Rajinder Singh v EGroup Protective Services Group Pty Ltd
[2024] FWCFB 301
•3 JULY 2024
| [2024] FWCFB 301 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
Rajinder Singh
v
EGroup Protective Services Group Pty Ltd
(C2024/3573)
| DEPUTY PRESIDENT MILLHOUSE | MELBOURNE, 3 JULY 2024 |
Appeal against decision [2024] FWC 1305 of Commissioner Durham at Brisbane on 17 May 2024 in matter number C2023/6597
Mr Rajinder Singh has lodged an appeal under s 604 of the Fair Work Act 2009 (Cth) (Act) against a decision[1] and order[2] of Commissioner Durham issued on 17 May 2024, for which permission to appeal is required. In the decision, the Commissioner declined to grant Mr Singh an extension of time to file his s 365 general protections application against the respondent, EGroup Protective Services Group Pty Ltd.
The matter was listed for permission to appeal only. The parties consented to the application being determined on the papers without holding a hearing pursuant to s 607(1)(b) of the Act. We were satisfied, having regard to s 607(1)(a), that the question of permission to appeal could be adequately determined without the need for oral submissions.
For the reasons that follow, permission to appeal is refused.
Decision under appeal
Mr Singh was employed as a security officer with the respondent from 30 June 2021. On 26 June 2023, Mr Singh sent an email to the respondent’s Client Executive, WHS & Quality Manager, Gary de Jong, in which he alleged that the respondent had taken adverse action against him, and he had been left with no choice other than to resign. Following the respondent’s advice that it accepted Mr Singh’s resignation, on 28 June 2023 Mr Singh advised that he was “forcibly made to resign” and sought to negotiate suitable terms to resolve his concerns in lieu of a general protections application being made.
It is not in dispute that Mr Singh’s employment ended on 3 July 2023 and in addition to his statutory entitlements, Mr Singh was paid an ex-gratia amount of $11,533.30 by the respondent. The respondent’s position was that this payment was made to resolve all matters between the parties.
Nevertheless, Mr Singh filed his general protections application with the Commission on 27 October 2023. The decision deals with the respondent’s objections that Mr Singh was not dismissed from his employment, and the application was made outside the 21-day time limit prescribed by s 366(1) of the Act. The Commissioner proceeded to determine whether to grant Mr Singh a further period for the making of his application, having regard to the considerations in s 366(2) of the Act, which the Commissioner correctly identified at paragraph [8] of the decision.
The decision records the Commissioner’s conclusions in relation to each of these considerations. In respect of s 366(2)(a), the Commissioner did not consider that Mr Singh provided an acceptable reason for the delay, and this weighed against a finding of exceptional circumstances.[3] The Commissioner was satisfied that the consideration in s 366(2)(b), being action taken to dispute the dismissal, weighed against an extension of time. The Commissioner noted that instead of attempting to dispute the events or lodge a formal complaint, Mr Singh gave notice of his resignation and sought to negotiate a settlement payment before lodging an application (later withdrawn) in the Queensland Industrial Relations Commission regarding his dismissal.[4] In relation to the considerations in ss 366(2)(c) and 366(2)(e), being the issue of prejudice to the employer and fairness between Mr Singh and other persons in a like situation, the Commissioner concluded that these were neutral considerations.[5]
As to s 366(2)(d), the Commissioner stated that the merits of Mr Singh’s general protections application involved an assessment of his contention that he was forced to resign. The Commissioner noted the relevant authorities and said that while the notice of roster change issued to Mr Singh could be considered conduct that led Mr Singh to resign, it did not amount to conduct so egregious that it could objectively be regarded to have forced Mr Singh’s resignation. The Commissioner further observed that Mr Singh was paid an ex-gratia sum to “finalise” matters, at his request. The Commissioner was sufficiently satisfied that Mr Singh was not forced to resign from his employment and that this finding would bear substantially upon the overall merits of Mr Singh’s substantive application. The Commissioner therefore concluded that this matter weighed against the grant of an extension of time.[6]
Having regard to all the circumstances of the case, the Commissioner was not satisfied that exceptional circumstances existed to warrant an extension of time. Mr Singh’s general protections application was dismissed.[7]
Grounds of appeal and public interest
In his Form F7 Notice of Appeal, Mr Singh identifies two key grounds of appeal, each containing supporting reasons. While the first ground contends that the Commissioner made errors of fact, it is said that the Commissioner did not afford Mr Singh procedural fairness by failing to explain the difference between a support person and a witness. It is contended that this resulted in Mr Singh’s support person, Mrs Frances Singh, not being given the opportunity to advocate on Mr Singh’s behalf. Further, it is contended that the Commissioner failed to make appropriate enquiries with the respondent regarding the non-appearance of its human resources manager.
The second ground of appeal contends that the Commissioner failed to take material considerations into account, summarised as follows:
(a)The Commissioner did not have regard to the respondent’s grievance policy.
(b)The Commissioner took the respondent’s claims at “face value” despite the lack of evidence to support its position in relation to the dismissal or the notice of roster change.
(c)The Commissioner suggested that Mr Singh acted hastily and resigned without requiring the respondent to explain why Mr Singh was demoted or why the roster was changed.
(d)The Commissioner did not take into consideration Mr Singh’s evidence of his employment history, or his concerns, or the actions Mr Singh took after receiving the revised roster.
(e)The Commissioner has “minimalised” the respondent’s behaviour.
With respect to the public interest, Mr Singh submits that the public has an interest in ensuring that the Commission does not get it “so wrong,” including by ensuring that conclusions reached are supported by evidence. Further there is a requirement that participants in Commission proceedings understand their roles to ensure a party is not disadvantaged.
Mr Singh filed written submissions in support of his application for permission to appeal in which he elaborated on his two appeal grounds. We have taken these matters into account. Where Mr Singh’s submissions raise considerations relevant to the decision or the manner in which the application proceeded at first instance, they are summarised below:[8]
The Commissioner did not scrutinise or give thought to actions by the respondent which could be considered as discriminatory or adverse in nature.
The Commissioner relied heavily on the respondent’s oral evidence at the hearing “as they had provided very little evidence to support their claims.”
At paragraphs [51]-[52] of the decision, the Commissioner notes Mr Singh’s concession that he resigned after receiving the notice of roster change, but the Commissioner minimised the content of the relevant correspondence and failed to refer to all of the material in Mr Singh’s document list.
The Commissioner did not ask Mr de Jong relevant questions while he was giving evidence.
At paragraph [42] of the decision, the Commissioner has not considered the financial implications to Mr Singh of the revised and demeaning roster, including how his reduced salary would affect his accrued annual leave entitlement.
The Commissioner assumes that Mr Singh had “a full view” of the processes unfolding around him.
The Commissioner did not take into account a number of work-related matters including the requirement for Mr Singh to work excessive hours, issues pertaining to Mr Singh’s fatigue, the failure of the respondent to direct Mr Singh towards a grievance procedure, and the respondent’s conduct in misrepresenting Mr Singh’s position as site security manager in “name only.”
The Commissioner failed to cross examine the respondent or draw a connection between “legal letters” the respondent received concerning Mr Singh approximately two weeks prior to Mr Singh’s demotion and dismissal. The failure to ask the respondent key questions led to an erroneous conclusion at [54] of the decision that the respondent’s conduct was not so “egregious that it forced [Mr Singh] to resign.”
The Commissioner’s conclusion that Mr Singh did not engage with the grievance policy before resigning fails to take into account that there was no grievance policy in existence and was not produced by the respondent to the Commission.
The Commissioner appeared to be biased in favour of the respondent. This is demonstrated by the Commissioner’s failure to deliberate on the link between legal letters sent to the respondent on Mr Singh’s behalf on 8 June 2023 and the issuance by the respondent to Mr Singh of the notice of roster change on 23 June 2023.
In circumstances where the respondent took adverse action against Mr Singh under
s 342(1) of the Act, permission to appeal ought to be granted to facilitate an examination of the respondent’s conduct and motivation.
Principles – permission to appeal
An appeal under s 604 of the Act 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.[9] There is no right to appeal, and an appeal may only be made with the permission of the Commission. Section 604(1) requires the Commission to grant permission if the Commission is satisfied that it is in the public interest to do so.
The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[10] In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of the Commission identified some of the considerations that may attract the public interest:[11]
... 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 an appealable error.[12] 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.[13]
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.[14] However it is necessary to engage with those grounds to consider whether they raise an arguable case of appealable error.
Consideration
Having regard to the late filing of Mr Singh’s application, the decision considered whether there were “exceptional circumstances” such as to grant Mr Singh a further period to make his application.[15] The test of exceptional circumstances establishes a “high hurdle” for an applicant to overcome.[16] The 21-day time limit that applies to the exercise of a person’s right to bring an application under s 365 of the Act reflects Parliament’s intention that this right be exercised promptly. Mr Singh’s application was filed 95 days outside this statutory timeframe and the Commissioner was not satisfied that Mr Singh had provided an acceptable explanation for the lengthy delay. Mr Singh has not challenged this finding in his appeal.
By appeal ground one, Mr Singh contends that he was denied procedural fairness because Mrs Singh was not given the opportunity to advocate on his behalf. A review of the Commission’s file does not bear out this contention. Mrs Singh informed the Commissioner that she was appearing as a witness in the application and gave evidence in chief at the determinative conference. The respondent did not seek to cross examine her. Mrs Singh also made closing submissions on Mr Singh’s behalf. Mr Singh gave evidence in support of his own application, and this evidence was the subject of cross examination by the respondent.
During cross examination, the Commissioner requested that Mrs Singh refrain from providing Mr Singh with notes and attempting to answer questions on his behalf. This was an entirely appropriate direction for the Commissioner to give. Mr Singh, as the applicant, was required to give testimony in his own words to protect the integrity of his evidence and the Commission’s processes. No arguable error arises in relation to the Commissioner’s approach to this issue. Nor is it arguable that Mr Singh’s access to a fair trial was impaired in the manner contended, or at all.
We are not satisfied that any error can be attributed to the Commissioner for the non-attendance of the respondent’s human resources manager at the determinative conference. There was no order or requirement for the human resources manager to attend, and the manager’s absence due to “personal” matters was not raised as a concern with the Commissioner at first instance. Mr Singh has not drawn a connection between the manager’s non-attendance and any alleged error in the Commissioner’s reasoning.
The matters raised by appeal ground two do not demonstrate an arguable case of appealable error. As was explained by the Commissioner at the commencement of the proceeding, in considering whether to grant an extension of time the Commissioner was not required to determine Mr Singh’s substantive general protections claim.[17] Notwithstanding this, the Commissioner considered Mr Singh’s concerns as to the conduct of the respondent in order to understand whether there was merit to Mr Singh’s contention that his resignation had been forced. The Commissioner took these matters into account in her overall consideration of whether there were “exceptional circumstances” justifying the grant of an extension of time.
In this context, Mr Singh’s argument that the Commissioner did not take into account material issues including by:
(a)failing to consider, scrutinise, or make findings in relation to Mr Singh’s allegations of discriminatory or adverse conduct involving the notice of roster change, or Mr Singh’s fatigue, or the respondent’s grievance policy; and/or
(b)failing to apply the provisions of s 342(1) of the Act to the matters before her,
does not demonstrate any arguable appealable error. The Commissioner was not required to determine these matters in considering whether to grant an extension of time. As these matters also inform Mr Singh’s contention that the Commissioner appeared to be biased against him, the allegation of bias cannot succeed. On our review of the Commission’s file, any broader contention that the Commissioner demonstrated a lack of impartiality is not arguable.
We note, for completeness, that the Commissioner appeared to reach a concluded view on the question of whether Mr Singh was forced to resign because of conduct, or a course of conduct, engaged in by the respondent. This approach was available to the Commissioner in circumstances where evidence was called in respect of this issue.[18] Were that not the case, the merits of the respondent’s argument that Mr Singh’s resignation was voluntary (and therefore legally effective) appear to be strong, such that the consideration in s 366(2)(d) would likely have weighed against an extension of time in any event. It follows that we would not be persuaded that any arguable appealable error arises for the purposes of granting permission to appeal, even had this matter been the subject of dispute before us.
Finally, we note that paragraph [42] of the decision involves a consideration of the date that Mr Singh first became aware of his dismissal. This was not a matter that fell for consideration under s 366(2) of the Act, as paragraph [8] of the decision bears out. However, this matter does not provide a sufficient basis for the grant of permission to appeal in circumstances where the Commissioner’s overall conclusion at paragraph [61] was that none of the considerations relevant to the assessment of the grant of an extension of time weighed in favour of granting an extension of time. It follows that even if the considerations at paragraph [42] of the decision were excluded from consideration, the outcome of the appeal would be unaffected such that the grant of permission to appeal in respect of this matter alone is of no utility. The lack of utility in an appeal is a well-established basis for the refusal of permission to appeal.[19]
Conclusion and disposition
For the reasons given, we do not consider that an arguable case has been advanced that the decision was attended by appealable error. Nor are we satisfied that the appeal attracts the public interest. The appeal does not raise any genuine issue of law, principle or wider application. It follows that we must refuse permission to appeal.
Permission to appeal is refused.
DEPUTY PRESIDENT
[1] [2024] FWC 1305
[2] PR775137
[3] Decision at [41]
[4] Decision at [43]
[5] Decision at [44], [60]
[6] Decision at [59]
[7] Decision at [61]-[63]
[8] Appeal book p.3-9
[9] This is so because on appeal the Commission has power to receive further evidence, pursuant to s 607(2); see Coal and Allied v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ
[10] 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]
[11] [2010] FWAFB 5343, 197 IR 266 at [27]
[12] Wan v AIRC (2001) 116 FCR 481 at [30]
[13] 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 388, 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]
[14] Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]
[15] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975; 203 IR 1
[16] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21]
[17] See also, decision at [45]
[18] Long v Keolis Downer[2018] FWCFB 4109; 279 IR 361 at [72]
[19] See for example, KCL Industries Pty Ltd [2016] FWCFB 3048, 257 IR 266 at [8]
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