Stephenie Exton v Extons Real Estate Pty Ltd

[2024] FWCFB 346

[2024] FWCFB 346

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.604 - Appeal of decisions

Stephenie Exton
v

Extons Real Estate Pty Ltd

(C2024/3819)

DEPUTY PRESIDENT MILLHOUSE
DEPUTY PRESIDENT ROBERTS
COMMISSIONER CRAWFORD MELBOURNE, 19 AUGUST 2024

Appeal against decision [2024] FWC 1178 of Commissioner Tran at Melbourne on 20 May 2024 in matter number U2023/9064 – permission to appeal refused

1. Ms Stephenie Exton has lodged an appeal under s 604 of the Fair Work Act 2009 (Cth) (Act) against a decision[1] of Commissioner Tran issued on 20 May 2024. In the decision, the Commissioner declined to grant an extension of time for the filing of Ms Exton’s application for an unfair dismissal remedy against the respondent, Extons Real Estate Pty Ltd.

1. The matter was listed for permission to appeal only. For the reasons that follow, permission to appeal is refused.

Decision under appeal

1. After setting out the history to the application, the Commissioner determined that Ms Exton’s dismissal took effect on 17 March 2023, being the date that the respondent locked Ms Exton out of its bank accounts. As such, Ms Exton’s application was filed 165 days outside the 21-day statutory timeframe prescribed by s 394(2) of the Act.

1. The Commissioner proceeded to consider whether to allow a further period for Ms Exton’s application to be made, having regard to the factors in s 394(3) of the Act. In relation to s 394(3)(a), the Commissioner considered Ms Exton’s submissions as to the “unusual circumstances” of her employment and the effects upon her mental health but did not accept that these matters provided a satisfactory explanation for the delay. The Commissioner was satisfied for the purposes of ss 394(3)(b) and (c) that Ms Exton was aware of the dismissal event at or around the time that she had been locked out of the respondent’s bank account but had not taken any action to dispute her dismissal. Accordingly, these matters did not weigh in favour of an extension of time. The Commissioner was not satisfied that the consideration in s 394(3)(d) weighed in favour of a further period, noting the “significant” 165-day delay. As to the merits of Ms Exton’s substantive application, the Commissioner found that there were a series of contested issues between the parties such that the factor was neutral in the overall assessment of whether to extend time. The Commissioner also regarded the consideration of fairness in s 394(3)(f) to be a neutral matter.

1. The Commissioner concluded that there were no exceptional circumstances such as to exercise her discretion to extend time and dismissed Ms Exton’s application.

Permission to appeal – principles

1. There is no right to appeal, and an appeal may only be made with the permission of the Commission. Section 400 of the Act applies to this appeal, as it is from a decision made under Part 3-2 of the Act. By 400(1), the Commission must not grant permission to appeal unless it is in the public interest to do so. Section 400(2) provides that an appeal on a question of fact can only be on the ground that the decision involved a significant error of fact. The test under s 400 is “a stringent one.”[2]

1. The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[3] The public interest is not satisfied simply by the identification of error or a preference for a different result.[4] Considerations that may attract the public interest include that the matter raises issues of importance and general application, that the decision manifests an injustice or that the result is counterintuitive.[5]

1. It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. However, that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.

1. An application for permission to appeal is not a preliminary hearing of the appeal. In determining whether to grant permission to appeal, it is unnecessary and inappropriate to conduct a detailed examination of the appeal grounds.[6] However, it is necessary to engage with the grounds to consider whether they raise an arguable case of appealable error.

Grounds of appeal

1. The Notice of Appeal set outs four appeal grounds, which Ms Exton expands upon in her outline of written submissions. By appeal grounds (1) and (2), Ms Exton contends that the finding that she was dismissed on 17 March 2023 was in error because:

(a)the respondent “provided no evidence that there was a dismissal” as no termination letter was issued. Further, Ms Exton says that the Commissioner did not consider the application of ss 386(1)(b) or 386(2)(c)(ii) in the decision. 

(b)Ms Exton contends that she was the officer in effective control of the respondent until 8 August 2023 and was required to be an employee to hold this role, and the Commissioner has not included this in the decision.

1. Appeal ground (3) contends that the Commissioner did not take into consideration that Ms Exton was subjected to family and domestic violence and that her abusers were her employer, and this affected her mental health. Further, Ms Exton says she was discriminated against by being locked out of the respondent’s bank accounts and these matters are exceptional circumstances.

1. By appeal ground (4), Ms Exton contends that she was at a disadvantage in presenting her case at first instance. In her written outline of submissions, Ms Exton further explains that the Commissioner failed to provide procedural fairness by declining her request for an adjournment and denying Ms Exton legal advice.

1. Ms Exton says that granting permission to appeal is in the public interest including because the matter involves domestic violence, financial abuse and a family owned and operated business.

Fresh evidence

1. The respondent contends that Ms Exton seeks to rely upon fresh evidence in the appeal, being documents identified as C3 and C6. Section 607(2) of the Act confers a discretion on the Full Bench to admit further evidence and take into account any other information on appeal. However, it is by no means a matter of course that it will do so.

1. It is well-settled that the principles governing the discretion to admit new evidence or to consider further material are set down in Akins v National Australia Bank (Akins).[7] Three conditions need to be met before fresh evidence can be admitted. It must be established that the evidence could not have been obtained or adduced with reasonable diligence for use at first instance; it must be evidence which is of such a high degree of probative value that there is a probability that there would have been a different result at first instance; and the evidence must be credible.[8] While it is permissible in an appropriate case to depart from the principles set out in Akins,[9] it will be rare for fresh evidence to be admitted on appeal where the conditions in Akins are not met.

1. Document C3 is an email that was sent to the Commissioner’s chambers ex parte on 23 April 2024, after the conclusion of the final day of the first instance hearing. It contains correspondence from NSW Fair Trading regarding the removal of Ms Exton’s role as licensee in charge of the respondent on 8 August 2023. As noted at the hearing before us, chambers responded by advising that the decision was reserved, and the Commissioner would not receive further material in the application. This was an entirely orthodox and appropriate course, and we decline to admit document C3 into evidence in the appeal as a result. Nor are we satisfied that the requirements of Akins are met in any event. The document does not disclose any information beyond that which Ms Exton had already adduced before the Commissioner and set out in her witness statement.

1. Document C6 is an email sent by Ms Exton to the Commissioner’s chambers on 20 March 2024. We understand Ms Exton’s position to be that the documents attached to the email comprise evidence that she would like to have advanced at first instance but did not do so having regard to the family violence interim intervention orders (IVOs) in place between her and a member of the respondent. It is to be noted that the IVOs are no longer in operation. While we are prepared to accept that the IVO may have precluded Ms Exton from adducing this evidence at first instance, we are not persuaded that the material carries such a high degree of probative value that there is a probability that there would have been a different result in Ms Exton’s application for an extension of time. Accordingly, we decline to admit document C6 as we are not satisfied that the requirements of Akins are met.

Consideration

1. For the reasons that follow, we do not consider it is appropriate to grant permission to appeal. The time limit that applies to the exercise of a person’s right to bring an application under s 394 of the Act reflects Parliament’s intention that this right be exercised promptly. The Act recognises that there are some cases where a late application should be accepted, namely where there are exceptional circumstances.

1. The test of exceptional circumstances in relation to extensions of time to lodge applications under s 394(3) of the Act establishes a “high hurdle” for an applicant for an extension.[10] A decision to extend time under s 394(3) involves the exercise of a broad discretion.

1. Appeal grounds (1) and (2) do not demonstrate an arguable error in the exercise of the Commissioner’s discretion.[11] Ms Exton’s arguments regarding the absence of a termination letter, and her removal on 8 August 2023 as officer in effective control on the NSW Fair Trading public register were recorded in the decision and considered by the Commissioner.[12] There appears to be an evidentiary foundation for the Commissioner’s finding that the dismissal took effect on 17 March 2023, noting the undisputed evidence that Ms Exton was not paid by the respondent after this date. Whether the respondent removed Ms Exton from the public register in a timely manner does not, of itself, provide an arguable basis to find that the Commissioner’s finding was in error.

1. Ms Exton says that the Commissioner erred by not considering in the decision s 386(1)(b) concerning forced resignations and s 386(2)(c)(ii) regarding demotions which do not constitute a dismissal. However, there is no arguable basis to find that Ms Exton raised these contentions at first instance. The fact that the Commissioner did not determine an argument that Ms Exton does not appear to have advanced cannot amount to an arguable appealable error. In any event, the Commissioner accepted Ms Exton’s position that she was dismissed at the respondent’s initiative. Ms Exton simply disagrees with the date the Commissioner determined that this occurred.

1. In relation to appeal ground (3), it seems clear that the Commissioner took into consideration the circumstances of Ms Exton’s case, having recorded these matters in the decision. As to Ms Exton’s health related concerns, no medical evidence was advanced at first instance (or in the appeal) to explain how Ms Exton’s mental health prevented her from lodging the application at any earlier time. The conclusion that there were no exceptional circumstances appears to have been made following a thorough assessment of the statutory considerations in s 394(3), having regard to the conclusions reached on the available evidence. We do not consider that an arguable case of appealable error has been identified in the Commissioner’s approach.

1. There is no basis to conclude that Ms Exton was denied procedural fairness at first instance as contended by appeal ground (4). The application was the subject of various adjournments, including at Ms Exton’s request. In support of her contention that she was denied the opportunity to obtain legal advice, Ms Exton submits that she required an adjournment to seek legal advice about:

(a)defending the respondent’s application to permanently stay the proceedings; and

(b)how the IVOs in place between her and a member of the respondent might bear upon the conduct of the hearing and Ms Exton’s ability to file further evidence.

1. In relation to (a), as [30]-[40] of the decision demonstrates, the respondent’s stay application was dismissed by the Commissioner. Accordingly, we are not persuaded that any prejudice accrued to Ms Exton. As to (b), we do not consider that Ms Exton was denied the opportunity to obtain legal advice about the IVOs. The Commissioner’s decision on this issue is recorded in transcript,[13] and notes that Ms Exton had been on notice of the IVO against her for some months prior to the adjournment request. There is no arguable basis to infer that the Commissioner’s decision to decline the adjournment in these circumstances precluded Ms Exton from seeking advice about the impact of the IVO on her application for an extension of time or otherwise impaired Ms Exton’s opportunity for a fair hearing.

1. To the extent that Ms Exton raises other concerns in her written outline of submissions that are not addressed in this decision, including the Commissioner’s alleged failure to consider when the public became aware of Ms Exton’s dismissal from the respondent, we are not persuaded that they demonstrate an arguable case of appealable error in the decision.

Conclusion and disposition

1. For the reasons given, we do not consider that an arguable case has been advanced that the decision was attended by appealable error. Nor are we satisfied, for the purposes of s 400(1) of the Act, that the appeal attracts the public interest. The appeal does not raise any genuine issue of law, principle or wider application. It follows that we must refuse permission to appeal.

1. Permission to appeal is refused.

DEPUTY PRESIDENT

Appearances:

S Exton on her own behalf
J Kaur of Irwell Law for the respondent

Hearing details:

2024.
Sydney (by video link):
August 7.

[1] [2024] FWC 1178

[2] Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54; 192 FCR 78; 207 IR 177 at [34] and [43]

[3] O’Sullivan v Farrer (1989) 168 CLR 210 at 216-217 per Mason CJ, Brennan, Dawson and Gaudron JJ: applied in Hogan v Hinch (2011) 243 CLR 506 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]

[4] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343; 197 IR 266 at [24]-[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]

[5] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343, 197 IR 266 at [24]-[27]

[6] Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]

[7] Akins v National Australia Bank [1994] 34 NSWLR 155

[8] See Perry v Rio Tinto Shipping Pty Ltd[2016] FWCFB 6936

[9] JJ Richards & Sons Pty Ltd v Transport Workers’ Union of Australia (2010) 202 IR 180; [2010] FWAFB 9963 at [95]; Mermaid Marine Vessel Operations Pty Ltd v Maritime Union of Australia (2014) 241 IR 35; [2014] FWCFB 1317 at [18]; C Ozsoy v Monstamac Industries Pty Ltd[2014] FWCFB 2149 at [21] - [25]; Perry v Rio Tinto Shipping Pty Ltd[2016] FWCFB 6963 at [11]

[10] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288 at [21]

[11] See, House v The King [1936] HCA 40, 55 CLR 499

[12] [2024] FWC 1178 at [6]

[13] Appeal Book 19 at PN8

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