Rod Sean Jellyman v Serco Group Pty Limited
[2021] FWCFB 3790
•1 JULY 2021
| [2021] FWCFB 3790 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Rod Sean Jellyman
v
Serco Group Pty Limited
(C2021/2603)
VICE PRESIDENT CATANZARITI | SYDNEY, 1 JULY 2021 |
Appeal against order [PR728707] of Deputy President Lake at Brisbane on 16 April 2020 in matter number U2019/10349 – appeal filed out of tine – application to extend time dismissed.
[1] Mr Rod Sean Jellyman (the Appellant) has lodged an appeal under s 604 of the Fair Work Act 2009 (Cth) (the Act) for which permission to appeal is required against a decision 1(the Decision) of Deputy President Lake (the Deputy President) issued on 15 April 2021. The Decision dismissed the Appellant’s application for an unfair dismissal remedy.
[2] An appeal filed under s.604 of the Act must be filed within 21 calendar days after the date of the decision being appealed against, or within such further time allowed by the Commission. 2 When the Appellant lodged the Form F7 – Notice of appeal (Form F7) on 7 May 2021, it was one day after the expiry of the prescribed 21-day time period. Accordingly, the appeal cannot proceed unless the Commission grants the Appellant an extension of time.
[3] The matter on appeal was listed for a hearing concerning the issues of the necessary extension of time to lodge the appeal and permission to appeal. Directions were set for the filing of material by the Appellant addressing these requirements. The Respondent was not required to file material.
[4] Prior to the hearing of the appeal, the Respondent indicated it did not require a formal hearing to be held and, subject to the views of the Appellant, would be content to have the matter heard on the basis of written submissions. The Appellant consented to having the appeal determined on the basis of written submissions without the need for a hearing. Accordingly, pursuant to s 607(1) of the Act, the appeal was conducted on that basis.
[5] For the reasons that follow, we decline the Appellant’s application for an extension of time within which to lodge the appeal.
Background
[6] At the time of his dismissal, the Appellant was employed as the Head of Secure Accommodation by the Respondent. In the matter below, the Appellant’s evidence was that he had worked in corrections since 1998. On 16 March 2018, an incident occurred between the Appellant and a prisoner, referred to as Prisoner W, which led to the Appellant’s dismissal.
[7] On 1 June 2018, the Respondent suspended the Appellant from his employment, by way of a letter, pending a formal investigation into the events of 16 March 2018. By way of letter dated 17 July 2019, the Appellant was directed to attend a show cause meeting in order to provide responses to the following findings made in the course of the investigation:
“• The evidence supports the allegation that Mr JELLYMAN used excessive force by pushing Prisoner White’s face into the door of the Detention Union;
• The evidence supports the allegation that Mr JELLYMAN used excessive force by pushing Prisoner White’s head to the floor and holding him down;
• The evidence supports the allegation that Mr JELLYMAN used excessive force by pushing Prisoner White’s head against a steel fence;
• Due to the comments to Correctional Supervisor Hulete at the conclusion of the incident, when Mr Jellyman told CS Hulett that he was going to report the incident as he (Mr Jellyman) had ‘lost it’ in the cell. This would clearly indicate that he (Mr JELLYMAN) was aware he had used excessive force.”
[8] The Appellant attended the show cause meeting and provided a “Response and Submissions” document. By way of letter dated 26 August 2019, the Appellant was dismissed from his employment.
[9] After considering all the evidence, and making credibility findings, the Deputy President considered whether there was a valid reason for the Appellant’s dismissal. The Deputy President found that on an objective analysis, the Appellant’s conduct founded a valid reason to dismiss. The Deputy President then considered ss 387 (b) – (h) of the Act and concluded that the Appellant’s dismissal was not unfair.
Appeal Grounds
[10] The Appellant’s notice of appeal advances 8 grounds of appeal. They are as follows:
“1. The decision maker erred in the interpretation of the provisions of the Corrective Services Act (Qld) and other laws in failing to follow the provisions of the Acts Interpretation Act 1901 (Cth) and the Common Law.
2. The decision maker failed to take into consideration the public’s interest in ensuring prisoners are compliant with orders of Corrections Officers and are contained in a disciplined environment.
3. The decision maker effectively acted in a manner which was dismissive of the Applicant being medically diagnosed with PTSD and other medical conditions which may have affected his decisions.
4. The decision maker made no comment on the Applicant being required to perform duties in a dangerous environment whilst having a broken left arm which was plainly visible in the body camera evidence.
5. Not all body camera and audio evidence was produced during the hearing nor disclosed to the Applicant despite an Application for its production.
6. The decision maker erred in not considering the Queensland Civil Administrative Tribunals (“QCAT”) decision in respect of excessive force by Queensland Police in the execution of their duties and the appropriate penalties handed down in the QCAT Industrial division.
7. The decision maker appears to have been biased in the decision as in the hearing he indicated he had been a senior manager in BHP and the ANZ. The public on reviewing the circumstance could conceive the hearing was unfair.
8. The decision maker erred in deciding during the hearing the removal of the Applicant’s name and position from the new telephone directory of the Respondent for the South Queensland Correctional Centre did not mean he had been or was about to be terminated prior to the show cause meeting.”
Extension of time
[11] The usual principles applying to consideration of an application to extend time to lodge an appeal were summarised in the Full Bench decision in Jobs Australia v Eland 3 as follows (footnotes omitted):
“[5] Time limits of the kind in Rule 56 should not simply be extended as a matter of course. There are sound administrative and industrial reasons for setting a limit to the time for bringing an appeal and it should only be extended where there are good reasons for doing so. The authorities indicate that the following matters are relevant to the exercise of the Tribunal’s discretion under Rule 56(2)(c):
• whether there is a satisfactory reason for the delay;
• the length of the delay
• the nature of the grounds of appeal and the likelihood that one or more of these grounds being upheld if time was extended; and
• any prejudice to the respondent if time were extended.”
Consideration
Reason for the delay
[12] The Appellant’s father, Mr R H Jellyman, represented him in the matter below and on this appeal. Mr R H Jellyman is a lawyer admitted to practice in Queensland but is representing the Appellant on a pro bono basis.
[13] Mr R H Jellyman submits that he suffers from a number of health issues which necessitated him attending a number of medical appointments between the period of 4 May 2021 and 11 May 2021. He submits that these appointments caused the delay in the filing of the appeal. In particular, Mr R H Jellyman submits he had to attend the following appointments:
1. On 4 May 2021 he had to attend a regular appointment at the ICON Cancer Centre South Brisbane to treat a strain of Chronic Lymphocytic Leukaemia.
2. On 5 May 2021 he was required to attend the Royal Brisbane Women’s Hospital Cardiology Department where he is being treated for a heart condition. Mr R H Jellyman submits he had recently been on a 24 hour monitor, the results of which were due that day.
3. On 11 May 2021, he was required to attend his General Practitioner at the East Brisbane Medical Centre for his AstraZeneca Covid-19 vaccine.
[14] Mr R H Jellyman further submits that during the period from 12 May 2021 to 22 May 2021 he suffered from severe headaches, rashes and a lack of energy which he had been warned would occur on vaccination.
[15] Whilst we have every sympathy for Mr R H Jellyman’s health issues, as previously noted, the Deputy President’s decision was issued on 15 April 2021. In order to be within time, the appeal had to be lodged by 6 May 2021. Therefore, Mr R H Jellyman’s 11 May appointment has no bearing on the issue of lodging the appeal within time. Regarding his appointments on 4 May and 5 May, these account for only 2 days out of the 21-day time period in which Mr R H Jellyman could have lodged the appeal on behalf of the Appellant. We are not satisfied that there is a satisfactory explanation provided for the delay in lodgement. The absence of an acceptable reason for the delay weighs against the grant of an extension of time in respect of the appeal.
Length of delay
[16] The Appellant’s appeal was lodged one day outside the statutory timeframe for instituting an appeal. The delay is not lengthy or significant.
The nature of the grounds of appeal and the likelihood that one or more would be upheld if time were extended
[17] In the assessment of whether to extend time, it is necessary to consider the nature of the grounds of appeal and the likelihood that one or more grounds would be upheld if time was extended.
[18] The Decision subject to appeal was made under Part 3-2- Unfair Dismissal – of the Act. Section 400(1) of the Act provides that permission to appeal must not be granted from a decision made under Part 3-2 unless the Commission considers that it is in the public interest to do so. Further, in unfair dismissal matters, appeals on a question of fact can only be made on the ground that the decision involved a ‘significant error of fact’ (s 400(2)). Section 400 of the Act manifests an intention that the threshold for a grant of permission to appeal is higher in respect of unfair dismissal appeals than the threshold pertaining to appeals generally.
[19] The public interest test in s 400(1) is not satisfied simply by the identification of error or a preference for a different result. In GlaxoSmithKline Australia Pty Ltd v Making 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 they result in counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters…” 4
[20] Appeal ground 1 contends that the Deputy President erred in his interpretation of the Corrective Services Act 2006 (Qld) (the CS Act). The Appellant’s written submissions further contend that the Deputy President also erred in applying various provisions of the “Crimes Act, Evidence Act and the Common Law”. The Appellant’s submissions do not indicate which specific provisions of these various acts and do not go further than merely stating that a misinterpretation has occurred. Accordingly, we are not satisfied that there is an arguable case of appealable error in relation to the Deputy President’s application of the CS Act, and his application, if any, of the Crimes Act, Evidence Act and the Common Law.
[21] It is convenient to deal with appeal grounds 2 and 4 together. In essence, the Appellant is contending that his use of force was necessary to gain compliance from Prisoner W and further, that the Appellant’s injured arm necessitated his use of force. After considering all the evidence before him, the Deputy President found that the Appellant used excessive force to push Prisoner W’s face into a door, hold his head to the ground and then push his head against a steel fence. On the evidence before him, the Deputy President found that the prisoner was subdued and compliant, and that three other security officers present did not find it suitable to use further force on the prisoner. This was a finding that was open to the Deputy President to make and we do not accept as reasonably arguable the Appellant’s contention that the Deputy President erred in coming to this conclusion.
[22] In relation to appeal ground 3, the Deputy President dealt, at length, with the medical evidence regarding the Appellant’s Post-Traumatic Stress Disorder (PTSD). We do not accept that he acted in a dismissive manner regarding the Appellant’s PTSD.
[23] Appeal ground 5 takes issue with the Deputy President’s refusal of an application to produce evidence of body cameras and audio evidence. The Appellant’s written submissions do not indicate what the significance of the evidence they sought is or how it would have altered the outcome of the matter. Accordingly, we are not satisfied that appeal ground 5 is reasonably arguable.
[24] Appeal ground 6 contends that Queensland Police are not dismissed for their use of force and therefore, the Appellant is being treated differently to the police. The Decision turned on the particular facts of this case, it is not one about the use of force generally. The Deputy President came to a conclusion, which was open to him to make, that the Appellant’s use of force in this case gave rise to a valid reason for dismissal.
[25] Appeal ground 7 contends that the Deputy President was biased in his decision because in the hearing at first instance, he indicated that he had been a senior manager at BHP and ANZ. We have read the transcript and we are not satisfied that the comment made by the Deputy President which was that he ‘had worked for BHP and ANZ’ 5 gives rise to an apprehension of bias.
[26] Appeal ground 8 contends that the Deputy President erred in finding that the removal of the Appellant’s name from the new telephone directory for the Respondent, did not mean he was about to be terminated prior to the show cause meeting. The Deputy President makes no such finding in the Decision.
[27] Finally, we are not persuaded the Appellant has identified any public interest considerations that would support the granting of permission to appeal.
[28] Having regard to the nature of the appeal grounds, we are satisfied that they are not reasonably arguable and would not attract the grant of permission to appeal in the public interest. This weighs against the grant of an extension of time to lodge the appeal.
Conclusion
[29] After considering all the circumstances, we are not persuaded that it is in the interests of justice to extend time for the Appellant to lodge the appeal. Accordingly, we dismiss the Appellant’s application to extend time to lodge the appeal.
VICE PRESIDENT
Hearing details:
Matter determined on the basis of written submissions.
Final written submissions:
Appellant’s written submissions dated 3 June 2021.
Printed by authority of the Commonwealth Government Printer
<PR731214>
1 Rod Sean Jellyman v Serco Group Pty Limited (Serco) [2021] FWC 2098.
2 Rule 56(2) of the Fair Work Commission Rules 2013.
3 [2014] FWCFB 4822.
4 (2010) 197 IR 266 at [27].
5 PN1262 of transcript
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