Trevor Puckeridge v BigAir Group Ltd
[2016] FWCFB 5481
•30 AUGUST 2016
| [2016] FWCFB 5481 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
v
BigAir Group Ltd
(C2016/4334)
VICE PRESIDENT HATCHER | SYDNEY, 30 AUGUST 2016 |
Permission to appeal against an order [PR582042] and decision [2016] FWC 4517 of Senior Deputy President Drake at Sydney on 24 June 2016 and 6 July 2016 respectively in matter number U2016/7643.
Introduction
[1] Mr Trevor Puckeridge (the appellant) has applied for permission to appeal a decision1 of Senior Deputy President Drake issued on 6 July 2016 (Decision). The effect of the Decision was to refuse Mr Puckeridge an extension of the time to lodge an application for unfair dismissal remedy under s.394 of the Fair Work Act 2009 (FW Act) and to dismiss the application that had been received by the Fair Work Commission (Commission). At the hearing of the appeal before us, the parties were self-represented. Mr C Chapman appeared for BigAir.
[2] Section 394(2) of the FW Act requires an unfair dismissal remedy application to be lodged 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 Puckeridge filed his unfair dismissal remedy application on 14 June 2016. On 16 June 2016 the Senior Deputy President wrote to Mr Puckeridge asking him to provide a statement addressing the extension of time matters she was required to address. Mr Puckeridge provided a statement advising the Senior Deputy President that he had resigned his employment. The Senior Deputy President found in the Decision that “[t]he relationship between Mr Puckeridge and the respondent ended on either 14 or 16 March 2016.” There was no challenge to that finding in Mr Puckeridge’s notice of appeal. Mr Puckeridge’s unfair dismissal remedy application was therefore 69 or 71 days beyond the 21-day time limit in s.394(2).
[4] The reasons for the delay advanced by Mr Puckeridge 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 at paragraphs [8] and [9] as follows:
“[8] The reasons Mr Puckeridge provided for his delay in lodgement were:
● the effect of a common-law action taken against him by the respondent to recover monies, and
● unexplained technical difficulties in lodging this claim.
[9] While sympathetic to these circumstances I was not persuaded that Mr Puckeridge’s difficulties were out of the ordinary, unusual or uncommon.”
[5] In considering the other matters required to be taken into account under s.394(3), the Senior Deputy President concluded that:
- Mr Puckeridge was aware of the end of his relationship with the respondent in mid-March 2016.
- Mr Puckeridge disputed his dismissal by lodging his application for unfair dismissal remedy.
- Prejudice to the respondent was a neutral consideration, since there was no greater prejudice to the respondent caused by Mr Puckeridge’s application being lodged when it was, as opposed to it having been lodged in time.
- Merit was a neutral issue in the consideration.
- There was no issue of fairness in relation to any other person in a similar position.
[6] The Senior Deputy President’s overall conclusion was that she was not satisfied that exceptional circumstances existed that would permit the grant of an extension of time.
[7] Mr Puckeridge’s notice of appeal and written and oral submissions made in support of his application for permission to appeal raised that he had been confused about the jurisdiction in which to progress his employment matters, given BigAir had made a civil claim against him for monies owed. He further stated that due to inadequate advice from his lawyer, he was unaware of the 21-day time limit in which to lodge an application for unfair dismissal remedy. None of the grounds relied on by Mr Puckeridge asserted an appealable error on the part of the Senior Deputy President.
[8] In relation to the delay in lodging his application, Mr Puckeridge submitted to the Full Bench that he was suffering from stress following his resignation which required a period of hospitalisation in May 2016, and that he was required to give attention to the small claims matter which was being pursued by BigAir against him. Mr Puckeridge also submitted that in early April 2016, following a discussion with his lawyer, he rang and emailed the Commission and attempted to lodge an application in mid-May 2016, but then experienced technical difficulties which he was unable to detail.
[9] During submissions before the Full Bench, Mr Puckeridge and Mr Chapman confirmed that Mr Puckeridge’s date of commencement of employment with the respondent was 6 October 2015 and therefore he was employed for a period of less than six months. This information was not put to the Senior Deputy President by Mr Puckeridge.
Consideration
[10] 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.2 There is no right to appeal and an appeal may only be made with the permission of the Commission.
[11] 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.
[12] 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.3 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.” 4
[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.5 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.6
[14] 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.7 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 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 King8 – 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.
[15] The Senior Deputy President, having considered the reasons given for delay and the other relevant criteria, determined that the stringent test of “exceptional circumstances” was not met. We do not consider that this conclusion was unreasonable, manifested any injustice, or was counter-intuitive. The principal reason given by Mr Puckeridge for the delay concerned a civil action instituted against him by his former employer to recover an over-payment of monies. It was never properly articulated at first instance or before us why this civil action constituted an impediment to Mr Puckeridge filing his unfair dismissal remedy application. Indeed Mr Puckeridge’s capacity to respond to that civil action strongly tended to demonstrate that he had the capacity to file his unfair dismissal remedy application within the 21-day period.
[16] We have considered all matters raised in Mr Puckeridge’s notice of appeal and submissions. Those submissions were principally simply a repetition of Mr Puckeridge’s submissions made at first instance, and dealt with matters which were clearly considered by the Senior Deputy President in the Decision. We are not satisfied that any of those submissions identify an error made by the Senior Deputy President that would justify the grant of permission to appeal in the public interest or otherwise.
[17] We note that information relating to Mr Puckeridge’s length of service with BigAir was not a matter that appears to have been raised before the Senior Deputy President. It was, however, not in dispute at the hearing before us that Mr Puckeridge had not established the requisite minimum employment period prescribed under s.383(a), that is, six months service where the employer is not a small business employer. As such, Mr Puckeridge was not a person protected from unfair dismissal pursuant to s.382 of the FW Act and his application was destined for failure, in any event, on the basis of a want of jurisdiction. The grant of permission to appeal would therefore have no utility.
[18] We are not satisfied that it would be in the public interest to grant permission to appeal. Accordingly, as required by s.400(1), permission to appeal is refused.
VICE PRESIDENT
Appearances:
T. Puckeridge on his own behalf.
C. Chapman on behalf of BigAir Group Pty Ltd.
Hearing details:
2016.
Sydney:
9 August.
1 [2016] FWC 4517
2 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
3 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]
4 [2010] FWAFB 5343, 197 IR 266 at [24] – [27]
5 Wan v AIRC (2001) 116 FCR 481 at [30]
6 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]
7 Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21]
8 (1936) 55 CLR 499
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