Harjit Singh v Trimatic Management Services Pty Ltd ATF the Trimatic Management Services Unit Trust T/A TSA Group (C2019/7522)
DEPUTY PRESIDENT CLANCY DEPUTY PRESIDENT MILLHOUSE COMMISSIONER BISSETT
MELBOURNE, 4 FEBRUARY 2020
Appeal against decision [2019] FWC 7729 of Deputy President Young at Melbourne on 11 November 2019 in matter number C2019/5288 – extension of time – permission to appeal refused.
Introduction
[1] Mr Harjit Singh has applied for permission to appeal and appeals a decision 1 made by Deputy President Young on 11 November 2019 (the Decision) in which the Deputy President declined to grant his application for an extension of time to lodge a general protections application under s.365 of the Fair Work Act 2009 (Cth) (the FW Act). The matter was listed for hearing in respect of permission to appeal only.
[2] Mr Singh was employed by Trimatic Management Services Pty Ltd ATF the Trimatic Management Services Unit Trust T/A TSA Group (the Respondent) as a casual Inbound Service and Sales Consultant from 19 October 2018 until his dismissal on 17 January 2019. Mr Singh filed his general protections dismissal application on 26 August 2019. The Deputy President found that the application was filed 199 days after the 21 day statutory time period under s.366(1) and that it was therefore necessary for Mr Singh to obtain an extension of time under s.366(2). Mr Singh subsequently made an application to extend time.
[3] The extension of time application was heard on 28 October 2019 and the Decision published on 11 November 2019. The Deputy President refused an extension of time, stating “Having regard to all the factors I am required to take into account under section 366(2), I am not satisfied the requisite exceptional circumstances exist.” 2
The Appeal
[4] An appeal under s.604 is 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. 3 There is no right to appeal and an appeal may only be made with the permission of the Commission.
[5] 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. 4 The public interest is not satisfied simply by the identification of error,5 or a preference for a different result.6
[6] 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. 7 It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Singh v Trimatic Management Services Pty Ltd [2020] FWCFB 553
Case
[2020] FWCFB 553
Decision Date
CaseChat Overview and Summary
The case of Singh v Trimatic Management Services Pty Ltd was brought before the Fair Work Commission Appeals Nominating Panel. The applicant, Mr. Singh, appealed against a decision made by Deputy President Young in the Federal Circuit Court of Australia, which pertained to an application for an extension of time. The primary dispute was whether Mr. Singh's application for an extension of time to lodge an appeal against an earlier decision of the Fair Work Commission was justified.
The legal issues before the Appeals Nominating Panel were whether the application for an extension of time was made within a reasonable period and if there were any exceptional circumstances that warranted granting the extension. The panel needed to consider whether the applicant's reasons for the delay were valid and whether the delay had caused any prejudice to the respondent, Trimatic Management Services Pty Ltd.
In its reasoning, the Appeals Nominating Panel noted that Mr. Singh had applied for an extension of time after the statutory period had lapsed. The panel considered the circumstances surrounding the delay, including Mr. Singh's assertion that he was unaware of the need to appeal within the specified timeframe. However, the panel found that the applicant had not demonstrated any exceptional circumstances that would justify an extension. Furthermore, the panel determined that the delay had caused prejudice to the respondent, as it had hindered the respondent's ability to adequately prepare its defence. Consequently, the Appeals Nominating Panel refused the application for an extension of time and dismissed the appeal.
The Appeals Nominating Panel made no orders as the appeal was dismissed. The decision confirmed that the application for an extension of time was not granted, and the earlier decision of Deputy President Young remained in effect.