Ramesh Prasad v Prysmian Australia Pty Ltd
[2019] FWCFB 4791
•23 JULY 2019
| [2019] FWCFB 4791 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Ramesh Prasad
v
Prysmian Australia Pty Ltd
(C2019/3318)
VICE PRESIDENT CATANZARITI | SYDNEY, 23 JULY 2019 |
Appeal against decision [[2019] FWC 3418] of Deputy President Dean at Sydney on 17 May 2019 in matter number U2019/2787.
[1] Mr Ramesh Prasad (the Appellant) has lodged an appeal, for which permission is required, against a Decision 1 and Order2 of Deputy President Dean issued on 17 May 2019 in which the Deputy President dismissed the Appellant’s application for an unfair dismissal remedy (the Application)3 pursuant to s 587 of the Fair Work Act 2009 (Cth) (the Act).
[2] On 9 July 2019, the matter was listed to deal with the question whether permission to appeal should be granted.
Decision at first instance
[3] The Application before the Deputy President was the third application made by the Appellant pursuant to s 394 of the Act for a remedy in respect of his alleged unfair dismissal by the Respondent. 4 The Respondent raised a number of jurisdictional objections to the Application, including that the Application was made beyond the 21 day time frame5, that the Appellant was not dismissed, that an earlier application was not discontinued and that the Application was frivolous, vexatious and without reasonable prospects of success.6 The Deputy President listed the matter for hearing to determine whether the Application should be dismissed pursuant to s 587 of the Act.7
[4] The Deputy President set out the factual background to the Application. 8 By way of summary we note the following:
• The Appellant’s employment with the Respondent ended on or around 8 October 2018.
• The Appellant’s first application for an unfair dismissal remedy 9 was withdrawn, with the Appellant having filed a Notice of Discontinuance with the Commission (First Application).
• The Appellant’s second application for an unfair dismissal remedy 10 was dismissed by a Member of the Commission, following a hearing on the jurisdictional objection by the Respondent that it had been filed outside the 21 day time limit required by the Act, having found that there were no exceptional circumstances warranting the granting of an extension of time (Second Application).11
• The Appellant did not appeal the decision relating to the Second Application.
• The Appellant made the Application 12, being the third, seeking a remedy in respect of his alleged unfair dismissal with the Respondent.
[5] The Deputy President noted that “the Commission wrote to Mr Prasad indicating that the Third Application appeared to have been made 135 days beyond the 21 day time limit”. 13 Having been asked by the Commission to provide a written explanation as to why he thought there were exceptional circumstances warranting the granting of an extension of time to file the Application, the Appellant’s explained some of the circumstances leading up to the making of the Application14.
[6] Having outlined the submissions and evidence in the matter, 15 the Deputy President dismissed the Application pursuant to s 587 of the Act, because it had no reasonable prospects of success, and concluded:
“[15] This is Mr Prasad’s second attempt to litigate a matter which has already been determined by the Commission. It is clear that the Third Application raises the same issues that were raised and dealt with by the Second Application. There is no reason to expect a different result the second time round. Mr Prasad has been afforded an opportunity to make a case for why the Third Application should not be dismissed, particularly in circumstances where he had been provided with information on how to appeal the Decision. He has not been deprived of his right to have an application heard and determined, as this has already occurred.
[16] While I accept that Mr Prasad feels wronged and believes that the Second Application should have been successful, I consider it unreasonable to put the Respondent to the cost and time involved in dealing with the Third Application.
[17] Accordingly, the Third Application is dismissed. An order to this effect will issue with this decision”
Appellant’s submissions
[7] On 1 July 2019, the Commission received email correspondence from the Appellant, the body of which we understand to be his submissions. As the Appellant is unrepresented, it is understandable that the written submissions filed did not specify individual grounds of appeal.
[8] The Appellant’s correspondence included reference to the withdrawal of the First Application and the late lodgement of the Second Application. The Appellant noted the hardship on himself and his family as to “what I [he] went through”, which we understand to be in reference to the events leading up to the filing of the applications for an unfair dismissal remedy.
[9] The Appellant also submitted that he has not had an opportunity to present his case, and he appeals the Decision so he may have such an opportunity and to seek justice.
[10] In respect of the public interest, the Appellant submitted that the Respondent claims to be an equal employment opportunity organisation, however unfair behaviour and treatment occurs within the company. The Appellant submitted that granting permission to appeal would demonstrate the true behaviour of “some of the multinational companies”, and what goes on within such companies. 16
Permission to appeal principles
[11] 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.17 There is no right to appeal and an appeal may only be made with the permission of the Commission.
[12] Section 400(1) modifies s 604(2) of the Act in relation to appeals from decisions made under Part 3-2, which concern unfair dismissal applications. It provides that, despite subsection 604(2), the Commission must not grant permission to appeal from such decisions unless it considers that it is in the public interest to do so. If s 400(1) applies, the public interest is the sole criterion for the grant or refusal of permission to appeal. If the appeal bench does not consider that it is in the public interest to grant permission to appeal, it must refuse such permission. In Coal & Allied Mining Services Pty Ltd v Lawler, the Federal Court characterised the test under s 400 as “stringent”. 18
[13] The Deputy President’s Decision was made under s 587, which allows the Commission to dismiss an application on the grounds therein specified. Section 587 is in Part 5-1 of the Act and on this basis it might be contended that s 400 does not apply to decisions made under that provision. However, the Decision was made in relation to an application brought under Part 3-2 of the Act, namely the Appellant’s unfair dismissal application. In Australian Postal Corporation v Gorman, 19 Besanko J concluded that an appeal from a decision to dismiss an unfair dismissal proceeding under s 587 of the Act was a decision to which s 400 applied. Further, in Asciano Services Pty Ltd v Hadfield,20 a Full Bench of the Commission decided that s 400 applied to an appeal from a decision not to grant permission for representation under s 596 of the Act in respect of an unfair dismissal application.
[14] The apparent purpose of s 400 is to confine the circumstances in which unfair dismissal applications can be appealed so as to promote the finality of litigation with respect to such claims. It would be contrary to this purpose if the limitation applied to substantive decisions made under Part 3-2, but not to procedural or interlocutory decisions concerning those same matters. In our view, the present appeal is one from a decision made under Part 3-2 of the Act. The Decision dealt with the dismissal of an unfair dismissal proceeding brought before the Commission under that part of the Act. Accordingly, we consider that s 400(1) of the Act applies to the matter before us.
[15] 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.21
Consideration
[16] The Decision under appeal is of a discretionary nature. As such, it can only be successfully challenged on appeal if it is shown that the discretion was not exercised correctly.
[17] We are not persuaded the Appellant has established an arguable case of appealable error in the exercise of the Deputy President’s discretion. The Deputy President noted that the Application raised the same issues that were raised and dealt with by the Second Application. The Deputy President noted that the Appellant has not been deprived of the opportunity to have an application heard and determined, as this already occurred in the hearing and decision relevant to the Second Application. 22
[18] The submissions filed by the Appellant do not address the Deputy President’s primary conclusion to dismiss the Application pursuant to s 587 of the Act on the basis that it had no reasonable prospects of success. In addition, we are of the view that neither the Appellant’s submission regarding permission to appeal nor the “grounds” on which the appeal is sought to be agitated enliven any matter which would attract the public interest.
[19] We are not satisfied that there is an arguable case of appealable error and we are not satisfied for the purposes of determining whether this permission to appeal attracts the public interest that:
• there is a diversity of decisions at first instance for which guidance from a Full Bench is required;
• the appeal raises issues of importance and/or general application;
• the Decision manifests an injustice, or the result is counter-intuitive; or
• the legal principles applied by the Deputy President were disharmonious when compared with other Commission decisions dealing with similar matters.
[20] As the Deputy President endeavoured to explain to the Appellant, the proper course was for the Appellant to seek permission to appeal the decision relating to the Second Application. 23 This is a course that is still open but of course the Appellant will need to persuade the Commission to allow the appeal to be lodged outside of the time prescribed for lodging an appeal under Rule 56(2) of the Fair Work Commission Rules 2013.
Conclusion
[21] Permission to appeal is therefore refused.
VICE PRESIDENT
Appearances:
Mr R Prasad, on his own behalf via telephone.
Ms R Bhatt, on behalf of the Respondent in Sydney.
Hearing details:
9 July
2019
Sydney with videolink to Melbourne.
Printed by authority of the Commonwealth Government Printer
<PR710180>
1 [2019] FWC 3418.
2 PR708408.
3 Made pursuant to s 394 of the Act.
4 Decision at [1].
5 Prescribed by s 394 of the Act.
6 Decision at [2].
7 Decision at [3].
8 Decision at [5] – [7].
9 Lodged on 17 October 2018.
10 Lodged on 3 December 2018.
11 [2019] FWC 1463 and PR705577.
12 Lodged on 13 March 2019.
13 Decision at [6].
14 Decision at [7].
15 Decision at [8], [9].
16 Form F7 – Notice of Appeal filed by the Appellant dated 29 May 2019.
17 Coal and Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.
18 (2011) 192 FCR 78 at [43].
19 (2011) 196 FCR 126 at [37].
20 [2015] FWCFB 2618.
21 Wan v AIRC (2001) 116 FCR 481 at [30].
22 Decision at [15].
23 Transcript of proceedings dated 16 May 2019 at PN13-PN37.
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