Toni Reihana v Mastercare Highrise Cleaning Services Pty Ltd
[2013] FWCFB 4960
•2 AUGUST 2013
Note: Judicial review of this decision [FCA-QUD570/2013] pending.
[2013] FWCFB 4960 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
v
Mastercare Highrise Cleaning Services Pty Ltd
(C2013/4765)
SENIOR DEPUTY PRESIDENT ACTON | |
Appeal against decision [[2013] FWC 3216] of Senior Deputy President Richards at Brisbane on 27 May 2013 in matter number U2013/6439.
Introduction
[1] Mr Toni Reihana has given notice of appeal against a decision 1 of Senior Deputy President Richards refusing him an extension of time for the making of his unfair dismissal remedy application under s.394 of the Fair Work Act 2009 (Cth) (FW Act) against Mastercare Highrise Cleaning Services Pty Ltd (Mastercare).
Senior Deputy President’s decision
[2] In making his decision the Senior Deputy President set out the provisions of the FW Act that the Fair Work Commission (FWC) is required to take into account when deciding whether to allow a further period for the making of an unfair dismissal remedy application. In this regard, s.394(3) of the FW Act provides as follows:
“(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) whether the person first became aware of the dismissal after it had taken effect; and
(c) any action taken by the person to dispute the dismissal; and
(d) prejudice to the employer (including prejudice caused by the delay); and
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.”
[3] The Senior Deputy President then dealt with the matters in s.394(3) as follows:
“Section 394(3)(a)
[7] The Applicant claims that he posted by ordinary surface mail an application for an unfair dismissal remedy on 25 January 2013. However, he directed this application to the Queensland Industrial Relations Commission.
[8] A delegate of the Industrial Registrar wrote to the Applicant on 29 January 2013 indicating that the Applicant’s correspondence had been received that day and that he had made application to the wrong jurisdiction. The correspondence informatively provided the Applicant with the online address for the Fair Work Commission as well as providing the Commission’s telephone contact details.
[9] The Applicant claims that he would have received the correspondence of 29 January 2013 on 1 February 2013.
[10] Upon receipt of that correspondence the Applicant claimed that he ‘acted quick smart’ to make an application to the Fair Work Commission. ‘My quick action’, so the Applicant claimed further, meant that he was able to lodge the new application on 13 February 2013.
[11] The Applicant was able to provide no meaningful evidence that provided an explanation as to why he did not set about sending by ordinary surface mail the application to the Queensland Industrial Relations Commission before 25 January 2013. Even accounting for what he may have presumed to have been the 21 day time limit applicable to applications in the former Queensland jurisdiction, the Applicant was still effectively out of time in regard to that presumption on his part (if indeed he actually held that presumption at any time).
[12] The Applicant did attempt to construct an argument that his application to the Queensland Industrial Relations Commission was delayed by the intervention of a number of public holidays (Christmas Day, Boxing Day, and New Year’s Day). Despite this, again, the Applicant’s application to the State jurisdiction was not received until 29 January 2013.
[13] This was not an application that was affected by the day on which an application was due but where that day was a weekend or a public holiday (as set out at s.36(2) of the Acts Interpretation Act 1901).
[14] Similarly, he was able to provide no meaningful explanation as to why a further delay occurred between 1 February 2013 (if I accept the Applicant’s evidence as to the date on which he received the correspondence from the Queensland Industrial Relations Commission) and 13 February 2013 in making his application, finally, to the Fair Work Commission - though in the Applicant’s own mind he claims to have acted with all speed.
Section 394(3)(b)
[15] No issue arises in relation to the date or time at which the Applicant became aware of his dismissal as opposed to when it took effect.
Section 394(3)(c)
[16] … On balance, it is sufficient to say that the Applicant held concerns about the circumstances of his dismissal and indicated to the Employer that he would challenge its conduct, in some regards at least.
Section 394(3)(d)
[17] The Employer’s claim was that it would be prejudiced by the application essentially because it believes the application lacked any merit in substantive terms. Other than that, the Employer did not demonstrate that it would in some demonstrable manner be inconvenienced by providing for the application in another period of time (outside the 14 day limitation), such as by the unavailability of witnesses, documents having been lost etc.
Section 394(3)(e)…
[23] … The merits of the application therefore are of neutral effect on my overall consideration.
Section 394(3)(f)
[24] There are no other employees whose circumstances were introduced in any detail for the purposes of consideration in this matter.”
[4] His Honour concluded in respect of Mr Reihana’s application for an extension of time for the making of his unfair dismissal remedy application as follows:
“Conclusion
[25] The Applicant was unable to provide any explanation of any substance for the delay in his application for the period prior to making the application with the Queensland Industrial Relations Commission. That application was not received by the Queensland Industrial Relations Commission until 29 January 2013 (whereas the Applicant’s dismissal occurred on 23 December 2012).
[26] Once having been informed that his application should have been made to the Fair Work Commission, a period of eleven or twelve days lapsed until the application itself is made. Though the Applicant claimed he “acted quick smart” in the circumstances, that period of elapsed time is without substantive explanation.
[27] There are no exceptional circumstances evident in the Applicant’s evidence in this respect.
[28] Nor are any of the other circumstances set out in the Applicant’s evidence persuasive that there were exceptional circumstances relating to the delay in his application for an unfair dismissal remedy.
[29] As a consequence I dismiss the application under s.394 of the Act and do not provide for the application to be made in a further period of time under s.394(2)(b) of the Act.”
Grounds of appeal
[5] In support of his appeal, Mr Reihana submitted that:
● taking into account the notice of dismissal due to him, he was not legally dismissed until 14 January 2013;
● he thought the FWC would grant him an extension of time for the making of his unfair dismissal remedy application because he was misled by the website for the Queensland Industrial Relations Commission (QIRC) into making an unfair dismissal remedy application to the QIRC on 29 January 2013, before he made his unfair dismissal remedy application to the FWC on 13 February 2013;
● there is 15 days between 14 January 2013 and 29 January 2013, meaning his unfair dismissal remedy application was filed within the 21 days required by the QIRC; and
● the period under s.394(2)(a) for making an unfair dismissal remedy application should not have started until he was advised that he had wrongly made an application to the QIRC.
[6] Mr Reihana sought to introduce new evidence or information on appeal about the notice of dismissal afforded to him by Mastercare, about his lack of preparedness for the proceedings before Senior Deputy President Richards and about matters he thought he should have presented, but did not present, to his Honour. That new evidence or information concerned him being given payment in lieu of notice, him being overseas until a few days before the proceeding, and his involvement in tenancy and associated matters, including litigation, in the period leading up to and post his dismissal.
[7] Mastercare opposed the granting of permission to appeal. In doing so they confirmed that Mr Reihana was dismissed shortly before Christmas 2012 and given payment instead of any outstanding notice period to which he was entitled at the date of his dismissal.
Consideration
[8] Sections 604 of the FW Act states in respect of appeals:
“604 Appeal of decisions
(1) A person who is aggrieved by a decision:
(a) made by the FWC (other than a decision of a Full Bench or the Minimum Wage Panel)…
may appeal the decision, with the permission of the FWC.
(2) Without limiting when the FWC may grant permission, the FWC must grant permission if the FWC is satisfied that it is in the public interest to do so.
Note: Subsection (2) does not apply in relation to an application for an unfair dismissal (see section 400).
(3) A person may appeal the decision by applying to the FWC.”
[9] Section 607 of the FW Act states:
“607 Process for appealing or reviewing decisions
(1) An appeal from, or a review of, a decision of the FWC or the General Manager may be heard or conducted without holding a hearingonly if:
(a) it appears to the FWC that the appeal or review can be adequately determined without persons making oral submissions for consideration in the appeal or review; and
(b) the persons who would otherwise, or who will, make submissions (whether oral or written) for consideration in the appeal or review consent to the appeal or review being heard or conducted without a hearing.
(2) The FWC may:
(a) admit further evidence; and
(b) take into account any other information or evidence.
(3) The FWC may do any of the following in relation to the appeal or review:
(a) confirm, quash or vary the decision;
(b) make a further decision in relation to the matter that is the subject of the appeal or review…”.
[10] Section 400 of the FW Act, however, states:
“400 Appeal rights
(1) Despite subsection 604(2), FWA must not grant permission to appeal from a decision made by FWA under this Part unless FWA 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.”
[11] The “Part” referred to in s.400 of the FW Act is Part 3-2 of the FW Act concerning unfair dismissal.
[12] With respect to Mr Reihana’s application for us to admit or take into account new evidence or information on appeal, s.607(2) of the FW Act concerning such evidence or information was considered by a majority of a Full Bench of the then Fair Work Australia in J.J. Richards & Sons Pty Ltd v Transport Workers’ Union of Australia. 2 The majority in J.J. Richards recognised that s.607(2) confers a discretion on a Full Bench hearing on appeal to “admit further evidence” and “take into account any other information or evidence” and that the principles governing the admission of fresh evidence on appeal in the courts provide a useful guide to the exercise of the discretion. In that regard, in Akins v National Australia Bank,3 Clarke JA said:
“The Court is empowered to receive further evidence upon the hearing of an appeal (s.75A(7) of the Supreme Court Act 1970) but pursuant to subs (8) of that section may not receive further evidence after a trial on the merits ‘except on special grounds’. Although it is not possible to formulate a test which should be applied in every case to determine whether or not special grounds exist there are well understood general principles upon which a determination is made. These principles require that, in general, three conditions need be met before fresh evidence can be admitted. These are: (1) It must be shown that the evidence could not have been obtained without reasonable diligence for use at the trial; (2) The evidence must be such that there must be a high degree of probability that there would be a different verdict; (3) The evidence must be credible.” 4
[13] The new evidence or information Mr Reihana seeks to have us admit or take into account on appeal is evidence or information that was available to Mr Reihana at the time the matter the subject of this appeal was heard by the Senior Deputy President. Moreover, the new evidence or information is not sufficient to lead to satisfaction that there are exceptional circumstances as required by s.394(3) of the FW Act for allowing him a further period for the making of his unfair dismissal remedy application. In the circumstances, we decline to admit or take into account Mr Reihana’s new evidence or information.
[14] We are not persuaded the Senior Deputy President made an appealable error in his decision to refuse Mr Reihana an extension of time for the making of his unfair dismissal remedy application.
[15] Mr Reihana was dismissed shortly before Christmas 2012 and given pay in lieu of any outstanding notice of dismissal required to be given to him. We were not referred to any authority precluding Mastercare giving Mr Reihana payment in lieu of notice. Further, the Senior Deputy President took into account Mr Reihana’s application to the QIRC and the period within which it was made but did not consider that an exceptional circumstance. That finding was reasonably open to his Honour. The absence of a specific reference to the QIRC website in his Honour’s decision is of no consequence. In addition, under s.394(2)(a) of the FW Act an unfair dismissal application must be made within a certain period after the dismissal took effect. The Senior Deputy President considered Mr Reihana’s delay between him receiving the advice about his application to the QIRC and him making his unfair dismissal remedy application to the FWC but found no meaningful explanation was provided for the delay and no exceptional circumstances were evident. Those findings were also reasonably open to his Honour.
Conclusion
[16] Mr Reihana has not established that the Senior Deputy President’s decision involved a significant error of fact and, in the circumstances, we do not consider it is in the public interest or otherwise that we grant him permission to appeal. Mr Reihana’s appeal does not raise matters that attract the public interest in granting permission to appeal. We refuse Mr Reihana permission to appeal and, to the extent necessary, dismiss his appeal.
SENIOR DEPUTY PRESIDENT
Appearances:
T. Reihana appeared on his own behalf.
N. Cohen for Mastercare Highrise Cleaning Services Pty Ltd.
Hearing details:
2013.
Sydney:
July 30.
1 Mr Toni Reihana v Mastercare Cleaning Services, [2013] FWC 3216.
2 [2010] FWAFB 9963.
3 (1994) 34 NSWLR 155.
4 Ibid at 160.
Printed by authority of the Commonwealth Government printer
<Price code C, PR539261
5
2
0