Syed Imam v AESDAN Pty Ltd
[2020] FWCFB 6540
•9 DECEMBER 2020
| [2020] FWCFB 6540 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Syed Imam
v
AESDAN Pty Ltd
(C2020/7811)
| VICE PRESIDENT CATANZARITI | SYDNEY, 9 DECEMBER 2020 |
Appeal against decision [2020] FWC 5398 of Deputy President Cross at Sydney on 9 October 2020 in matter number U2020/10403. Section 394 application, extension of time refused to file application. Permission to appeal not granted.
Background
This decision deals with an appeal, for which permission to appeal is required, made by Mr Syed Imam (the Appellant) under s 604 of the Fair Work Act 2009 (Cth) (the Act) against a Decision[1] of Deputy President Cross issued on 9 October 2020. The Deputy President declined to extend time to the Appellant to file an unfair dismissal application (Application) made under s 394 of the Act.
The Appellant filed his Application on 29 July 2020. Section 394(2) of the Act requires that an application for an unfair dismissal remedy be made within 21 days after the dismissal took effect, or within a further period for the application to be made if the Commission is satisfied that exceptional circumstances exist.
The Deputy President observed that the Application was lodged 23 days out of time, pursuant to the statutory time limit stipulated in s 394(2) of the Act. In his Decision, the Deputy President found that, having regard to s 394(3) of the Act, there were no exceptional circumstances warranting the granting of a further period for the Appellant to make his Application.[2]
This matter was subject to a telephone hearing on 30 November 2020. The Full Bench heard the parties on permission to appeal only. Permission for the Respondent to be legally represented at the telephone hearing was refused, although the Full Bench permitted the Respondent’s representatives to attend the hearing.
Legislative provisions and permission to appeal principles
Section 394(3) of the Act sets out the circumstances in which the Commission may grant an extension of time as follows:
“(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.”
The test of “exceptional circumstances” establishes a “high hurdle” for an application for an extension.[3] A decision as to whether to extend time under s 394(2) involves the exercise of discretion.[4]
The meaning of “exceptional circumstances” in s 366(2) of the Act concerning late lodgment of general protections applications (being provisions which are in relevantly identical terms to the provisions of s 394(3) concerning late lodgment of unfair dismissal applications) was considered by a Full Bench of the then-named Fair Work Australia in Nulty v Blue Star Group Pty Ltd[5] (Nulty) as follows:
“[13] In summary, the expression “exceptional circumstances” has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.
[14] Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance.”
An appeal under s 604 of the Act is an appeal by way of rehearing and the Commission’s powers on appeal are exercisable only if there is error on the part of the primary decision maker.[6] There is no right to appeal and an appeal may be made only with the permission of the Commission.
This appeal is one to which s 400 of the Act applies. Section 400 provides:
“400 Appeal rights
(1) Despite subsection 604(2), FWC must not grant permission to appeal from a decision made by FWC under this Part unless 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.”
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 Act as “a stringent one”.[7] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[8] The public interest is not satisfied simply by the identification of error, or a preference for a different result.[9] In GlaxoSmithKline Australia Pty Ltd v Makin[10] 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.”[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.[12] However, that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.
The Decision
In the Decision, the Deputy President considered each of the matters he was required to take into account under s 394(3) of the Act.
In relation to s 394(3)(a) of the Act concerning the reason for the delay, the Deputy President reviewed the evidence before him and considered that there were two key reasons for the delay in filing the Application. First, the Appellant asserted that he had not been informed of his dismissal until 20 July 2020 and second, the Appellant asserted that he was ignorant of the timeframe for making an unfair dismissal application.
The Deputy President disposed of the first reason for the delay by finding that the Appellant was aware of the dismissal from 15 June 2020. In respect of the second reason, the Deputy President observed that “ignorance of the law, in particular the 21-day limitation period, is not an acceptable reason for delay”[13]. The Deputy President concluded that there was no acceptable explanation for any part of the Appellant’s delay in filing his Application and deemed this factor as weighing in the Respondent’s favour.
In respect of the other matters specified in s 394(3)(b)-(f) of the Act, the Deputy President dealt with them as follows:
· in respect of whether the Appellant first became aware of the dismissal after it had taken effect, the Deputy President did not deem this as a relevant factor in this matter (s 394(3)(b))[14];
· the Appellant did not challenge the alleged dismissal. The Deputy President noted that the Appellant made no submissions regarding this consideration being accorded any weight, and therefore considered this factor to be a neutral consideration (s 394(3)(c))[15];
· the Deputy President noted the Respondent made no submission in respect of whether there was prejudice to the employer as a result of the late filing of his Application, and therefore considered the issue of prejudice to be a neutral factor (s 394(3)(d))[16];
· the Deputy President observed that whilst there were a number of jurisdictional issues in respect of the Application, in the absence of clear evidence he could not apportion any weight to this consideration (s 394(3)(e))[17]; and
· the Deputy President noted that neither party made any material submissions on the issue of fairness between the Appellant and other persons in a similar position and therefore could not apportion any weight to this consideration (s 394(3)(f))[18].
The Deputy President ultimately concluded:
“[31] As is evident from the analysis above, the matter that was the subject of submission, consideration and apportionment of significant weight was the absence of any acceptable reason for delay. That factor weighed significantly in the Respondent’s favour.
[32] I am persuaded therefore that, in the overall balance, there were not exceptional circumstances. The Application for extension of time is dismissed.”[19]
Appeal grounds and submissions
In broad summary, we understand the Appellant’s grounds of appeal as follows:
· the Deputy President made a significant error of fact in finding that the Appellant became aware of his dismissal on 15 June 2020 as the Appellant in fact became aware of his dismissal on 20 July 2020. The Appellant contends that his dismissal was published in newspapers on 27 June 2020, but he was never informed of his dismissal via physical or electronic correspondence as provided for in his employment contract. It was only at a settlement meeting on 20 July 2020 that the Appellant became aware of his dismissal; and
· the Deputy President failed to take into account material evidence. This included evidence that Tanyo Pharma (PVT) Ltd (Tanyo) requested that the Appellant be issued a “business visit visa” in “March 2020”[20].
We have carefully considered the Appellant’s written submissions filed on 23 November 2020 in support of the appeal and the oral submissions made by the Appellant in the hearing. Many aspects of the Appellant’s written and oral submissions were not relevant to the matters we need to consider in deciding whether to grant permission to appeal. However, we broadly distil his submissions as follows:
· the Appellant had an unblemished employment record;
· the Respondent’s submissions in the hearing before the Deputy President were false;
· the Respondent’s violation of the National Employment Standards (NES) and the Corporations Act 2001 (Cth) render it in the public interest for permission to appeal to be granted; and
· the public interest is enlivened in this matter having regard to the failure of the Respondent to pay the Appellant any remuneration for a three-year period.
The Respondent in substance submits that the Appellant has failed to identify any substantial ground for an appeal under s 400 of the Act, the Appellant has failed to identify any error and that therefore the appeal should be dismissed.
Consideration
First, we do not accept the contention that the Deputy President made a significant error of fact in respect of the date that the Appellant became aware of his dismissal. It was reasonably open for the Deputy President to form the view that the Appellant became aware of his dismissal on 15 June 2020, rendering the filing of his Application late. The Deputy President preferred the evidence of the Respondent where the evidence of the witnesses differed. We also note that the Deputy President formed a view as to the credibility of the Appellant, at [10] in the Decision:
“[10] … While the Respondent’s witnesses were responsive and direct in answering questions asked of them, the Applicant tailored his evidence to outline circumstances that would most suit his case, whether true or not. That was particularly so when asked of when he was notified of his dismissal.”
Accordingly, the Deputy President accepted that on 15 June 2020 the Appellant became aware of his dismissal as a result of the Respondent sending correspondence to three addresses associated with the Appellant in relation to the dismissal. In any event, it is clear that by no later than 27 June 2020, which would make the Application 11 days late, the Appellant was aware that he was terminated. The Appellant acknowledged as much in his Application at [1.3]. In the hearing before us, the Appellant sought to distance himself from his answer at [1.3] in his Application and the Deputy President’s finding made as to his credibility as a witness. In respect of the Appellant’s assertion that he became aware of his termination at the meeting on 20 July 2020, we agree with the Deputy President’s view that such a contention is “unbelievable”[21].
Second, we do not accept the contention that the Deputy President failed to take into account material evidence. The Appellant submitted, inter alia, that the Deputy President did not consider a letter from Tanyo concerning the issuing of a business visit visa dated 4 March 2020 which was relevant to the question of whether the Appellant was terminated by Tanyo as an employee on 31 December 2019. On a fair reading of the Decision, the Deputy President considered all of the evidence relevant to the question of whether exceptional circumstances existed that warranted allowing an extension to file the Application existed. That the Deputy President did not make reference in the Decision to the aforementioned letter is immaterial, there is no obligation on the part of a decision-maker to summarise all evidence in making a decision. We do not accept that the Deputy President failed to take into account material evidence.
Finally, the Appellant’s submissions in respect of his unblemished employment record and the Respondent’s false evidence and breach of the NES standards and the Corporations Act 2001 (Cth) address contested issues of fact and the merits of the appeal. The Full Bench is tasked only with resolving the question of permission to appeal. We also do not accept that any of the aforesaid matters enliven the public interest.
Having considered the matters raised by the Appellant with respect to permission to appeal, we are not persuaded that the public interest is enlivened. More specifically, we are not satisfied that:
· there is a diversity of decisions at first instance so that guidance from an appellate body is required of this kind;
· the appeal raises issues of importance and/or general application;
· the decision at first instance manifests an injustice, or the result is counter intuitive; or
· the legal principles applied by the Deputy President were disharmonious when compared with other decisions dealing with similar matters.
Conclusion
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 Deputy President was attended with sufficient doubt to warrant its reconsideration.
Accordingly, permission to appeal is refused.
VICE PRESIDENT
Appearances:
Mr S Imam, the Appellant on his own behalf.
Hearing details:
2020.
Telephone hearing:
30 November.
Final written submissions:
Appellant’s written submissions dated 23 November 2020
Respondent’s written submissions dated 28 November 2020
[1] Syed Imam v AESDAN Pty Ltd [2020] FWC 5398 (the Decision).
[2] Decision [32].
[3] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21].
[4] Halls v McCardle and Ors [2014] FCCA 316.
[5] [2011] FWAFB 975.
[6] Coal and Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.
[7] (2011) 192 FCR 78; (2011) 207 IR 177 at [43].
[8] O’Sullivan v Farrer and another (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; (2011) 207 IR 177 at [44]-[46].
[9] 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 388, 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].
[10] [2010] FWAFB 5343.
[11] Ibid at [27].
[12] Wan v AIRC (2001) 116 FCR 481 at [30].
[13] Decision [22].
[14] Decision [24].
[15] Decision [25].
[16] Decision [26].
[17] Decision [27], [29].
[18] Decision [30].
[19] Decision [31] – [32].
[20] Appellant’s F7 – Notice of Appeal, Appendix 1.
[21] Decision [11].
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