Rajiv Lal v Rio Tinto Technology and Innovation Ltd
[2014] FWCFB 7880
•11 NOVEMBER 2014
[2014] FWCFB 7880
DECISION
| Fair Work Act 2009 | |
| s.604—Appeal of decision | |
| Rajiv Lal | |
| v | |
| Rio Tinto Technology and Innovation Ltd | |
| (C2014/1301) | |
| VICE PRESIDENT HATCHER | |
| DEPUTY PRESIDENT GOSTENCNIK | |
| COMMISSIONER RYAN | SYDNEY, 11 NOVEMBER 2014 |
Appeal against decision [[2014] FWC 4875] of Commissioner Cribb at Melbourne on 21 July
2014 in matter number C2014/4186.
[1] Mr Rajiv Lal (Appellant) was dismissed from his employment with Rio Tinto Technology and Innovation Ltd (Respondent) on 4 August 2008 on redundancy grounds. On 23 April 2014 the Appellant applied under s.365 of the Fair Work Act 2009 (Act) to the Commission for it to deal with a general protections dispute involving a dismissal. The application was clearly made outside of the time prescribed in s.366(1). Commissioner Cribb dismissed the application on 21 July 2014 after the Commissioner refused to exercise her discretion to allow the Appellant a further period within which to make his application (Decision).[1]
[1][2014] FWC 4875
[2] The Appellant now seeks permission to appeal the Decision.
Nature of Appeal
[3] 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.[2]There is no right to appeal and an appeal may only be made with
[2]This is so because on appeal FWC has power to receive further evidence, pursuant to s.607(2); see Coal and
the permission of the Commission. Section 604 provides:
(1) A person who is aggrieved by a decision:
(a) made by the FWC (other than a decision of a Full Bench or an Expert
Panel); or
[2014] FWCFB 7880
(b) made by the General Manager (including a delegate of the General
Manager) under the Registered Organisations Act;
may appeal the decision, with the permission of the FWC.
(2) Without limiting when the FWC may grant permission, the FWC must grant
permission if the FWC is satisfied that it is in the public interest to do so.
Note: Subsection (2) does not apply in relation to an application for an unfair dismissal
(see section 400).
(3) A person may appeal the decision by applying to the FWC.
[4] Subsection 604(2) requires the Commission to grant permission to appeal if 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.[3]The public interest is not
satisfied simply by the identification of error, or a preference for a different result.[4]In GlaxoSmithKline Australia Pty Ltd v Makin[5]a Full Bench of Fair Work Australia 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...”
[3]O’Sullivan v Farrer (1989) 168 CLR 210; Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54
[4]GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343 at [26]-[27]; Lawrence v Coal & Allied
[5](2010) 197 IR 266 at [27]
[5] Other than the special case in s.604(2), the grounds for granting permission to appeal
are not specified. The Explanatory Memorandum to what is now s.604 states, at paragraph
2328:
Subject to the Appellant demonstrating an arguable case of appealable error, it is intended that FWA should have a broad discretion as to the circumstances in which it can grant permission to appeal. Some examples of considerations which have traditionally been adopted in granting leave and which would therefore usually be treated as justifying the grant of permission to appeal include:
that the decision is attended with sufficient doubt to warrant its reconsideration;
and
[2014] FWCFB 7880
that substantial injustice may result if leave is refused.[6]
[6]Also see CFMEU v AIRC (1998) 89 FCR 200; and Wan v AIRC (2001) 116 FCR 481.
[6] As this is an appeal from a discretionary decision, errors that are alleged to have been made by a first instance decision-maker must be of a kind identified in House v King.[7]
Grounds of appeal
[7](1936) 55 CLR 499; Note also the reference in the Explanatory Memorandum (EM) to the Fair Work Bill 2008
[7] The Appellant’s central ground of appeal is that the Commissioner was in error in failing to conclude that there were exceptional circumstances warranting the exercise of her discretion to allow a further period within which the application could be made. This is because the Appellant did not become aware until 14 March 2014 that his dismissal in 2008 may have occurred in contravention of the general protections provisions of the Act.[8]At that
time, the Appellant became aware that the Respondent had re-established its excellence centre, the disbanding of which in 2008 had resulted in the Appellant’s dismissal on redundancy grounds.[9]
[8] Appellant’s submissions on Appeal at p.1.
[9] Ibid
[8] Consequently the Appellant had not had cause to question his dismissal before
14 March 2014. This reason, says the Appellant provides an acceptable explanation for the
delay and the Commissioner should have so found.[10]
[10]Ibid at pp. 1-2
[9] Furthermore, soon after becoming aware of the re-establishment of the excellence centre, the Appellant disputed his dismissal with the Respondent in a series of emails sent by the Appellant to the Respondent in March and April of 2014.[11]We take this to be an assertion that the Commissioner was in error in concluding to the contrary.
[11]Ibid at pp. 3-5
[10] The Appellant also says that he wanted to continue to work with the Respondent and believes that his dismissal could have been because of his disability caused by a smelter
explosion.[12]The Appellant contends therefore that his application is not without merit.
Decision below and consideration
[12]Ibid p. 2, p 6
[11] The Commissioner began her consideration by setting out the factors that she must take into account in considering whether to exercise discretion to allow the Appellant a
further period within which to lodge his application.[13]The Commissioner then turned to
consider the reason given by the Appellant for the delay.[14]In doing so the Commissioner noted that the Appellant maintained that he did not become aware that he may have a case against the Respondent until 14 March 2014 when the Respondent made a public [2014] FWCFB 7880
announcement about its decision to re-establish its excellence centre.[15]The Commissioner
noted the Appellant's communications with the Respondent following the announcement,[16]
however, the Commissioner observed that counterbalancing these matters was the length of the delay and the absence of an acceptable explanation as to why the Appellant had not lodged an application at the time of his dismissal or at a time earlier than it was.[17]
[13][2014] FWC 4875 at [7]
[16]Ibid
[17]Ibid at [12]
[12] To this end we would observe that even though the Appellant became aware that he might have a cause of action against the Respondent on 14 March 2014, he still waited a further 40 days before making his application on 23 April 2014. Even taking into account the fact that the Appellant corresponded with the Respondent about its decision to re-establish the excellence centre, the last correspondence from the Appellant was dated 31 March 2014[18]and the Appellant's application was lodged 23 days after that date. The Respondent’s last correspondence is dated 16 April 2014[19]and the application is lodged seven days after that date. There is nothing in the evidence before the Commissioner, which explain any of these delays. It seems to us therefore that the conclusions drawn by the Commissioner were open to her on the evidence.
[18]Appeal Book p. 9.
[19]Ibid; see also Appellant’s submissions on Appeal at p.3.
[13] The Commissioner next turned to consider any action taken by the Appellant to dispute his dismissal[20]and while she observed that the Appellant had corresponded with the Respondent after the announcement of 14 March 2014, the Commissioner concluded that there was no evidence before her which showed that the Appellant took any action to dispute his dismissal other than lodging the application.[21]In our view on a fair reading of the
correspondence this conclusion was undoubtedly correct.
[20][2014] FWC 4875 at [10]-[17]
[21]Ibid at [17]
[14] The Commissioner then considered whether there would be any prejudice to the Respondent.[22]The Commissioner accepted the Respondent’s argument that because of the significant period that had elapsed between the date of the Appellant’s dismissal and the application having been made, there would likely be some prejudice because many potential witnesses will have moved on from the employment of the Respondent and may be unable to provide evidence.[23]On the material that we have reviewed this argument seems not to have
been contested and in the circumstances it was open to the Commissioner to accept the
[22]Ibid at [18]-[20]
[23]Ibid at [20]
[15] As to the merits of the application, the Commissioner noted the Appellant's argument that his dismissal in August 2008 may have occurred for the reason of his disability and not
redundancy.[24]The Commissioner also noted that the Appellant’s dismissal occurred before
the commencement of the general protections provisions of the Act.[25]On this basis the
[2014] FWCFB 7880
Commissioner concluded that the Appellant's application did not have merit.26 In our view, this conclusion was plainly open to the Commissioner in the circumstances.
[24]Ibid at [21]-[23]
[25]Ibid at [26] 26 Ibid at [27]
[16] As to fairness as between the Appellant and others in a like position, the
Commissioner was unable to conclude whether there were other persons in a like position to that of the Appellant.[27]Again, this was proper given the state of the material before the
Commissioner.
[27]Ibid at [30]
[17] The Commissioner then set about weighing these matters in considering whether there were exceptional circumstances.[28]The Commissioner concludes that taking into account the
absence of an acceptable explanation for the delay, the absence of any merit in the application
and the prejudice to the Respondent, that there are no exceptional circumstances.[29]
Consequently the Commissioner did not exercise her discretion to allow a further period within which the applicant could lodge his application. There is nothing erroneous in the Commissioner's weighing of the considerations and indeed in our view the Commissioner’s conclusion was correct.
Conclusion
[28]Ibid at [31]-[34]
[18] It seems to us apparent, on a review of the Commissioner’s Decision, that she gave consideration to the matters to which she was required to turn her mind. The Commissioner applied the evidence, such as it was, to those matters and she drew conclusions from the evidence which were reasonably open to her. The Commissioner identified and applied the relevant legal principles. Having done so, the Commissioner reached the conclusion that she was not satisfied that there were exceptional circumstances and so the occasion for consideration whether she should exercise her discretion did not arise. We have not been able to identify any appellable error in the Decision.
Disposition of appeal
[19] We have been unable to identify any appellable error in the Decision or the Commissioner’s reasoning. Nor are we persuaded that it would be in the public interest to grant permission to appeal. There is no other apparent basis upon which permission might be granted. Accordingly, permission to appeal is refused.
General protections dispute under s.372
[20] We observe that the Appellant’s application is made using form F8. That form may be used to bring to the Commission general protections disputes involving a dismissal (s.365) and those disputes that do not relate to a dismissal (s.372). Although the proceedings before the Commissioner and those before us concerned an application for the Commission to deal with a general protections dispute involving a dismissal, it seems to us on the facts as alleged in the application, that the Appellant might also be pursuing an allegation that there was a refusal by the Respondent to employ him at some stage after 14 March 2014 and that the refusal occurred because of his disability. The Act does not contain a time limitation within [2014] FWCFB 7880
which such an application may be made to the Commission but the Commission is not empowered to deal with such a dispute by convening a conference unless the parties to the dispute agree to participate.[30]
[21] We therefore ask that the parties give the Commission an indication about whether they agree to participate in a conference within seven days of the date of this decision. If both parties agree, the Commission will convene a conference. If one of the parties does not agree the Commission cannot act but the Appellant may, if he chooses, proceed to prosecute that dispute in the Federal Circuit Court or the Federal Court of Australia. Advice about whether a party agrees to participate in a conference should be given to the Chambers of Commissioner Ryan.
| VICE PRESIDENT |
| Final Written Submissions: |
| Rajiv Lal - 8 September 2014 Rio Tinto Technology Innovation Ltd - 6 October 2014 |
| Printed by authority of the Commonwealth Government Printer |
| <Price code C, PR557451> |
Allied v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.
at [44]-[46].
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] FCAFC 54; Ferrymen Pty Ltd v
Maritime Union of Australia [2013] FWCFB 8025; and NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663.
at [2320] to the decision in Coal and Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 referring to the
application of House v King to appeals in the AIRC, and the intention expressed in the EM to maintaining this
jurisprudence in relation to FWA appeals.
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