Ralph Weingaertner v Sell and Parker Pty Ltd
[2015] FWCFB 4036
•25 JUNE 2015
| [2015] FWCFB 4036 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
Sell and Parker Pty Ltd
(C2015/2289)
VICE PRESIDENT HATCHER |
|
Permission to appeal sought against an Order [PR561917] of Deputy President Sams at Sydney on 12 March 2015 and Reasons for Decision [[2015] FWC 2415] on 10 April 2015 in matter number U2015/2329.
[1] Mr Ralph Weingaertner has applied for permission to appeal an order issued by Deputy President Sams on 12 March 2015 1 (Order). The effect of the Order was to refuse Mr Weingaertner an extension of time to lodge an unfair dismissal remedy application under s.394 of the Fair Work Act 2009 (FW Act) and to dismiss pursuant to s.587(1)(a) of the FW Act the unfair dismissal remedy application which Mr Weingaertner had lodged on the basis that it had not been made in accordance with the FW Act. The Deputy President published reasons for the decision embodied in the Order on 10 April 20152 (Decision).
[2] Section 394(2) of the FW Act requires an unfair dismissal remedy application to be lodged within 21-days after the dismissal took effect or within such further period as the Commission allows under s.394(3). Section 394(3) provides:
(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.
[3] Mr Weingaertner lodged his unfair dismissal remedy application on 8 January 2015. There is no dispute that the dismissal the subject of the application took effect on 4 December 2014. The application was therefore lodged 14 days out of time.
[4] The explanation for the delay in filing the application advanced by Mr Weingaertner was as follows:
(1) He believed he had sent his application as an attachment to an email sent to the Commission’s Sydney Registry on 19 December 2014. Although the Commission did not receive the email, his computer showed that the email had been sent.
(2) Having heard and received nothing from the Commission concerning his application, Mr Weingaertner made an inquiry about the progress of his application on 31 December 2014. In response he received an email from the Commission which informed him that the application had not been received and he should re-send it. Mr Weingaertner said in a submission to the Deputy President that this email was sent on 8 January 2015, but in fact the email was sent on 2 January 2015.
(3) In response to the Commission’s email, Mr Weingaertner then re-sent his application by email of 8 January 2014, on which occasion it was received by the Commission.
[5] In the Decision, the Deputy President dealt with all the matters he was required by s.394(3) to take into account. In relation to the reason for the delay (s.394(3)(a)), the Deputy President said:
“[8] Enquiries with the Commission’s IT department confirmed that no email was received by the Commission’s servers from the applicant’s email address on this date or, indeed, throughout the whole month of December 2014 until the applicant emailed the Sydney registry of the Commission on 31 December 2014 inquiring as to the status of his application. On 2 January 2015, a staff member of the Commission emailed the applicant informing him that the Commission had not received his application and asking him to resend his application and ‘any receipt/document to verify the original date and time the application was sent.’ The applicant lodged his application on 8 January 2015, but did not at this time provide any documentation verifying the original date and time the application was sent. The application set out that the application was being lodged in time. However, the applicant did not offer any reason for waiting a further six days after 2 January 2015 before lodging his application.
[9] Having considered the material filed by the applicant and the Commission’s records, I find that the application was filed on 8 January 2015. In any event, I am not persuaded that the reason provided by the applicant for the delay in filing his unfair dismissal application is an ‘exceptional circumstance’, as contemplated by the Act. Even if I am wrong as to this finding, the applicant provided no explanation for his failure to ‘re-lodge’ his application for a further six days after being informed that his application had not been received. Given that the applicant was clearly ‘alive’ to the possibility that his application had not been filed, I find it curious that he did not, after the email of 2 January 2015, take immediate steps to submit his previously-prepared application. Time was of the essence.”
[6] In relation to the merits of Mr Weingaertner’s application (s.394(3)(e)), the Deputy President stated that “…it cannot be said that the applicant’s case is devoid of any merit”. The Deputy President’s conclusion was as follows:
“[18] Having considered and balanced all of the matters which the Commission is required to take into account under s 394(3) of the Act, I am not satisfied that there are ‘exceptional circumstances’ which would warrant the Commission granting an exception to the statutory time limit for the lodgement of this unfair dismissal application. In my opinion, the circumstances, as disclosed by the material submitted by the applicant, are not ‘out of the ordinary course, unusual, special or uncommon’. The application for an unfair dismissal remedy must be dismissed. I confirm my order of 12 March 2015.”
[7] In support of his application for permission to appeal, Mr Weingaertner submitted that:
(1) It was in the public interest that he be granted permission to appeal because a person who lodges an application by email ought be able to proceed with the application when it is sent in time.
(2) The Deputy President made a significant error of fact in that he did not take into consideration the original email which was sent to the Commission (on 19 December 2014).
(3) There was a significant error of fact as the original email and subsequent emails were overlooked in the Decision.
Consideration
[8] An appeal under s.604 of the FW 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. 3 There is no right to appeal and an appeal may only be made with the permission of the Commission.
[9] This appeal is one to which s.400 of the FW Act applies. Section 400 provides:
(1) Despite subsection 604(2), the FWC must not grant permission to appeal from a decision made by the FWC under this Part unless the FWC considers that it is in the public interest to do so.
(2) Despite subsection 604(1), an appeal from a decision made by the FWC in relation to a matter arising under this Part can only, to the extent that it is an appeal on a question of fact, be made on the ground that the decision involved a significant error of fact.
[10] In the Federal Court Full Court decision in Coal & Allied Mining Services Pty Ltd v Lawler and others, Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s.400 as “a stringent one”. 4 The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment5. 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 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.” 6
[11] 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. 7 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.8
[12] We are not satisfied that Mr Weingaertner has demonstrated any arguable case of appealable error with respect to the Order and Decision. As earlier stated, the Deputy President took into account all the matters he was required to under s.394(3), and did so by reference to a framework of uncontested facts. He did not fail to take into account Mr Weingaertner’s attempted email of the application on 19 December 2014; indeed the fact that of his own initiative he made inquiries of the Commission’s IT department to identify whether any email was received by the Commission from Mr Weingaertner prior to 31 December 2014 demonstrates that he took it into account. He did not fail to take into account the subsequent email from the Commission on 2 January 2014, since he referred to the unexplained six-day delay between that email and the successful lodgement of the application on 8 January 2015 as a reason for why there were no exceptional circumstances. There is nothing in the material which suggests that the Deputy President erred in stating that Mr Weingaertner did not as at 8 January 2015 “provide any documentation verifying the original date and time the application was sent”; the material in the appeal book indicates that Mr Weingaertner first produced a copy of his attempted email of 19 December 2014 on 21 January 2015 together with his submission in support of his application for an extension of time.
[13] The test of “exceptional circumstances” establishes a “high hurdle” for an applicant for an extension, and a decision as to whether to extend time under s.394(3) involves the exercise of a broad discretion. 9 Although individual members of the Full Bench may not necessarily have made the same decision as the Deputy President had they decided the matter themselves at first instance, nonetheless we do not consider that, in determining that the high hurdle of exceptional circumstances had not been overcome, the Deputy President made any error in the exercise of his discretion.
[14] We have taken two further matters into account in our consideration as to permission to appeal:
(1) We have made further inquiries of the Commission’s IT department to examine whether there was any problem with the Commission’s IT system on 19 December 2014 which might have prevented the receipt of an email from Mr Weingaertner. The response was that no such problem was identifiable. We disclosed our inquiry and the result to the parties prior to the hearing of the appeal.
(2) At the hearing of the application for permission to appeal, Mr Weingaertner was unable to give any coherent explanation for the delay between the Commission’s email of 2 January 2015, which disclosed that his emailed application of 19 December 2014 had not been received by the Commission, and his re-sending of the application on 8 January 2015.
[15] Neither of these matters supports the grant of permission to appeal in the public interest.
[16] Finally, we do not consider that there is any issue raised by this appeal which is of a nature that would attract the public interest. In particular, the appeal does not give rise to any general issue concerning the right of parties to lodge unfair dismissal remedy applications by email. There is no question that parties are entitled to lodge their applications in that way. The Commission’s website makes that clear. But an application is not lodged unless it is actually received by the Commission, and ultimately it is the responsibility of parties to ensure that their applications are actually received by the Commission within the 21-day time period.
[17] For the reasons stated, we are not satisfied that it would be in the public interest to grant permission to appeal. Therefore, in accordance with s.400(1), we must refuse permission to appeal.
VICE PRESIDENT
Appearances:
R. Weingaertner on his own behalf.
D. Bray from Australian Industry Group for Sell and Parker Pty Ltd.
Hearing details:
2015.
Sydney:
18 June.
1 PR561917
2 [2015] FWC 2415
3 Coal and Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ
4 (2011) 192 FCR 78 at [43]
5 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]
6 [2010] FWAFB 5343 at [27], 197 IR 266
7 Wan v AIRC (2001) 116 FCR 481 at [30]
8 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 288, 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]
9 Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21]
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