Tweed v The Trustee for Furnlunga No 2 Trust T/A Harvey Norman Furniture Noarlunga
[2015] FWCFB 3443
•26 MAY 2015
| [2015] FWCFB 3443 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
The Trustee for Furnlunga No 2 Trust T/A Harvey Norman Furniture Noarlunga
(C2015/2297)
VICE PRESIDENT CATANZARITI | SYDNEY, 26 MAY 2015 |
Appeal against decision [2015] FWC 1681 of Senior Deputy President O'Callaghan at Adelaide on 12 March 2015 in matter number U2015/3081.
[1] Mr William Charles Tweed (the Appellant) was dismissed from his employment with The Trustee for Furnlunga No 2 Trust T/A Harvey Norman Furniture (the Respondent) and subsequently lodged an application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act).
[2] Prior to the appeal hearing, Mr McCabe sought permission to appear for the Appellant and Mr Wright sought permission to appear for the Respondent. Given the complexity of the matter, and having regard to s.596 of the Act, permission was granted to both parties to be represented.
Background
[3] The Appellant’s employment was terminated on 23 January 2015 and he lodged his unfair dismissal application on 16 February 2015. Under s.394(2) of the Act, an application for an unfair dismissal remedy must be made within 21 days after the dismissal took effect or within such further time as the Commission allows under s.394(3). Section 394(3) provides that the Commission may allow a further period for the application to be made where it is satisfied that there are “exceptional circumstances” taking into account a number of specified matters. The Appellant’s application was lodged some 3 days outside the 21 day time limit, and accordingly it was necessary for him to obtain an extension of time under s.394(3).
[4] On 12 March 2015 the Senior Deputy President issued a decision 1 (Decision) and order2 (Order) dismissing the Appellant’s application for an extension of time for the lodgement of his application. The Appellant seeks permission to appeal the Decision and Order and that is the matter before us.
[5] An appeal in relation to an unfair dismissal matter is governed by the provisions of ss.604 and 400 of the Act. Section 604 of the Act deals with appeals generally. These requirements are modified with respect to unfair dismissal appeals by s.400 of the Act which provides:
“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.”
[6] 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’. 3 The Commission must not grant permission to appeal unless it considers that it is ‘in the public interest to do so’.
[7] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment. 4 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.” 5
[8] 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. 6 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.7
[9] It is also important to note that the decision under appeal is of a discretionary nature. Usually, such a decision can only be successfully challenged on appeal if it is shown that the discretion was not exercised correctly. 8 It is not open to an appeal bench to substitute its view on the matters that fell for determination before the Commissioner in the absence of error of an appealable nature in the decision at first instance. As the High Court said in House v The King:9
“The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.”
[10] As mentioned earlier, the Appellant’s unfair dismissal application was lodged outside the statutory time limit. Subsection 394(3) of the Act deals with applications to extend time, it provides:
“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.”
The Decision at first instance
[11] The Senior Deputy President considered the matters specified in s.394(3)(a) to (f) in the Decision, particularly in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd 10 and concluded that there were no exceptional circumstances such as to warrant an extension of time to permit the Appellant to lodge his application for relief. The Senior Deputy President’s conclusions are expression in the following passage from the Decision:
“[10]Mr Tweed's reasons for the delay relate to his difficulties in accessing legal advice, and his difficulties in lodging his application electronically. In terms of his difficulties in obtaining legal advice, I am not satisfied that this is an acceptable reason for the delay or that it constitutes any form of exceptional circumstance. In terms of Mr Tweed’s difficulties in lodging the application, I am not satisfied that he has established that those attempts were made in a timely fashion or that delays in this instance, relative to the electronic lodgement system, properly explain the delay. In these circumstances, I am not satisfied that Mr Tweed’s explanation for the delay represents an acceptable reason for the delay or that it is indicative of exceptional circumstances. It is clear from Mr Tweed's application that he was aware of the termination of his employment on the day it took effect. I am not satisfied that, apart from the late lodgement of this application, Mr Tweed pursued other actions so as to challenge the termination of his employment. I am not satisfied that an extension of time of this magnitude would prejudice Harvey Norman but this, of itself, does not provide a basis for an extension of time.
[11] Whilst I have noted the jurisdictional objections identified by Harvey Norman, information to enable a definitive conclusion about these issues, or the merits of the application is not before me, and I have consequently regarded the merits of the application and the capacity to pursue it further, as a neutral factor relative to the extension of time.
[12] Considerations of fairness relative to other persons in similar positions do not support an extension of time.
[13] Accordingly I have concluded that the material before me does not establish that Mr Tweed's circumstances can be regarded as exceptional so as to warrant an extension of time. The application will be dismissed on this basis and an Order (PR561883) giving effect to this decision will be issued.”
The Appeal
[12] The Appellant seeks permission to appeal on grounds as set out at length in the Form F7 - Notice of Appeal. These grounds were distilled into three grounds in the Appellant’s written submissions as follows:
(a) The Senior Deputy President failed to consider whether the Appellant’s circumstances, although individually not exceptional, were exceptional when taken together;
(b) Further, and in any event, even if the Senior Deputy President did not so fail, the Senior Deputy President erred in considering that the circumstances indentified by the Appellant did not constitute exceptional circumstances; and
(c) Further, the Senior Deputy President failed to take into account a circumstance raised by the Appellant, being the Appellant’s son’s mental health at the relevant time.
[13] The Appellant further submitted that the Senior Deputy President’s exercise of the discretion, upon the facts, was plainly unreasonable and unjust. In the Appellant’s submission, the delay in filing the application was caused by an unusual and unfortunate confluence of events. These events included the Appellant’s inexperience in legal matters leading to him making an incorrect assumption about the nature of the assistance offered by the community legal aid provider he approached, difficulty in completing the online application form compounded by wrong advice from the Commission’s telephone helpline, a very stressful time in relation to his two sons and his son’s birthday falling on the limitation date.
[14] On the issue of public interest, the Appellant submitted that it is in the public interest to grant permission to appeal because the Decision manifested injustice, the result was counter-intuitive and the grounds of appeal have raised matters of importance and general application.
[15] The Respondent contended that on the evidence it was clear that the Senior Deputy President took into account all information before him and correctly applied the test pursuant to s.394(3) of the Act. In the Respondent’s submission, the Senior Deputy President did not err either in fact or law. Further, the Respondent submitted that the requirements of s.400 of the Act had not been met by the Appellant so as to warrant the granting of permission to appeal.
Consideration
[16] We have considered the circumstances of this matter and the grounds of appeal advanced by the Appellant. In our view, the Appellant has not demonstrated any error in the Decision or any basis on which it might be concluded that it is in the public interest to grant permission to appeal. All relevant circumstances were considered, findings of fact were made based on the evidence before the Commission and the Decision was reached by addressing each of the relevant statutory factors required to be considered in exercising the discretion conferred. We consider that the Decision was reasonably open to the Senior Deputy President on the basis of the material before him.
[17] The appeal process is not intended to provide an avenue for an unsuccessful party to rerun their case, absent error on the part of the primary decision maker. The Appellant’s submissions amount to an invitation for us to re-determine the extension of time application rather than an attempt to identify error in the Decision. In any event, we agree with the Senior Deputy President’s conclusion. The Decision was not counter-intuitive, did not manifest injustice, and raised no wider issues of law or principle.
[18] As we have mentioned, s.400(1) of the Act provides that permission to appeal must not be granted unless the Commission considers that it is in the public interest to do so. We do not consider that it is in the public interest to grant permission to appeal and accordingly we refuse permission to appeal.
Conclusion
[19] For the above reasons the application for permission to appeal is dismissed.
VICE PRESIDENT
Appearances:
P McCabe of Johnston Withers Lawyers for the Appellant
P Wright and D Shubert of Brown Wright Stein Lawyers for the Respondent.
Hearing details:
May 20
2015.
Sydney via video-link to Adelaide.
Printed by authority of the Commonwealth Government Printer
<Price code C, PR567581>
1 William Tweed v The Trustee for Furnlunga No 2 Trust T/A Harvey Norman Furniture Noarlunga[2015] FWC 1681.
2 PR561883
3 (2011) 192 FCR 78 at [43].
4 O’Sullivan v Farrer (1989) 168 CLR 210 at 216-7 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch [2011] HCA 4 at [69] per Gummow, Hayne, Heydon, Crennon, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54 at [44] -[46].
5 [2010] FWAFB 5343 at [27].
6 Wan v AIRC [2001] FCA 1803 at [30].
7 Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth[2010] FWAFB 10089 at [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler; [2011] FCAFC 54; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663 at [28].
8 House v The King (1936) 55 CLR 499 at [504]-[505] per Dixon, Evatt and McTiernan JJ.
9 Ibid.
10 [2011] FWAFB 975
1
7
0