Timothy Reynolds v SDA Schools (North NSW) Ltd
[2016] FWCFB 2422
•26 APRIL 2016
| [2016] FWCFB 2422 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
v
SDA Schools (North NSW) Ltd
(C2016/3129)
SENIOR DEPUTY PRESIDENT HAMBERGER | SYDNEY, 26 APRIL 2016 |
Appeal against order PR577725 of Senior Deputy President Drake at Sydney on 4 March 2016 in matter number U2016/617.
[1] Mr Timothy Reynolds has applied for permission to appeal against an order issued by Senior Deputy President Drake on 4 March 2016 1 (Order). The effect of the Order was to refuse Mr Reynolds an extension of time to make an unfair dismissal remedy application under s.394 of the Fair Work Act 2009 (FW Act) and to dismiss the application that had been received by the Commission.
[2] 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) provides:
(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) whether the person first became aware of the dismissal after it had taken effect; and
(c) any action taken by the person to dispute the dismissal; and
(d) prejudice to the employer (including prejudice caused by the delay); and
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.
[3] Mr Reynolds filed his unfair dismissal remedy application on 12 February 2016. That application identified the date of the dismissal as being 31 December 2015. The respondent contended that Mr Reynolds’ employment was terminated in early December 2015. Senior Deputy President Drake dealt with the application for an extension of time on the assumption that the date of termination contended for by Mr Reynolds (31 December 2015) was correct. On that basis, Senior Deputy President Drake determined Mr Reynolds’ unfair dismissal remedy application was filed 22 days beyond the 21-day time limit in s.394(2).
[4] The reasons for the delay advanced by Mr Reynolds at first instance, and the Senior Deputy President’s consideration of those reasons pursuant to s.394(3)(a), are set out in the decision dated 22 March 2016 2 (Decision) as follows:
“[8] The reasons Mr Reynolds provided for his delay in lodgement were set out in paragraph 1.4 of his application and in his six-page statement with attachments dated 29 February 2016.
[9]Mr Reynolds relies, amongst other submissions, on the continued interaction he had with the respondent in December 2015, his provision of medical reports, the failure of the respondent to make it clear that his employment was terminated and inconclusive information provided to him when he was paid what subsequently became apparent were his termination payments.
[10] Mr Reynolds lodged an application pursuant to s.739 of the Act on 31 December 2015. That application was listed before Commissioner McKenna for conference by telephone. The respondent did not attend and Mr Reynolds withdrew that application on 13 January 2016. He considered the application was “…interfering with possibly beneficial internal church processes”.
[11] Mr Reynolds was attempting to negotiate and resolve matters directly with the respondent. He did not seek the assistance of his union until February 2016.
[12]I was not persuaded that Mr Reynolds’ difficulties were out of the ordinary, unusual or uncommon. Mr Reynolds engaged in negotiations and attempted to resolve his termination of employment directly with the respondent. He did not attempt to lodge an application for an unfair dismissal remedy until he was well outside the time limits prescribed by the Act.”
[5] In considering the other matters required to be taken into account under s.394(3), the Senior Deputy President concluded that:
“Having considered all of the matters to which my attention is directed by the Act I was not satisfied that there were exceptional circumstances which would warrant my granting an exception to the statutory time limit and on that basis dismissed the application. Mr Reynolds’ circumstances were not out of the ordinary course, unusual, special or uncommon.”
Consideration
[6] 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. 3 There is no right to appeal and an appeal may only be made with the permission of the Commission.
[7] 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.
[8] In the Federal Court Full Court decision in Coal & Allied Mining Services Pty Ltd v Lawler and others, Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s.400 as “a stringent one”. 4 The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment5. In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of the Commission identified some of the considerations that may attract the public interest:
“... the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters.” 6
[9] 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. 7 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.8
[10] In relation to extensions of time to lodge applications under s.394(3), the test of “exceptional circumstances” establishes a “high hurdle” for an applicant for an extension, and a decision as to whether to extend time under s.394(3) involves the exercise of a broad discretion. 9 Therefore it will usually 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 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 King10 - 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.
[11] We have considered the circumstances surrounding Mr Reynolds’ application for permission to appeal, the grounds of appeal advanced by Mr Reynolds, the material provided by Mr Reynolds in support of his application for permission to appeal, and the written submissions made by him. 11 We are not satisfied that there is an arguable case of appealable error in relation to the decision by Senior Deputy President Drake to refuse Mr Reynolds an extension of time to make an unfair dismissal remedy application.
[12] Many of the arguments raised by Mr Reynolds on appeal are an attempt to reargue the case put below and seek a different outcome. It is not open to an appeal bench to substitute its view of the matters that fell for determination before the Senior Deputy President in the absence of error of appealable nature in the decision at first instance.
[13] 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 is required in an appeal of this kind;
(b) the appeal raises issues of importance and/or general application;
(c) the decision at first instance manifests an injustice, or the result is counter intuitive; or
(d) the legal principles applied by her Honour were disharmonious when compared with other decisions dealing with similar matters.
Conclusion
[14] For the reasons set out above, we are not satisfied, for the purpose of s.400(1) of the FW Act, that it would be in the public interest to grant permission to appeal. Accordingly, we dismiss the application for permission to appeal.
SENIOR DEPUTY PRESIDENT
Appearances:
Mr T Reynolds on his own behalf.
There was no appearance on behalf of the Respondent
Hearing details:
2016
Sydney
April 13
1 PR577725
2 [2016] FWC 1597
3 Coal and Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ
4 (2011) 192 FCR 78 at [43]
5 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 & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [44] -[46]
6 [2010] FWAFB 5343 at [27], 197 IR 266
7 Wan v AIRC (2001) 116 FCR 481 at [30]
8 GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343 at [26]-[27], 197 IR 266; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth[2010] FWAFB 10089 at [28], 202 IR 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 at [28]
9 Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21]
10 (1936) 55 CLR 499
11 At the hearing of the application for permission to appeal Mr Reynolds relied on his written submissions and did not seek to supplement them with any oral submissions.
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