Romic v Blacktown City Council
[2020] FWCFB 6098
•17 NOVEMBER 2020
| [2020] FWCFB 6098 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
Momcilo Romic
v
Blacktown City Council
(C2020/4876)
VICE PRESIDENT HATCHER | SYDNEY, 17 NOVEMBER 2020 |
Appeal against decision [2020] FWC 2533 of Commissioner Johns at Sydney on 15 June 2020 in matter number C2020/1890.
Introduction and background
[1] Momcilo Romic has lodged an appeal, for which permission to appeal is required, against a decision of Commissioner Johns issued on 15 June 2020 1 (decision) in which the Commissioner refused to allow Mr Romic an extension of time under s 774(2) of the Fair Work Act 2009 (FW Act) to lodge an application for the Commission to deal with a dispute concerning an alleged unlawful termination of employment (unlawful termination application).
[2] In circumstances where the current COVID-19 pandemic limits the capacity of the Commission from conducting in-person hearings, the Commission inquired of the parties whether they were prepared to have the question of permission to appeal and the merits of the appeal determined on the basis of written submissions and without conducting a hearing. Both parties consented to this course. It was considered that the appeal could be adequately determined without the parties making oral submissions. Accordingly, the appeal has been conducted without holding a hearing pursuant to s 607(1) of the FW Act.
[3] The basic facts of the matters are as follows. Mr Romic was formerly employed by Blacktown City Council. He was dismissed on 31 October 2019 because of ongoing unauthorised absences from work and his refusal to follow lawful and reasonable instructions to attend meetings and return to work. Under s 774(1) of the FW Act, he had 21 days from the date of his dismissal to make an unlawful termination application unless a further period was allowed by the Commission pursuant to s 774(2). Section 774(2) provides:
(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) any action taken by the employee to dispute the termination; and
(c) prejudice to the employer (including prejudice caused by the delay); and
(d) the merits of the application; and
(e) fairness as between the person and other persons in a like position.
[4] Mr Romic lodged his unlawful termination application on 26 March 2020. This was 126 days after the end of the prescribed 21-day time period. Accordingly it was necessary for him to be granted an extension of time pursuant to s 774(2) in order for his unlawful termination application to be competent. The matter was allocated to the Commissioner to determine the extension of time issue. The Commissioner issued directions on 3 April 2020 requiring, among other things, Mr Romic to file and serve “an outline of argument, statements of evidence or other documents the Applicant intends to rely upon in support of its extension of time application addressing s.774(2)” by 10 April 2020. The Council was directed to file its material in opposition to the application for an extension of time by 17 April 2020, and Mr Romic was to file any materials in reply by 24 April 2020. Both parties consented to the Commissioner dealing with the matter on the basis of the materials filed pursuant to the directions without the need for a hearing.
[5] On 9 April 2020, Mr Romic filed a witness statement pursuant to the Commissioner’s directions. This witness statement dealt at length with various events said to have occurred prior to his termination of employment, including a work injury, injuries from two car accidents, and alleged bullying, harassment and discriminatory behaviour at work. Mr Romic sought to justify his absences from work by reference to his injuries, and attached to his statement are medical certificates and reports predating his dismissal which dealt with his injuries and incapacity for work. The medical reports refer to neck and lower back injuries, and a report dated 25 March 2019 states:
“The M.R.I. of his cervical spine suggests a syrinx and it seems to go down the thoracic spine and an M.R.I. of the thoracic spine was suggested. There does appear to be an annular tear of the disc at C5-/6; but no nerve root pressure.
The M.R.I. of his lumbar spine confirms a posterior annular and disc desiccation at L5/SI, but no nerve root pressure.”
[6] In respect of the period immediately before and after the dismissal, Mr Romic describes his dealings with his union, the United Services Union (USU), and lawyers arranged for him by the USU. In particular, the statement includes a detailed chronology of the communications passing between him, the USU and the lawyers from the date of his dismissal (31 October 2019) through to 8 April 2020. It is plain from the statement that Mr Romic seeks to attribute blame for the late filing of his unlawful termination application upon the USU. For example, the statement includes the following contentions:
• “The case officer … from the USU was unfit to carry out her role and neglected my matter as she was not capable of providing assistance due to her own personal issues which interfered with her ability to perform her role.”
• “I had no knowledge of the legal framework as I am not an employment lawyer and I trusted the USU to look out for my interests.”
• “I believe I had taken appropriate action by following up on the matter with the USU and USU Law firm Carroll and O’Dea Lawyers, as I was relying on the experts who had promised to assist me to guide me in an area of which I had no assistance.”
• “I commenced dealing with the USU on 27 September 2019 and they failed to provide assistance before the normal timelines had passed, despite assuring me that they would be handling my matter and providing me with assistance.”
• “Ms. [name omitted] and the USU failed in their duty of care towards me by failing to keep track of timelines when handling my matter, as they knew I was inexperienced in employment matters and was thus relying on their expertise.”
• “I continued to follow up on the matter with the USU by every means available to me and in the new year and I was penalised the moment I sought my own independent legal advice where the USU bluntly refused to assist me as it felt like I was getting nowhere.”
[7] Nowhere in the statement it is suggested that the injuries to which Mr Romic had referred as the cause of his pre-dismissal absences from work were a cause of his delay in filing his unlawful termination application. Mr Romic did not file a separate submission pursuant to the directions. In the further witness statement which he filed in reply pursuant to the directions, Mr Romic’s position remained the same. He referred to the difficulties he faced trying to pursue workers’ compensation and unlawful termination applications at the same time. He made clear that he continued to blame the USU for the delay, and his further statement included the following contentions in this respect:
• “The Respondent suggests that I should have done more with the USU. What more could I possibly do? Tell them what to do? The moment I mentioned I had sought my own legal advice, the USU refused to have anything to do with me? I was not ignorant, and my chronology of email exchanges demonstrates this.”
• “I did everything I could do legally by consulting the USU and took on their advice and guidance and that is what any person in my shoes would do. That is why I paid the USU weekly fees and became a member.”
• “The USU failed in their duty of care due to their own in-house operational problems and accountability with staff. I have given evidence to support this.”
• “I had no control of the USU staff and what their roles and responsibilities are as employees and I cannot tell them what to do or how they should do their job and I presumed they would do the right thing by me at all times.”
• ‘I trusted the USU and I was not aware that USU staff were not fit to carry out their roles during this period and I had no clue of what was happening inside the USU and I thought it was standard procedure as they had stated that I can go back to work once my condition stabilises within a 2 year period.”
• “I do not believe the USU or any Union would intentionally neglect cases like mine, and this is highly unusual, and it happened because a USU staffer was unwell and this was the cause of delays and perhaps the staffer was also unfamiliar with the legal processes involved with regard to unfair dismissal and unlawful termination.”
The decision
[8] In his decision, the Commissioner dealt with each of the matters he was required to take into account under s 774(2). In respect of s 774(2)(a) (the reason for the delay), the Commissioner referred at length to the case authorities concerning the circumstances in which the conduct of a legal or union representative will constitute an adequate explanation for a delay in filing an application under the FW Act within the prescribed time period, and said (footnotes omitted):
“[28] What is apparent is that the factual circumstances in this matter can be distinguished from those in both Boakes and Walton. In both of those matters, the Applicants gave clear instructions to file unfair dismissal claims to contest the termination of their and pressed the matter with their unions by following up with them.
[29] That is not what has occurred in this matter. As of 31 October 2019, the Applicant was on notice about the potential for an unfair dismissal claim. However, there is no evidence that the Applicant instructed the USU to file an unfair dismissal claim. There is no evidence that the Applicant instructed the USU to file an unlawful termination claim. There was one email, on 11 November 2019, that might be described as a follow up, but nothing else in the 21 days after dismissal. It is just not good enough. The Applicant did not take all reasonable steps to provide instructions to the USU or to follow up with it.
[30] My finding on this point will likely be met by the Applicant responding by saying (as he has contended in his submissions), that he knew nothing about unfair dismissal laws or unlawful termination claims, that he is not a lawyer, not an lawyer and that he was relying on experts. All of those contentions are a submission about ignorance of the law.
[31] Ignorance about unfair dismissal laws or unlawful termination claims or about the timeframe for lodgement is not an exceptional circumstance.
[32] While accepting that the Applicant is not an employment lawyer, he is an intelligent, educated and articulate individual. At some point the Applicant informed himself about unlawful termination claims. He says,
“…upon doing my own research and seeking outside advice I discovered that the circumstances of my termination did meet the criteria of Unlawful Termination…”
[33] The Applicant provides no explanation about why he could not have done the same research in the period between the termination of his on 31 October 2019 and the expiration of the 21 days on 21 November 2019. Had he done so he could have instructed the USU to make a claim. He could have pestered them with follow up emails and calls. Had he done this, and the USU failed to lodge a claim, likely there would have been exceptional circumstances occasioned by representative error (as in both Boakes and Walton). However, in this matter there was a lack of activity and diligence on behalf of the Applicant. He is not entitled to say, “I trusted the USU to look out for my interests”. That is not enough to establish representative error.
[34] Therefore, this factor weighs against granting the Applicant a further period to make his application.”
[9] In relation to s 774(2)(b), the Commissioner found that Mr Romic took very little action to dispute his dismissal beyond filing his late unlawful termination application, and this weighed against the grant of an extension. The Commissioner treated s 774(2)(c) (prejudice to the employer) as a neutral consideration. In relation to s 774(2)(d) (the merits of the application), the Commissioner found that the application was not without merit or lacking in substance, and therefore found that this was a consideration weighing in favour of an extension. The Commissioner treated the s 774(2)(e) consideration (fairness as between the person and other persons in a like position) as weighing against the grant of an extension. The Commissioner then stated the following overall conclusion:
“[47] When the s.774(2) factors are considered in totality, I am not satisfied that they demonstrate circumstances that are out of the ordinary course, or unusual, or special, or uncommon. Consequently, they are not exceptional circumstances.
[48] For the reasons set out above, on balance, the Commission is satisfied that there are not exceptional circumstances warranting the Applicant being allowed a further period for his application to be made (i.e. being granted an extension of time to lodge his application).”
Appeal grounds and submissions
[10] Mr Romic’s grounds of appeal as stated in his notice of appeal are, in full, as follows:
“1. My Appeal is made on the basis that there are exceptional circumstances in my case which I faced that prevented me for lodging an application to the Fair Work Commission within the specified timeframe of 21 days which was not considered by Commissioner Johns in his decision on 15 June 2020.
2. The decision made by Commissioner Johns did not consider other factors and only focused on representative error by my Union (United Services Union).
3. I was not given the opportunity to elaborate on these facts and I would like to state these as part of my grounds for this Appeal.
4. I was confronted with dealing with a serious illness.
5. I have a syrinx in my spinal cord. This syrinx will damage my spinal cord overtime, and currently causes pain, weakness, and stiffness in my back and neck where the pain is unbearable.
6. For 17 years, I was the primary caregiver for my family and my two young children and after my termination, my wife had to pick up the pieces and she was forced to travel more for work to support the family.
7. I was also the primary caregiver for my elderly parents who do not speak English and rely on me for assistance for all aspects of their lives.
8. I had to also support my wife’s family as my wife was travelling with the demands of her job.
9. My representatives had caused further delays in supporting me and I already provided adequate information about this and I gave clear instructions to ensure that they would lodge a claim in time and sadly this did not happen.
10. Because of my medical condition, I rely heavily on over the counter prescriptions for my back and neck pain and this resulted in me not being able to process things rationally as the medication affected my thought processes and I was sleep deprived during the termination period.
11. I was confronted with my own mortality and having to deal with reality that the syrinx will damage my spinal cord, and this meant that I was unable to act in a reasonable manner.
12. My total thought process and normal manner of operation was impaired, and I made the decision to devote as much time as possible to my family.
13. I was not in the right frame of mind to think logically or reasonably and I did not focus on issues such as following up a potential unfair dismissal case as I was assured my Union (United Services Union) would do this.
14. I also had to deal with the mental and emotional strain of trying to work out how my family would cope with my condition as well as financial pressures all contributed to a scenario wherein I was not acting as a reasonable individual and was not in the right frame of mind to pursue an unfair dismissal case.
15. When you combine these stresses with the fact my Union (United Services Union) representatives did not assist me, and who have admitted in writing that multiple representatives neglected my matter, I was unable to meet the 21 day timeframe to lodge an unfair dismissal case as my mortality and lives of my family was a priority rather than researching an unfair dismissal case on the internet.”
[11] In respect of the grant of permission to appeal, Mr Romic’s notice of appeal contains what is in essence a submission expanding on his grounds of appeal. Mr Romic’s appeal submissions are repetitive of the matters contained in his notice of appeal.
Consideration
[12] 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. 2 There is no right to appeal and an appeal may only be made with the permission of the Commission. Section 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 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 issue 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...” 5
[13] Other than the special case in s 604(2), the grounds for granting permission to appeal are not specified. 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 that substantial injustice may result if leave is refused. 6 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
[14] The test of “exceptional circumstances” establishes a “high hurdle” for an applicant for an extension. 9 A decision as to whether to extend time under s 774(2) involves the exercise of a discretion.10
[15] In this case, it is evident that Mr Romic seeks to advance an entirely new case on appeal. As we have earlier set out, Mr Romic’s case before the Commissioner was that his delay in making his unlawful termination application was due to inaction on the part of the USU and the lawyers arranged for him by the USU. That case was considered and rejected by the Commissioner in the decision. Mr Romic never raised before the Commissioner the principal explanation for the delay he now advances, namely that his back injury and the mental concern which accompanied this prevented him from focusing on making this application and caused him to place undue reliance on the USU. He also did not raise the secondary matter of his family responsibilities that he refers to in his appeal grounds and submissions.
[16] The usual principle is that a party should not be permitted to argue a case on appeal which it did not raise at first instance, and that permission to appeal would not be granted to permit this to occur. The exception to this principle, namely where the new argument raised by an appellant involves a pure question of law the determination of which could not be affected by any evidence which the respondent might have adduced had the point been agitated at first instance, is not applicable here. 11 Further, Mr Romic’s new case is substantially a factually-based one and would require him to adduce evidence to support his assertions concerning his medical condition and its consequences for his capacity to file his unlawful termination application. However he has not sought to do so. Even if he sought leave to adduce new evidence, it is unlikely that we would grant such leave. The criteria stated in Akins v National Australia Bank12in relation to adducing new evidence on appeal are usually applied by this Commission. They are: (1) it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; (2) the evidence must be such that there must be a high degree of probability that there would be a different verdict; and (3) the evidence must be credible. There is no apparent reason why evidence concerning the matters which Mr Romic now relies upon could not have been adduced at first instance, since they are all matters within Mr Romic’s knowledge. Further, the credibility of such evidence would be subject to significant doubt given that Mr Romic filed detailed witness statements before the Commissioner setting out what he contended were the reasons for his delay in filing his unlawful termination application, and never mentioned his medical condition as forming part of those reasons.
[17] Mr Romic does not identify any reasonably arguable contention of appealable error in his notice of appeal or appeal submissions. His contention that he was “not given the opportunity to elaborate on these facts” is without foundation; as earlier set out, the Commissioner made directions under which Mr Romic was afforded the opportunity to advance evidence and submissions in support of his application for an extension of time, and he took ample advantage of that opportunity. That there was no hearing was a consequence of the fact that Mr Romic consented to the matter being dealt with on the papers. Mr Romic’s further contention that “[t]he decision made by Commissioner Johns did not consider other factors and only focused on representative error by my Union” is equally without merit, since the case for an extension advanced by Mr Romic was entirely concerned with “representative error” on the part of the USU (or its lawyers), and no other “factor” was raised. The Commissioner simply dealt with the case which Mr Romic put before him and asked him to consider.
[18] For the above reasons, we are not satisfied that the grant of permission to appeal would be in the public interest such as to require the grant of permission under s 604(2), nor are we satisfied that permission to appeal should be granted on discretionary grounds. Permission to appeal is therefore refused.
VICE PRESIDENT
Determined on the basis of written submissions:
Mr Romic – 29 June, 2 August 2020.
Blacktown City Council – 27 July 2020.
Printed by authority of the Commonwealth Government Printer
<PR724528>
1 [2020] FWC 2533
2 This is so because on appeal the Commission has power to receive further evidence, pursuant to s 607(2); see Coal and Allied Operations Pty Ltd v AIRC [2000] HCA 47, 203 CLR 194, 99 IR 309 at [17] per Gleeson CJ, Gaudron and Hayne JJ
3 O’Sullivan v Farrer [1989] HCA 61, 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch [2011] HCA 4, 243 CLR 506 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54, 192 FCR 78, 207 IR 177 at [44]-[46]
4 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, 197 IR 266 at [26]-[27], Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/ Warkworth [2010] FWAFB 10089, 202 IR 388 at [28], affirmed on judicial reviewin Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54, 192 FCR 78, 207 IR 177; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663, 241 IR 177 at [28]
5 [2010] FWAFB 5343, 197 IR 266 at [27]
6 Also see CFMEU v AIRC [1998] FCA 1404, 89 FCR 200, 84 IR 314 at 220; and Wan v AIRC [2001] FCA 1803, 116 FCR 481 at [26]
7 Wan v AIRC [2001] FCA 1803, 116 FCR 481 at [30]
8 Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth[2010] FWAFB 10089, 202 IR 388 at [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54, 192 FCR 78, 207 IR 177; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office[2014] FWCFB 1663, 241 IR 177 at [28]
9 Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21]
10 Halls v McCardle and Ors [2014] FCCA 316
11 Nilsen (SA) Pty Ltd v CEPU[2016] FWCFB 3119 at [13]-[15]
12 [1994] 34 NSWLR 155 at 160
0
11
0