Robert Thomas v Breezway Australia Pty Ltd
[2016] FWCFB 5173
•29 JULY 2016
| [2016] FWCFB 5173 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s 604 - Appeal of decisions
v
Breezway Australia Pty Ltd
(C2016/3534)
DEPUTY PRESIDENT SAMS | SYDNEY, 29 JULY 2016 |
Appeal against a Decision of Senior Deputy President Drake in matter U2016/5011 – refusal to extend time for filing an unfair dismissal application – no arguable case of appellable error – public interest not enlivened – permission to appeal refused.
BACKGROUND
[1] Mr Robert Graham Thomas (the ‘appellant’) has filed an application in the Fair Work Commission (the ‘Commission’), for permission to appeal and appeal of a decision of Senior Deputy President Drake on 18 April 2016; See: Thomas v Breezway Australia Pty Ltd[2016] FWC 2469 (the ‘Decision’). The effect of the Decision was to refuse the appellant an extension of time to lodge an unfair dismissal application that had been received by the Commission on 2 March 2016. The appellant had been employed for 9½ years by Breezway Australia Pty Ltd (the ‘respondent’) as a process worker in its window manufacturing factory at Coorparoo, Queensland.
[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] The appellant filed his unfair dismissal application on 2 March 2016. The application disclosed that the date of his dismissal was 2 November 2015 and he was aware of his dismissal the next day, 3 November 2015. Mr Thomas did not contend otherwise in the material he submitted to Senior Deputy President Drake. It was relied upon by Her Honour. However, the appellant now claims in his appeal that he was not aware of his dismissal until 4 December 2015. We shall return to this matter later. Acting on the appellant’s advice in his Form F2 application, Her Honour identified the date of his dismissal as 3 November 2015. On our calculation, the appellant’s unfair dismissal application should have been filed on or before 24 November 2015. Accordingly, it was filed 99 days out of time.
[4] The appellant was dismissed in a letter from the respondent dated 2 November 2015, sent to his home address for his ‘continuing failure to attend for work’. He had been earlier warned in a letter dated 28 October 2015 that he had been absent from work, without explanation, since 23 October 2015. At the time of his dismissal, it is apparent that the respondent was aware of why the appellant was absent from work. He had been arrested on 28 October 2015 and charged with a very serious criminal offence (murder) and, as we understand, has been held in custody ever since.
THE DECISION UNDER APPEAL
[5] In the Decision at first instance, Her Honour identified that the appellant’s application for an unfair dismissal remedy was lodged outside the 21 day statutory time period set out at s 394(2) of the Act. The appellant’s reasons for the delay in filing his application were:
‘1. Because in both cases the employer wrote to my home address even though aware I was being held in custody;
2. I wrote to my union twice which took time for their replies;
3. Wrote to fair work without this application;
4. Although contacted union no action was taken by them as they said I had no case which I strongly disagree.’
[6] Her Honour set out the statement of the appellant in which he was invited to address each of the matters she was required to take into account under s 394(3) of the Act. Her Honour observed at para [8] that:
‘[8] For exceptional circumstances to arise as contemplated by s.394 of the Act, it is not necessary that the applicant for that extension of time be overtaken by a catastrophic event. Reasons for delay in the category of extreme events are not necessary to meet the test. All of the factors outlined in s.394(3) of the Act must be considered and weighed when deciding whether or not exceptional circumstances, circumstances sufficient to support an exception, exist.’
[7] It is apparent that the reference to a ‘catastrophic event’ was the appellant’s arrest and continuing incarceration. After Her Honour made findings on each of the criteria in s 394(3), she concluded as follows:
‘[16] Having considered all of the matters to which my attention is directed by the Act I was not satisfied that there were exceptional circumstances which would warrant my granting an exception to the statutory time limit and on that basis dismissed the application. Mr Thomas’s circumstances were not out of the ordinary course, unusual, special or uncommon.’
SUBMISSIONS AS TO PERMISSION TO APPEAL
[8] On 26 April 2016 and given the unusual circumstances, the parties were invited to consider, pursuant to s 607(1) of the Act, whether the appeal should be determined ‘on the papers’ without holding a hearing. Both parties consented to this course and directions were issued for the filing of submissions as to permission to appeal only. The parties further submissions are summarised below.
For the appellant
[9] The appellant submitted that it was in the public interest that members of the public be protected from the actions of ‘unlawful operators’ where the employer had exploited provisions of the Act to evade its actions being investigated by the Commission. He claimed the respondent deliberately sought to deny him knowledge of its intention to terminate his employment. As the respondent knew he was being held in custody, he had no way of knowing of the respondent’s intentions or that he would receive its letters sent to his home address. In addition, the respondent did not confirm or deny his request for nine months’ leave without pay. This was a ‘question of law’.
[10] The appellant submitted that the Senior Deputy President had made a significant error of fact in respect to when he was aware of his dismissal. He now claimed he was first aware of his dismissal on 4 December 2015 and he had erroneously recorded 3 November 2015 at Q 1.2 in his Form F2 application.
[11] The appellant further submitted that the respondent’s Operations Manager, Mr Rick Roederer’s statement to the Police proved the respondent knew he was not in any position to receive letters in respect to his dismissal. He believed Mr Roederer’s actions were ‘premeditated and deliberate’ He had only realised the significance of the Police Statement after Her Honour’s Decision.
For the respondent
[12] The Australian Industry Group (AIG) filed a submission on behalf of the respondent. After setting out the relevant principles the Commission must be mindful of in determining permission to appeal applications; See: Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 (‘Coal and Allied Mining Services’) and GlaxoSmithKline Australia Pty Ltd v Makin (2010) 197 IR 266; [2010] FWAFB 5343 (‘GlaxoSmithKline’), AIG put that none of the factors at para [27] of GlaxoSmithKline were present in this appeal.
[13] AIG submitted that the appellant’s submissions that the appeal was warranted in the ‘pursuit of truth’ and to ‘protect members of the public against unlawful operators’, was nothing more than an attempt to recharacterise the reasons for his dismissal, which in reality, was as a result of his abandonment of employment, due to his incarceration. The appellant raised a ‘question of law’, being his request for nine months’ without pay, in a letter dated 15 November 2015, by putting that he had been acting within time. AIG said that his request was clearly made after his dismissal on 3 November 2015. Her Honour noted at para [12] of the Decision that the appellant disputed his dismissal by speaking to the respondent and lodging his unfair dismissal application. AIG submitted Her Honour correctly considered the facts, in accordance with well known principles, and applied the required criteria under s 394 of the Act.
[14] AIG argued that the appellant’s submissions of 21 April 2016 were nothing more than an attempt to reargue his case, as he was not satisfied with the outcome. This does not justify permission to appeal being granted. AIG further submitted that:
(a) there is not a diversity of decisions at first instance regarding the granting of an extension of time in unfair dismissal applications lodged out of time that guidance from an appellate body is required;
(b) the appellant’s appeal does not raise issues of important and/or general application;
(c) the Decision of Senior Deputy President Drake does not manifest an injustice and the Senior Deputy President’s Decision is not counterintuitive; and
(d) the legal principles applied by the Senior Deputy President are not disharmonious when compared with other similar decisions.
[15] As to the appellant’s claims of significant errors of fact in the Decision, the appellant cannot accuse the Senior Deputy President of an error in relation to the date of his dismissal, when it was a fact he had asserted. Moreover, he had not raised this issue at any time in the submissions provided to Her Honour.
[16] AIG noted that even if the appellant was to be believed as to the date he was aware of his dismissal (4 December 2015), he still did not file his application for a further 89 days, without any explanation for the whole of the period of the delay.
[17] AIG submitted that the appellant’s criticism of Mr Roederer that his actions were ‘premeditated and deliberate’ was nonsense. It was not for the respondent to know where the appellant was, but for him to advise of his address. In any event, he appeared to have made arrangements for someone to collect his mail from his home address, because he acknowledged receiving the letters of 28 October and 2 November on 4 December 2015.
CONSIDERATION
[18] Section 604 of the Act is expressed as follows:
604 Appeal of decisions
(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
(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.
[19] 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; See: Coal and Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 at para [17], per Gleeson CJ, Gaudron and Hayne JJ. There is no right to appeal and an appeal may only be made with the permission of the Commission.
[20] 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.
[21] In the Federal Court Full Court decision in Coal & Allied Mining Services Pty Ltd v Ltd v Lawler and others (2011) 192 FCR 78 (‘Coal and Allied Mining Services’)at para [43], Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s 400 as ‘a stringent one’. The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment; See: 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 at paras [44] -[46]. In GlaxoSmithKline Australia Pty Ltd v Makin (2010) 197 IR 266; [2010] FWAFB 5343, a Full Bench of the Commission identified some of the considerations that may attract the public interest at para [27]:
‘... 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.’
[22] 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; Wan v Australian Industrial Relations Commission (2001) 116 FCR 481. 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; See: GlaxoSmithKline at paras [26]-[27]; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089; 202 IR 288 and NSW Bar Association v McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663 at para [28].
[23] In relation to extensions of time to lodge applications under s 394(3) of the Act, 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; See: Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288 at para [21]. Therefore it will be necessary, in an application for permission to appeal against a decision made under s 394(3) to demonstrate that there is an arguable case that there was appealable error in the exercise of the discretion. This will require the identification of error of the type described in House v The King (1936) 55 CLR 499 (‘House v King’) – that is, that the decision-maker has acted on a wrong principle, has mistaken the facts, has taken into account an irrelevant consideration or failed to take into account a relevant consideration, or has made 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. The overriding public interest requirement of s 400(1) remains.
[24] We have taken account of the appellant’s grounds of appeal and his written submissions. We are not satisfied that the appellant has established an arguable case of any error in relation to the date of his dismissal, or any other aspect of the Decision.
[25] As mentioned earlier, the appellant has for the first time in this appeal, claimed that he did not receive either of the respondent’s letters of 28 October and 2 November 2015 until 4 December 2015 (see para [10] above). It followed, so he argued, that his dismissal took effect on the later date. He submitted that this was a significant error in the Decision. In our view, this submission is fundamentally misconceived. While the appellant submitted that Her Honour had made an error, he correctly conceded that it was really an error made by him in answering question 1.2 in his Form F2 application. If there was any error about the date of the dismissal, it was an error entirely of his own making. He failed to bring the error to Her Honour’s attention at the relevant time and did not refer to it at all in his submissions filed in the proceedings at first instance. The error had nothing to do with the Decision. Given that no one suggested otherwise, Her Honour was entitled to make findings on what she had been expressly told by the appellant. There is no arguable case of error in the Decision established as to the appellant’s date of dismissal.
[26] Moreover, even if the appellant was correct that his dismissal was on 4 December 2015, his application was still not filed until 2 March 2016 – a further period of 89 days and 68 days out of time. Her Honour does not appear to have been provided with any explanation, let alone a reasonable one, for the delay during this period from 4 December 2015 – 2 March 2016. The onus rested on the appellant to provide an explanation for the entire period of the delay; See: Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers (2010) 197 IR 403 at 408-409.
[27] As to the other grounds of appeal, we understand the appellant sought to blame the respondent for the delay in filing his unfair dismissal application, because it:
(a) knew, on or about 28 October 2015, that he had been arrested, charged and incarcerated;
(b) was unreasonable in refusing his request for nine months’ leave without pay and an earlier one month’s request for leave without pay made on 26 October 2015 in order for him to defend the criminal charges against him; and
(c) had written to him at his home address on 28 October 2015 and 2 November 2015, knowing full well he was in custody at the time.
[28] Whatever the respondent knew or did not know, (and it must be accepted the respondent was aware on 28 October 2015 that the appellant had, at least, been arrested) is ultimately irrelevant. Once the respondent had decided to dismiss the appellant on 2 November 2015, there was no obligation on the respondent to engage with him or negotiate about his dismissal, about his request for leave without pay or anything else (even if this was practically possible). The respondent’s decision to dismiss him from employment was unequivocal and unambiguously clear by the terms of the letter dated 2 November 2015.
[29] Despite the appellant’s allegations, there was no evidence before her Honour that the respondent took any steps to impede or prevent him from lodging his unfair dismissal application within 21 days of 3 November 2015, or even 4 December 2015. Nor did the respondent appear to expressly or inferentially indicate that the dismissal decision was open to reconsideration if the criminal charges were later dropped or dismissed. Having made its position abundantly clear, the onus was on the appellant to dispute his dismissal within 21 days. On his own version of events, he did not do so for a further 89 days. Her Honour rejected the appellant’s submissions that the respondent had sought to evade and/or exploit the provisions of the Act such as to prevent him from filing his application within time. We are of the view that there is no arguable case of error in this aspect of the Decision established.
[30] In addition, we observe that there was no obligation on the respondent to find out where the appellant was being held in custody for the purpose of communicating with him in writing. The onus was on the appellant to advise the respondent of his forwarding address. There was no evidence he had done so. In any event, even if the appellant had received the 28 October and 2 November letters on 4 December 2015, when he still remained in custody, it is reasonable to assume that some family member/friend was retrieving his mail and later giving or sending it to him in prison. It seems clear Her Honour rejected this complaint against the respondent as a reason for the delay in filing the unfair dismissal application. There is no arguable case of error in this aspect of the Decision established.
[31] Another of the appellant’s grounds of appeal, was that the Union had failed to lodge his application within time and had declined to represent him in his unfair dismissal case. The relevant documentary time line does not support these claims. The appellant first contacted the Union on 11 December 2015. At that point, his application was already 17 days out of time. The Union informed him of this delay and of its decision not to represent him on 21 December 2015. On 17 January 2016, the Union further informed him of the Commission’s Brisbane registry’s postal and email address and phone number. This correspondence was in evidence before Her Honour. Notwithstanding the appellant was plainly on notice about these matters, he still waited a further 6 weeks until 2 March 2016 to make his application. Again, there was no explanation for not making his application during this period, particularly given the Commission’s Rules, which permit unfair dismissal applications to be made over the telephone. It is apparent that Her Honour rejected the appellant’s complaints against the Union. We discern no arguable case of error in Her Honour’s Decision as to this matter.
[32] It also appears the appellant received a letter from the Commission dated 3 February 2016, sent to him at a locked bag mail address (we assume the prison’s address) in which he was advised that his letter to the Commission received on 2 February 2016 was not a valid unfair dismissal application. Again, we note that his application was already out of time and it was not finally lodged until a further 28 days had elapsed. Whatever may be said about the characterisation of the letter he sent to the Commission, the reply was a clear warning that it was not a valid application.
[33] In any event, the gravamen of this appeal is that the appellant disagrees with Her Honour’s Decision and hopes his appeal will result in a different outcome. That is not a proper basis for which permission to appeal should be granted. He blames everyone but himself, for his failure to lodge his unfair dismissal application within time. We are not persuaded that an arguable case has been made out that her Honour’s decision was unreasonable or that it manifests an injustice. There is no arguable case of any arguable error in the Decision of the type identified in House v King.
[34] We are not persuaded for the purposes of s 400(1)(a) of the Act, that the appellant has established that it is in the public interest to grant permission to appeal. Nor are we persuaded that he has established an arguable case of error in relation to the Decision sought to be appealed or that there are other considerations which warrant the grant of permission to appeal.
[35] Permission to appeal is refused.
DEPUTY PRESIDENT
<Price code C, PR583491>
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