Sarah Hunt v C and C Cake Shops Pty Ltd T/A Sergio's Cake Shop
[2020] FWCFB 3553
•20 JULY 2020
| [2020] FWCFB 3553 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Sarah Hunt
v
C and C Cake Shops Pty Ltd T/A Sergio’s Cake Shop
(C2020/4605)
DEPUTY PRESIDENT MILLHOUSE |
|
Appeal against decision [2020] FWC 2162 of Vice President Catanzariti at Sydney on 27 April 2020 in matter number U2020/1732.
[1] Ms Sarah Hunt made an application for an unfair dismissal remedy in accordance with s.394 of the Fair Work Act 2009 (Cth) (Act) on 17 February 2020. On 27 April 2020, Vice President Catanzariti dismissed Ms Hunt’s application pursuant to s.587(3)(a) of the Act (decision). 1 An order was issued to this effect.2
[2] By a notice of appeal lodged on 15 June 2020, Ms Hunt seeks permission to appeal the decision and if granted, appeals the decision and order. The notice of appeal was filed outside the 21-day timeframe for lodging an appeal required by the Fair Work Commission Rules 2013 (FWC rules). For Ms Hunt’s notice of appeal to have been instituted within time it must have been lodged on or before 18 May 2020. Ms Hunt’s appeal was filed 28 days outside this timeframe. The appeal cannot proceed unless the Commission grants Ms Hunt an extension of time.
[3] For the reasons that follow, we decline to allow a further period of time for the lodgement of Ms Hunt’s notice of appeal. The application for permission to appeal is dismissed.
The decision
[4] In the decision, the Vice President summarised the background to the matter as follows:
“[2] On 27 February 2020, C and C Cake Shops Pty Ltd T/A Sergio’s Cake Shop (the respondent) filed an Employer’s Response (Form F3), objecting to Ms Hunt’s application on multiple bases, including that she had not completed the minimum employment period to be eligible for an unfair dismissal remedy. The respondent said Ms Hunt had only started working for it on 1 July 2019. It also said it was a small business employer, and therefore the applicable minimum employment period was one year.
[3] The matter was referred to me to determine the jurisdictional objection. My chambers sent correspondence to Ms Hunt on 6 April 2020, requiring her to provide a statement to support her claim that she had completed the minimum employment period. She was asked to provide this information by 4:00 pm on 13 April 2020. However, we received no response from Ms Hunt by that time.
[4] On 15 April 2020, my chambers sent further correspondence to Ms Hunt, directing her to provide a response by 4:00 pm on 20 April 2020. She was advised that in the absence of a reply, her application may be dismissed.
[5] To date, Ms Hunt has not responded to any of the Commission’s correspondence.”
[5] Ms Hunt’s application for an unfair dismissal remedy was dismissed on 27 April 2020 pursuant to s.587(3)(a) for want of prosecution.
Appeal grounds
[6] Ms Hunt describes her grounds of appeal as follows:
“1. I was having problems with my emails and was locked out of my account for over a week and when this was all sorted, I received so many emails I have missed the ones from the Fair Work Commission.
2. At the time I saw the email on the 27 May 2020 I contacted the Fair Work Office immediately. Admittedly I was distraught and not thinking straight when talking to a member of the Fair Work Commission after reading the case had been cancelled.
3. I was keeping a lookout for emails since 18 March 2020 when the Mediation took place but as it was to be a face to face commission with Covid-19 I assumed it would be delayed due to the nature of the pandemic I also wrongly assumed I would be contacted by the Fair Work Commission by text and phone as I had prior to my conciliation and not just my email.
4. The actions of my ex employer were had a major effect on me both personally and economically as a result of being dismissed.” 3
[7] Ms Hunt relies upon the merits of her unfair dismissal application to support her contention that it is in the public interest for the Commission to grant permission to appeal. 4 This includes Ms Hunt’s contention that she met the minimum employment period for the purposes of progressing her application for unfair dismissal.
[8] The respondent says that Ms Hunt’s application was dismissed because of Ms Hunt’s failure to comply with the directions of the Vice President. It submits that there are discrepancies in Ms Hunt’s explanation regarding her non-compliance. 5
Extension of time
[9] Rule 56(2) of the FWC rules requires that an appeal must be instituted within 21 days after the date of the decision appealed against, or within such time as is allowed by the Commission on application.
[10] As is frequently noted and most recently by a Full Bench of the Commission in Snyder v Helena College Council, Inc. t/as Helena College, 6 time limits of the kind in rule 56(2) of the FWC rules 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.
[11] The following matters are relevant in considering whether to exercise the Commission’s discretion to allow a further period under rule 56(2)(c): 7
(1) whether there is a satisfactory reason for the delay;
(2) the length of the delay;
(3) the nature of the grounds of appeal and the likelihood that one or more of those grounds would be upheld if time was extended; and
(4) any prejudice to the respondent if time were extended.
[12] Taking these matters into account, the exercise of the discretion will be guided by a consideration of whether, in all the circumstances, the interests of justice favour Ms Hunt being granted an extension of the time within which to lodge her notice of appeal. 8
Reason for the delay
[13] Ms Hunt’s notice of appeal was lodged 28 days out of time. As to the reason for the delay, Ms Hunt contends that she did not become aware of the decision until 27 May 2020. 9 We understand that Ms Hunt makes this submission on the basis that she had been blocked from accessing her email account. There are no other matters that Ms Hunt relies upon to explain why she did not become aware of the decision until 27 May 2020. Ms Hunt contends that this was a “technical error” but says that it is not an excuse.
[14] For the reasons that follow, we reject that the delay in lodging the appeal was occasioned by any inability on the part of Ms Hunt to access her email account.
[15] Firstly, there is no probative evidence before the Commission to support Ms Hunt’s contention that she was blocked from her email account.
[16] Secondly, Ms Hunt’s evidence regarding the dates that she was unable to access her email account is inconsistent. The position advanced by Ms Hunt in her written submissions is that she was blocked from her email account for a period of seven to 10 days. 10 During the proceedings, Ms Hunt said that this period commenced from 20 April 2020. On this argument, Ms Hunt regained access to her email account by no later than 30 April 2020. However, Ms Hunt resiled from this position during the proceedings and contended that she regained email access on 15 May 2020.
[17] Ms Hunt did not provide an explanation for the change to her evidence. The absence of compelling reasons in support of Ms Hunt’s altered position is damaging to her credibility. We therefore regard Ms Hunt’s evidence in respect of being blocked from accessing her email account to be unreliable in light of this inconsistency in her evidence, which she was unable to reconcile.
[18] Thirdly, on either contention, Ms Hunt had access to her email account within the 21-day timeframe for instituting an appeal of the decision. The 21-day period lapsed on 18 May 2020. On Ms Hunt’s evidence, her email access issues were resolved on 15 May 2020 prior to the period of the delay. Ms Hunt did not contend that she was blocked from accessing her email account for any part of the delay between 19 May 2020 and 15 June 2020. Nor is there any evidence before the Commission that discloses that Ms Hunt was blocked from accessing her email during this period.
[19] We also reject Ms Hunt’s contention that she did not become aware of the decision until 27 May 2020. The evidence discloses that on 25 May 2020, Ms Hunt telephoned the chambers of the Vice President regarding the decision. The fact of this exchange is recorded in an email from the Commission on 26 May 2020, which advised Ms Hunt of her right to appeal the decision. 11 We accept this email as contemporaneous evidence of Ms Hunt’s telephone call to the Commission on 25 May 2020. Ms Hunt ultimately accepted during the proceedings that she telephoned the Commission on 25 May 2020.
[20] Ms Hunt has provided no explanation for her inaction between 19 May 2020, being the first day of the delay, and 25 May 2020 when she telephoned the Commission regarding the decision.
[21] As to the period between the Commission’s correspondence to Ms Hunt on 26 May 2020 and 15 June 2020 when the notice of appeal was lodged, Ms Hunt submitted that she:
(a) interpreted the 21-day period as commencing from the date she was advised by the Commission of the right to appeal the decision; and
(b) suffers from anxiety and depression for which she is receiving treatment from health professionals. Ms Hunt contends that her mental health has deteriorated as a consequence of her dismissal. 12
[22] The 26 May 2020 correspondence from the chambers of the Vice President referred Ms Hunt to the Commission’s website for information about lodging an appeal. 13 The website explains the requirement to institute an appeal within 21 days from the date of the decision appealed against. In the absence of a credible explanation from Ms Hunt in support of her view that the 21-day period commenced from the date that the Commission apprised Ms Hunt of her appeal rights, we do not consider this to constitute an acceptable reason for the delay.
[23] Ms Hunt does not explain how her anxiety and depression contributed to the delayed lodgement of the appeal. The broad contention by Ms Hunt that her mental health has deteriorated is unsupported by any evidence including in respect of the impact this had upon Ms Hunt’s capacity to lodge the appeal within time, or on a date prior to 15 June 2020. Accordingly, we are not persuaded that these matters contributed to the delay.
[24] It follows that Ms Hunt has not provided an acceptable or reasonable explanation for any part of the delay in lodging the appeal. 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 the delay
[25] Ms Hunt’s appeal was lodged 28 days outside of the statutory timeframe for instituting an appeal. Noting that no acceptable explanation has been advanced for any part of the delay, we regard the length of the delay to be significant.
[26] This weighs against the grant of an extension.
Prejudice to the respondent
[27] It is not contended by the respondent, and nor do we consider, that any prejudice to the respondent will arise if an extension of time was granted. However, the mere absence of prejudice is not a factor that would tell in favour of the grant of an extension of time. We therefore consider this to be a neutral consideration.
Nature of appeal grounds and likelihood that one or more would be upheld if time was extended
[28] 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 of those grounds would be upheld if time was extended.
[29] An appeal under s.604 of the 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. 14 There is no right to appeal and an appeal may only be made with the permission of the Commission.
[30] The decision was made under Part 3-2 (unfair dismissal) of the Act. Accordingly, s.400 of the Act applies. 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, appeals on a question of fact can only be made on the ground that the decision involved a significant error of fact.
[31] The test under s.400 has been characterised as “a stringent one.” 15 The task of assessing whether the public interest test is met is discretionary and involves a broad value judgment.16 In GlaxoSmithKline Australia Pty Ltd v Makin17 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 the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters…” 18
[32] 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. 19 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.20
[33] We are not satisfied that Ms Hunt’s grounds of appeal disclose an arguable case of appealable error. The appeal grounds do not involve any challenge to the Vice President’s conclusion that Ms Hunt failed to prosecute her case, or the decision to dismiss the application on this basis pursuant to s.587(3)(a) of the Act.
[34] Appeal ground one contends that upon Ms Hunt regaining access to her email account from which she was blocked “for over a week,” Ms Hunt “received so many emails I have missed the ones from the Fair Work Commission.” 21 This ground of appeal does not disclose appealable error for two reasons. Firstly, it is trite to say that overlooking correspondence from the Commission is not a matter that gives rise to a finding of appealable error. Secondly, the Vice President did not err in concluding that Ms Hunt had failed to prosecute her application. Ms Hunt is said to have advised the Vice President’s chambers that she had access to her email account in the period 18 March 2020 to 27 April 2020 (being the date of the decision) and did not resile from this position during the proceedings.22 Notwithstanding this, and despite being on notice that a failure to respond may result in the application being dismissed, Ms Hunt did not comply with the Vice President’s directions dated 6 and 15 April 2020.
[35] Appeal ground two relates to Ms Hunt’s contention that she telephoned the Commission on 27 May 2020 after becoming aware of the decision. We earlier rejected the contention that Ms Hunt became aware of the decision on 27 May 2020 and that she telephoned the Commission on this date. In any case, this appeal ground does not raise any contention of appealable error in the Vice President’s decision.
[36] Appeal ground three states that Ms Hunt “was keeping a lookout for emails since 18 March 2020” 23 and “wrongly assumed” that she would be contacted by the Commission via text message or telephone. During the proceedings, Ms Hunt accepted that she “wasn’t keeping a lookout, that’s my fault.” Further, Ms Hunt’s expectation that she would be contacted by text message or telephone is at odds with her originating application which nominates email as her preferred method of communication. In any event, no appealable error is disclosed on account of the Vice President’s chambers communicating with Ms Hunt by email.
[37] Appeal ground four asserts that the dismissal has had a personal and economic effect upon Ms Hunt. There is no evidence before the Commission of these matters and in any case, this appeal ground does not involve any challenge to the Vice President’s decision.
[38] Independent of the matters raised in Ms Hunt’s grounds of appeal, we are satisfied on a review of the decision that the Vice President provided Ms Hunt with a reasonable opportunity to present her case. 24 As observed by Kirby J in Allesch v Maunez:
“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…” 25
[39] The obligation does not extend to the “impossible task” 26 of ensuring that a party takes the best advantage of the opportunity. Affording the opportunity is all that the law and principle require.27 In circumstances where an applicant does not exercise the opportunity provided to prosecute their application, the application will “usually fail.” A Full Bench in L. Sayer v Melsteel Pty Ltd28 observed that in such a situation, “it is difficult to envisage circumstances in which it could be otherwise.”29 Having regard to these matters and Ms Hunt’s non-compliance with the directions, we are satisfied that there is no appealable error in the Vice President’s decision.
[40] Further, there is nothing on the material which satisfies us that it would be in the public interest to grant Ms Hunt permission to appeal. 30 The appeal does not raise any issue of importance or general application. The decision was made based on the particular circumstances before the Vice President. The decision does not manifest any injustice and the outcome determined by the Vice President was unsurprising given that Ms Hunt was on notice that a failure to respond to the Commission’s correspondence may result in her application being dismissed.
[41] Having regard to the nature of the appeal grounds, we are satisfied that they are not likely to be upheld if time was extended. This weighs against the grant of an extension of time to lodge the appeal.
Disposition
[42] The absence of an acceptable reason for the delay in lodging the appeal and the likelihood that the appeal grounds would not be upheld if time was extended weigh against allowing a further period of time within which to lodge the appeal.
[43] We therefore conclude that, in all the circumstances, the interests of justice do not favour Ms Hunt being granted an extension of time.
[44] We refuse Ms Hunt’s application to extend the time in which to file the appeal. Ms Hunt’s application for permission to appeal is dismissed.
DEPUTY PRESIDENT
Appearances:
S Hunt, Appellant
C Christou on behalf of the Respondent.
Hearing details:
2020.
Melbourne (by telephone):
July, 8.
Printed by authority of the Commonwealth Government Printer
<PR720794>
1 [2020] FWC 2162
2 PR718575
3 Form F7 Notice of appeal lodged by Ms Sarah Hunt on 15 June 2020 (Notice of appeal) at 2.1
4 Outline of submissions filed by Ms Sarah Hunt on 25 June 2020 (Hunt submissions)
5 Submissions filed by C and C Cake Shops Pty Ltd T/A Sergio’s Cake Shop on 2 July 2020 (Respondent’s submissions) at [1] and [2]
6 [2019] FWCFB 815; See also Tokoda v Westpac Banking Corporation T/A Westpac[2012] FWAFB 3995 at [3]
7 See for example Fox v Kangan TAFE Print S0253, 25 October 1999 at [36]; Stevenson-Helmer v Epworth Hospital, Print T2277 19 October 2000; Dundovich v P&O Ports, Print PR923358 8 October 2002; SPC Ardmona Operations Ltd v Esam and Organ (2005) 141 IR 338; Jobs Australia v Eland[2014] FWCFB 4822; Farnhill v Australian Business Academy Pty Ltd [2016] FWFBC 3410; Logan City Electrical Services Division Pty Ltd t/as Logan City Electrical v Christopher Antonarkis[2018] FWCFB 3815
8 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
9 Notice of appeal at 5.1
10 Appeal book at 2(a); Hunt submissions
11 Attachment 1 to Respondent’s submissions
12 See also Appeal book at 2(c)
13 Above n 11
14 This is so because on appeal, the Commission has the power to receive further evidence pursuant to s.607(2); see Coal and Allied v AIRC [2000] HCA 47, 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ
15 Coal & Allied Mining Services Pty Ltd v Lawler and Others (2011) 192 FCR 78 at [43]
16 O’Sullivan v Farrer [1989] HCA 61, (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ applied in Hogan v Hinch [2011] HCA 4, (2011) 243 CLR 506, 85 ALJR 398 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and Others [2011] FCAFC 54, (2011) 192 FCR 78, (2011) 207 IR 177 at [44]-[46]
17 [2010] FWAFB 5343, (2010) 197 IR 266
18 Ibid at [27]
19 Wan v Australian Industrial Relations Commission and Another [2001] FCA 1803, (2001) 116 FCR 481 at [30]
20 Lawrence v Coal & Allied Mining Services Pty Ltd t/as 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 and Others [2011] FCAFC 54, (2011) 192 FCR 78, (2011) 207 IR 177; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office[2014] FWCFB 1663, (2014) 241 IR 177 at [28]
21 Notice of appeal at 2.1 at [1]; See also Appeal book at 2(a)
22 Above n 11
23 see also Appeal book at 2(b)
24 Sullivan v Department of Transport (1978)20 ALR 323 at 343 per Deane J
25 (2000) 203 CLR 172 at [35]
26 Above n 24
27 Allesch v Maunez (2000) 203 CLR 172 at [38]
28 [2011] FWAFB 7498
29 Ibid at [9]
30 GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343
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