Roshan Rodrigo v Mawland Quarantine Station Pty Ltd T/A Q Station
[2015] FWCFB 376
•30 January 2015
| [2015] FWCFB 376 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
v
Mawland Quarantine Station Pty Ltd T/A Q Station
(C2014/6471)
SENIOR DEPUTY PRESIDENT HAMBERGER | 30 JANUARY 2015 |
Appeal against decision [2014] FWC 5766 of Deputy President Booth at Sydney on 1 September 2014 in matter number C2014/3612.
Introduction
[1] This decision concerns an application for permission to appeal against a decision of Deputy President Booth handed down on 1 September 2014. The decision of the Deputy President concerned a refusal to grant an extension of time for the making of a general protections application under s.365 of the Fair Work Act 2009 (the Act).
[2] Having consulted the parties (Mr Roshan Rodrigo (the appellant) and Mawland Quarantine Station Pty Ltd T/A Q Station (the respondent)) the Commission determined that the matter would be dealt with by way of written submissions.
The Decision under Appeal
[3] Section 366 of the Act requires an application made under s.365 of the Act to be made within 21 days after the dismissal took effect or within such further period as the Commission allows under s.366(2). Subsection (2) is as follows:
“(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 person to dispute the dismissal; 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] Deputy President Booth convened a hearing to hear the application for the extension of time on 14 July 2014. However before Mr Rodrigo could make his submission or give evidence he became ill and could not continue. Both parties agreed that the Deputy President should make her decision on the basis of written submissions.
[5] In her decision, the Deputy President noted that Mr Rodrigo lodged his application on 21 March 2014. She found that:
‘On any analysis Mr Rodrigo’sapplication is out of time. He lodged his application on 21 March. At best, if his date of dismissal was 20 February, it is was lodged on day 29 after his dismissal and on his own submissions taking his date of dismissal as 3 February it was lodged on day 46 after his dismissal. The number of days an application is out of time is not a factor in determining whether to grant an extension of time (Ozsoy v Monstamac Industries Pty Ltd 2014 FWCFB 2149) and I do not propose to determine the date the dismissal took effect, but rather accept that the application is out of time.’
[6] The Deputy President continued:
‘In exercising my discretion in relation to this application I am mindful that when time limitations are set in legislation the applicant for an extension of time has the onus to demonstrate that an exception to the time limit ought to be granted. (Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at [551]) The Act makes it clear that an extension of time may (my emphasis) be granted by the Commission if there are exceptional circumstances. When there are exceptional circumstances the judgement to be made is still the Commission’s to make.’
[7] The Deputy President then considered each of the factors set out in s.366 (2). Under ‘the reason for the delay’, she accepted that Mr Rodrigo was suffering from mental illness. She said:
‘That illness is undoubtedly a great burden and I do consider that it is “out of the ordinary course, or unusual, or special or uncommon”. (Cheyne Leanne Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [13]).
[8] The Deputy President however continued:
‘...there is no evidence that he was prevented or obstructed from making an application to the Commission earlier than he did. He was able to arrange accommodation upon his return to Australia and if he could do this he could have lodged his application to the Commission. This weighs against the exercise of my discretion to grant him an extension of time.’
[9] Under ‘action taken to dispute the dismissal’, the Deputy President noted Mr Rodrigo’s submission that he had had to wait for an appointment with Legal Aid for three weeks after he learnt of his dismissal. She noted that he took around eight days before seeking out Legal Aid. She said:
‘It is not an exceptional circumstance to have to wait for an appointment with Legal Aid and he did not have to wait for an appointment with Legal Aid before lodging his submission. This circumstance does not weigh in favour of the exercise of my discretion to grant him an extension of time.’
[10] With regard to prejudice to the employer the Deputy President noted that no submissions had been made concerning this factor and she regarded it as neutral in her decision making.
[11] In relation to the merits of the application, the Senior Deputy President said:
‘Mr Rodrigo is very unwell and it would appear that he is unable to work at the moment. His absence from employment was authorised until 28 January 2013. It extended over a more than 9 month period. This is longer than the 3 month period contained in the Fair Work Regulations that provide that “an employer must not dismiss an employee because the employee is temporarily absent from work because of illness or injury of a kind prescribed by the regulations.”
Given the material before me I think a general protections court application would have limited prospects of success. This weighs against the exercise of my discretion in favour of Mr Rodrigo.’
[12] The Deputy President noted that no submission concerning fairness as between Mr Rodrigo and other persons in a like position had been made and she treated this factor as a neutral consideration. She concluded:
‘Taking into account all the circumstances of this case, and considering the matters I am required to take into account pursuant to s.366 (a) to (e) of the Act, I have decided against granting Mr Rodrigo an extension of time to lodge his application.
This is a case in which I believe there are exceptional circumstances in the form of Mr Rodrigo’s illness but in all the circumstances I have decided against granting Mr Rodrigo an extension of time to lodge his application.’
Grounds of Appeal
[13] In his notice of appeal the appellant said that his dismissal took place while he was really sick and at a time when he did not care about his employment, due to his illness. He asserted that this was not taken into consideration, and that his mental illness was overlooked.
[14] In his submissions he emphasised his poor mental state and homelessness around the time of his dismissal and during the period that followed. He asserted that this left him in no condition to challenge his dismissal.
Permission to Appeal
[15] Permission to appeal may be granted if there is sufficient doubt to warrant its reconsideration or an injustice may result if permission is not granted. 1 If the Commission considers that it is in the public interest to grant permission to appeal, it is required to grant permission.2
[16] It is important to note that the decision under appeal is of a discretionary nature. Usually, such a decision can only be successfully challenged on appeal if it is shown that the discretion was not exercised correctly. 3 It is not open to an appeal bench to substitute its view on the matters that fell for determination before the Deputy President in the absence of error of an appealable nature in the decision at first instance. As the High Court said in House v The King:4
‘The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.’
[17] It is clear that the Deputy President’s decision took into account the appellant’s mental illness and homelessness. Indeed, she found that the appellant’s mental illness constituted exceptional circumstances. Nevertheless, as she pointed out, even after a finding of exceptional circumstances, the Commission still has to decide whether to exercise its discretion to grant an extension of time. In Nulty 5 the Full Bench stated:
‘A finding that there are “exceptional circumstances”, taking into account the matters specified in paragraphs 366(2)(a) to (e), is necessary before the discretion to extend time is enlivened. That is, even when “exceptional circumstances” are established, there remains a discretion to grant or refuse an extension of time. That discretion should be exercised having regard to all the circumstances including, in particular, the matters specified in paragraphs 366(2)(a) to (e) and will come down to a consideration of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended.’
[18] In deciding not to grant an extension of time, the Deputy President explicitly took into account all the factors specified in s.366 (2) (a) to (e). Moreover we are satisfied that the findings she made in relation to each factor were open on the material available to her. In particular, it was open to the Deputy President to find that the applicant’s mental illness while ‘undoubtedly a great burden’ did not prevent him from lodging his general protections application earlier than he did.
[19] We are satisfied that the Deputy President made none of the errors referred to in House v The King. In particular, she did not act on a wrong principle, allow extraneous or irrelevant matters to guide or affect her decision, mistake the facts, fail to take into account material considerations or reach a conclusion that upon the facts was unreasonable or plainly unjust.
[20] In the absence of such an error we consider that permission to appeal should be refused, and we do so.
SENIOR DEPUTY PRESIDENT
Final written submissions:
Mawland Quarantine Station Pry Ltd T/A Q Station on 16 December 2014.
1 Wan v Australian Industrial Relations Commission (2001) 116 FCR 481
2 Fair Work Act 2009, s.604
3 House v The King (1936) 55 CLR 499 at [504]-[505] per Dixon, Evatt and McTiernan JJ
4 Ibid.
5 Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975
Printed by authority of the Commonwealth Government Printer
<Price code C, PR560100>
2
5
0