Underwood v Terra Firma Pty Ltd T/A Terra Firma Business Consulting
[2015] FWCFB 3435
•25 MAY 2015
| [2015] FWCFB 3435 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
Terra Firma Pty Ltd T/A Terra Firma Business Consulting
(C2015/1839)
VICE PRESIDENT CATANZARITI | SYDNEY, 25 MAY 2015 |
Appeal against Order PR560721 of Deputy President Sams at Sydney on 4 February 2015 in matter number U2014/13390.
[1] Mr Wayne Underwood (the Appellant) was dismissed from his employment with Terra Firma Pty Ltd T/A Terra Firma Business Consulting (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] The Appellant’s employment was terminated on 30 September 2014 and he lodged his unfair dismissal application on 22 October 2014. 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 1 day outside the 21-day time limit, and accordingly it was necessary for him to obtain an extension of time under s.394(3).
[3] On 4 February 2015 the Deputy President issued an order 1 (Order) and on 4 March 2015 published a decision2 (Decision) 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.
[4] At the commencement of the proceedings, the Appellant made an application to put new material into evidence. The application was rejected on the basis that the material was not relevant to the timeline by which the unfair dismissal application was considered as it post-dated the application.
[5] The Appellant filed written submissions and made further oral submissions at the hearing. Prior to the Appellant’s oral submissions, Mr Cochrane sought permission to appear on behalf of the Respondent. We deferred consideration of this question until the Appellant presented his submissions. At the conclusion of the Appellant’s oral submissions, the Commission decided that it did not need to hear from the Respondent, so there was no need to deal with the issue of permission to appear.
[6] The decision subject to appeal was made under Part 3-2 – Unfair Dismissal – of the Act. Section 400(1) provides that permission to appeal must not be granted from such a decision unless the Commission considers that it is in the public interest to do so. Further, in such matters appeals on a question of fact may only be made on the ground that the decision involved a ‘significant error of fact’ (s.400(2)). 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] As mentioned earlier, the Appellant’s unfair dismissal application was lodged 1 day outside the statutory time limit.
[10] 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.”
[11] The Deputy President considered each of the matters specified in s.394(3)(a) to (f) at paragraphs [7]-[20] of the Decision 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.
[12] In accordance with the Commission’s directions, the Appellant filed written submissions that advanced some broad lines of argument in support of his application for permission to appeal. In summary form, the Appellant submitted that permission to appeal should be granted for the following reasons:
(a) the significant facts in dispute regarding the dismissal and strong merits of his application were not taken into account by the Deputy President;
(b) the Deputy President misinterpreted the evidence regarding the Appellant’s medical condition to erroneously reach the conclusion that he was suffering from everyday levels of high stress, when he was actually suffering from anxiety and depression for which he was on medication;
(c) it is in the public interest for the Commission to have consistency in its decision making. The Decision was disharmonious with the decision in Glyn Roberts v Westech IT Solutions Pty Ltd 8 (Roberts) where it was found that an applicant’s depressive illness was a relevant factor in the consideration of whether to grant an extension of time for the purposes of s.394(3) of the Act;
(d) the Deputy President incorrectly placed emphasis on the Appellant “shopping around” as the reason for the late application when in truth the Appellant did not understand the process and was not able to cope due to his aforementioned mental health issues; and
(e) the fact that technical difficulties prevented the Appellant from lodging the application on time was not taken into consideration by the Deputy President.
[13] 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. Much of the Appellant’s grounds take issue with the way in which the Deputy President dealt with the considerations pursuant to s.394 of the Act and go to the merits of the case, which is not the test for whether permission to appeal should be granted.
[14] The Deputy President, at paragraphs [18]-[19] of the Decision, appropriately considered the merits of the application on a prima facie basis, as he was required to do in dealing with an out of time application pursuant to s.394(3)(e) of the Act.
[15] Regarding the Appellant’s contentions surrounding his medical evidence, in Roberts the Applicant’s unfair dismissal application was filed some 22 days out of time and there was medical evidence which established the primary reason for the delay in filing the application related to Mr Robert’s depressive illness. Senior Deputy President O’Callaghan found that the circumstances were exceptional for the purpose of s.394(3) and on that basis his Honour made an order extending the time within which the applicant could file his unfair dismissal application. The facts in the matter before us are quite different and the circumstances of each case must be considered in their own unique context. Roberts cannot be taken as authority for the proposition that in every case where the applicant is suffering from depression, exceptional circumstances will be found for the purposes of s.394(3) of the Act. At paragraph [11] of the Decision, the Deputy President correctly observed:
“[11] I also note that Ms Cheung’s letter states that the applicant ‘indicated he was unable to lodge the application within the required timeframe’. In other words, Ms Cheung did not clinically diagnose the applicant as being unable to file his unfair dismissal application. Rather, she simply repeated what the applicant told her about his self assessment of his alleged psychological incapacity to lodge an unfair dismissal application during the relevant 21 day period. I also observe that Ms Cheung stated that the applicant only began psychological consultation on 20 November 2014; some 30 days after the statutory time limit for filing his application has expired.”
[16] We consider that the Deputy President properly considered the medical evidence at paragraphs [7]-[12] of the Decision and found that it did not positively demonstrate that the Appellant’s depressive illness had an impact on his mental capacity so as to prevent him from lodging the application within the 21 day time frame. At best, the letter recited the Appellant’s own assessment of his inability to have lodged the application within time.
[17] We do not consider that the Deputy President put any particular emphasis on the Appellant “shopping around” as being the reason for his late application but rather properly addressed all the relevant statutory criteria and reached a logical conclusion. Moreover, the submission that the technical considerations were not taken into account cannot be substantiated as the issue is noted in the extract at paragraph [8] of the Decision. The Deputy President further noted at paragraph [14] that the Appellant received legal advice on 21 October 2014 yet failed to lodged his application until the following day. We consider that the issue of experiencing technical difficulties was considered by the Deputy President and viewed in a context which did not give rise to exceptional circumstances.
[18] We do not consider that the Appellant has advanced any arguable case of error in the Decision. We consider that it was reasonably open to the Deputy President, on the basis of the material before him, that the Appellant had not demonstrated exceptional circumstances such as to permit the grant of an extension of time under s.394(3) of the Act. The Appellant’s submissions amounted 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 Deputy President’s conclusion. The Decision was not counter-intuitive, did not manifest injustice, and raised no wider issues of law or principle.
[19] 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.
VICE PRESIDENT
Appearances:
Mr Underwood in person.
Mr Cochrane for the Respondent.
Hearing details:
May 20
2015
Sydney via video-link to Melbourne.
1 PR560721.
2 Wayne Underwood v Terra Firma Pty Ltd t/as Terra Firma Business Consulting [2015] FWC 1387.
3 (2011) 192 FCR 78 at paragraph 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 [2014] FWC 4226.
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