Stephen Wintle v Metro Trains Melbourne Pty Ltd t/a Metro Trains Melbourne
[2016] FWCFB 273
•1 FEBRUARY 2016
| [2016] FWCFB 273 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
v
Metro Trains Melbourne Pty Ltd t/a Metro Trains Melbourne
(C2015/8273)
VICE PRESIDENT HATCHER |
|
Permission to appeal against decision [2015] FWC 1513 of Commissioner Roe at Melbourne on 5 March 2015 in matter number C2015/1023.
[1] On 5 January 2015, Mr Stephen Wintle applied under s.365 of the Fair Work Act 2009 (FW Act) for the Commission to deal with a general protections dispute involving dismissal. This application was three days late.
[2] On 5 March 2015, Commissioner Roe declined to grant an extension of time to enable Mr Wintle to make his application. 1 The Commissioner balanced each of the factors in s.366(2) of the FW Act, ultimately deciding that the weakness of the application’s merits and the insufficiency of the reasons for delay meant the extension should not be granted.
[3] On 23 December 2015, Mr Wintle appealed the Commissioner’s decision under s.604 of the FW Act. Rule 56(2) of the Fair Work Commission Rules 2013 provides that a notice of appeal under s.604 must be filed within 21 calendar days after the date of the decision or order the subject of the appeal, or within such further time allowed by the Commission. Mr Wintle’s appeal was filed 272 days outside the default timeframe. He would therefore need to be granted a significant extension of time for his appeal to be competent.
[4] Mr Wintle concedes that he was aware of the default timeframe for lodging an appeal. 2 He submits that the delay was due to receiving legal advice that an appeal would have been vexatious and/or have no prospects of success,3 and that it took him some time to understand the Commissioner’s decision and the multiple errors he alleges it contains.4
[5] Mr Wintle further submits that the key reason that permission to appeal should be granted is that the Commissioner committed an appealable error by failing to fully consider the merits of his application. 5 He also submits that the Commissioner erred by failing to properly apply the reverse onus of proof that applies to general protections disputes.
Consideration
[6] The usual principles applying to consideration of an application to extend time to file an appeal were summarised in the Full Bench decision in Jobs Australia v Eland 6 as follows (footnotes omitted):
- whether there is a satisfactory reason for the delay;
- the length of the delay;
- the nature of the grounds of appeal and the likelihood that one or more of those grounds being upheld if time was extended; and
- any prejudice to the respondent if time were extended.”
“[5]Time limits of the kind in Rule 56 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. The authorities indicate that the following matters are relevant to the exercise of the Tribunal’s discretion under Rule 56(2)(c):
[7] Having regard to the relevant matters identified in Jobs Australia v Eland, we do not consider that there is a proper basis on which to grant Mr Wintle an extension of time to file his appeal. The reasons advanced for the delay are not satisfactory, especially given its significant length.
[8] Insofar as the grounds of appeal are concerned, we do not consider it likely that it would be in the public interest to grant permission to appeal. Nor do we believe that the Commissioner’s decision is attended by appealable error or that there are other grounds on which permission to appeal might properly be granted. The Commissioner considered the merits of Mr Wintle’s application in reaching his decision, balancing them with the other factors in s.366(2) of the FW Act, as he was required to do. 7 The fact that that the balancing exercise did not favour Mr Wintle does not constitute error. Separately, while it is correct that an employer bears the onus of proving that the alleged adverse action was taken for a reason other than those prohibited under the general protections provisions of the FW Act, the employee must still firstly establish that there was adverse action of the type alleged (in this case, a dismissal).
[9] Finally, there would be considerable prejudice to the respondent if the extension of time were to be granted, given the length of the delay.
Conclusion
[10] Mr Wintle has not satisfactorily explained the significant delay in filing his appeal. In addition, we do not consider that we would have granted permission to appeal even if the appeal had been made within time.
[11] Accordingly, we refuse to grant an extension of time to file the appeal. The appeal is therefore incompetent and is dismissed.
VICE PRESIDENT
Appearances:
S. Wintle on his own behalf.
C. Shaw with M. Hogan and J. O’Reilly for Metro Trains Melbourne Pty Ltd.
Hearing details:
2016.
Sydney:
19 January.
1 [2015] FWC 1513
2 Transcript at PN7-PN8
3 Transcript at PN6, PN9
4 Transcript at PN9
5 Transcript at PN13
6 [2014] FWCFB 4822
7 [2015] FWC 1513 at [5]-[21]
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