Usman Nasir v Precision Energy Services (Australia) Pty Ltd
[2024] FWCFB 169
•19 MARCH 2024
| [2024] FWCFB 169 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Usman Nasir
v
Precision Energy Services (Australia) Pty Ltd
(C2024/633)
| DEPUTY PRESIDENT MILLHOUSE | MELBOURNE, 19 MARCH 2024 |
Appeal against decision [2024] FWC 54 of Commissioner Lim at Perth on 15 January 2024 in matter number C2023/7179 – permission to appeal refused.
Mr Usman Nasir seeks permission to appeal and appeals the decision of Commissioner Lim given on 15 January 2024 rejecting his application for an extension of time for the making of the general protections application to deal with contraventions involving a dismissal.[1] The dismissal in question took effect on 13 October 2023 when Precision Energy Services (Australia) Pty Ltd (Precision Energy or Respondent) terminated his employment which had commenced on 1 September 2023.
This matter was listed for permission to appeal only with that matter being the subject of a hearing which took place on 6 March 2024. In the hearing Mr Nasir appeared for himself and elaborated upon his written submissions and answered questions from the Full Bench. While having been notified of the date and time of the hearing there was no appearance for or on behalf of Precision Energy.
For the reasons that follow permission to appeal is refused.
CONTEXT
Section 366 of the Act requires an application for a general protections application involving dismissal to be filed within 21 days after the dismissal took effect or within such further period as the Fair Work Commission (the Commission) allows under s 366(2). The section provides the following:
“366 Time for application
(1) An application under section 365 must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (2).
(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.”
RELEVANT BACKGROUND
The decision under appeal records the following relevant background:
Mr Nasir was employed by Precision Energy on 1 September 2023, and he was dismissed with effect from 13 October 2023.
After his dismissal Mr Nasir raised two grievances with Precision Energy: first, on 22 October 2023 that his termination pay had been incorrectly calculated; and second, on 23 October 2023 when he made a complaint about his treatment over the course of his employment. Precision Energy acknowledged both matters. In respect of the former it stated it believed his termination payment had been in accordance with the relevant enterprise agreement, however did not engage with the substance of the second, work treatment complaint except to acknowledge the complaints and that the person responding would look into the complaints to ensure existing and future employees did not have similar experiences.
In the correspondence he sent on 22 October 2023 Mr Nasir both said that he had “discussed this matter now with a consultant” and that he looked forward to a review of the payments under the enterprise agreement by the Fair Work Ombudsman.
On 13 November 2023 Mr Nasir lodged an unfair dismissal application in the Commission, with that application itself made outside of the statutory time limit for the making of such applications.
On 17 November 2023 the Commission’s Client Services Team contacted Mr Nasir and informed him that he had not completed the minimum employment period. Mr Nasir then withdrew the unfair dismissal application and on 18 November 2023 commenced a general protections application.
Demonstrably both the unfair dismissal and general protections applications were lodged by Mr Nasir out of time. Both s.394(2) dealing with the making of unfair dismissal applications and s.366 dealing with the making of general protections applications, such as the matter involved in this appeal, require that the relevant application is made within 21 days after the dismissal took effect.
With Mr Nasir’s dismissal taking effect on 13 October 2023, the final day for the making of an application of either type was 3 November 2023. As a consequence, the general protections application which is the subject of this appeal was made 15 days out of time.
Commissioner Lim published her decision on 15 January 2024, following a hearing conducted on 11 January 2024.
The Commissioner found that “the majority of the factors in s 366(2) are neutral, however Mr Nasir has not provided a satisfactory explanation for the delay in filing his application.”[2] Mr Nasir’s application was accordingly dismissed.
GROUNDS OF APPEAL/SUBMISSION OF ADDITIONAL EVIDENCE/PUBLIC INTEREST
Mr Nasir advanced two main grounds of appeal in his Notice of Appeal: first that the Commissioner’s decision insufficiently took into account the impact of the dismissal on his state of mental health; and second that much of the evidence provided by Precision Energy is misleading and untrue. The second ground is divided into three parts where it was contended: the Commissioner was incorrect to refer to the Respondent’s reasons for dismissal as none have ever been given; contrary to the Respondent’s case Mr Nasir successfully completed his induction; and the evidence does not support a finding that Mr Nasir displayed a poor attitude, being unwilling to commence work as scheduled or to receive coaching on company processes.
When he lodged his Notice of Appeal Mr Nasir also provided to the Commission four documents that had not been before Commissioner Lim:
A copy of a “skillPASS” issued to Mr Nasir which includes a photo of him;
Correspondence with an Operations Supervisor, between 16 and 18 September 2023 seeking to work from home in order to complete an online induction training course and other modules;
Correspondence with a Weatherford Geozone Service Excellence Manager – Asia Wireline Services between 11 and 29 September 2023 about the need to complete several training modules; and
Correspondence with Weatherford’s Global Talent & Development Manager Human Resources, dated 2 October 2023 about actions Mr Nasir needed to take about competency development.
With reference to the further material, Mr Nasir explained that in the matter before Commissioner Lim, he was unable to access the documents, as his access to them had been removed. With subsequent IT assistance, he was effectively able to recover a backup. In the absence of opposition from the Respondent.
We advised Mr Nasir we would take into account his submissions about the documents. After perusing the documents, and being satisfied that none assist his application for permission to appeal, it is unnecessary for us to determine whether, consistent with the principles set out in Akins v National Australia Bank,[3] the documents should be admitted by us as fresh evidence. Were it necessary to form a concluded view, we would have refused permission for the further evidence to be adduced.
In the course of the appeal hearing, Mr Nasir also put forward that the Commissioner had incorrectly determined several of the extension of time criteria as being a “neutral” consideration. We accept this as a further ground of appeal and consider it in this decision.
Mr Nasir did not address the matter of the public interest in his Notice of Appeal, although submitted in the hearing that a granting of permission to appeal was warranted to ensure that other people in circumstances like to his own would not have to go through similar issues.
PRINCIPLES – PERMISSION TO APPEAL
There is no right to appeal, and an appeal may only be made with the permission of the Commission. By s.604(2), and without limiting when the Commission might grant permission, the Commission must grant permission if the Commission is satisfied that it is in the public interest to do so.
The test of exceptional circumstances in relation to extensions of time to lodge applications under s.366(2) establishes a “high hurdle” for an application for an extension.[4] A decision as to whether to extend time under s.366(2) involves the exercise of a broad discretion.[5] Therefore it will be necessary, in an application for permission to appeal such as this, 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 King[6] – 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.
The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[7] A Full Bench of the Commission, in GlaxoSmithKline Australia Pty Ltd v Makin, identified some of the considerations that may attract the public interest:[8]
“… 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.”
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.[9] 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.[10]
An application for permission to appeal is not a de facto or preliminary hearing of the appeal. In determining whether permission to appeal should be granted, it is unnecessary and inappropriate for the Full Bench to conduct a detailed examination of the grounds of appeal.[11] However, it is necessary to engage with the appeal grounds to consider whether they raise an arguable case of appealable error.
CONSIDERATION
The grounds of appeal advanced by Mr Nasir, to which we now turn, are referred to above. In relation to these grounds of appeal and in order for us to be satisfied that permission for appeal should be granted, consistent with the principles referred to, we must be satisfied that the decision at first instance was attended by an arguable case of appealable error and that it is in the public interest for permission to appeal to be granted.
Mental health considerations
The first ground advanced by Mr Nasir as set out in his Notice of Appeal articulates his belief “there were exceptional circumstances regarding mental health due to which application was lodged late. This event has still effect on applicants’ mental health till date.” In written submissions to the Full Bench Mr Nasir elaborated that the events associated with his dismissal led to “post-traumatic stress” and mental health issues “over a long period of time.”
In her decision Commissioner Lim noted as part of the material before her the submission of a psychology report obtained after Mr Nasir’s unfair dismissal application had been discontinued and the general protections application had been made. The Commissioner then said the following in her decision as she considered the reason for delay criterion:
“[33] The clinical psychologist who assessed Mr Nasir details in the Psychology Report their opinion that Mr Nasir’s mental health has been significantly impacted by his experience with the Respondent. Further, that he is suffering from anxiety and depression, and loss of confidence. Due to being a self-dependent single person with no family or immediate friends around him for support, his mental ability and decision making has been severely affected to act promptly following his dismissal. I accept this evidence from Mr Nasir.”
Later the Commissioner found that “the substantive reason for Mr Nasir’s delay in filing his s 366 application was a combination of his mental health and lack of knowledge about the law.”[12]
The Commissioner’s decision both accepted Mr Nasir’s evidence about his health and moderated that against other material before her. There is no proposition to the effect that the Commission should accept that all instances of mental unwellness as acceptably explaining the whole of a filing delay. The Commissioner correctly stated the approach to be taken to matters of mental unwellness:
“[37] An applicant’s emotional state or mental health may provide part of a satisfactory explanation for a delay in lodging an application of this kind. However, depending upon the circumstances, that evidence must be cogent and inform the context and explanation as to why the application was delayed. Anger, distress and anxiety may not of themselves be sufficient.”
The psychologist’s report referred to by Commissioner Lim does not address Mr Nasir’s functional capacity after the date of his dismissal, on 13 October 2023 or relevantly, the period between the expiry of the statutory time limit and the date on which the application was lodged.
The findings made by the Commissioner are consistent with the evidence before her with that evidence showing that although mentally unwell there is no evidence to support a claim that Mr Nasir was incapacitated for the entirety of the relevant period. Mr Nasir took us to no arguable error of fact or law in the decision. It was open for the Commissioner to find that Mr Nasir’s explanation for the delayed application was a combination of his mental health and lack of knowledge about the law and that while sympathetic to his situation Mr Nasir had not provided a satisfactory explanation for most of the period of the delay in making his applications, being a factor weighing against a finding of exceptional circumstances.
Acceptance of Precision Energy’s evidence
Through this ground Mr Nasir argues that much of the evidence provided by Precision Energy is misleading and untrue, dividing the ground into three: the Commissioner was incorrect to refer to the Respondent’s reasons for dismissal as none have ever been given; contrary to the Respondent’s case Mr Nasir successfully completed his induction; and the evidence does not support a finding that Mr Nasir displayed a poor attitude, being unwilling to commence work as scheduled or to receive coaching on company processes.
The evidence to which Mr Nasir refers includes statements in Precision Energy’s Form F8A (Response to general protections application). In summary that response:
Contended it was impracticable to give Mr Nasir advance notice of his termination of employment as he was a fly-in/fly-out employee, and that he was paid a week’s wages in lieu of notice;
Puts forward that Mr Nasir’s performance was below its expectations in several respects;
Refutes that Mr Nasir was dismissed for personal reasons;
Agrees that the Indonesian hotel problems he experienced were unacceptable, but that Mr Nasir’s response of moving hotels without notice to his employer was unnecessary because the original hotelier offered a move of rooms and his decision to relocate was contrary to company policy;
Disagrees that Mr Nasir raised any concerns about the Australian accommodation assigned to him; and
Disagrees Mr Nasir was unable to bring a support person to the dismissal meeting, putting forward that he did not request such a person.
The Commissioner’s decision engages briefly with the respective merits of the parties’ cases, finding the subject to be a neutral factor in assessing whether there are exceptional circumstances that would warrant an extension of time, with her stating:
“[47] In his s 365 application, Mr Nasir contends that the Respondent contravened s 340 when they dismissed him. Mr Nasir further contends that he was dismissed for raising concerns about wellbeing and treatment of staff when overseas. The Respondent contends that Mr Nasir was fired within his probationary period as he was not a good fit for the organisation, citing issues with performance and attitude. I am unable to determine merits based on the limited and untested evidence provided.” (footnotes omitted)
The Full Bench in H Kyvelos v Champion Socks Pty Ltd[13] dealt with the challenge of forming views about the merits of parties’ cases in extension of time matters:
“It should be emphasised that in considering the merits the Commission is not in a position to make findings of fact on contested issues, unless evidence is called on those issues. Evidence is rarely called on the merits and there are sound reasons why the Commission should not embark on a detailed consideration of the substantive case in an application pursuant to s.170CE(8).”
The Commissioner’s finding was consistent with this caution. We discern no arguable error in her reasoning sufficient to found permission to appeal.
Neutral considerations
In the hearing of the appeal Mr Nasir advanced that the Commissioner erroneously determined that particular extension of time criteria were neutral considerations. It is unclear to us whether Mr Nasir considers all of the Commissioner’s findings on the subject were in error or only select ones.
Scrutiny of the Commissioner’s decision shows she found:
the “reason for the delay” criterion to be a factor that weighed against a finding of exceptional circumstances;
the “action taken by the person to dispute the dismissal” was a neutral factor;
the “prejudice to the employer” criterion was a neutral factor;
the “merits of the application” criterial was a neutral factor; and
that her consideration of the “fairness as between others” criterion had nothing to be weighed on the basis of the material before her.
In finality Commissioner Lim found “that the majority of the factors in s 366(2) are neutral, however Mr Nasir has not provided a satisfactory explanation for the delay in filing his application,” which in turn found her not to be satisfied that there are exceptional circumstances.[14]
In the appeal hearing Mr Nasir submitted both that this ultimate finding was contrary to evidence as well as that consideration of the criteria did not properly lead to the Commissioner’s conclusion.
In respect of the finding about “action taken by the person to dispute the dismissal,” Mr Nasir submitted that the Commissioner had not adequately taken into account the actions he had taken to contact the Fair Work Ombudsman. This conclusion is not supported by reference to the Commissioner’s decision, where she summarises Mr Nasir’s evidence as to why his application was late. In her summary the Commissioner notes that “[h]e attempted to contact the Fair Work Ombudsman who referred him to Legal Aid on 23 October 2023, however Legal Aid had no available appointments until 23 December 2023.”[15] The reference plainly informs the Commissioner’s findings about Mr Nasir’s dispute attempts, even if she did not explicitly refer to the subject. Had the Commissioner done so it would not, in our view, have changed the conclusion she made about the criterion. The Fair Work Ombudsman contact was well prior to the final date for an in-time filing and there was no material that would suggest the general protections application could not be lodged without some further material to be provided to Mr Nasir by the Fair Work Ombudsman, such that this factor might weigh in favour of an extension of time in the proceedings before the Commissioner.
We also consider that the Commissioner’s neutral findings about the prejudice and merits considerations, as well as her finding about the fairness criterion were open to her and consistent with the evidence and submissions before the Commission. They involve no arguable error.
To the extent that Mr Nasir’s submissions extend to a complaint that the Commissioner was in error to find that her consideration of the “reason for delay” criterion to weigh against exceptional circumstances, we disagree. The finding the Commissioner made was open to her in the overall circumstances of the matter and the evidence and submissions.
Public interest
In relation to the matter of the public interest Mr Nasir relies on the submission that a grant of permission to appeal will assist others who may otherwise go through similar issues to him. We are not satisfied, in the absence of demonstrated error on the part of the Commissioner at first instance, that such properly informs the public interest. There is nothing about the Commissioner’s decision that raises issues of importance and general application or that her decision identifies a diversity of decisions for which guidance from the Full Bench is required.
Summary on the grounds of appeal
We do not consider that it is appropriate to grant permission to appeal.
The time limit that applies to the exercise of a person’s right to bring an application under s.366 of the Act reflects Parliament’s intention that this right be exercised promptly. The Act recognises that there are some cases where a late application should be accepted, namely where there are exceptional circumstances.
In this case Mr Nasir first lodged an unfair dismissal application which itself was out-of-time. After being notified by the Commission’s Client Services Team that he was not eligible to make an unfair dismissal application as he had not completed the minimum employment period, he discontinued the unfair dismissal application and then lodged a general protections application.
Those circumstances in themselves are not exceptional. Commissioner Lim properly engaged with the evidence and submissions before her and weighed the statutory criteria. No arguable error in her reasoning has been shown by Mr Nasir and so permission to appeal must be refused.
A reasonably arguable case has not been advanced that the decision was attended by appealable error. Nor are we persuaded that it would be in the public interest to grant permission to appeal. Specifically, we are not satisfied for the purposes of s.604(2) of the Act that:
(a)there is a diversity of decisions at first instance such that guidance from an appellate body is required of this kind;
(b)the appeal raises issues of importance and/or general application;
(c)the decision at first instance manifests an injustice, or the result is counter intuitive;
or
(d)the legal principles applied by the Commissioner were disharmonious with other decisions dealing with similar matters.
CONCLUSION AND DISPOSITION
Permission to appeal is refused.
DEPUTY PRESIDENT
Appearances:
Mr U. Nasir for himself
No appearance for the Respondent
Hearing details:
2024.
Melbourne (via Microsoft Teams):
March 6.
[1] [2024] FWC 54.
[2] Ibid, [50].
[3] (1994) 34 NSWLR 155, p160.
[4] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21].
[5] Ibid.
[6] (1936) 55 CLR 499 at [505].
[7] O’Sullivan v Farrer [1989] HCA 61; 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch [2011] HCA 4, 243 CLR 506; 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] FCAFC 54; 192 FCR 78; 207 IR 177 at [44]-[46].
[8] GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343 at [27]; (2010) 197 IR 266.
[9] Wan v AIRC [2001] FCA 1803, 116 FCR 481 at [30].
[10] Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth[2010] FWAFB 10089; 202 IR 388 at [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54; 192 FCR 78; 207 IR 177; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office[2014] FWCFB 1663; 241 IR 177 at [28].
[11] Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82].
[12] [2024] FWC 54 at [36].
[13] Print T2421 (unreported) [2000] AIRC 540; (10 November 2000), at [14].
[14] [2024] FWC 54 at [50].
[15] Ibid, [31].
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