Tony Ibrahim v I Sec Security T/A Isec
[2017] FWCFB 1379
•9 MARCH 2017
| [2017] FWCFB 1379 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Tony Ibrahim
v
I Sec Security T/A ISEC
(C2017/969)
VICE PRESIDENT CATANZARITI | MELBOURNE, 9 MARCH 2017 |
Appeal against decision [2017] FWC 611 of Commissioner Roe at Melbourne on 31 January 2017 in matter number C2016/6141.
[1] This is an appeal, for which permission to appeal is required, against a decision of Commissioner Roe issued on 31 January 2017 1 in which he declined, under s.366 of the Fair Work Act 2009 (“the Act”), to extend time to Mr Tony Ibrahim to file a general protections dismissal application under s.365 of the Act. Consequently, the Commissioner issued an Order dismissing Mr Ibrahim’s substantive application.2
[2] At the hearing of the appeal before us on 6 March 2017, Mr Ibrahim represented himself and the Respondent was represented by Mr Bellomo, CEO of the Respondent.
[3] Mr Ibrahim filed his general protections dismissal application in the Commission on 13 October 2016. In that application, he identified the date of the dismissal, the subject of the application, as being 15 August 2016.
[4] Section 366(1) requires a general protections dismissal application to be made within 21 days after the dismissal took effect or within such further period as the Commission allows under s.366(2) of the Act. That means Mr Ibrahim should have filed his application by 5 September 2016. In filing the application on 13 October 2016, he was 38 days late. It was therefore necessary for Mr Ibrahim to obtain an extension of time under s.366(2) in order to make his application.
Legislative Provisions
[5] 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.
[6] The test of “exceptional circumstances” establishes a “high hurdle” for an applicant for an extension. 3 A decision as to whether to extend time under s.366(2) involves the exercise of discretion.4
[7] 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. 5 There is no right to appeal and an appeal may only be made with the permission of the Commission. Section 604 provides:
(1) A person who is aggrieved by a decision:
(a) made by the FWC (other than a decision of a Full Bench or an Expert Panel); or
(b) made by the General Manager (including a delegate of the General Manager) under the Registered Organisations Act;
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). (2) A person may appeal the decision by applying to the FWC.
[8] Subsection 604(2) requires the Commission to grant permission to appeal if it is 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. 6 The public interest is not satisfied simply by the identification of error7, or a preference for a different result.8 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 …” 9
[9] 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. 10 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.11 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.12
The Decision
[10] In his decision, Commissioner Roe set out the agreed facts in this matter. There was no dispute that Mr Ibrahim had lodged an unfair dismissal application on 1 September 2016 which was within the 21 days of his dismissal. He was advised by the Commission on 7 September 2016 that it did not appear that he had the worked the minimum employment period. Mr Ibrahim responded to that information and on 23 September 2016, his unfair dismissal application was dismissed and he filed his general protections application on 13 October 2016.
[11] In his decision, Commissioner Roe gave consideration to each of the matters he was required to take into account under s.366(2) of the Act.
[12] In relation to the reason for the delay pursuant to s.366(2)(a) of the Act, Commissioner Roe considered the various reasons advanced by Mr Ibrahim which included the filing of his unfair dismissal application within time. Mr Ibrahim said he had sought advice at the same time he was moving house. Mr Ibrahim moved house on 23 August 2016. Mr Ibrahim sought legal advice which took some time. He had initially considered appealing the decision to dismiss his unfair dismissal application and obtained advice on 29 September 2016.
[13] Commissioner Roe was not satisfied that Mr Ibrahim had an adequate explanation for the entire period of the delay. He was not satisfied that Mr Ibrahim was misled by his advisor about the time limits for the general protections application or that his advisor was directed to make an application and failed to do so. He was not satisfied that any illness or other incapacity prevented him from making the application, or that moving house on 23 August 2016 explained the delay. Further, once Mr Ibrahim had been advised that his unfair dismissal application was dismissed on 23 September 2016, he did not provide a reasonable explanation for the delay from that date to 13 October 2016.
[14] In relation to s.366(2)(b), Commissioner Roe accepted that Mr Ibrahim had challenged his dismissal. This weighed in favour of a finding of exceptional circumstances.
[15] In relation to s.366(2)(c), Commissioner Roe found that there was no prejudice to the employer.
[16] In relation to s.366(2)(d), Commissioner Roe found the merits to be a neutral factor as there were factual disputes between the parties.
[17] In relation to s.366(2)(e), as there were no issues raised in relation to this criterion, Commissioner Roe found it to be a neutral consideration.
Public Interest and Grounds of Appeal
[18] The grounds of appeal may be summarised as follows:
1. Commissioner Roe acted brutally to Mr Ibrahim’s situation and did not have regard to his difficult personal circumstances;
2. Mr Ibrahim did not have the benefit of legal advice when he made his first application which was made within time. Part of the delay was because he could not make his second application until his first application was resolved; and
3. Mr Ibrahim has been the victim of bullying and harassment by a third person.
[19] It was in the public interest for permission to appeal to be granted because:
1. Mr Ibrahim was unemployed and he was able to work;
2. Mr Ibrahim had been the victim of bullying and harassment from a third person which gives rise to health and safety concerns;
3. Mr Ibrahim was dismissed for no reason; and
4. The Commission has a role in the prevention and detection of crime and fraud.
[20] The approach taken by the Commissioner to the matter before him was orthodox. His conclusions disclosed no error of approach.
[21] We are not satisfied that Mr Ibrahim has established that there is an arguable case of error in the decision.
[22] Noting the test for public interest, it is not immediately apparent to us how the matters submitted by Mr Ibrahim raise any issue of wider relevance beyond his immediate interests.
Conclusion
[23] We are not satisfied that any of the matters raised by Mr Ibrahim justify the grant of permission to appeal in the public interest or on discretionary grounds. Mr Ibrahim’s appeal does not raise any issue of law or policy which is novel and/or has broader implications. It is not inconsistent with any other relevant Commission decisions. The determination of his extension of time application turned entirely on its particular facts.
[24] We are not satisfied that it is in the public interest to grant Mr Ibrahim permission to appeal. Nor are we satisfied that he has established an arguable case of appealable error to justify the grant of permission to appeal on discretionary grounds.
[25] Accordingly permission to appeal is refused.
VICE PRESIDENT
Appearances:
T. Ibrahim on his own behalf.
F. Bellomo for the Respondent.
Hearing details:
2017.
Melbourne:
6 March.
1 Tony Ibrahim v I Sec Security T/A ISEC[2017] FWC 611.
2 PR589870.
3 Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21].
4 Halls v McCardle and Ors [2014] FCCA 316.
5 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) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.
6 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].
7 GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343, 197 IR 266 at [24]-[27].
8 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, 197 IR 266at [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 78.
9 [2010] FWAFB 5343, 197 IR 266 at [24]-[27].
10 Also see CFMEU v AIRC (1998) 89 FCR 200 at 220; and Wan v AIRC (2001) 116 FCR 481 at [26].
11 Wan v AIRC (2001) 116 FCR 481 at [30].
12 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].
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