Simone Gillespie v Kin Property Pty Ltd (Vic)
[2019] FWCFB 6993
•10 OCTOBER 2019
| [2019] FWCFB 6993 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
Simone Gillespie
v
Kin Property Pty Ltd (VIC)
(C2019/5521)
VICE PRESIDENT HATCHER | SYDNEY, 10 OCTOBER 2019 |
Appeal against decision [2019 FWC 5503 of Deputy President Boyce in Sydney on 26 August 2019 in matter number C2019/2705.
[1] Ms Simone Gillespie has applied for permission to appeal against a decision of Deputy President Boyce issued on 26 August 2019 1 (Decision) in which the Deputy President declined to grant Ms Gillespie an extension of time for her to file her general protections application against Kin Property Pty Ltd (VIC) pursuant to s 365 of the Fair Work Act 2009 (FW Act).
[1] Section 366(1) requires a general protections dismissal application to be made within 21 days after the dismissal took effect or within such further period as the Commission allows under s 366(2). Ms Gillespie’s application was filed 10 days after the 21-day time period, and it was therefore necessary for her to obtain an extension of time under s 366 (2) in order to make her application.
[2] Section 366(2) sets out the circumstances in which the Commission may grant an extension of time 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.
[3] In the Decision, the Deputy President addressed each of the matters he was required to take into account under s 366(2).
The Decision
[4] In relation to s 366(2)(a), the reason for the delay, the Deputy President considered the reasons for the delay advanced by Ms Gillespie. He summarised the reasons as follows:
“[15] In summary, the Applicant submitted that the reasons for her delay in lodging her Application were that:
a) the date of dismissal was the date of Mr Scott’s email, being 27 March 2019, and so the Applicant was under the belief that she had until the 23 April to file her Application (it is worth nothing that despite the Applicant’s submission, the Applicant still filed her Application after that date);
b) there were several public holidays between the dismissal and the deadline for lodgement;
c) it took the Applicant time to “understand the reason for [her] dismissal”, that the Applicant had “a case for workplace harassment” after having been provided legal advice, and that the Applicant was required to “gather the evidence, the emails and texts” to support her case;
d) the Applicant suffered a period of severe depression and anxiety post her dismissal;
e) from 14 April 2019 the Applicant went on a holiday with her family and the location left her with limited internet access; and
f) the Applicant sent the Application by express post, not electronically, and the mailing delayed her Application being received by the Commission.”
[5] In relation to ss 366(2)(b), 366(2)(c), 366(2)(d) and 366(2)(e), the Deputy President found these were neutral considerations in determining the existence of any exceptional circumstances.
Grounds of appeal
[6] The grounds of appeal advanced by Ms Gillespie are that she was not given the opportunity to provide evidence concerning the merits of the application in relation to a breach of the general protections provisions of the FW Act, that there was a mistaken apprehension that she had made an application for relief from unfair dismissal and that there were significant errors of fact in the decision of the Commissioner.
[7] Ms Gillespie identified two errors of fact in the Decision. Firstly she says she did not claim that she was dismissed for raising complaints of workplace harassment. 2 Secondly she says she did not claim she was dismissed because she suffered from a mental health issue.3
[8] Ms Gillespie says that it is in the public interest to grant permission to appeal as guidance from the Full Bench is necessary as to whether an opportunity should be given to an aggrieved employee to air their complaint and how such matters should be dealt with in the workplace. Further she says that the appeal raises questions as to the opportunity that should be afforded to an applicant to put evidence in relation to grievances before the Commission.
Consideration
[9] An appeal under s 604 of the FW Act is an appeal by way of rehearing and the Fair Work Commission’s (Commission) powers on appeal are only exercisable if there is error on the part of the primary decision maker. 4 There is no right to appeal and an appeal may only be made with the permission of the Commission. Section 604 provides:
(1) A person who is aggrieved by a decision:
(a) made by the FWC (other than a decision of a Full Bench or an Expert Panel); or
(b) made by the General Manager (including a delegate of the General Manager) under the Registered Organisations Act;
may appeal the decision, with the permission of the FWC.
(2) 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.
Note: Subsection (2) does not apply in relation to an application for an unfair dismissal (see section 400). (2) A person may appeal the decision by applying to the FWC.
[10] Subsection 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. 5 The public interest is not satisfied simply by the identification of error6, or a preference for a different result.7 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...” 8
[11] 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. 9 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.10 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.11
[12] The test of “exceptional circumstances” establishes a “high hurdle” for an applicant for an extension. 12 A decision as to whether to extend time under s 366(2) involves the exercise of a discretion.13 Usually such a decision can only be successfully challenged on appeal if it is shown that the discretion was not exercised correctly.14
[13] 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. 15
[14] We discern no arguable case of appealable error in the Decision of the Deputy President. His consideration of the evidence before him as to whether there were exceptional circumstances such that an extension of time was warranted was orthodox. He properly took into account each of the matters under subsection 366(2) of the FW Act, balanced each of these and concluded that there were no exceptional circumstances that warranted an extension of time.
[15] To the extent Ms Gillespie says that the Deputy President made an error of fact in finding that the thrust of her case was that she was dismissed for making a complaint about workplace harassment we find no arguable case of error. The Deputy President, in our view, stated the case put by Ms Gillespie in the context of the apparent reasons for her dismissal. In doing so the Deputy President did no more than reflect the legislative requirement for a claim of a breach of the general protections provisions involving dismissal – that is that the dismissal occurred because of the exercise of a workplace right. We consider that the finding of the Deputy President was no more than a reflection of Ms Gillespie’s claim that her dismissal came about after she made the complaints in relation to harassment.
[16] Ms Gillespie also claimed that the Deputy President made an error of fact in that he said that Ms Gillespie had claimed she was dismissed because of a mental health issue. Ms Gillespie says that this was not the case and she only raised her mental health issues in relation to the reason for the delay in making the application. Whilst it is not apparent that Ms Gillespie put her mental health forward as a reason for the dismissal she did raise in her application at first instance that she suffered from depression. If it is the case that the Deputy President considered her mental health issues incorrectly as a reason for her dismissal we would not consider that the error provides sufficient grounds to enliven the public interest or otherwise justify the grant of permission to appeal. It is not apparent that the Decision would be any different if this matter had not been considered under the merits of Ms Gillespie’s application as the approach adopted by the Deputy President was more favourable to Ms Gillespie’s general protections application. In any event the Deputy President considered these matters neutral in reaching his decision such that the consideration of them did not adversely affect the decision reached.
[17] We are not persuaded that any of the matters raised by Ms Gillespie on appeal enliven the public interest or would justify the grant of permission on discretionary grounds. The consideration of the application of Ms Gillespie turned on its own facts. The Decision dealt with the requirement for Ms Gillespie to be granted an extension of time within which to make her application. Issues as to the merit of her case would have been able to be canvassed had she been granted the extension of time. That she was not given the opportunity to put material in relation to her grievance before the Commission is a function of her failure to make her application within the time specified in the FW Act. In this respect the appeal does not raise any issue of importance or general application and does not raise any public interest considerations.
[18] Accordingly, we are not satisfied that it would be in the public interest to grant permission to appeal, nor do we consider that we should exercise our discretion in favour of the grant of permission. Permission to appeal is refused.
VICE PRESIDENT
Appearances:
S Gillespie on her own behalf
K McNamara on behalf of Kin Property Pty Ltd (VIC)
Hearing details:
2019.
Melbourne:
3 October.
Printed by authority of the Commonwealth Government Printer
<PR713181>
1 [2019] FWC 5503
2 [2019] FWC 5503 at [33]
3 [2019] FWC 5503 at [35]
4 This is so because on appeal the Commission has power to receive further evidence, pursuant to s.607(2); see Coal and Allied v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ
5 O’Sullivan v Farrer (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ: applied in Hogan v Hinch (2011) 85 ALJR 398 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Alllied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [44]-[46]
6 GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343, 197 IR 266 at [24]-[27]
7 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 review; Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663, 241 IR 177 at [28]
8 [2010] FWAFB 5343, 197 IR 266 at [24] - [27]
9 Also see CFMEU v AIRC [1998] FCA 1404, 89 FCR 200 at 220; and Wan v AIRC [2001] FCA 1803, 116 FCR 481 at [26]
10 Wan v AIRC [2001] FCA 1803, 116 FCR 481 at [30]
11 Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth[2010] FWAFB 10089, , 202 IR 388 at [28], 202 IR 388, 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]
12 Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21]
13 Halls v McCardle and Ors [2014] FCCA 316
14 House v The King [1936] HCA 40, 55 CLR 499 at [504]- [505] per Dixon, Evatt and McTiernan JJ
15 Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]
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