Thuy Tran v Healius Pathology Pty Ltd T/A Dorevitch Pathology
[2023] FWCFB 263
•20 DECEMBER 2023
| [2023] FWCFB 263 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Thuy Tran
v
Healius Pathology Pty Ltd T/A Dorevitch Pathology
(C2023/5385)
| VICE PRESIDENT ASBURY | BRISBANE, 20 DECEMBER 2023 |
Appeal against decision [2023] FWC 2091 of Deputy President Masson at Melbourne on 22 August 2023 in matter number U2023/6577.
Introduction
Ms Thuy Tran (Appellant) has applied for permission to appeal, and has appealed, a decision[1] of Deputy President Masson issued on 22 August 2023 (Decision). The Decision concerned an application brought by the Appellant for an unfair dismissal remedy under s. 394 of the Fair Work Act 2009 (FW Act) in relation to her dismissal by Healius Pathology Pty Ltd trading as Dorevitch Pathology (Respondent/Dorevitch).
Section 394(2) of the FW Act requires an unfair dismissal remedy application to be made within 21 days after the dismissal took effect or within such further period as the Commission allows under s. 394(3). Section 394(3) of the FW Act provides that the Commission may allow a further period for the application to be made by a person under s. 394(1) if the Commission is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay;
(b) whether the person first became aware of the dismissal after it had taken effect;
(c) any action taken by the person to dispute the dismissal;
(d) prejudice to the employer (including prejudice caused by the delay);
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.
It is not in dispute that the Appellant was dismissed on 26 June 2023 and that her dismissal took effect on that date. The 21-day period for the making of the application therefore expired at midnight on 17 July 2022. Having been lodged on 19 July 2023, the application was made two days outside the time required by s. 394(2) of the FW Act. The Deputy President was not satisfied that there were exceptional circumstances and declined the Appellant’s request for an extension of time. The Deputy President dismissed the Appellant’s application for an unfair dismissal remedy and the Appellant seeks to appeal the Decision.
Directions made on 13 September 2023 required the Appellant to lodge submissions with the Commission addressing the requirement for permission to appeal and the merits of the appeal. In particular, the Directions required the Appellant to address why she says it is in the public interest to grant permission to appeal and identify any significant error(s) of fact involved in the Decision. The appeal was listed for hearing on 17 October 2023 in relation to both permission to appeal and the merits of the appeal. At the hearing, the parties represented themselves and the Appellant had a Vietnamese interpreter available to assist as required.
The Appellant’s materials filed in support of her position on appeal included a range of documents that were not before the Deputy President at first instance. These were included in the Appeal Book the Appellant prepared and were identified by her as “Exhibits” 24-31 (inclusive).[2] The date of one document amongst this material, a letter from the Appellant’s psychologist dated 12 September 2023, came into existence after the Decision was published.
Background to the dismissal
The Appellant commenced employment with the Respondent in February 2001 and at the time of her dismissal, was employed as a Medical Scientist. In January 2019, the Appellant was injured in a car accident. While initially able to return to work on modified duties between October 2019 and April 2020, the Appellant’s attendance ceased after April 2020. There was no contact between the Appellant and the Respondent between October 2021 and 8 December 2022, whenthe Respondent wrote to the Appellant requesting that she make contact and foreshadowing the termination of her employment if she failed to do so. The Appellant was overseas having dental surgery at that time and remained there until 27 December 2022. On 9 December 2022 there was an email exchange between the Appellant’s Union representative and the Respondent in relation to her absence from work. The Respondent was informed that the Union was attempting to ascertain the status of the Appellant’s compensation claims through the Transport Accident Commission (TAC) and there was a request from the Union that the Respondent not make decisions about the Appellant’s employment before discussion took place.
In reply, the Respondent advised that it needed a response to the [8 December 2022] letter and requested an update regarding the TAC claims. The Union representative responded with two further emails. The first of these, sent at 2.42pm on 9 December 2022, contained a request for a “without prejudice conversation” regarding the Appellant’s situation while the second, sent at 3.31pm, stated that the Appellant’s lawyer had attempted to contact the Respondent to confirm salary details to assist with the TAC Claims, but details had not yet been provided. The second email also asserted that the Appellant had been stood down in October 2021 when she attempted to return to work and had therefore “been in limbo since”. The Union representative requested information about what the Appellant had been told in October 2021.[3]
On 13 December 2022, the Appellant sent an email to her Union representative.[4] In this email, the Appellant advised that she was unable to return to work as a full-time scientist due to injuries sustained in the vehicle accident and other health problems and expressed the desire to work on reduced hours and restrictions if possible. This email also outlined that the Appellant was overseas but could return to Australia on 28 December 2022 if required. The Appellant signed off by thanking her Union representative for “excellent professional consultation and assistance” regarding her situation.
In a letter the Respondent sent to the Appellant at 11.04am on 26 June 2023 (Termination Letter), the Respondent asserted it had not heard from the Appellant in relation to her employment, stated that it considered the Appellant had abandoned her employment and advised that it had decided to terminate the Appellant’s employment with immediate effect. The Appellant responded two hours later, copying in her Union representative. The Appellant advised that she disputed the allegations in the Termination Letter and that she had asked the Union to respond on her behalf in December 2022.[5]
The Appellant’s Union representative sent an email to the Respondent at 1.46pm on 26 June 2023, in which it referred to the contact made in the second email the Appellant’s Union representative had sent on 9 December 2022 and observed that no further correspondence had been received by the Union until the Appellant was notified of her dismissal. The 26 June 2023 email from the Appellant’s Union representative concluded with a request that the Respondent advise as to what was communicated to the Appellant in October 2021 and the details of the Appellant’s statutory entitlements.[6] The Respondent replied by email sent at 4.33pm on 26 June 2023. The Respondent asserted it had not received a response to the “original” letter sent to the Appellant on 8 December and advised that the Appellant had a “couple of hours” of accrued annual leave and the entitlement to payment in lieu of notice.[7]
Decision under Appeal
As outlined above, the application was made 2 days outside 21-day period prescribed by s. 394(2) of the FW Act. After setting out the relevant statutory provisions in relation to the approach to deciding whether there are exceptional circumstances justifying the grant of a further period, the Deputy President turned to consider the matters in s. 394(3).
Starting with s. 394(3)(a), the Deputy President observed that the reason advanced by the Appellant for the delay was representative error. In this regard, the Deputy President set out the Appellant’s evidence that on 28 June 2023, she emailed her union representative at the Medical Scientists Association of Victoria (MSAV) at 10.33am, stating:
“After extensive discussions with my family (except my daughter who is currently studying Year 12) friends and former colleagues, i would like to take Dorevitch to Fair Work Australia for Unfair Dismissal….
….
Therefore I would like my case to be heard by Fair Work Australia. I want to send a loud message to them to stop their ridiculous actions, /harassment /humiliation, now. Financially I may not gain much but Mentally I would be relieved to get this off my chest and move on. I would resign with dignity. not being sacked with false allegations/harassment/humiliation.
Thank You for your Support during my difficult times with Dorevitch and hope my problems would be resolved soon.”[8]
At 11.34am on 28 June 2023, the Appellant sent a further email to her Union representative in the following terms (salutations omitted);
“I forgot 1 more thing. I also would like to demand a formal written apology from Dorevitch for the false allegations, harassment I received from Dorevitch and its Representatives. This would send a strong message to them do not bully the other people like that. Between you and me I would resign after this saga ends.”[9]
The Deputy President noted that during cross-examination the Appellant confirmed that she considered her first email to the representative on 28 June 2023 to be an instruction to prepare and file an unfair dismissal application. The Deputy President also noted that no evidence was adduced indicating that the Appellant had either been asked for or provided the information necessary for her representative to file an application; nor did she sign an unfair dismissal application form and provide it to him.
On 5 July 2023, the Appellant sent a text message to her Union representative asking him how he had gone with Dorevitch, to which he responded that he would call her back. Having not heard from her representative, the Appellant sent an email to him on 11 July 2023, in the following terms:
“Hi …,
How dud [sic] you go with Dorevitch? My friends, My colleagues, my family, my psychologist are wondering what is going on with me? I have been waiting for your phone call regarding to Dorevitch’s response so I could update my circumstances to them!”[10]
The Deputy President observed that during cross-examination the Appellant was questioned about the 5 July 2023 text message and the 11 July 2023 email. The Deputy President outlined that the Appellant initially stated that her inquiry to her representative was in relation to communication he was pursuing with the Respondent before later accepting that she had asked her representative, in the second email she had sent on 28 June 2023, to pursue an apology from the Respondent.
The Deputy President then referred to telephone records supplied by the Appellant. He noted the Appellant’s Union representative called her on 11 July 2023 at 10.02 am and a 39-minute conversation ensued.[11] The Deputy President also noted that the Appellant gave evidence that her TAC claim was discussed during this telephone call but was unable to detail the specific points discussed in relation to her unfair dismissal application. In particular, the Appellant said she had not been told that the Union would not be filing an unfair dismissal application on her behalf. There was no further communication between the Appellant and her Union representative after 11 July 2023. The Appellant could not explain this but stated that her Union representative wrote to her lawyer regarding her TAC claim and she became aware on or about 17 July 2023 that the Union had not filed an unfair dismissal application on her behalf.
The Deputy President made the observation that no evidence was led from the Union representative who was said by the Appellant to have failed to file her application in accordance with her instructions. He considered the lack of evidence from the Union representative as to either the nature of instructions received from the Appellant or advice (if any) given to her regarding an unfair dismissal application did not assist the Appellant.
The Deputy President accepted the (first) email sent by the Appellant to her Union representative at 10.33am on 28 June made plain her wish for an unfair application to be made but considered the (second) email sent at 11.34am that day introduced an additional matter she wanted the Union Representative to deal with. The Deputy President considered the demand for a “formal apology” from the Respondent referred to in the second email provided the context for the 5 July 2023 text message and noted that in that text, the Appellant asked her Union representative how he had gone with Dorevitch, not whether he had filed her unfair dismissal application. The Deputy President noted that the Appellant had stated during cross-examination that her use of language in the 5 July 2023 text message was inaccurate and that she had proffered an explanation that the text was directed at obtaining an update on the status of her unfair dismissal application. The Deputy President suggested that the Appellant had, however, also conceded in cross-examination that she had previously asked her Union representative to pursue an apology and had advised him that she would consider resignation.
The Deputy President was unconvinced by the Appellant’s explanation of the purpose of her 5 July 2023 text and considered it more likely, given her earlier demand for an apology from the Respondent, that the Appellant was seeking an update from her representative on discussions between himself and the Respondent. The Deputy President commented that his view was reinforced by the email of 11 July 2023, which sought again an update as to the Respondent’s response and he noted that at no stage did the Appellant ask, by text or email, whether her unfair dismissal application had been filed.
The Deputy President described the telephone call between the Appellant and her Union representative on 11 July 2023 as “lengthy”. He found that the Appellant was unable to provide details of the call beyond discussion in relation to her TAC claim and noted the Appellant resisted the proposition that her Union representative may have advised her that the union would not be filing an unfair dismissal application on her behalf. The Deputy President considered the absence of evidence of further communication between the Appellant and her Union representative after 11 July 2023 telling. He also concluded that there was no evidence of any information being sought by or provided to the Union representative so as to enable preparation of an unfair dismissal application.
The Deputy President’s conclusion was that apart from the first 28 June 2023 email, there was a lack of evidence that the Appellant actively pursued her Union representative in relation to the filing of an unfair dismissal application. The Deputy President considered the 5 July 2023 text message and 11 July 2023 email indicated that the Appellant was pursuing her Union representative over the status of discussions and engagement with the Respondent rather than an unfair dismissal application. The Deputy President concluded the inability of the Appellant to provide details of her discussion with her Union representative on 11 July 2023, together with the absence of any further follow-up with him after that date or correspondence confirming the request for or provision of information for an unfair dismissal application, further supported a finding that the Appellant’s priority had been her TAC claim and demand for an apology.
Ultimately, the Deputy President was not persuaded that the asserted representative error explained the delay in the filing of an unfair dismissal application and determined that this weighed against an extension of time.
As to s. 394(3)(b) and whether the Appellant first became aware of the dismissal after it had taken effect, the Deputy President was satisfied the Appellant was aware of her dismissal date and the unfair dismissal process within the 21-day timeframe. The Deputy President noted that the Appellant received the Termination Letter stating that the dismissal took immediate effect, on 26 June 2023. The Deputy President determined that this weighed against an extension of time. The Deputy President also found that after receiving the Termination Letter on 26 June 2023, the Appellant sent a reply email to the Laboratory Manager later that day, disputing the allegation that she had abandoned her employment. The Deputy President noted for the purposes of s. 394(3)(c), that beyond that email, the Appellant had taken no action to contest her dismissal, other than lodging an unfair dismissal application. The Deputy President considered this did not weigh in favour of a conclusion that there were exceptional circumstances.
In relation to whether granting the extension of time would result in any prejudice to the employer (s. 394(3)(d)) and the merits of the application (s. 394(3)(e)), the Deputy President considered both factors to be neutral. The Deputy President determined that there would be no prejudice to the Respondent if an extension of time were to be granted and that the merits of the application would likely turn on contested issues of fact. The Deputy President opined that the Appellant had an arguable case, to which the Respondent raised a prima facie defence.
In considering the fairness as between the Appellant and other persons in a like position (s. 394(3)(f)), the Deputy President recorded that there was nothing for him to weigh in his assessment as neither party brought to his attention any relevant matter concerning that consideration.
Ultimately, the Deputy President was not satisfied that there were exceptional circumstances, either when the various circumstances were considered individually or together.
Appeal Grounds and Appellant’s Submissions
The grounds of appeal set out in the Form F7 notice of appeal are outlined in the form of submissions and are substantially reproduced in the Appellant’s outline of submissions filed on 14 September 2023 and an amended outline of submissions filed on 27 September 2023. In broad compass, the Appellant outlines five grounds of appeal.
The Deputy President ‘diminished the significance of representative error’ and thereby erred in finding that representative error did not explain the delay in the filing of the unfair dismissal application.
The Appellant contends that, despite the Deputy President accepting her phrasing in the first email to her representative – “I would like my case to be heard by Fair Work Australia” – to indicate a clear intention to file an unfair dismissal application, the Deputy President erred by placing excessive weight on the additional demand for a “formal apology” in her second email, thereby diminishing the significance of the representative error. The Appellant asserted that having sent her first email, she was entitled to rely on the expertise of her Union representative to provide guidance regarding the required steps to make an unfair dismissal application. The Appellant submitted that her Union representative’s failure to request essential information from her implies error on his part.
The Appellant contends that the second email sent on 28 June 2023 was primarily intended to provide supplementary information to the first 28 June 2023 email and the inclusion of the statement, “I forgot 1 more thing. I also would like to demand a formal written apology” was a request for a formal written apology that was connected to the unfair dismissal application, rather than being a separate action. The Appellant also submits that the second sentence in the second 28 June 2023 email (“This would send a strong message to them do not bully the other people [like] that”) further reinforces her assertion that a large company would not issue such an apology unless compelled to do so by, in this case, the Commission.
The Appellant submits the Deputy President erroneously focused on her text message to her Union representative on 5 July 2023 and argues that the 5 July 2023 text message and the 11 July 2023 email enquiring about the Union’s progress with Dorevitch were enquiries related to the unfair dismissal application.
In relation to the Deputy President’s findings regarding the “lengthy” telephone call on 11 July 2023 between the Appellant and her Union representative, the Appellant contends that the conversation about the TAC claim was merely a response to the Union representative’s question. When asked by the Deputy President whether her Union Representative had conveyed during the telephone call that the Union had no intention of filing an unfair dismissal application, the Appellant recalls giving evidence that her Union Representative had not told her this.
The Appellant submits that the Deputy President’s approach was contrary to that in Boakes v St Johns Community Care Limited,[12] and Rosa v Motor One Group Pty Ltd.[13] The Appellant submits that in the context of a two-day delay, it would be unreasonable to impose any additional responsibility on her to ensure the submission of an unfair dismissal application as she had already fulfilled her responsibility by instructing the Union to proceed with the application. The Appellant asserts that she had legitimate expectations that her Union representative would act on her instructions to file an application and as such, was blameless for the delay in filing the application. The Appellant proffers that within two hours of receiving the termination letter, she reached out to the Union for guidance and promptly gave an instruction to initiate the unfair dismissal application and contends that she took the initiative to send follow-up text messages and email to the Union to ask about the status of the application.
The Deputy President erred in concluding that the merits of the application did not tell for or against an extension of time and were a neutral consideration.
The Appellant asserted the Respondent’s allegation that the Appellant had not responded to any of the Respondent’s efforts to reach out was incorrect and submitted she had produced phone records and text messages demonstrating her attempts to contact the Respondent. Further, the Appellant submitted that while she was abroad for a major dental surgery, she had engaged her Union to contact the Respondent. The Appellant claimed her Union representative had been informed that the Respondent would investigate the matter only for the Termination Letter to be the next communication to be received. The Appellant also submitted the Deputy President had been critical of her enlisting the MSAV to represent her.
The Deputy President erred in finding that the Appellant received five weeks’ pay in lieu of notice.
The Appellant submitted the Deputy President erred by outlining in the Decision that she had received five weeks’ pay in lieu of notice on the termination of her employment because this payment was only made to her after her notice of appeal was filed.
The Deputy President erred in concluding that the action taken by the Appellant to dispute the dismissal did not weigh in favour of a conclusion that there were exceptional circumstances.
The Appellant asserted that upon receipt of the Termination Letter, she promptly responded to the Respondent’s Laboratory Manager disputing the allegation that she had abandoned her employment but did not receive a response. The Appellants submitted her Union representative also attempted to reach out to the Respondent on her behalf, to no avail. The Appellant submits that in circumstances of such a short delay, this consideration ought to have been found to weigh in favour of an extension of time.
The Deputy President erred in finding that the parties filed material in accordance in accordance with the directions issued.
The Appellant submitted the Deputy President erred by finding that “both parties filed material in accordance with directions issued”[14] because the Respondent filed its material two days outside the timeframe that had been set by the Deputy President.
Applicable appeal principles
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.[15] There is no right to appeal and an appeal may only be made with the permission of the Commission.
This appeal is one to which s. 400 of the FW Act applies. Section 400 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.
In the Federal Court Full Court decision in Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [43], Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s. 400 as “a stringent one”. The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[16] A Full Bench of the Commission, in GlaxoSmithKline Australia Pty Ltd v Makin, 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.”[17]
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.[18] 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.[19]
An application for permission to appeal is not a de facto or preliminary hearing of the appeal. In determining whether permission to appeal should be granted, it is unnecessary and inappropriate for the Full Bench to conduct a detailed examination of the grounds of appeal.[20] However it is necessary to engage with those grounds to consider whether they raise an arguable case of appealable error.
The test of “exceptional circumstances”, in relation to extensions of time to lodge applications under s. 394(3), establishes a “high hurdle” for an application for an extension, and a decision as to whether to extend time under s. 394(3) involves the exercise of a broad discretion.[21] Therefore it will be necessary, in an application for permission to appeal against a decision made under s. 394(3), to demonstrate that there is an arguable case and 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 King[22] – that is, that the decision-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) requires that it must be a significant error of fact. The overriding public interest requirement of s. 400(1) remains.
Consideration
We are not persuaded that the Appellant has made out an arguable case that the Deputy President erred in the manner contended. The Deputy President properly addressed each of the matters he was required to take into account in s. 394(3) of the FW Act and we are satisfied he made appropriate findings.
The Deputy President concluded that apart from the first 28 June 2023 email, there was a lack of evidence that the Appellant actively pursued her Union representative in relation to the filing of an unfair dismissal application. We consider this conclusion was open to him. Further, we consider the Deputy President’s finding that both the 5 July 2023 text message and 11 July 2023 email indicated that the Appellant was pursuing her Union representative over the status of discussions and engagement with the Respondent, rather than an unfair dismissal application, was also open to him. In the 5 July 2023 text message, which followed an earlier demand for an apology from the Respondent, the Appellant asked her Union representative how he had gone with Dorevitch, not whether he had filed her unfair dismissal application. The 11 July 2023 email that followed requested an update as to Dorevitch’s response.
On a number of occasions, the Deputy President asked the Appellant to provide details of the discussion she had with her Union representative on 11 July 2023. Similarly, the Deputy President inquired as to whether the Appellant had subsequently followed up. We consider the Deputy President’s conclusion that the inability of the Appellant to provide details of her discussion with her Union representative on 11 July 2023, together with the absence of any further follow-up with him regarding the unfair dismissal application after that date, further supports the finding that the Appellant’s priority had been her TAC claim and demand for an apology. The Appellant gave evidence that she was not told by her Union Representative that the Union would not be filing an unfair dismissal application. A review of the audio recording of the hearing at first instance indicates that in fact the Union representative told the Appellant she should be concentrating on the TAC claim. There was, however, simply no evidence before the Deputy President of any enquiry by the Appellant as to whether an unfair dismissal application had been filed, nor evidence of further communication between the Appellant and her Union representative after 11 July 2023.
Having regard to these circumstances, we discern no error with the Deputy President’s conclusion that representative error did not explain the delay in the filing of the Appellant’s unfair dismissal application.
As to ground 2, which asserts the Deputy President erred in concluding that the merits of the application did not tell for or against an extension of time and were a neutral consideration, we observe that the Deputy President noted in the Decision that the Appellant had asserted that she had not failed to contact or respond to the Respondent upon receipt of the Respondent’s correspondence dated 8 December 2022. We otherwise note the substantial merits of the application are not able to be fully examined or agitated at the time an application for an extension of time is under consideration. Indeed, as s. 396(a) of the FW Act makes clear, the Commission must decide whether the application was made within the period required by s. 394(2) (which includes deciding whether a further period should be allowed under s. 394(3)), before considering the merits of the application. We are satisfied the Deputy President took into account the merits of the application and approached the assessment of the merits in an orthodox manner.
Ground 3 asserts the Deputy President erred in finding that the Appellant received five weeks’ pay in lieu of notice. We do not consider this error by the Deputy President constitutes a significant error of fact. Notwithstanding the payment of notice had not been made at the time of the hearing, we consider the Deputy President’s conclusion that the merits were a neutral consideration remained open to him.
As to ground 4, which asserts the Deputy President’s conclusion that the action taken by the Appellant to dispute the dismissal did not weigh in favour of a conclusion that there were exceptional circumstances was erroneous, we accept the Appellant sent an email in response to her dismissal approximately two hours after receiving the termination letter in which she disputed the allegations outlined therein. 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. Further, it may be observed that the approach to this particular consideration by Members of the Commission varies depending on the circumstances before them. In this matter, we are not persuaded the Deputy President’s finding in relation to this consideration renders his ultimate conclusion unreasonable or manifestly unjust.
By ground 5, the Appellant asserts that the Deputy President erred in finding that the parties filed material in accordance with the Directions issued. While a review of the Commission’s file demonstrates this to be true, we do not consider it constitutes a significant error of fact or that it had any bearing on the Deputy President’s ultimate conclusion.
New Evidence on Appeal
Section 607(2) of the FW Act permits the Commission to admit further evidence and take into account any other information or evidence in an appeal brought pursuant to s. 604(1).
Previous decisions of the Commission[23] have referred to the principles governing the discretion to admit new evidence or to consider further material which are set down in Akins v National Australia Bank (Akins).[24] In that case, the New South Wales Supreme Court identified three conditions which need to be met before fresh evidence can be admitted. These are: firstly, that it must be shown that the evidence could not have been obtained or adduced with reasonable diligence for use at first instance, secondly, 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 thirdly, the evidence must be credible.[25]
It has been recognised by the Commission that, in considering whether to exercise the discretion in s. 607(2), it is permissible in an appropriate case to depart from the principles set out in Akins and that the principles need not be strictly applied.[26] However it will be rare for fresh evidence to be admitted on appeal where the conditions in Akins are not met.[27]
The Appellant filed a range of materials in support of her position on appeal that were not before the Deputy President. The Appellant submits that during the hearing at first instance, she was denied the opportunity by the Deputy President to find the documents she has described on appeal as “Exhibit A24-27”.
We have considered the documents described by the Appellant as “Exhibits” A24-A27 (inclusive) having regard to the three conditions outlined in Akins. As to the first condition, we are of the view that each of the documents could have been obtained or adduced by the Appellant with reasonable diligence for use at first instance and filed in accordance with the Directions of the Deputy President. That the Appellant appears to have suggested to the Deputy President that she could have produced them during the conduct of the hearing indicates there was nothing that prevented her from filing them in advance. However, we recognise that the hearing did not flow in such a way that the Deputy President paused to consider admitting the documents when the Appellant alluded to their existence. As to the third condition, we note each of the documents is a record of correspondence. As to the second condition, we do not consider the evidence 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.
At the first instance hearing, the Appellant gave evidence that her Union representative sent an email to the Appellant’s personal injury lawyer (Mr Kofi Osei) to enquire about the status of the TAC claim. On appeal, the Appellant provided a copy of an email her Union representative sent to Mr Osei at 10.52am on 11 July 2023 that sought clarification as to whether the Appellant’s second TAC claim had been pursued.[28] The Appellant asserts that this email resulted in Mr Osei becoming perplexed, such that he sent her a text message regarding her Union representative (on 13 July 2023).[29] We do not consider the text message the Appellant submitted on appeal in support of this assertion indicates this. The text message makes no reference at all to her Union representative. On one view, it might be considered that the email the Union representative sent to Mr Osei at 10.52am on 11 July 2023 confirms that the focus of the Union representative’s role at that time, was to represent the Appellant’s interests in relation to the TAC claim.
The Appellant further asserts it was only when she contacted Mr Osei on 17 July 2023, and Mr Osei had enquired as to whether the Union had assisted her in completing any form and/or requested her signature on any documents, that she became aware that her Union representative had not progressed the unfair dismissal application. The Appellant outlined that she became frustrated by the Union’s “lack of responsibility” and terminated her union membership by sending an email at 12.59pm on 19 July 2023.[30] The Appellant seeks also to rely upon an alleged failure by the Union representative to inform her about the 21-day timeframe after she had emailed him on 17 July 2023 requesting all correspondence he had with the Respondent.[31]
It is clear from a review of the documentation that was before the Deputy President that during the course of 17 July 2023, the Appellant was forwarding the range of correspondence that had already passed amongst the Respondent, her Union representative and herself, to Mr Osei. After this had occurred, the Appellant sent her Union representative an email at 2.28pm on 17 July 2023 in which she requested that documents passing between the Respondent and him from December 2022 onwards be provided to Mr Osei. The Appellant did not provide an explanation and signed off the email by stating “Thank You for your assistance”.[32] It may be observed that at this time, the 21-day period after the Appellant’s dismissal had taken effect was yet, by 9.5 hours, to have elapsed.
While we note the Appellant cancelled her Union membership via an email sent only 40 minutes after her unfair dismissal application was lodged, the tenor of the email does not evince frustration and nor does the Appellant state she is cancelling her membership due to the Union’s “lack of responsibility”. The email in fact concludes with “Thank You for your time and best wishes for the future.”[33]
We consider the Appellant is seeking to re-argue her case through the submission of the documents described by the Appellant as “Exhibits” A24-A27. However, having reviewed these documents, we do not consider they advance the Appellant’s case.
As to the documents described by the Appellant as ‘Exhibits’ A28 and A30, we note they are, respectively, a copy of the Directions made by the Deputy President and a document recording the late filing of submissions of the Respondent. We consider both could have been obtained or adduced with reasonable diligence for use at first instance. Additionally, we do not consider either to be of such a high degree of probative value that there is a probability that there would have been a different result at first instance. As to the document described by the Appellant as ‘Exhibit’ A29, it is unclear as to how it is relevant. Regardless, it does not satisfy the conditions in Akin because it could have been obtained or adduced with reasonable diligence for use at first instance and we do not consider it to be of such a high degree of probative value that there is a probability that there would have been a different result at first instance.
Finally, there is a letter from the Appellant’s psychologist dated 12 September 2023 and a record of a telehealth consultation finalised on 10 July 2023, described by the Appellant as ‘Exhibit’ A31. The Appellant seeks to rely on the contents of the 12 September 2023 letter, which is said to clarify a meeting she had with her psychologist on 10 July 2023.
With the consultation having finalised on 10 July 2023, we can discern no reason as to why such a letter could not have been obtained or adduced with reasonable diligence for use at first instance. Secondly, we do not consider the letter contains 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 thirdly, we do not consider the evidence particularly credible. Whereas the record of the telehealth consultation finalised on 10 July 2023 describes the Union as having provided general support, the 12 September 2023 letter states “Ms Tran during the session with me, also informed reaching out to the union about these false accusations and was working with the union representative to help bring her case to Fair Work.” The 12 September 2023 letter seems to have been prepared after the Decision was published by the Deputy President on 22 August 2023.
Accordingly, we are not satisfied the new evidence should be admitted in the appeal.
Conclusion
An appeal to a Full Bench exists for the correction of error. It is not a hearing de novo. There are natural limitations that apply to the hearing of an appeal by a Full Bench and the member at first instance is usually in a better position than the appeal bench to make findings of fact.[34] While the Appellant is aggrieved by the Decision, she seeks to both prosecute arguments based on documents that were not produced at first instance and re-argue, through this appeal, matters which were appropriately considered and weighed by the Deputy President, in search of a different result.
We are not persuaded that any of the matters raised by the Appellant as justifying the grant of permission to appeal enliven the public interest. In this regard, we are not satisfied that the appeal raises any issue of importance or general application, nor does it identify any relevant diversity of decisions at first instance. We do not consider that it is arguable that the decision of the Deputy President manifests an injustice, or that the result is counterintuitive or unjust. The legal principles applied are not disharmonious with other authorities dealing with similar matters.
As we are not satisfied that the grant of permission to appeal would be in the public interest, permission to appeal must be refused in accordance with s. 400(1) of the FW Act. Permission to appeal is refused.
VICE PRESIDENT
Appearances:
T Tran, Appellant.
K Mullally, Respondent
Hearing details:
2023.
Melbourne (via Microsoft Teams):
October 17.
[1] [2023] FWC 2091.
[2] Appeal Book at pages 150-160.
[3] Appeal Book at pages 105 – 107.
[4] Appeal Book at page 90.
[5] Appeal Book at page 52.
[6] Appeal Book at page 110.
[7] Appeal Book at page 109.
[8] Appeal Book at page 53.
[9] Appeal Book at page 54.
[10] Appeal Book at page 56.
[11] Appeal Book at page 55.
[12] [2020] FWC 2837.
[13] PR924583.
[14] [2023] FWC 2091 at [3].
[15] This is so because on appeal the Commission has power to receive further evidence, pursuant to s.607(2); see Coal and Allied v AIRC [2000] HCA 47, 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.
[16] O’Sullivan v Farrer [1989], HCA 61, 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch [2011] HCA 4, 243 CLR 506, 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] FCAFC 54, 192 FCR 78, 207 IR 177 at [44]-[46].
[17] [2010] FWAFB 5343, 197 IR 266 at [24] – [27].
[18] Wan v AIRC [2001] FCA 1803, 116 FCR 481 at [30].
[19] Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth[2010] FWAFB 10089, 202 IR 388 at [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54, 192 FCR 78, 207 IR 177; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office[2014] FWCFB 1663, 241 IR 177 at [28].
[20] Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82].
[21] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21].
[22] [1936] HCA 40, 55 CLR 499.
[23] See for example Max Vincent v Roof Safe Pty Limited [2023] FWCFB 182, [27]; Levin v Douglas and Mann Pty Ltd (T/A Histopath Diagnostic Specialists)[2022] FWCFB 39, [17]; C Ozsoy v Monstamac Industries Pty Ltd[2014] FWCFB 2149 [21]; Perry v Rio Tinto Shipping Pty Ltd[2016] FWCFB 6963, [11].
[24] (1994) 34 NSWLR 155.
[25] Ibid, 160.
[26] J.J. Richards & Sons Pty Ltd v Transport Workers’ Union of Australia [2010] FWAFB 9963, [95].
[27] JJ Richards & Sons Pty Ltd v Transport Workers’ Union of Australia [2010] FWAFB 9963, [95];Mermaid Marine Vessel Operations Pty Ltd v Maritime Union of Australia; [2014] FWCFB 1317,[17]; C Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149, [21]-[25]; Perry v Rio Tinto Shipping Pty Ltd [2016] FWCFB 6963, [11]; Max Vincent v Roof Safe Pty Limited [2023] FWCFB 182, [27].
[28] Described as ‘Exhibit 24’, see Appeal Book at page 150.
[29] Described as ‘Exhibit 25’, see Appeal Book at page 151.
[30] Described as ‘Exhibit 26’, see Appeal Book at page 152.
[31] Described as ‘Exhibit 27’, see Appeal Book at page 153.
[32] Ibid.
[33] ‘Exhibit 26’, see Appeal Book at page 152.
[34] Australian Education Union v Bendigo Kangan Institute of TAFE [2021] FWCFB 2152 at [38].
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