspects of the Act he contends by ground (1) to have been erroneously applied in the decision. Nor did Mr Prasad clarify the information he says the Deputy President did not consider for the purposes of ground (2). Rather, Mr Prasad submitted that he relied upon the matters set out in email correspondence to the Commission on 8 April 2024. In this correspondence, Mr Prasad stated his concern that host employers are immune from prosecution despite hiring and firing agency workers with the agency’s knowledge and collaboration. Mr Prasad submits that this industry loophole needs to be closed to protect victims such as himself. We have taken these matters into account in our consideration of Mr Prasad’s appeal.
When invited to explain to the Full Bench more broadly the matters that lead to his decision to file the Notice of Appeal, Mr Prasad submitted that the Deputy President did not abide by his legal duty of care, or the law. Mr Prasad further submitted that he did not have the benefit of legal representation at the first instance hearing and “legal tactics” were used by the respondent’s representatives. These matters were not further developed in the proceedings before us.
.
In relation to the public interest, Mr Prasad submits that the appeal process provides the opportunity for a re-examination of the matter and all the facts. Mr Prasad considers this to be necessary in circumstances where he regards himself to be “handicapped with the legal knowledge and money,” where cost serves to restrict access to legal services and justice. Orally before us, Mr Prasad also submitted that it is in the public interest to address the termination of employees who are at no fault or in circumstances where both the hiring and host companies violate basic human rights.
Principles – permission to appeal
There is no right to appeal and an appeal may only be made with the permission of the Commission.
This appeal is one to which s 400 of the Act applies. By s 400(1), despite s 604(2), the Commission must not grant permission to appeal from a decision made by the Commission “under this Part” unless the Commission considers that it is in the public interest to do so. The reference to “this Part” in s 400(1) is to Part 3-2 of the Act. The test under s 400 is “a stringent one.”[12]
The task of assessing whether the public interest test is met is a discretionary matter, involving a broad value judgment.[13] The public interest is not satisfied simply by the identification of error,[14] or a preference for a different result.[15] In GlaxoSmithKline Australia Pty Ltd v Makin, a Full Bench identified some of the considerations that may attract the public interest:[16]
“... 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...”
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.[17] However, that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.
An application for permission to appeal is not a de facto or preliminary hearing of the appeal. In determining whether permission to appeal should be granted, it is unnecessary and inappropriate for the Full Bench to conduct a detailed examination of the grounds of appeal.[18] However, it is necessary to engage with the appeal grounds to consider whether they raise an arguable case of appealable error.
Consideration
For the reasons that follow, we are not satisfied that it would be in the public interest to grant permission to appeal.
The test of “exceptional circumstances” in relation to extensions of time to lodge applications under s 394(3) establishes a “high hurdle” for an applicant. A decision as to whether to extend time involves the exercise of a broad discretion to which the principles in House v The King apply.[19] For there to be legal error, as contended by the grounds advanced by Mr Prasad in the Notice of Appeal, it would need to be shown that there is an arguable case that the Deputy President erred in the exercise of his discretion by acting on a wrong principle, taking into account irrelevant matters, mistaking facts, not taking into account a material consideration or making 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.
We cannot discern from the broad grounds in Mr Prasad’s Notice of Appeal what the alleged errors are said to be. Mr Prasad has not developed his grounds of appeal orally or in written submissions in these proceedings. It follows that the Notice of Appeal does not advance any cogent contention capable of demonstrating an arguable case of appealable error in the decision.
It appears to us that the Deputy President properly addressed each of the matters in
s 394(3) of the Act that he was required to take into account. Mr Prasad accepted that his unfair dismissal application was lodged 49 days out of time and that he required an extension of time for his application to proceed in the Commission. Having regard to the Deputy President’s overall conclusion that there were no matters which weighed in favour of the grant of an extension (a core finding that Mr Prasad does not, as far as we can discern, challenge in this appeal), the conclusion reached by the Deputy President appears to have been the only one which could reasonably have been made. We cannot identify any arguable case of appealable error in the decision arising from Mr Prasad’s submissions, or at all.
Noting Mr Prasad’s oral submissions, we have considered the Deputy President’s decision to grant the respondent permission to be legally represented at first instance. The representation decision was made prior to the first instance hearing, and upon receipt of submissions from both parties. The Deputy President determined that the criterion in s 596(2)(a) was satisfied and exercised his discretion to grant permission on that basis.[20] Mr Prasad has not taken us to any errors (of the type identified in House v The King at [21] above, or at all) in connection with the representation decision and having considered the issue, we do not consider that any arguable contention of appealable error arises. To the extent that Mr Prasad contends that the respondent utilised “legal tactics” in response to his unfair dismissal application, this is not a matter that gives rise to any arguable error in the Deputy President’s decision.
We are not persuaded that any of the matters raised by Mr Prasad as justifying the grant of permission to appeal enliven the public interest. Mr Prasad’s application for an extension of time was determined on the basis of its own facts. In this respect, we are not satisfied that the appeal raises any issue of importance or general application, nor does it identify any relevant diversity of decisions at first instance. We do not consider it to be arguable that the decision of the Deputy President manifests an injustice, or that the result is counterintuitive or unjust. For the reasons we have given, the legal principles are not disharmonious with other authorities concerning s 394(3) of the Act.
As we are not satisfied that the grant of permission to appeal would be in the public interest, permission to appeal must be refused in accordance with s 400(1) of the Act.
Order and disposition
Permission to appeal is refused.
DEPUTY PRESIDENT
Appearances:
R Prasad, the appellant
G Turner-Mobbs with F Torcasio, of Maddocks, on behalf of the respondent
Hearing details:
2024.
By video link:
April 10.
[1] [2024] FWC 401 (Decision)
[2] PR771449
[3] Decision at [6]
[4] Decision at [27]
[5] Decision at [3]-[4]
[6] Decision at [16]-[21]
[7] Decision at [22]
[8] Decision at [23]
[9] Decision at [24] and [25]
[10] Decision at [26]-[32]
[11] Decision at [34]
[12] Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54; 192 FCR 78; 207 IR 177 at [34] and [43]
[13] O’Sullivan v Farrer (1989) 168 CLR 210 at 216-217 per Mason CJ, Brennan, Dawson and Gaudron JJ: applied in Hogan v Hinch (2011) 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) 192 FCR 78 at [44] – [46]
[14] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343; 197 IR 266 at [24]-[27]
[15] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343; 197 IR 266 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; Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 178; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663; 241 IR 177 at [28]
[16] [2010] FWAFB 5343, 197 IR 266 at [24]-[27]
[17] Wan v AIRC (2001) 116 FCR 481 at [30]
[18] Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]
[19] House v The King (1936) 55 CLR 499 at 505; see Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21]
[20] Email from Chambers to the parties dated 30 January 2024
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