State of Victoria (Department of Justice and Regulation) v Gael Souroop
[2018] FWCFB 2855
•12 JUNE 2018
| [2018] FWCFB 2855 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
State of Victoria (Department of Justice and Regulation)
v
Gael Souroop
(C2018/1984)
VICE PRESIDENT CATANZARITI |
|
Appeal against decision [[2018] FWC 1759] and Order [PR601473] of Commissioner Platt at Adelaide on 26 March 2018 in matter number C2018/981.
[1] This is an appeal, for which permission is required, by the State of Victoria (Department of Justice and Regulation) (Appellant) against a Decision 1 and Order2 of Commissioner Platt in which the Commissioner found that exceptional circumstances existed such that he should grant an extension of time pursuant to s.366(2) of the Fair Work Act 2009 (Cth) (FW Act) for Mr Gael Souroop (Respondent) to make his application pursuant to s.365 of the FW Act.
The Decision
[2] The Respondent made an application for relief from unfair dismissal pursuant to s.394 of the FW Act. This application was made within the 21 day time limit imposed by the FW Act. 3 That matter was referred for conciliation however prior to this occurring the staff conciliator at the Fair Work Commission (Commission) spoke to the Respondent on 13 February 2018 and suggested some confusion between the type of application he had made and the remedy he sought in that application. Following his conversation with the conciliator the Respondent decided to discontinue his unfair dismissal application and instead make a general protections involving dismissal application pursuant to s.365 of the FW Act.
[3] The Respondent filed a Form F50 - Notice of Discontinuance of the unfair dismissal application and sent a Form F8 - General protections application involving dismissal, (general protections application) to the staff conciliator on 13 February 2018. On 14 February the staff conciliator advised the Respondent that she could not accept the lodgment of the general protections application and instructed the Respondent to contact the Registry.
[4] On 20 February 2018, the Respondent sent by post to the Commission his general protections application. It was stamped as having been received by the Commission on 23 February 2018. 4 This application was received outside the 21 day time limit specified in the FW Act.5 It was therefore subject to an extension of time hearing.
[5] In that hearing, the Respondent provided to Commissioner Platt and the Appellant a number of documents including:
• an email from the Respondent to the conciliator on 13 February 2018 attaching a Notice of Discontinuance and general protections application; 6
• an email from the conciliator to the Respondent on 14 February 2018 advising him that she could not process the general protections application; 7 and
• an email from the Commission on 23 February 2018 attaching a copy of the Notice of Discontinuance which was dated 13 February 2018, but was date stamped 23 February 2018.
[6] The Appellant submitted that:
• “The first part of the delay (that is, to 14 February 2018) was occasioned by the Respondent lodging an unfair dismissal application when he wanted to file a general protections application and this is not an exceptional circumstance (Da Silveira v A4E Pty Limited).
• The second part of the delay related to the period between 14 and 20 February 2018 (sic) when Mr Souroop was advised that the unfair dismissal conciliator could not accept receipt of his emailed application, this delay has not been explained and thus exceptional circumstances do not exist.” 8 (Endnote omitted).
[7] Commissioner Platt found as follows:
“[22] It is not disputed that on 11 January 2018, Mr Souroop filed an unfair dismissal application (U2018/367). On 13 February 2018, the Commission records indicate that a conciliation was conducted. It appears from the correspondence submitted that at the conclusion of the conference Mr Souroop was actively considering taking a general protections claim instead of an unfair dismissal claim. It appears that Mr Souroop was unaware of the different options prior to the conciliation conference. I accept that Mr Souroop (particularly not having the benefit of any legal advice at that stage) would not have been aware of the differences in a general protections application versus an unfair dismissal application. Based on the facts contained in the application, Mr Souroop’s claim is arguable in either option.
[23] Mr Souroop disputed the nature of his dismissal within time, and upon coming to the realisation that the general protections approach would be more preferable he promptly withdrew the unfair dismissal application and sought to lodge the general protections application on the same day. In my view, Da Silveira v A4E Pty Ltd is distinguishable on this fact alone.
[24] Unfortunately Mr Souroop’s application was emailed to the last Fair Work Commission contact he dealt with instead of the Registry and this caused a further delay when he was advised that the application needed to be sent to the Registry and posted it to the same.
[25] In the circumstances I am satisfied, however, that Mr Souroop has explained the entirety of the delay and that he took prompt action to contest the circumstances of his dismissal.”
[8] The Commissioner further found that the merits of the case and matters of fairness were neutral factors and that no submissions had been made as to prejudice. He concluded:
“[29] For the reasons I have set out above, I am satisfied that Mr Souroop’s circumstances can be regarded as exceptional so as to support an extension of time. The request for an extension of time is granted and the application will accordingly be referred for conciliation. An Order reflecting this decision will be issued.” (Endnote omitted).
Permission to appeal
[9] An appeal under s.604 of the Act 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. 9 There is no right to appeal and an appeal may only be made with the permission of the Commission.
[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. 10 The public interest is not satisfied simply by the identification of error,11 or a preference for a different result.12
[11] 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...’ 13
[12] Other than the special case in s.604(2) of the Act, 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. 14 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.15 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.16
Consideration
[13] The grounds of appeal advanced by the Appellant are that:
1. The Commissioner erred at paragraph [25] of the Decision by finding that the Applicant had explained the entirety of the delay and taken prompt action to contest the circumstances of his dismissal.
2. The Commissioner erred at paragraphs [22] and [23] of the Decision by finding that the Applicant’s confusion between the difference in a general protection application versus an unfair dismissal application amounted to exceptional circumstances.
3. The Commissioner erred at paragraph [28] of the Decision by finding that the consideration of fairness relative to other persons in a similar position “is a neutral factor”.
[14] We have considered the grounds of appeal as articulated by the Appellant, and while we recognise that the Commissioner did not articulate in detail how he reached the conclusion in paragraph [25] of his Decision, we are satisfied that on a fair reading of the transcript of proceedings, the Commissioner took into account that the Respondent had sent his general protections application to the Commission when it was sent to the staff conciliator on 13 February 2018. Any delay by the Respondent after this date was then caused by him mailing the application to the Commission.
[15] In the hearing of the application the Commissioner stated that, when considering the date of sending the general protections application to the staff conciliator along with the Notice of Discontinuance, “It’s an arguable point as to whether or not the Commission has already received the claim by [13 February 2018], but the applicant then mails it and it’s received on 23 February.” 17 Later the Commissioner observed that “it was emailed to the conciliator. Now, arguably, the conciliator is still the Commission, arguable. But if I put that to one side, he’s emailed the conciliator with the claim, so he’s certainly pursued it, and he’s been told that she’s not able to receive the claim so he’s posted that same document in the post, which we received a week later…”18 This last comment was then followed by a discussion on how long the mail took to be delivered.
[16] In Fitzgerald v Woolworths Limited 19 (Woolworths) the Full Bench considered as a preliminary issue if the appeal application in that matter had been made within the 21 days as stipulated in the Fair Work Commission Rules 2013. In their decision the Full Bench observed:
“[2] …Under rule 14(1), documents permitted to be lodged with the Commission may be lodged by email sent to an address approved by the General Manager for that purpose. Mr Fitzgerald’s lodgment of his notice of appeal with the Commissioner’s chambers on 26 April 2017 did not comply with this rule. However we consider the fact that Mr Fitzgerald sent his appeal to the wrong email address within the Commission is a mere irregularity in the manner in which he made his application. It did not cause any prejudice to Woolworths, and Woolworths did not contend otherwise. We waive this irregularity under s.586(b). Therefore Mr Fitzgerald’s appeal was filed within the time prescribed by rule 56(2), and no extension of time is necessary.”
[17] We see no reason to depart from the observations of the Full Bench in Woolworths. That emailing the conciliator was arguably the same as emailing the Commission was a matter raised by the Commissioner in the hearing. The Commissioner then took into account that the Respondent, on the advice of the conciliator, mailed the material to the Commission. The Commissioner considered the entirety of the delay put by the Respondent and took into account the explanation for the total period of the delay. It would be wrong to conclude that because the Respondent did not provide, in the eyes of the Appellant, an acceptable explanation for the entire period of the delay, that there was some error in concluding, after considering all of the information before him, that exceptional circumstances existed such that an extension of time should be granted.
[18] We find no case of arguable error in the reasoning or conclusion of the Commissioner in this regard.
[19] We would observe however that it is not clear why the staff conciliator did not forward the Respondent’s general protection application to the Commission’s registry for processing. Further, it would have been prudent for the Commissioner, in dealing with the application for an extension of time to specifically deal with the “irregularity” in the general protections application being sent to the staff conciliator and not the advertised email address for making applications.
[20] As to the second ground of appeal we do not consider that the Commissioner concluded that not knowing the difference between an unfair dismissal and general protection application amounted to exceptional circumstances. There is nothing in paragraphs [22]-[23] of the Decision that would allow such a conclusion to be reached. The paragraphs in question do no more than recount the circumstances the Respondent found himself in having made an unfair dismissal application and how this contributed to the delay in making the general protections application. We see no arguable case of error in this regard.
[21] The Appellant submitted that the Commissioner was in error in finding that relative fairness was a neutral consideration when, in Da Silveria v A4E Pty Limited 20(Da Silveria), in very similar circumstances, the Commission rejected an application for an extension of time. The Appellant says that relative fairness of the Respondent compared to the applicant in Da Silveria would require a finding that this was not a neutral consideration.
[22] The application of the relative fairness provisions found both in s.366(2)(e) of the FW Act and in s.394(3)(f) (in relation to extensions of time for unfair dismissal applications) has been given little attention.
[23] Section 366(2)(e) requires that the Commission take into account “fairness as between the person and other persons in like positions.”
[24] The contention seems to be whether this question of relative “fairness” should be approached on the basis that “like positions” relates to employees of the same employer and to the same underlying issue or some broader remit as put by the Appellant in this case. Ultimately for the reasons that follow this is not a matter we need to determine.
[25] We are satisfied that the Commissioner properly considered the decision in Da Silveria. He weighed the circumstances of that case and distinguished it on the basis that in the matter before him the Respondent had filed his general protections application immediately after he was informed that he may have filed the incorrect application given the relief he sought. In Da Silveria there was a delay in that matter between the applicant being advised that he had made the incorrect application and then making the correct application. 21 Having correctly distinguished the factual circumstances we find no error in the Commissioner’s conclusion that relative “fairness” was, in this case, a neutral consideration.
[26] We do not consider that the Appellant has identified any arguable case of appealable error in the Decision of the Commissioner. We are satisfied that the Commissioner properly considered all of the material before him and reached a conclusion reasonably open to him.
[27] We do not consider in this case that it is in the public interest to grant permission to appeal. We are not convinced that there is a diversity of decisions in circumstances where a person seeks to alter the type of application they make and the subsequent application is outside the time limits prescribed by the Act. A decision to extend time is a discretionary decision and will more often than not turn on its own facts.
[28] As was recently set out by the Full Bench in Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters 22 the determination of exceptional circumstances requires a consideration of all the matters set out in s.366(2) of the FW Act. As was observed in that matter:
[42] …In deciding whether there are exceptional circumstances, thus enlivening the discretion to extend time, s.366(2) provides that the Commission must take into account certain matters (at s.366(2)(a)-(e)); but it is not for the Commission to impose an arbitrary limitation not expressed in the words of the Act.
[29] That is what occurred in the matter before us. The Commissioner has not elevated any single matter such as to warrant permission to appeal being granted in this case.
Conclusion
[30] We note that while it is open to the Commission to grant permission to appeal where the public interest is not enlivened, for the reasons set out above, we are not satisfied that the Appellant has established that there is an arguable case of error in relation to any aspect of the Decision or that the conclusion reached by the Commissioner was attended with sufficient doubt to warrant its reconsideration.
[31] Accordingly, permission to appeal is refused.
VICE PRESIDENT
Appearances:
Ms W. Mercedes for the Appellant.
Mr K. Reidy for the Respondent.
Hearing details:
2018.
Sydney with video link to Melbourne.
May 2.
Printed by authority of the Commonwealth Government Printer
<PR607275>
1 [2018] FWC 1759.
2 PR601473.
3 Fair Work Act 2009 (Cth) s.396(2)(a).
4 [2018] FWC 1759 at [13].
5 Fair Work Act 2009 (Cth) s.366(1)(a).
6 AB page 76.
7 Ibid.
8 [2018] FWC 1759 at [17].
9 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.
10 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 & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [44]-[46].
11 GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343, 197 IR 266 at [24]-[27].
12 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 at [28], affirmed on judicial review; Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 178; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663, 241 IR 177 at [28].
13 [2010] FWAFB 5343, 197 IR 266 at [24] – [27].
14 Also see CFMEU v AIRC (1998) 89 FCR 200 at 220; and Wan v AIRC (2001) 116 FCR 481 at [26].
15 Wan v AIRC (2001) 116 FCR 481 at [30].
16 Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth[2010] FWAFB 10089 at [28], 202 IR 288, affirmed on judicial review in 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].
17 Transcript PN96.
18 Transcript PN116.
19 [2017] FWCFB 2797.
20 [2015] FWC 4426.
21 Ibid at [10].
22 [2018] FWCFB 901.