Stephen Meredith v Australian Sports Commission
[2016] FWCFB 4603
•20 JULY 2016
| [2016] FWCFB 4603 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
v
Australian Sports Commission
(C2016/1036)
SENIOR DEPUTY PRESIDENT DRAKE | MELBOURNE, 20 JULY 2016 |
Appeal against decision [[2016] FWC 2363] and order [PR579062] of Deputy President Kovacic at Melbourne on 13 April 2016 in matter number U2015/13805.
[1] Mr Stephen Meredith has applied for permission to appeal against a decision 1 and order2 of Deputy President Kovacic issued on 13 April 2016. The effect of the decision was to refuse Mr Meredith an extension of time to lodge an unfair dismissal remedy application under s.394 of the Fair Work Act 2009 (the FW Act) and to dismiss the application that had been received by the Commission on 21 October 2015.
[2] Section 394(2) of the FW Act requires that an unfair dismissal remedy application be lodged within 21 days after the dismissal took effect or within such further period as the Commission allows under s.394(3). Section 394(3) provides:
(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) whether the person first became aware of the dismissal after it had taken effect; and
(c) any action taken by the person to dispute the dismissal; and
(d) prejudice to the employer (including prejudice caused by the delay); and
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.
[3] Mr Meredith filed his unfair dismissal application on 21 October 2015. The application identified the date of dismissal as 16 September 2015. His unfair dismissal application was therefore filed 14 days beyond the 21 day statutory time limit specified in s.394(2) of the FW Act.
[4] The reason for delay advanced by Mr Meredith at first instance, and the Deputy President’s consideration of those reasons pursuant to s.394(3) of the FW Act are set out in the decision as follows:
[14] Mr Meredith submitted that the key reason for the delay in lodging his application was that he was very focussed on the review process he had initiated with the ASC’s CEO. Mr Meredith also submitted that he was not aware of the 21 day timeframe for lodging an unfair dismissal application until after the CEO’s review process concluded on 16 October 2015.
[15] The ASC submitted that the reasons for the delay relied upon by Mr Meredith did not constitute exceptional circumstances. In support of that submission, the ASC relied upon the Full Bench decision in Z Gao v Department of Human Services (Gao), contending that the internal review process initiated by Mr Meredith did not preclude him from lodging his unfair dismissal application prior to that review concluding. The ASC also contended that the decision of Deputy President Asbury in Mr Tony Merlino v Coles Supermarkets Australia Pty Ltd (Merlino) should not be followed in this case as the circumstances in Merlino could be distinguished from those existing in this case for a number of reasons.
[16] The Full Bench in Gao considered an appeal against a decision not to grant an extension of time in circumstances where the applicant in that case had initiated an internal review of matters relevant to his dismissal. Specifically, the Full Bench in Gao determined as follows:
“[10] The first ground is that the Deputy President failed to take into account that the delay was in part due to DHS’s conduct in not responding to Mr Gao’s request for further review of the matters said to be relevant to the dismissal. After DHS had provided an initial response to Mr Gao in relation to his dismissal, Mr Gao made a request that DHS further review some of the circumstances. The request for further review was made on 9 July 2010 and not responded to by DHS. Mr Gao made a further request on 3 December 2010. This ground cannot be sustained. The Deputy President did take these events into account and referred to them in his decision. Mr Gao no doubt believes that the Deputy President should have attached more significance to them, but in our view the Deputy President was entitled to reach the conclusion he did on the totality of the material. Furthermore, Mr Gao’s request that DHS further review the dismissal did not constitute a circumstance excusing the delay in lodging the application. A further review could have been sought even after an application had been lodged.” (Underlining added)
[17] With regard to the ASC’s submissions regarding Merlino, I consider the circumstances in this case to be different from those in Merlino in that while Mr Meredith did not lodge his submission with the ASC’s CEO until after his dismissal, he had first foreshadowed his intention to seek a CEO review of his concerns/issues on 9 September 2015, i.e. a week in advance of his dismissal. By contrast, in Merlino, the applicant had not foreshadowed a review request prior to his dismissal. Indeed in Merlino, the applicant’s review request was only lodged after the termination meeting when he was given the impression immediately after that meeting that an internal review could result in his dismissal being overturned, with that impression not subsequently corrected for some time. Based on the material before the Commission, that is not the case in this matter.
[18] Finally, with regard to Mr Meredith’s submission that he was not aware of the 21 day timeframe for making a general protections application, I note that in Cheyne Leanne Nulty v Blue Star Group (Nulty) a Full Bench of the then Fair Work Australia determined that:
“[14] Mere ignorance of the statutory time limit in s 366(1)(a) is not an exceptional circumstance ...”
[19] By way of background, the reference in Nulty to s.366(1)(a) refers to the provision in the Act which deals with the time for making a general protections application in respect of a dispute involving dismissal. The provision is in similar terms to s.394(2)(a) of the Act.
[20] Taken together, the above considerations do not point to the existence of exceptional circumstances.
[footnotes omitted]
[5] In considering the other matters required to be taken into account under s.394(3) of the FW Act, the Deputy President concluded that:
● Mr Meredith was aware his employment ceased on 16 September 2015;
● Mr Meredith did raise a number of concerns in his submission to the CEO, including his dismissal and the rationale for the changes to his role but ‘this factor only marginally points to the existence of exceptional circumstances.’ 3
● Prejudice to the employer was neutral consideration;
● It was not possible to form a view as to the merits of Mr Meredith’s claim and this matter was therefore neutral consideration; and
● No issue was raised as to fairness and this was therefore a neutral consideration.
● The Deputy President’s overall conclusion was that he was not satisfied that there were exceptional circumstances that would permit the granting of an extension of time.
[6] Mr Meredith’s grounds of appeal identify a significant error of fact in that he says the Australian Sports Commission ‘incorrectly and unlawfully accepted an appeal application to the CEO’ 4 which he says directly impacted on the matter of lodging an application for unfair dismissal within the required timeframe.
[7] In his written and oral submissions on permission to appeal, Mr Meredith says the public interest is enlivened because his appeal raises issues in relation to the special standing of long term casual employees and communication with and the provision of reliable information on employment conditions to long term casual employees.
Consideration
[8] An appeal under s.604 of the FW 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. 5 There is no right to appeal and an appeal may only be made with the permission of the Commission.
[9] This appeal is one to which s.400 of the FW Act applies. Section 400 of the FW 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.
[10] In the Federal Court Full Court decision in Coal & Allied Mining Services Pty Ltd v Lawler and Others, Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s.400 of the FW Act as “a stringent one”. 6 The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.7 In GlaxoSmithKline Australia Pty Ltd v Makin 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. 8
[11] 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. 9 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.10
[12] In relation to extensions of time to lodge applications under s.394(3) of the FW Act, the test of exceptional circumstances establishes a high hurdle for an applicant for an extension, and a decision as to whether to extend time under s.394(3) involves the exercise of a broad discretion. 11 Therefore it will be necessary in an application for permission to appeal against a decision made under s.394(3) of the FW Act to demonstrate that there is an arguable case that there was appealable error in the exercise of the discretion. This will require the identification of error of the type described in House v The King12 - that is, that thedecision-maker has acted on a wrong principle, has mistaken the facts, has taken into account an irrelevant consideration or failed to take into account a relevant consideration, or has made a decision which is unreasonable or manifestly unjust. Additionally, where an error of fact is alleged, s.400(2) of the FW Act requires that it must be a significant error of fact and the overriding public interest requirement of s.400(1) remains.
[13] Mr Meredith has failed to identify any error in the decision of the Deputy President. The errors he identifies are those he says were made by the Australian Sports Commission in the actions it took. For an appeal to succeed there must be identified errors in the decision of the member.
[14] The Deputy President did give appropriate consideration to the fact that Mr Meredith had made an appeal to the CEO. In doing so he considered that it did not contribute to exceptional circumstances, as Mr Meredith foreshadowed he intended to do so a week in advance of his dismissal and because he was not advised that such an appeal may overturn the decision to terminate his employment.
[15] The Deputy President gave appropriate consideration to this matter, along with all other issues before him, in deciding if exceptional circumstances existed for the purpose of s.394(3). There is nothing in the submissions of Mr Meredith that would cause us to consider that the decision is attended by any doubt.
[16] Mr Meredith says the public interest exists because of his longevity as a casual employee. It does not appear to us that his status as a casual employee, even though he is of long standing, is such that it attracts the public interest. The rights and obligations of casual employees are well settled and their coverage by awards and agreements well established by the scope of those awards and agreements.
[17] Whilst we appreciate that Mr Meredith was a casual employee of long standing, in circumstances where no error has been identified, we do not consider it to be in the public interest to grant permission to appeal. Therefore, as required by s.400(1) of the FW Act, permission to appeal is refused.
SENIOR DEPUTY PRESIDENT
1 [2016] FWC 2363.
2 PR579062.
3 Ibid at [25].
4 Form F7Notice of Appeal, ground 2.4.
5 Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission and Others (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.
6 (2011) 192 FCR 78 at [43].
7 O’Sullivan v Farrer and Another (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].
8 [2010] FWAFB 5343 at [27], 197 IR 266.
9 Wan v Australian Industrial Relations Commission (2001) 116 FCR 481 at [30].
10 GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343 at [26]-[27], 197 IR 266; 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 at [28].
11 Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21]
12 (1936) 55 CLR 499 at 505.
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