Therexa Pty Ltd ATF the Heath Family Trust T/A Activate Physiotherapy & Clinical Pilates v Laura Yammouni
[2019] FWCFB 2085
•29 MARCH 2019
| [2019] FWCFB 2085 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Therexa Pty Ltd ATF The Heath Family Trust T/A Activate Physiotherapy & Clinical Pilates
v
Laura Yammouni
(C2019/93)
DEPUTY PRESIDENT CLANCY | MELBOURNE, 29 MARCH 2019 |
Appeal against decision [[2018] FWC 7516] of Deputy President Beaumont at Perth on 18 December 2018 in matter number C2018/5183.
Introduction
[1] Mrs Laura Yammouni filed a general protections application under s.365 of the Fair Work Act 2009 (Cth) (the Act) in the Fair Work Commission (the Commission) on 17 September 2018. Such an application must be made within 21 days after the dismissal took effect, or within such further period as the Commission allows. 1 Mrs Yammouni identified the date of her dismissal as 31 July 2018. Although the date on which Mrs Yammouni’s dismissal took effect was a matter of dispute, it is common ground that the Application was lodged out of time and, as her general protections application was filed after the 21-day time period had expired, it was necessary for her to obtain an extension of time under s.366(2) of the Act.
[2] On 18 December 2018, Deputy President Beaumont issued a decision 2 (the Decision) in which the Deputy President granted Mrs Yammouni an extension of time to file her general protections dismissal application (the Application).
[3] Mrs Yammouni’s former employer, Therexa Pty Ltd the trustee for the Heath Family Trust T/A Activate Physiotherapy & Clinical Pilates (Activate), has applied for permission to appeal, and has appealed, the Decision. The matter was listed for hearing in respect of both permission to appeal and the merits of the appeal.
[4] Before turning to the background events, the Decision and the grounds of appeal, it is worth outlining what was said regarding s.366(2) of the Act by the Full Bench in Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters 3(Stogiannidis):
“[13] Section 366(2) sets out the circumstances in which the Commission may grant an extension of time as follows:
‘(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) any action taken by the person to dispute the dismissal; and
(c) prejudice to the employer (including prejudice caused by the delay); and
(d) the merits of the application; and
(e) fairness as between the person and other persons in a like position.’
[14] The test of ‘exceptional circumstances’ establishes a ‘high hurdle’ for an applicant for an extension. A decision whether to extend time under s.366(2) involves the exercise of a discretion.
[15] The meaning of ‘exceptional circumstances’ in s.366(1) was considered by a Full Bench of the then Fair Work Australia in Nulty v Blue Star Group Pty Ltd (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.’ (emphasis added)
[16] The Full Bench in Nulty relied on the following observations of Rares J in Ho v Professional Services Review Committee No 295:
‘26. 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. Thus, the sun and moon appear in the sky everyday and there is nothing exceptional about seeing them both simultaneously during day time. But an eclipse, whether lunar or solar, is exceptional, even though it can be predicted, because it is outside the usual course of events.
27. 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’ in s 106KA(2) 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. And, the section is directed to the circumstances of the actual practitioner, not a hypothetical being, when he or she initiates or renders the services.’ (emphasis added)
[17] Generally, the assessment of whether exceptional circumstances exist will require consideration of all the relevant circumstances, because even though no one factor may be exceptional, in combination the circumstances may be such as reasonably to be regarded as exceptional.
[18] In deciding whether there are exceptional circumstances such as to enliven the discretion to extend time the Commission must take into account the matters specified in s.366(2)(a)-(e).
[19] To take a matter into account means that the matter is a ‘relevant consideration’ in the Peko-Wallsend sense of matters which the decision maker is bound to take into account. The obligation to take into account the matters set out at s.366(2)(a)-(e) means that each of these matters, insofar as they are relevant, must be treated as a matter of significance in the decision making process. As Wilcox J said in Nestle Australia Ltd v Federal Commissioner of Taxation:
‘To take a matter into account means to evaluate it and give it due weight, having regard to all other relevant factors. A matter is not taken into account by being noticed and erroneously discarded as irrelevant’.” (references omitted)
Background
[5] A chronology of relevant events is set out below:
• 5 September 2017: Mrs Yammouni commenced employment with Activate as a Physiotherapist.
• 14 June 2018: Mrs Yammouni was given four weeks’ notice of the termination of her employment during a discussion with Mr Ben Heath, Director of Activate.
• 15 June 2018: Mr Heath emailed Mrs Yammouni and confirmed the four weeks’ notice period. He outlined that Mrs Yammouni would then transition to a contractor arrangement and be paid 50% of her billings from scheduling and treating her Women's Health patients and could rent space to conduct FitRight Ax and ante/post natal classes.
• 17 June 2018: Mrs Yammouni sent an email to Mr Heath and requested her termination from salaried employee to contractor be completed on 26 July 2018.
• 21 June 2018: In his reply, Mr Heath confirmed the previously advised four weeks’ notice period.
• 25 June 2018: Mr Heath’s position was acknowledged by Mrs Yammouni.
• 12 July 2018: Mrs Yammouni’s employment with Activate terminated.
• 26 July 2018: Mrs Yammouni performed work at Activate for the last time. Subsequently, she attempted to check her roster and patient load for the next week and, on 30 July 2018, sent an email to Mr Heath requesting an explanation as to why she was unable to access the Activate system.
• 31 July 2018: Mr Heath emailed Mrs Yammouni in reply advising “Your employment was terminated on grounds of your performance. I have finalised your pay up to your termination date as per our contractual agreement…” Mr Heath further advised that since their professional relationship had become “increasingly adversarial” he had decided to retract his offer for Mrs Yammouni to utilise his rooms to schedule her women's health patients and rent space for her FitRight classes.
• 7 August 2018: Mrs Yammouni filed an application for an unfair dismissal remedy (unfair dismissal application).
• 15 August 2018: Activate filed its Form F3- Employer Response to Unfair Dismissal Application (Form F3) and in it, outlined its jurisdictional objection to the unfair dismissal application on the basis that it was a small business and Mrs Yammouni’s employment with it had not met the minimum employment period required by s.383 of the Act.
• 4 September 2018: the Commission issued a Notice of Listing that listed the matter for an Extension of Time and Jurisdiction (Minimum Employment Period) Conference/Hearing on 5 October 2018 and contained Directions requiring the parties to address the jurisdictional objection. Activate was directed to file and serve its submissions, witness statements and other documentary material by no later than noon on 14 September 2018.
• 11 September 2018; An email was sent to Activate on behalf of Mrs Yammouni, stating “Based on the notice of listing received 4/9/18 we request the following information be provided: Please provide formal correspondence or a document stating the total number of employees engaged by Therexa Pty Ltd as at 31/7/18.”
• 14 September 2018: Activate filed an outline of submissions addressing its jurisdictional objection, claiming it had a total of 11 employees at the time Mrs Yammouni’s employment ceased.
• 16 September 2018: Mrs Yammouni discontinued the unfair dismissal application.
• 17 September 2018: Mrs Yammouni filed the Application.
The Decision
[6] The date of dismissal was a matter of dispute in the proceedings at first instance, with Activate maintaining it was 12 July 2018 and Mrs Yammouni arguing it was 26 July 2018 or 31 July 2018. In the Decision, the Deputy President dealt with the date of termination as follows:
“[39] Having considered the evidence before me, I am satisfied that Mrs Yammouni was dismissed on or around 12-13 July 2018 and thereafter the relationship between the parties was one of a contract for service. While Mrs Yammouni disputes this and considers that she remained an employee until her last day of work on 26 July 2018 or 31 July 2018, the evidence showed Mrs Yammouni confirmed that she would pay her superannuation and tax. Further, Mrs Yammouni was free to set her own schedule with regard to patient numbers, classes and other sessions, and the arrangement was that Activate would take 50% of billings. Further, Mrs Yammouni requested the sub-contractor contract to sign, and it is evident from the email of Mr Heath dated 31 July 2018 that the dismissal is referred to in the past tense.
[40] If I am wrong and the relationship continued to be a contract of service then the date of dismissal would have been 31 July 2018, which still renders the Application has having been made out of time.
…
[46] …On the evidence before me it was apparent that the employment relationship ended on 12 July 2018.
…
[49] …While Mrs Yammouni asserted that she continued to be employed past 12-13 July 2018, based on the evidence before me I do not consider that to be the case for reasons explained.”
[7] In any event, while Mrs Yammouni’s representative made reference to her having been terminated on 31 July 2018 in the hearing before us, 4 there is no challenge to the Deputy President’s finding that the dismissal took effect on 12 July 2018. As such, having been filed on 17 September 2018, the Application was 46 days late.
[8] In the Decision, the Deputy President considered each of the matters specified in s.366(2)(a)-(e) of the Act.
[9] At paragraphs [37]-[52] of the Decision, the Deputy President dealt with the reasons advanced by Mrs Yammouni for the delay in lodging the Application (s.366(2)(a)). Mrs Yammouni had contended that the reasons for the delay were:
a) she did not make the unfair dismissal application until she had finished working for Activate because the alternative was not having work at that stage of her pregnancy and given she was approximately eight months’ pregnant, it would prove difficult to secure ongoing employment; and
b) she had initially made the unfair dismissal application on the basis of her understanding that Activate was not a small business employer but discontinued it once she was informed that it was, and very soon thereafter made the Application.
[10] The Deputy President’s ultimate conclusion as to the reason for the delay is set out at paragraphs [51]-[52] of the Decision:
“[51] … I was nonetheless persuaded by Mrs Yammouni’s assertion that she did not make the UD Application until she had finished working for Activate because the alternative was that if she did not accept the contractor arrangement she would be out of work due to the stage of her pregnancy. Whilst unpalatable that a woman in the latter stage of pregnancy may have reduced job prospects, I consider that Mrs Yammouni’s reason for making the UD Application late is reasonable. Further, Mrs Yammouni made enquiries in an attempt to discern whether Activate was a small business employer. Once satisfied that it was not, she made the UD Application only to later find out from information provided by Activate that it was. On becoming aware of the jurisdictional hurdle with the UD Application, Mrs Yammouni addressed this most promptly by filing the Application.
[52] On balance, and by a slim margin, in the circumstances of this particular case, I find the reason for the delay an acceptable one. This weighs toward a finding of there being exceptional circumstances.”
[11] At paragraphs [53]-[55] of the Decision, the Deputy President dealt with any action taken by Mrs Yammouni to dispute the dismissal (s.366(2)(b)). Mrs Yammouni said she accepted the contractor position because to do otherwise would have resulted in her being without work while being heavily pregnant and her advanced pregnancy would deter prospective employers from employing her. The Deputy President considered this to be a plausible reason and considered the failure of Mrs Yammouni to dispute her dismissal from employment and transition to a contractor as a neutral factor. 5
[12] As to whether there was any prejudice to Activate if the Application proceeds, including prejudice caused by the delay (s.366(2)(c)), the Deputy President found there was no particular prejudice and that this was a neutral factor. 6
[13] The question of the merits of the Application (s.366(2)(d)) is dealt with at paragraphs [57]-[63] of the Decision and the Deputy President concluded:
“It is appreciated that the merits of the Application more generally would need to be scrutinised, including under cross-examination, if an extension of time were granted and the matter proceeded. However, based on the material filed and the evidence presented at hearing, I find that the Application has merit. Therefore, in the circumstances of this matter, I consider this to be a factor that weighs toward a finding of exceptional circumstances.” 7
[14] Finally, in dealing with the question of fairness as between Mrs Yammouni and other persons in a like position (s.366(2)(e)), the Deputy President found there was no information regarding fairness between Mrs Yammouni and other persons in a similar position and considered this to be a neutral factor.
[15] The Deputy President’s conclusion is set out at paragraphs [65]-[67] of the Decision:
“[65] The ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the relevant matters and the assignment of appropriate weight to each. Further, where exceptional circumstances are found it must be determined whether it is fair and equitable that time should be extended.
[66] Having regard to all of the matters that I am to take into account under s 366(2), I am satisfied that the requisite exceptional circumstances exist. Whilst I acknowledge that Mrs Yammouni did not make her Application within the prescribed period, I have found that there was an acceptable reason for the delay; which in combination with the merits of the Application, weigh toward a finding of exceptional circumstances. The other factors are neutral.
[67] In my view, the circumstances of this case are exceptional when considered together. Therefore, I have concluded it would be fair and equitable to extend the period in which the Application is made.”
The Appeal
[16] As outlined above, Activate has applied for permission to appeal, and has appealed, the Decision.
[17] An appeal under s.604 of the 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. 8 There is no right to appeal and an appeal may only be made with the permission of the Commission.
[18] 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. 9 The public interest is not satisfied simply by the identification of error,10 or a preference for a different result.11
[19] 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...” 12
[20] Other than the special case in s.604(2), 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. 13 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.14 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.15
Grounds of appeal
[21] Multiple grounds of appeal are raised and were advanced in writing. Those outlined in the Form F7 – Notice of Appeal (Form F7) differed to matters raised in the written submissions dated 27 January 2019 and both were supplemented by further submissions at the hearing of the appeal. They can be summarised as follows:
1. In finding there was an acceptable reason for the delay, the Deputy President failed to take into account material considerations, namely the periods between 31 July 2018 and 7 August 2018 and 15 August 2018 and 17 September 2018;
2. The Deputy President erred in determining that the failure of Mrs Yammouni to dispute her dismissal from employment and transition to a contractor was a neutral factor;
3. The Deputy President erred in determining that the Application had merit and that this was a factor that weighed in favour of a finding of exceptional circumstances; and
4. The Deputy President did not afford Activate procedural fairness in her conduct of the hearing.
[22] In summarising the appeal grounds in this manner, we indicate that we have considered each ground as presented by Activate in its notice of appeal, in its written submissions and at the hearing. As there was a degree of repetition, we deal with them in this summary form for ease of reference only.
Consideration
1. Failure to take into account the periods between 31 July 2018 and 7 August 2018 and 15 August 2018 and 17 September 2018
[23] The Deputy President concluded that Mrs Yammouni’s dismissal took effect on 12 July 2018. This meant Mrs Yammouni had until 2 August 2018 to make an application challenging it. As it was, she did not file the unfair dismissal application she made until five days later, on 7 August 2018.
[24] The Deputy President acknowledged the unfair dismissal application was not made within the prescribed period under the Act 16 and did not consider Mrs Yammouni’s pregnancy or family responsibilities constituted an acceptable reason for the delay in making the unfair dismissal application.17
[25] Activate submitted that the Deputy President erred by failing to take into account the material consideration that Mrs Yammouni had failed to provide any reason for her delay between 31 July 2018 and 8 August 2018, although the latter of these dates should be 7 August 2018 because this was the date upon which the unfair dismissal application was made. More specifically, Activate submitted the Deputy President made no mention of the lack of reason given for the period of 3-8 August 2018.
[26] It has previously been concluded, in Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank (Shaw), 18 that the period from the date the dismissal took effect to the end of the 21 day period does not form part of the ‘delay’ to be considered, but the circumstances from the time of the dismissal must be considered in order to determine whether there is a reason for the delay beyond the 21 day period and ultimately, whether that reason constitutes exceptional circumstances. Although dealing with an application made pursuant to s.394 of the Act, the Full Bench in Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic expanded on the proposition outlined in Shaw as follows:
“…while the delay to be considered is the period subsequent to the expiration of 21 days, the circumstances from the time of the dismissal must be considered in determining whether the reason for the delay constitutes exceptional circumstances. For example if an applicant is in hospital for the first 20 days of the 21 day period this would be a relevant consideration if the application was filed 2 days out of time as occurred in this matter.” 19
[27] Although not specifically addressing the balance of the 21 day period beyond 31 July 2018, nor identifying the five day period of delay from 3-7 August 2018 by reference to any dates, the Deputy President appeared to accept that Mrs Yammouni had, at some point, attempted to discern whether Activate was a small business employer and the making of such enquiries had enabled her to make the unfair dismissal application “notwithstanding it may have been misconceived.” 20 Further, the Deputy President made these findings regarding Mrs Yammouni:
a) She made the unfair dismissal application on the basis she considered Activate was not a small business employer; 21
b) She had researched the implications regarding a small business employer; 22 and
c) She made enquiries in an attempt to discern whether Activate was a small business employer and once satisfied that it was not, made the unfair dismissal application. 23
[28] While Activate submits that there was no material evidence submitted to substantiate these findings, we consider these findings were open to the Deputy President based on the evidence 24 and submissions25 of Mrs Yammouni before her.
[29] The only other explanation Mrs Yammouni gave that provides some insight into the reason why the unfair dismissal application was not lodged until 7 August 2018 is that after 31 July 2018, she was trying to contact Mr Heath to discuss her final pay and, having had no success, decided to pursue the unfair dismissal application. 26
[30] The Deputy President correctly acknowledged the unfair dismissal application was not made within the prescribed 21 day period but was nonetheless persuaded that Mrs Yammouni did not file the unfair dismissal application until she had finished working for Activate because the alternative was that she would be out of work if she did not accept the contractor arrangement, due to the late stage of her pregnancy. The Deputy President appears to have considered this explanation for the late filing of the unfair dismissal application a reasonable one, notwithstanding Mrs Yammouni was still within the prescribed 21 day period when she received the email dated 31 July 2018 which ended her work for Activate.
[31] That is to say, it appears the Deputy President was prepared to accept that Mrs Yammouni’s reluctance to commence an unfair dismissal application while working at Activate was a consideration to which she could have regard when considering Mrs Yammouni’s delay beyond the 21 day period.
[32] As to this, we note the correspondence passing between the parties suggests, at least initially, that Mrs Yammouni expected to continue to perform work from the Activate premises and consider that in these circumstances, it was reasonable to conclude that Mrs Yammouni would not have turned her mind to the matters she would be required to consider in making the unfair dismissal application until relations with Activate broke down on 31 July 2018. However, from that point in time, she still had until the end of 2 August 2018 to file an application within the required time.
[33] Had the initial period of delay from 3-7 August 2018 represented the extent of the delay in this matter, the submission of Activate that the Deputy President’s failure to take this five day period into account rendered her conclusion on the reason for the delay unreasonable or plainly unjust would be more persuasive. However, 3-7 August 2018 represents only five days within a 46 day delay period.
[34] The Deputy President concluded that the delay covering the period from 7 August 2018 until 17 September 2018, when Mrs Yammouni filed the Application, was reasonable on the basis that Mrs Yammouni had attempted to discern whether Activate was a small business employer but upon learning from Activate it was not, reacted “most promptly” by filing the Application.
[35] Activate submitted that the Deputy President erred by failing to take into account the material consideration that Mrs Yammouni had failed to provide any reason for her delay between 15 August 2018 and 17 September 2018. In doing so, Activate submitted that Mrs Yammouni would have become aware that it was a small business employer on 15 August 2018 because on that date she received the Form F3, which outlined Activate’s jurisdictional objection that her employment of approximately nine months did not meet the minimum employment period, on the basis that it was a small business employer.
[36] The difficulty with this submission is that there was no evidence indicating that Mrs Yammouni received the Form F3 on 15 August 2018. The Commission’s file contains no record of the Commission having forwarded the Form F3 to Mrs Yammouni. Further, while the Fair Work Commission Rules 2013 required Activate to serve a copy of the Form F3 on Mrs Yammouni, it was conceded on behalf of Activate that it did not. 27
[37] An alternative submission made by Activate was that Mrs Yammouni would have been put on notice from 4 September 2018 by virtue of the Notice of Listing and Directions, which referred to the Minimum Employment Period jurisdictional objection made by Activate. Mrs Yammouni’s evidence before the Deputy President was that she first became aware she was mistaken in her belief that Activate was a small business employer when she received Activate’s material filed at 4.00pm on Friday 14 November 2018 in relation to its jurisdictional objection, which prompted her to withdraw the unfair dismissal application. 28 Before us, Mrs Yammouni stated she was made aware on or around 11 September 2018 that a question had been raised by Activate as to whether she had served the minimum employment period, which is when she sent the email to Activate of that date, requesting “formal correspondence or a document stating the total number of employees engaged by Therexa Pty Ltd as at 31/7/18”.29 This indicates that by 11 September 2018, there was an issue in her mind as to Activate’s status as a small business employer.
[38] Having regard to this material, we consider the Deputy President’s conclusion that having become aware of the jurisdictional hurdle with the unfair dismissal application from the confirming information provided by Activate on 14 September 2018, Mrs Yammouni responded “most promptly” by filing the Application, was reasonable.
[39] Before us, Activate submitted it can be inferred from Mrs Yammouni’s failure to file her submissions, witness statements and other documentary material in support of her application for an extension of time by noon on 14 September 2018 that she knew in advance of that date Activate was a small business employer. This proposition was not the subject of a submission made to the Deputy President and nor does it appear to have been put to Mrs Yammouni during that proceeding. Nonetheless, this submission does not alter our conclusion at paragraph [38] above.
[40] It is worthwhile outlining the following conclusions of the Full Bench in Stogiannidis:
“[38] As we have mentioned, the assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional.
[39] So much is clear from the structure of s.366(2), each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary to consider the matters collectively and to ask whether collectively the matters disclose exceptional circumstances. The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly a credible explanation for the entirety of the delay, will usually weigh in the applicant’s favour, though, as we mention later, it is a question of degree and insight. However the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the relevant matters and the assignment of appropriate weight to each.
[40] To the extent that the proposition at [29] of the Decision is to be understood as suggesting that an applicant seeking an extension of time ‘needs to provide a credible explanation for the entire period’, it is, with respect, erroneous. It is not a pre-condition to the grant of an extension of time that the applicant provide a credible explanation for the entire period of the delay. Indeed, depending on the circumstances, an extension of time may be granted where the application has not provided any explanation for any part of the delay.
…
[44] As mentioned earlier, the ‘reasons for the delay’ is a factor to be taken into account in deciding whether there are exceptional circumstances. There is no statutory basis for the adoption of a decision rule whereby if the applicant does not provide a credible explanation for the entire period of the delay then the matter in s.366(2)(a) tells against the finding of exceptional circumstances. Common sense would suggest otherwise, it is plainly a question of degree and weight.
[45] What if the period of the delay was 30 days and the applicant had a credible explanation for 29 of those days? It seems to us that such circumstances may weigh in favour of a finding of exceptional circumstances. Of course, as mentioned earlier if there was a credible explanation for the entirety of the delay that would weigh more heavily in favour of such a finding. Conversely, if the applicant failed to provide a credible explanation for any part of the delay that would tend to weigh against a finding of exceptional circumstances.”
[41] Consistent with Stogiannidis, determining whether there was an acceptable reason for the delay in this matter involves a question of degree and weight. We consider that on a fair reading of the Decision as a whole, the Deputy President adopted such an approach when she reached her conclusion regarding the delay from 3 August 2018 to 17 September 2018, even if she did not specifically delineate the period of 3-7 August 2018, having regard to her conclusion:
“On balance, and by a slim margin, in the circumstances of this particular case, I find the reason for the delay an acceptable one. This weighs toward a finding of there being exceptional circumstances.” 30
[42] We have noted the submission of Activate that the Deputy President incorrectly applied the principles outlined in Andrew Green v Bilco Group Pty Ltd 31(Green v Bilco). We do not consider this to be the case. Prior to the reference she makes to Green v Bilco, the Deputy President correctly stated, “[u]ltimately, the responsibility to seek out information on any remedy rests with the applicant. If the applicant gets it wrong through her or his ignorance and pursues a remedy that may not be open to her or him this will not necessarily constitute a credible explanation for part or the entirety of the delay; much turns on the particular circumstances of the matter.”32 Having made this statement and referred to Green v Bilco, the Deputy President proceeded to consider the particular circumstances of the matter before her, which she was required to do.
[43] We have also noted Activate’s reliance on Ryan Prentice v Twentieth Super Pace Nominees Pty Ltd T/A SCT Logistics, 33another decision of the Deputy President, and two cases cited therein.34 We acknowledge all these cases dealt with factual scenarios in which the delay period could be divided into a number of segments but they turn on their own facts and again, we discern no error in the approach of the Deputy President in considering the particular circumstances of the matter before her.
2. The Deputy President erred in determining that the failure of Mrs Yammouni to dispute her dismissal from employment and transition to a contractor was a neutral factor
[44] Activate has taken issue with the Deputy President’s finding that Mrs Yammouni’s failure to dispute her dismissal, when she was informed her employment would come to an end but she could transition to contractor status, was plausible and a neutral factor. It submits this failure to dispute ought to have weighed against Mrs Yammouni, consistent with other findings of the Commission 35 when dealing with a failure to dispute the dismissal.
[45] While it will perhaps not often be the case that a failure to take action to dispute a dismissal will be treated as a neutral consideration in applications for an extension of time, we consider the Deputy President’s decision to treat the failure of Mrs Yammouni to dispute her dismissal as neutral to be one that was open to her having regard to the circumstances of this matter and further, that the Deputy President gave adequate reasons for so doing. Mrs Yammouni was concerned about losing the income she sourced from Activate and not being able to replace that portion of her total income with another source at a time when she was heavily pregnant and we are not persuaded it is relevant, as Activate now seeks to argue with the aid of evidence not previously before the Commission, that Mrs Yammouni may have had other forms of employment and/or sources of income.
3. The Deputy President erred in determining that the Application had merit and that this was a factor that weighed in favour of a finding of exceptional circumstances
[46] The Full Bench in Long v Keolis Downer T/A Yarra Trams 36addressed the approachthat should be taken when taking into account the merits of an application in the context of applications for an extension of time for applications made pursuant to s.394 of the Act, as follows:
“[71] The discretion to extend time in s.394(3) is not enlivened on the basis of a finding that it would be ‘unfair not to do so’; rather the Commission must be satisfied that ‘there are exceptional circumstances’. For the consideration in s.394(3)(e) to weigh in favour of such a finding it must be shown that there is some merit in the substantive application. The weight to be given to this consideration is dependent on the extent to which there is merit in the substantive application.
[72] In considering the merits of the substantive application for the purpose of s.394(3)(e) the Commission is not in a position to make findings of fact on contested issues, unless evidence is called in respect of these issues. And, as the Full Bench observed in Kyvelos v Champion Socks Pty Ltd, evidence is rarely called on the merits and there are sound reasons why the Commission should not embark on a detailed consideration of the substantive case in an extension of time application:
‘In particular, it is undesirable that parties be exposed to the requirement to present their evidentiary cases twice.’
[73] Though this observation was made in relation to s.170CE(7) of the Workplace Relations Act 1996 (Cth) it is apposite to the consideration of the merits in s.394(3)(c).” (references omitted)
[47] We consider this approach is equally applicable to applications for an extension of time for applications made pursuant to s.365 of the Act. That is to say:
• For the consideration in s.366(2)(d) to weigh in favour of a finding that there are exceptional circumstances, it must be shown that there is some merit in the substantive application;
• The weight to be given to this consideration is dependent on the extent to which there is merit in the substantive application;
• The Commission is not in a position to make findings of fact on contested issues, unless evidence is called in respect of these issues; and
• There are sound reasons why the Commission should not embark on a detailed consideration of the substantive case in an extension of time application - in particular, it is undesirable that parties be exposed to the requirement to present their evidentiary cases twice.
[48] The Deputy President’s ultimate finding when taking into account the merits of the Application was:
“It is appreciated that the merits of the Application more generally would need to be scrutinised, including under cross-examination, if an extension of time were granted and the matter proceeded. However, based on the material filed and the evidence presented at hearing, I find that the Application has merit. Therefore, in the circumstances of this matter, I consider this to be a factor that weighs toward a finding of exceptional circumstances.” 37
[49] It is apparent from this that the Deputy President understood what was required of her when considering the merits of the Application as a factor for the purposes of determining whether to extend time and was satisfied based on the material filed and the evidence presented at the hearing before her that the Application had merit and this was therefore a factor weighing toward a finding of exceptional circumstances.
[50] In addressing the merits, Activate firstly submitted that the Deputy President incorrectly characterised where the onus lay in an application for an extension of time in stating Activate bore the onus to show:
• it did not terminate the employment of Mrs Yammouni to remove her rights to parental leave;
• it did not change the work relationship with Mrs Yammouni because of her parental responsibilities or workplace rights; and
• Mrs Yammouni was not forced into a sham contract.
[51] Further, Activate submitted this was an indicator of bias because these submissions had not been made by Mrs Yammouni.
[52] We do not agree with these submissions. The Deputy President was simply outlining the onus imposed on Activate having regard to the merits of a general protections application, not where the onus lay in Mrs Yammouni’s application for an extension of time.
[53] Secondly, Activate submitted the Deputy President made assumptions based on the entire case, based only on evidence presented for an extension of time hearing. Having regard to the ultimate finding of the Deputy President outlined in paragraph [48] above, we do not agree. While the Deputy President concluded she was satisfied the Application had merit, she did not express a finalised view.
[54] Thirdly, Activate submits there was an error of fact in that the Deputy President failed to take into account Mrs Yammouni’s responsibility, as a health professional, to manage her own performance. This proposition was not advanced before the Deputy President and nor was it the subject of evidence. Regardless, we do not consider it relevant in the context of allegations that Activate has breached general protections provisions of the Act.
[55] Fourthly, Activate submits the Deputy President failed to have regard to its uncontested evidence regarding Mrs Yammouni’s performance compared with other physiotherapists. Activate did not identify the evidence it described as being “ample” beyond some transcript references in which, as far as we can discern, there are less than a handful of assertions made by Mr Heath, without figures, that Mrs Yammouni’s patient retention rates were neither at required levels nor comparable to other physiotherapists in the practice. As such, we do not consider the Deputy President erred in concluding:
“While Mr Heath referenced Mrs Yammouni’s low patient ratios and informed the Commission that they were below what was expected, there was no evidence comparing Mrs Yammouni’s patient ratios with the patient ratios of other physiotherapists or their patient data regarding new and recurring patients. Further, there was no documented evidence setting out key performance indicators with regard to patient numbers or ratio.” 38
[56] Fifthly, Activate submits the Deputy President substantially erred at paragraph [58] of the Decision in failing to consider relevant evidence, considering irrelevant evidence, incorrectly weighing conflicting evidence and making a finding of fact in the absence of proper evidence in relation to new patients, patient ratios and key performance indicators, in finding:
• Mr Heath informed Mrs Yammouni that one of the reasons for her dismissal was her inability to generate the ‘numbers’ by encouraging multiple visits; and
• there was no evidence comparing Mrs Yammouni’s patient ratios with the patient ratios of other physiotherapists or their patient data regarding new and recurring patients or setting out key performance indicators with regard to patient numbers or ratios.
[57] As to the first matter, Mrs Yammouni gave evidence that she was counselled regarding her numbers being too low in the meeting with Mr Heath on 14 June 2018 where he advised her that her employment would be terminated 39 and Mr Heath gave evidence that he advised Mrs Yammouni that her employment was not working out and her working at Activate’s clinic was a detriment to the business because he believed her numbers were too low.40 As to the second matter, we repeat our finding at paragraph [55] above.
[58] Sixthly, Activate appeared to submit that the Deputy President’s findings at paragraph [62] of the Decision were significant errors of fact because Mr Heath had given evidence, which included an xray, indicating her misdiagnosis and mismanagement of a patient and Mrs Yammouni had never disputed that her treatment skills were the reason for the dismissal. As to this, we do not consider there was error attached to the observation made by the Deputy President that it appeared unusual for Activate to place at risk its reputation by permitting Mrs Yammouni to use its infrastructure and facilities in circumstances where she had been terminated for a lack of competence, amongst other things. It was not an unreasonable observation to make.
[59] Seventhly, Activate submits the Deputy President made findings and inferences to the effect that it was “odd” that Activate would be content to have Mrs Yammouni operate her own business from their premise in the absence of evidence to this effect and in circumstances where there was a question about her competence. Activate submits Mr Heath’s testimony was that the issue was Mrs Yammouni’s competence in correctly diagnosing and treating musculoskeletal injuries, as opposed to her assessing and providing classes for women’s health patients. Again, we do not consider this observation of the Deputy President was an unreasonable one to make.
[60] Activate completed its submissions in the Grounds of Appeal by submitting there was uncontested evidence of Mrs Yammouni’s poor performance but none of Mr Heath’s evidence was given any weight and was instead misinterpreted and used against it. For the reasons we have outlined above, we do not accept these propositions.
[61] The essence of Activate’s position on the merits is that the merits of the Application should have been found to be a neutral consideration rather than a factor weighing in Mrs Yammouni’s favour. We consider it was open to the Deputy President to conclude there was merit attached to the Application and that this was a factor that weighed towards a finding of exceptional circumstances. It was clear that the Deputy President understood that her task then became one of assigning the appropriate weight to this factor. 41 We discern no error in the Deputy President’s approach.
4. Failure to afford Activate procedural fairness in the conduct of the hearing
[62] While Activate lays the complaints that the Deputy President was biased, lacked impartiality and objectivity, was selective in her consideration of the evidence and “switched” the order of the hearing, our review of the transcript, satisfies us that:
• As a witness for Activate, Mr Heath was asked whether he had any further evidence to give before he was excused;
• Activate was granted permission to file additional material on the day of the hearing;
• Mr Heath was given the opportunity to re-examine the other witness for Activate, Mrs Heath;
• Activate was not denied the opportunity to cross-examine Mrs Yammouni; and
• Activate was given the opportunity to make final oral submissions and submissions in reply.
[63] We are therefore not persuaded there was a failure by the Deputy President to afford Activate procedural fairness in the conduct of the hearing.
[64] While we acknowledge Activate was aggrieved by the Decision, it would be prudent for its officers and employees to refrain from both the use of insulting language when describing the manner in which the Deputy President discharged her functions and any accusations of threats, defamation and coercion by her. This is because the reckless and unsubstantiated use of such language and terms could have serious implications, if investigated and found to constitute an offence pursuant to the Act. 42
Conclusion
[65] The Deputy President considered and attributed weight to each of the matters she was required by the Act to take into account and concluded that when they were considered together, there were exceptional circumstances warranting the granting of a further period to make an application, pursuant to s.366 of the Act. We do not identify any error either in the Commissioner’s approach to the considerations in s.366(2) of the Act or in her conclusion that in this case, there were exceptional circumstances warranting an extension of the period in which the application was made.
[66] Further, we have considered whether this appeal attracts the public interest, and we are not satisfied that:
(a) There is a diversity of decisions at first instance so that guidance from an appellate body of this kind is required;
(b) The appeal raises issues of importance and/or general application;
(c) The Decision manifests an injustice, or the result is counter intuitive; or
(d) The legal principles applied by the Deputy President were disharmonious when compared with other decisions dealing with similar matters.
[67] As we are not persuaded that Activate has established any appealable error in the Deputy President’s decision, or that there are any other considerations that warrant the grant of permission to appeal, permission to appeal is refused and the appeal is accordingly dismissed.
[68] The Application will now be progressed by way of a conference at a time and date to be advised.
DEPUTY PRESIDENT
Appearances:
Mr B Heath, for Therexa Pty Ltd the trustee for the Heath Family Trust T/A Activate Physiotherapy & Clinical Pilates.
Mr G Yammouni for Mrs L Yammouni.
Hearing details:
2019.
Melbourne and Perth (video):
4 February.
Printed by authority of the Commonwealth Government Printer
<PR706347>
1 Section 366(1) of the Act.
2 [2018] FWC 7516.
3 [2018] FWCFB 901.
4 Transcript PN 377.
5 [2018] FWC 7516 at [55].
6 Ibid at [56].
7 Ibid at [63].
8 This is so because on appeal the Commission has power to receive further evidence, pursuant to s.607(2); see Coal and Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.
9 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 & Alllied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [44]-[46].
10 GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343, 197 IR 266 at [24]-[27].
11 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]
12 [2010] FWAFB 5343, 197 IR 266 at [27].
13 Also see CFMEU v AIRC (1998) 89 FCR 200 at 220; and Wan v AIRC (2001) 116 FCR 481 at [26].
14 Wan v AIRC (2001) 116 FCR 481 at [30].
15 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].
16 [2018] FWC 7516 at [49].
17 Ibid at [50].
18 [2015] FWCFB 287 at [12].
19 [2016] FWCFB 349 at [31].
20 [2018] FWC 7516 at [44].
21 Ibid at [41].
22 Ibid at [42].
23 Ibid at [51].
24 Transcript at hearing PN 446 and 495.
25 AB at pp 80-81.
26 Exhibit A1 at (14) and Transcript at hearing PN 524.
27 Transcript on Appeal PN 90-91.
28 Transcript at hearing PN 447-449.
29 Transcript on Appeal PM 413-418.
30 [2018] FWC 7516 at [52].
31 [2018] FWC 6818. Activate also submitted Green v Bilco was correctly applied in Janzey Pratt v Sarina Russo Job Access Australia Pty Ltd[2018] FWC 7070.
32 [2018] FWC 7516 at [47].
33 [2018] FWC 6830.
34 Donna Muir McMeeken v Action Industrial Catering Pty Ltd [2012] FWAFB 5933 and Julieanne Lee v Broadspectrum Australia Pty Ltd [2018] FWC 6726.
35 Citing Tindal v Gertjan Reginald Eggers & Julie Ann Eggers T/AAussie Yachting[2018] FWC 7384, Misconi v Negri Contractors [2018] FWC 7722 and Fogarty v GETT Asia Ltd;GETT Gerätetechnik GmbH[2018] FWC 7756.
36 [2018] FWCFB 4109.
37 [2018] FWC 7516 at [63].
38 [2018] FWC 7516 at [58].
39 Transcript at hearing PN 435.
40 Transcript at hearing PN 71-72.
41 [2018] FWC 7516 at [65].
42 Grabovsky v United Protestant Association NSW Ltd[2019] FWCFB 1964 at [26]–[29].
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