Russell Penttila v Woolworths Limited and Woolworths (South Australia) Pty Limited T/A Woolworths Petrol
[2018] FWCFB 134
•10 JANUARY 2018
| [2018] FWCFB 134 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Russell Penttila
v
Woolworths Limited and Woolworths (South Australia) Pty Limited T/A Woolworths Petrol
(C2017/6151)
DEPUTY PRESIDENT GOOLEY | MELBOURNE, 10 JANUARY 2018 |
Appeal against decision [2017] FWC 5422 of Commissioner Platt at Adelaide on 19 October 2017 in matter number U2017/7344 – permission to appeal refused.
[1] Mr Russell Penttila has applied for permission to appeal a decision of the Fair Work Commission issued on 19 October 2017. 1
[2] The Commissioner dismissed Mr Penttila’s Application for an unfair dismissal remedy made under s.394 of the Fair Work Act 2009 because he found the Application was lodged out of time and was not satisfied there were exceptional circumstances, as required under s.394(3) of the Act, to allow a further period for the Application to be made.
Background
[3] Mr Penttila filed his Application for unfair dismissal remedy on 7 July 2017, stating he was terminated on 15 June 2017.
[4] On 17 July 2017, Woolworths filed its response to the Application and foreshadowed that it would be lodging a jurisdictional objection to the Application on the basis that the Application was not lodged with the Commission within 21 days. Mr Penttila was provided with a copy of the response.
[5] The matter was listed before Commissioner Platt to decide the jurisdictional objection.
[6] In his decision, the Commissioner describes the process leading to the hearing:
“[7] On 5 October 2017, my Associate corresponded with Mr Penttila and Woolworths and advised that the extension of time issue would be considered at a telephone conference on 19 October 2017. Information about the extension of time issue and the factors that I am required to take into account in considering this matter, were provided to the parties. Mr Penttila was directed to provide a statement concerning the extension of time and any documents to be relied upon by 13 October 2017. Woolworths was invited to file any material in reply by 18 October 2017.
[8] Mr Penttila did not provide any written submission.
[9] On 16 October 2017 at 4.34 pm my Associate sent Mr Penttila an email advising that he had failed to comply with my directions and advised that the material was to be submitted by 9.00 am on 17 October 2017. The applicant was advised that in the absence of any response the hearing would proceed on Thursday 19 October 2017.
…
[12] A hearing was conducted by way of telephone conference on 19 October 2017. A sound file record of the telephone conference was kept.
[13] Mr Penttila did not attend the hearing. My Associate left a message on the telephone number provided and sent an email advising that the hearing would commence at 10.05am and proceed in his absence, should he not attend.
…
[17] Mr Penttila’s Application did not identify his s.394 Application was made out of time and recorded the date of dismissal as 15 June 2017.
[18] Mr Penttila has not subsequently provided any submissions or other communication which details why his Application was late, despite the directions issued and follow-up by my Associate.” 2
[7] The Commissioner then made the following finding:
“I note that the date of dismissal and its effect is not in dispute and I find that the unfair dismissal application by Mr Penttila was made 1 day outside of the 21 day time limit and therefore, can only be pursued if this time limit is extended.” 3
[8] Having then considered the provisions of s.394(3) of the Act in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd, 4 the Commissioner made the following findings:
“• Mr Penttila has not made a formal request for an extension of time.
“• Mr Penttila has failed to provide any explanation as to the reasons for delay in filing his application.” 5
[9] The Commissioner then concluded he was not satisfied that Mr Penttila’s circumstances can be regarded as exceptional so as to support an extension of time.
[10] The request for an extension of time was refused and the Application dismissed. 6
[11] On 9 November 2017, Mr Penttila lodged a notice of appeal against the decision.
[12] In this appeal, the threshold issue requiring consideration is whether permission to appeal should be granted. This decision deals with that threshold issue.
Permission to Appeal Principles
[13] An appeal under s.604 of the Act is an appeal by way of rehearing. The Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision maker. 7 There is no right to appeal, and an appeal may only be made with the permission of the Commission. Section 604(2) provides:
“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.”
[14] Section 400 of the Act 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.”
[15] Some considerations that the Commission may take into account in assessing whether there is a public interest element include:
• Where a matter raises issues of importance and general application;
• Where there is a diversity of decisions so that guidance from a Full Bench of the Commission is required;
• Where the original decision 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. 8
[16] In Coal & Allied Mining Services Pty Ltd v Lawler and others, 9 Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s.400 of the Act as “a stringent one”.10 The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.11
[17] 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. 12 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.13
Appeal Notice
[18] The Notice alleged three grounds of appeal and made submissions as to the public interest. These are included in their entirety in Attachment A to this decision.
[19] As to the public interest, Mr Penttila referred to those matters that would “appeal to any member of the public”. 14 He further alleged errors in the application of the law, the procedure that led to the Application being dismissed, even where he submits that there is good standing in terms of merit.
[20] Mr Penttila also alleged an error in the Commission website, in particular an unfair dismissal explanatory video where he suggested that while the voice wording is correct the calendar graphic displaying the calculation of the 21 day period is not.
The Appeal Hearing
Mr Penttila’s submissions
[21] Mr Penttila did not submit an outline of submissions. In an email to the Commission dated 28 November 2017, he asserted “that no information is left out” and that he would be relying on the grounds of appeal provided in his Application. 15
[22] Mr Penttila made oral submissions at the hearing.
[23] Woolworths was not required to provide written submissions but provided oral submissions at the hearing.
[24] At the hearing, Mr Penttila initially asserted that his Application was in jurisdiction, 16 stating that he did not make an Application to extend time. This is because he submitted that his Application was filed within the 21 days.17
[25] Following questioning from the Full Bench, clarifying that the Application was lodged outside the 21 days, Mr Penttila made the following points:
• He did attempt to file on 6 July 2017 18 via the Northern Territory office but the fax number was engaged. He then filed the next day to the Melbourne Registry;
• As to evidence of this, Mr Penttila indicated during this appeal that he could acquire documents or receipts that an attempt had been made. He indicated he had a witness statement about his attempts at lodgement. 19
[26] Mr Penttila confirmed that nothing had been filed by way of Application for an extension of time.
[27] On permission to appeal, Mr Penttila submitted that it was in the public interest to grant permission to appeal because there was injustice in the application of the Act. He submitted that the decision at first instance manifests an injustice for the following reasons:
• The Acts Interpretation Act has not been adhered to and although it was presumed it was outside the 21 days Mr Penttila submitted it was “borderline”; 20
• His personal circumstances were challenging including having no vehicle, and receiving different legal advice from his union and the Legal Aid Commission; 21 and
• He had received a phone call from the Fair Work Commission on the day of the telephone hearing, detailed as follows:
“From that phone call that I received from the Fair Work Commission, that should have said in the voicemail that I should call back immediately. Then by them telling me to go on my computer and read an email, and then respond to that email, that would help me to be in the meeting straight away. I was just maybe - it was 30 seconds after missing that phone call. So I heard the voicemail, got onto the email; it said you’re going to call in at 10 o’clock. So at 9.45 I called in, but just as I was calling in, yes, it was just probably the last four sentences. Even though I heard background noise, that background noise wasn’t applied to the audio that I’d heard from that hearing - yes, from that jurisdictional hearing. I felt that if I had talked I don’t think that would be included because it was muted. It was only that I was standing by the window - as I was calling in I was looking out the window and a car was rushing past, and I remember the mute button was toggled. So as I go back to hear the audio recording, there was no car in the background, there was no means of hearing that mute switch.” 22
Woolworths’ submissions
[28] Mr David submitted for Woolworths that the appeal did not raise issues of “general importance, of general application”. 23
[29] He submitted that the decision of the Commissioner considered whether there should be an extension of time granted due to exceptional circumstances.
[30] Woolworths submitted that in order to enliven that discretion the Commissioner must be satisfied there were exceptional circumstances. Mr Penttila did not provide materials or submissions to explain the reason for the delay, or demonstrate he had taken steps to attempt to make an Application before the expiry of the 21 day limit.
[31] Woolworths submitted that Mr Penttila had three opportunities to provide an explanation for the entire period of delay:
• On 13 October 2017, following the directions issued by the Commission on 5 October 2017 directing Mr Penttila to file a statement containing material explaining the reasons for the whole delay in lodging the Application;
• On 17 October 2017, following an email from the Commission on 16 October 2017 advising Mr Penttila of the non-compliance with the Commissioner’s initial directions of 5 October 2017; and
• At the hearing on 19 October 2017 which Mr Penttila failed to attend. 24
[32] Further, Woolworths submitted the decision does not manifest an injustice or show that the Commissioner has erred. Woolworths considered that the Commissioner exercised his discretion under s.394(3) not to grant a further period of time for the Application to be made because Mr Penttila failed to provide any explanation as to reasons for delay in filing his Application. Mr Penttila was required to provide a credible explanation for the entire period of the delay and did not do so.
Public Interest Considerations
Does the appeal raise a matter of importance and general application?
[33] Mr Penttila asserts there has been a significant error of fact in the calculation of time.
[34] The Commissioner properly identified that the Application was filed outside the 21 day time period. As there is no mistake of fact about the calculation of time this matter cannot enliven the public interest.
[35] The Commissioner, having correctly decided that the Application was made out of time, considered whether a further period for the Application to be made should be allowed. In deciding whether there are exceptional circumstances, the Commissioner had regard to appropriate legal authorities establishing that “exceptional circumstances” should have its ordinary meaning and requires a consideration of all the circumstances.
[36] He then made findings, correct in our view, that Mr Penttila had not requested extension of time and that he failed to provide any explanation as to the reasons for the delay in filing his Application.
[37] Mr Penttila does not submit that he provided any explanation for the delay at the hearing. He seeks to do so in this appeal.
[38] Having not provided any explanation by way of written submissions in accordance with directions or at the hearing, Mr Penttila seeks to use this appeal as an opportunity, for the first time, to address the reasons for a potential delay in filing.
[39] An Application for permission to appeal is not a de facto or preliminary hearing of the appeal. In determining whether permission to appeal should be granted, it is unnecessary and inappropriate for the Full Bench to conduct a detailed examination of the grounds of appeal. 25
[40] What is required is whether the factual matters on which this appeal is based raise a matter of importance such as to potentially enliven the public interest. In our view, while the matters are important to the parties, the facts and conclusion outlined above do not raise a matter of importance and general application.
Is guidance from an appellate body required on the legal principles?
[41] In his decision, the Commissioner identified the legal principles in exercising his discretion. Case authority on s.394(3) of the Act, governing extension of time, is well-settled. There is no basis on which we consider it necessary or expedient to revisit those principles or provide further guidance.
Does the decision manifest an injustice or is it counterintuitive?
[42] Mr Penttila complains that there has been an injustice concerning the hearing on 19 October 2017. In particular he says that the phone call he received from the Fair Work Commission should have advised him to call back immediately rather than tell him to go and read his email.
[43] Commission Members are required to provide all parties with procedural fairness including a fair hearing and to act judicially. “Natural justice” in the context of administrative decision making has been equated to an obligation to act fairly or to accord procedural fairness. The requirements of natural justice or procedural fairness are not a fixed body of rules. What is required is judicial fairness and what is fair in one case may be quite different from what is required in another. 26
[44] A process that was procedurally unfair may potentially result in a decision that manifests an injustice or was counterintuitive. It is necessary then to decide if Mr Penttila was given a fair hearing.
[45] The Commission must perform its functions and exercise its powers in a manner that is: fair and just; quick, informal and avoids unnecessary technicalities; open and transparent and takes into account equity, good conscience and the substantial merits of the case. 27
[46] These principles apply to all parties, but when a party is self-represented, the Commission must ensure that proceedings and hearings are procedurally fair and understood by the self-represented litigant.
[47] As detailed in paragraph 6 of this decision, the Commissioner first sent correspondence that the extension of time hearing would be held on 19 October 2017. Information was provided at that time about the factors required to be taken into consideration. Mr Penttila did not provide any written submissions as required. He did not communicate with the Commission. Notwithstanding this, the Commissioner provided an extension of time to file material and advised that the hearing would be going ahead in the absence of any response. In accordance with the directions, the hearing went ahead at 10am which is 9.30am Brisbane time.
[48] Mr Penttila does not take issue with the directions made by the Commissioner, and in our view, the directions are clear. Despite this Mr Penttila did not call in for the hearing at 9.30am Brisbane time. He submits however that he did do so at 9.45am. He says:
“So I heard the voicemail, got onto the email; it said you’re going to call in at 10 o’clock. So at 9.45 28 I called in, but just as I was calling in, yes, it was just probably the last four sentences”
[49] He complains that there has been an injustice and points to the unnecessary delay attributable to the Commissioner’s Associate. This is because Mr Penttila asserts that when the Associate called him to enquire about his non-attendance she caused unnecessary delay by suggesting he read his email as he had not answered his phone.
[50] However, it is not the task of Commission to ensure that a party attends at a hearing. The task of the Commission, subject to the requirements of natural justice and the objects of the Act, is to ensure all parties have an opportunity to be heard on a matter.
[51] In Allesch v Maunz, 29 Kirby J held:
“It is a principle of justice that a decision maker, at least one exercising public power, must ordinarily afford a person whose interests may be adversely affected by a decision an opportunity to present material information and submissions relevant to such a decision before it is made.
. . .
. . . it is worth emphasising that the principle just described does not require that the decision-maker actually hear (or receive the submissions of) the party potentially liable to be adversely affected. Sometimes, through stubbornness, confusion, misunderstanding, fear or other emotions, a party may not take advantage of the opportunity to be heard, although such opportunity is provided. Affording the opportunity is all that the law and principle require.
Decision-makers, including the courts, cannot generally force people to protect their own rights, to adduce evidence or other materials, to present submissions or to Act rationally in their own best interests.” 30
[52] Mr Penttila did not take the opportunity to present his material. He did not make submissions at hearing. He did not seek an adjournment either for the lodging of materials or the hearing itself.
[53] By the time he contacted the Commission the matter had concluded.
[54] Unsurprisingly the hearing did not take long: Mr Penttila had neither put in materials nor attended the hearing.
[55] We do not conclude this as a breach of the principles of natural justice, but that Mr Penttila did not take advantage of the opportunity to be heard either in writing or orally notwithstanding such an opportunity was provided.
[56] On this point we agree with Woolworths that the Commission provided an opportunity to Mr Penttila on 13 and 17October 2017, and at the hearing on 19 October 2017. The failure to attend the hearing following non-compliance with directions on two occasions, without explanation until this appeal, cannot lead to a conclusion that an injustice has occurred toward Mr Penttila.
[57] Having not provided any material at the hearing, the Commissioner’s decision to dismiss the Application is consistent with the approach in s.394(3) of the Act and is not counterintuitive.
Were the legal principles applied by the Commissioner disharmonious when compared with other decisions dealing with similar matters?
[58] The legal principles were properly applied and a conclusion reached similar to other cases. 31
Conclusion
[59] We are not persuaded that the factors stated in paragraph 15 above have been established in this matter. Additionally we do not consider the appeal raises other factors that could be said to enliven the public interest.
[60] Therefore, we are not satisfied that it would be in the public interest to grant permission to appeal. As required by s400(1), the application to appeal must be refused.
[61] On a final note, we have examined the video complained of by Mr Penttila on the Fair Work Commission website, and we are satisfied that material correctly reflects the requirements of the Act.
DEPUTY PRESIDENT
Appearances:
R. Penttila on his own behalf.
P. David for the Respondent.
Hearing details:
2017.
Melbourne and Brisbane, Adelaide and Sydney, by video link:
29 November.
Attachment A: Submissions of the Applicant
1 FAIR WORK ACT 2009
1.1 DISMISSING APPLICATIONS
SECTION 394 (2)(a)
(2) The Application must be made :
(a) within 21 days after the dismissal took effect;
1.2 REPRESENTATION BY LAWYERS AND PAID AGENTS
SECTION 596 (1,(3))
(1) Except as provided by subsection (3) or the procedural rules, a person may be represented in a matter before the FWC (including by making an Application or submission to the FWC on behalf of the person) by a lawyer or paid agent only with the permission of the FWC.
(3) The FWC’s permission is not required for a person to be represented by a lawyer or paid agent in making a written submission under Part 2-3 or 2-6 (which deal with modern awards and minimum wages).
2 ACTS INTERPTRETATION ACT 1901 (CTH)
2.1 CALCULATION OF TIME
SECTION 36(1) [COLUMN 4,6]
(1) A period of time referred to in an Act that is of a kind mentioned in column 1 of an item in the following table is to be calculated according to the rule mentioned in column 2 of that item.
Column 4: If a person’s right to make submissions ends on the last day of a financial year, the person may make submissions on that day
Column 6: If a decision is made on 2 August and a person has 28 days after the day the decision is made to seek a review of the decision, the 28-day period begins on 3 August.
3 SIGNIFICANT ERRORS OF FACT
3.1 Date of Dismissal: 15 June 2017
21 day period begins: 16 June 2017
Day 21 ends on: 7 July 2017
Document submitted: 7 July 2017.
3.2 No permission was granted by Woolworths for legal representation prior to, including the hearing before the Commission,
3.2.1 Apart for permission to be present only to decide that, permission to represent Woolworths by the FWC, Should be at the beginning of the jurisdiction hearing.
3.3 Advice has been provided before the Commissioner before the permission had been determined.
3.4 Submittals of Woolworth’s legal representative’s documents were served prior to determination of permission. Repetition of the phrase ‘failure to follow directions’ issued 10 times by her written submission.
3.5 Woolworths had failed to adhere with the findings of Deputy President Dean, that there was no failure to attend a hearing, nor comply with a direction. Even when Woolworths was satisfied that there were no breach.
3.6 Misdirected by correspondence with associate of Commissioner Platt, via voicemail, then to email, to call in at 10AM, to attend the hearing, to a Queensland number, as she was referring to the notice of listing. I have called in at from 9:45AM, this had made me miss the hearing prior- hand to when calling in.
3.7 Directions insisting that I am to submit relevant documents that it was out of time, no new document should alter the outcome expected due to that the Application was meant to be invalid.
3.7.1 Evidence was already at hand, before the Commission.
3.7.2 I cannot withdraw an Application that I did not create.
3.8 Discovery should be sought by Woolworths Legal representative that it was an error, and have the application withdrawn at least, to then continue what ought to be an unsuccessful claim.
1 Russell Penttila v Woolworths Limited and Woolworths (South Australia) Pty Limited T/A Woolworths Petrol[2017] FWC 5422
2 Ibidat [7]-[18]
3 Ibid at [21]
4 [2011] FWAFB 975
5 Russell Penttila v Woolworths Limited and Woolworths (South Australia) Pty Limited T/A Woolworths Petrol [2017] FWC 5422 at [23]
6 Ibid at [28]
7 Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; 99 IR 309 at [17] per Gleeson CJ, Gaudron and Hayne JJ
8 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343 (Kaufman SDP, Ives DP, Spencer C, 23 July 2010) at para. 27, [(2010) 197 IR 266]
9 (2011) 192 FCR 78; 207 IR 177
10 Ibid at [43]
11 O’Sullivan v Farrer (1989) 168 CLR 210 at 216-217 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch (2011) 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) 192 FCR 78; 207 IR 177 at [44] -[46]
12 Wan v Australian Industrial Relations Commission (2001) 116 FCR 481 at [30]
13 GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343; (2001) 197 IR 266 at [26]-[27]; Lawrence v Coal & Allied Mining Services Pty Ltd T/A Mt Thorley Operations/Warkworth[2010] FWAFB 10089; (2010) 202 IR 388 at [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78; 207 IR 177; New South Wales Bar Association v McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office[2014] FWCFB 1663; (2014) 241 IR 177 at [28]
14 Mr Russell Penttila Form F7 filed 9 November 2017 at q3.1
15 Email from Mr Russell Penttila dated 28 November 2017. For grounds of appeal see also Attachment A to this decision
16 Transcript 29 November 2017 at PN10
17 Ibid at PN22
18 The Transcript notes at PN26 that Mr Penttila referred to the “sixth day” but it is assumed he meant 6 July
19 Transcript 29 November 2017 at PN26
20 Ibid at PN54
21 Ibid at PN55-PN57
22 Ibid at PN59
23 Ibid at PN65
24 Ibid at PN68
25 Trustee for the MTGI Trust v Johnston [2016]FCAFC 140 at [82]
26 Mobil Oil Australia Pty Ltd v Commissioner of Taxation (Cth) (1963) 113 CLR 475 at [504] per Kitto J
27 Fair Work Act 2009 (Cth) ss 577 and 578
28 This would be 10.15am South Australian time
29 (2000) 173 ALR 648
30 Allesch v Maunz (2000) 173 ALR 648 at [35]-[39]
31 Ozsoy v Monstamac Industries [2014] FWCFB 2149
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