Vicki Crowe v The Professional Golfers Association of Australia Limited (PGA)
[2022] FWCFB 44
•29 MARCH 2022
| [2022] FWCFB 44 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Vicki Crowe
v
The Professional Golfers Association of Australia Limited (PGA)
(C2021/7888)
| VICE PRESIDENT CATANZARITI | SYDNEY, 29 MARCH 2022 |
Appeal against decision [2021] FWC 6234 of Deputy President Masson at Melbourne on 29 October 2021 in matter number U2021/8830 – permission to appeal refused.
Vicki Crowe (the Appellant) has lodged an appeal under s.604 of the Fair Work Act 2009 (Cth) (the Act) against a decision[1] (the Decision) of Deputy President Masson, issued on 29 October 2021, for which permission to appeal is required. The Decision concerned an application, brought by the Appellant, for an unfair dismissal remedy against The Professional Golfers Association of Australia Limited (the Respondent), pursuant to s.394 of the Fair Work Act 2009 (the Act).
Section 394(2) of the Act states that an application for an unfair dismissal remedy must be made ‘within 21 days after the dismissal took effect’, or within such further period as the Fair Work Commission (the Commission) allows pursuant to s.394(2). It was not in dispute that the dismissal took effect on 13 September 2021 and, accordingly, the period of 21 days ended at midnight on 4 October 2021. The application before the Deputy President was made on 5 October 2021 and therefore filed 1 day outside the 21-day period.
Section 394(3) provides that the Commission may allow a further period for the application to be made by a person under s.394(1) if the Commission is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay;
(b) whether the person first became aware of the dismissal after it had taken effect;
(c) any action taken by the person to dispute the dismissal;
(d) prejudice to the employer (including prejudice caused by the delay);
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.
The Deputy President was not satisfied that there were exceptional circumstances and declined the Appellant’s request. As a result, he dismissed her application. The Appellant seeks to appeal the Decision.
It being necessary for permission to appeal to be granted, directions were set for the filing of material by the Appellant. As this matter was listed for permission to appeal only, the Respondent was not required to file any material and it did not do so. Among other matters, the Appellant filed written submissions, and made further oral submissions at the hearing on 7 February 2022. On 8 February 2022, the Appellant filed an additional document, containing various transcript references to evidence at the primary hearing, that she also wished to rely upon and had foreshadowed filing at the hearing on 7 February 2022.
Principles of appeal
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.[2] There is no right to appeal and an appeal may only be made with the permission of the Commission.
The Decision subject to appeal was made under Part 3-2 – Unfair Dismissal – of the Act. Section 400(1) of the Act provides that permission to appeal must not be granted from a decision made under Part 3-2 unless the Commission considers that it is in the public interest to do so. Further, in unfair dismissal matters, appeals on a question of fact can only be made on the ground that the decision involved a “significant error of fact.”[3] Section 400(2) of the Act manifests an intention that the threshold for a grant of permission to appeal is higher in respect of unfair dismissal appeals than the threshold pertaining to appeals generally.
Subsection 604(2) requires the Commission to grant permission to appeal if 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.[4] The public interest is not satisfied simply by the identification of error,[5] or a preference for a different result.[6] 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 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...”[7]
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.[8] However, that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.
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.[9] However, it is necessary to engage with the appeal grounds to consider whether they raise an arguable case of appealable error.
The Decision on appeal
The Deputy President commenced his decision by first noting that a late application had been received and that if a further period of time for making the application was to be allowed, it would need to satisfy the requirements of s.394(3) of the Act. The Deputy President set out the criteria in s.394(3) and summarised, by reference to Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 the concept of ‘exceptional circumstances’.
The Deputy President then set out some general background about the parties. As an aspect of that summary underpins one of the grounds of appeal, it is set out below with the section of the alleged controversy underlined (footnotes omitted):
[10] The Applicant commenced employment with the Respondent on 16 September 2014 in the role of Human Resources Administrator. From the 30 April 2018 up until the date of her dismissal the Applicant was employed in the role of HR Manager – People and Culture. During her employment with the Respondent the Applicant provided assistance to the Respondent’s members in respect of various matters before the Fair Work Commission at which she appeared up to twenty-five times. The Applicant confirmed in her oral evidence. that she is an experienced HR practitioner with over 30 years employment in the field of human resources and is very familiar with the Commission’s unfair dismissal jurisdiction. At the date of her dismissal the Applicant worked four days per week and was in receipt of a salary of $88,377 (inclusive of superannuation).
The transcript of the hearing before the Deputy President indicates that the Appellant confirmed that she had appeared on 25 occasions in the Commission in unfair dismissal and general protections matters, and that she had represented members of the Respondent up to the conclusion of conciliation in the Commission. The Appellant had also been involved in preparing deeds of settlement in relation to these matters. The Deputy President then addressed, in a sequential way, the mandatory factors in subsections 394(3)(a)–(f) of the Act, and made various findings in respect of each.
Paragraphs [11] – [21] of the Decision addressed the reasons for delay. A matter central to the Appellant’s request for an extension of time concerned delays caused as a result of a serious computer failure suffered by the Appellant on 26 September 2021 (approximately 9 days before the 21-day period for filing was due to elapse). As most of these findings are uncontroversial, they are summarised briefly:
· On 26 September 2021, during a software update, the Appellant’s computer ‘crashed’.
· Numerous calls in the days that followed were made to the Apple Support Team for help but to no avail.
· Alternative attempts for help were made of various Mac data recovery companies on 30 September 2021 but the Appellant was advised of possible 3-week delays.
· The Appellant sought help from her son, who she said was experienced in Mac computers. Between 1 – 3 October 2021, her son had collected the computer and had some success in recovering most of the data files and the operating system.
· The computer was returned to the Appellant on the evening of 3 October 2021. While the Appellant was able to download the Form F2 from the Commission’s website, she was unable to commence filling it in as there was no software installed on her laptop. She says that she then spent all day on 4 October 2021 installing necessary new software to complete the form, locating and transferring documents from her back-up folder, and started setting up her emails. This took overnight. It was not until 5 October 2021, she says, that she was able to complete and lodge her F2 application.
As events unfolded, the Appellant filed her application approximately 15 hours late.
Of greater controversy, on the Appellant’s case, were the following findings from the Decision, which are set out in full for reference.
[16] The Applicant confirmed that she was unaware of the alternate means of lodging an unfair dismissal application set out on the Commission’s website and acknowledged that she had not checked the relevant section of the website regarding filing an unfair dismissal application. She also acknowledged that she had use of her Apple iPhone during the period she was experiencing difficulties with her laptop but had not considered whether she could download, complete and return the F2 to the Commission through use of her smart phone.
[17] I accept that the Applicant had problems with her laptop which she was seeking to
remedy over the 7-day period immediately preceding the expiry of the 21-day period following her dismissal. I also accept that as an experienced HR professional she was acutely aware of the statutory time period within which her application needed to be filed. She also says that she did not have access to another computer during the period from 26 September 2021 to 3 October 2021 although I note that she could conceivably have sought her son’s assistance in the period to download and complete the F2. She chose not to as she had not anticipated the problems with the laptop would extend beyond the 21-day deadline.
[18] The Commission’s website sets out the means by which an application for an unfair
dismissal remedy may be made, that is by email, fax, post or telephone. The latter method has one caveat in that while an application may be initiated by telephone it will not be progressed until a form F2 is submitted. The reality is that desktop/laptop computers and internet connections are not infallible and are prone to unreliability at times. The fact that one means of filing an application may be problematic is largely alleviated by the alternate options that are available. Access to and/or use of a laptop is not essential to filing an application for an unfair dismissal application. A smart phone may also be used as an alternative to complete and lodge an application. The Applicant could also have contacted the Commission by telephone. She did not avail herself of these alternatives despite claiming to have a good understanding of the unfair dismissal jurisdiction.
In relation to the section of the Decision addressing ‘reasons’ for delay (s.394(3)(a)), the final two paragraphs were:
[20] I accept that the Applicant may have been unable to use her own laptop to file her unfair dismissal application in the period immediately prior to the expiry of the 21-day timeframe following her dismissal. There were however alternatives means of filing the application that were readily available to the Applicant. As an experienced HR professional, it ought to have been within her capability to use one of those alternatives had she taken the step of reviewing the Commission’s website.
[21] The late filing of the application may be attributed to the Applicant’s laptop software issues which on one view weighs in favour of a finding of exceptional circumstances. However, there were alternate means available to the Applicant to file her unfair dismissal application which she neither informed nor availed herself of. In these circumstances I accord little weight to the reason advanced by the Applicant for her delay in filing her unfair dismissal application.
The Decision then set out findings for the other statutory factors in s.394(3). The factors concerning s.394(3)(b) (timing of awareness of the dismissal), s.394(3)(d) (prejudice to the employer), s.394(e) (merits of the appeal) and s.394(3)(f) (fairness between the applicant and other persons in a similar position) were not raised in the grounds of appeal. They will be very briefly summarised for completeness, namely:
· For s.394(3)(b) (timing of awareness of the dismissal), the Deputy President noted it was not in dispute that the Appellant was aware of the dismissal at the time it was made and, as such, this was a factor against a finding of exceptional circumstances. It was noted that the Appellant “had the benefit of the full period of 21 days within which to lodge her unfair dismissal application”.
· For s.394(3)(d) (prejudice to the employer), the Deputy President found there was no prejudice to the employer were an extension of time granted and that this was a “neutral” consideration.
· For s.394(e) (merits of the appeal), the Deputy President summarised at [25] – [32] the competing positions of the parties. The heart of that dispute concerned whether the Appellant’s dismissal was for reasons of genuine redundancy, as the employer claimed, or not. The Deputy President noted that there were competing issues of fact but also noted in summary that “[t]he Applicant has an arguable case, to which the Respondent raises a prima facie defence.” This was described as a “neutral” factor.
· For s.394(3)(f) (fairness between the applicant and other persons in a similar position), the Decision recorded no relevant matter that would affect that consideration and therefore there was nothing to weigh in the overall assessment.
For the statutory factor in s.394(3)(c) of the Act (acting to dispute the dismissal), the conclusion in the Decision was criticised by the Appellant. The finding was as follows:
[23] The Applicant states that for the first two weeks following her dismissal she was in discussions with the Respondent in an attempt to settle the matter. Beyond those discussions which were initiated by the Respondent, it is not apparent that the Applicant took any action to contest her dismissal, other than lodging her unfair dismissal application. This circumstance does not weigh in favour of a conclusion that there are exceptional circumstances.
At [36] of the Decision, the Deputy President records that he was “not satisfied that there are exceptional circumstances in this case, either when the various circumstances are considered individually or together.” Accordingly, the extension of time application was dismissed.
Grounds of appeal
Grounds (a) to (e) of the appeal listed in the Appellant’s Notice of Appeal dated 17 November 2021 state:
The Deputy President:
a.Focused on one fact and did not consider all of the relevant circumstances.
b.Discarded relevant material and oral testimony.
c.Failed to provide procedural fairness to the Applicant that was appropriate and adapted to the circumstances of the case.
d.Made assumptions rather than relying on facts.
e.Is inconsistent with other recent decisions.
Ground (a)
In her written submissions filed in support of her appeal, the Appellant advanced ground (a) as follows:
Focused on one fact and did not consider all of the relevant circumstances:
·at paragraph [12] of the Decision, the Appellant provided a credible explanation for the entirety of the delay.
·at paragraph [16] of the Decision, the Deputy President said that the Appellant “had not considered whether she could download, complete and return the F2 to the Commission through the use of her smart phone”.
·at paragraph [17] of the Decision, the Deputy President states that the Appellant “chose not to seek assistance from her son when he came to collect her laptop”.
The Appellant’s written and oral submissions in the appeal in relation to ground (a) raised issues relating to alternative options for lodging the application, which were identified by the Deputy President. These include whether the Appellant could actually have used her iPhone or her son’s laptop to lodge her application or whether the Appellant could have made an application by telephone. Further, the Appellant raised issues associated with the instructions on the Commission’s website in relation to lodging an application.
In her written submissions in the appeal, the Appellant referred to information on the Commission’s website in relation to making an unfair dismissal application, which the Applicant states (and we accept) was in the following terms:
“Completing Form F2 – Unfair dismissal application
Complete ALL sections. The employee MUST complete all sections on the form and should attach copies of any relevant documents which support the application such as a letter of dismissal. Particular care should be given to make sure that the correct employer is named on the application. It is usually possible to check this on a payslip, payment summary or employment separation certificate.”
In her notice of appeal, the Appellant said that she made clear during the hearing at first instance, that she was reliant on the recovery of files on her laptop before completing her application. In her oral submissions in the appeal the Appellant said that her laptop was returned to her on the evening of Sunday 3 October 2021, and as soon as she got her laptop running, the Appellant downloaded the Form F2. At the hearing before the Deputy President, the Appellant tendered a screen shot of the Form F2 indicating that it was downloaded on her laptop at 7.50 pm on Sunday 3 October 2021.
The Appellant also said in her oral submissions in the appeal, that on Monday 4 October, she re-purchased software for her laptop and started downloading that software, which took 7 to 8 hours. Further the Appellant said that she started completing the Form F2 application at around 10.30 or 11.00 pm on Monday 4 October 2021. The Appellant maintained that if she had known she could just put a few things in the application and send it, she would have done so by 12 midnight on that date, so that the application was filed within time. Later in her oral submissions in the appeal, the Appellant said that she was also required to download some 10,000 emails from 6 different accounts, including some associated with a side business the Appellant operates, which is connected to a payment gateway and that this was also undertaken on 4 October 2021.
In relation to the issue of lodgement of the Form F2 Application using a smart phone, the Appellant stated, and it is accepted, that after the Deputy President delivered his Decision, she attempted a ‘test case’ with her phone to determine whether lodgement using this method could be achieved. The Appellant said that formatting difficulties, at least for her iPhone, made the form virtually illegible. The Appellant accepted that she could have downloaded the Form F2 on her iPhone and emailed it to herself, but maintained that she could not complete the form on her iPhone. The Appellant also stated that her subsequent inquiries with the Commission established that the relevant part of the Commission website where forms might be lodged by smart phone was down for maintenance and that this was also the case during the 21-day period when the Appellant was required to make her unfair dismissal application. The Appellant also said that the on-line application form on the Commission’s website was down at the time she made her application. The Applicant did not raise this in the first instance proceedings because she did not know that this was the case at the time she made her application and in any event, could not have completed an on-line application on her iPhone. In her submissions in the appeal the Appellant contended that had the on-line application form been available, it would have been the “go to” on her phone because she has actually completed on-line application forms before.
The Appellant also submitted in the appeal that nowhere on the Fair Work Commission website is there any information indicating that an unfair dismissal application can be made orally over the telephone. The Appellant stated that in December 2021 and January 2022, she spoke to two different client services representatives at the Commission and was informed by the first representative that phone applications are not taken or that it was very rare for this to occur and the second representative stated that phone applications are not promoted or encouraged and are virtually unheard of.
In relation to whether she could have used her son’s laptop to lodge her application, the Appellant submitted in the appeal that this was not an option as her son has a work laptop which is an Apple Mac and does not have Word installed or supported. To utilise her son’s laptop to lodge her application, the Appellant maintained that he would have been required to obtain permission from his employer to install Word onto the laptop and the Appellant would have been required to purchase the program for this to occur in any event. The Appellant also stated that her own laptop is an Apple Mac which does not have Word installed or supported. Further, the Appellant stated that there were no questions asked of her about why she had not borrowed her son’s laptop.
The Appellant said that she did not contact the Commission by telephone before the 21 day period in which to file her application had lapsed, to state that she was having difficulties lodging her application, because she knew what she had to do and there was no logical reason for her to look at the Commission’s website. In response to a question put to her in the appeal as to why she did not telephone the Commission to seek assistance, when her laptop was not working and it was close to 5.00 pm on 4 October, the Appellant said that her computer was working and she was in the process of downloading software and had already downloaded the Form F2.
Ground (b)
In her written submissions filed in support of her appeal, the Appellant supported ground (b) as follows:
“Discarded relevant material and oral testimony:
·at paragraph [23] of the Decision, the Deputy President said, “It is not apparent that the Appellant took any action to contest her dismissal, other than lodging her unfair dismissal application.”
·at paragraph [2] of the Appellants Submission for an extension of time, the Appellant wrote “At 10.00am on 16 September I spoke with my lawyer about contesting the dismissal” [PN231-262].”
Ground (c)
Ground (c) – failure to provide procedural fairness – appeared to concern the fact that a representative for the respondent allegedly gave evidence before the Deputy President without having filed a witness statement or being sworn in. This matter was ventilated in oral submissions at the hearing for permission to appeal. In the Appellant’s supplementary document filed on 8 February 2022, she stated:
“The Deputy President has erred in allowing Mr Hergt to provide evidence that has influenced the Decision without providing a Witness Statement and being affirmed.”
As to ground (d) – made assumptions rather than relying on facts – the written submissions state as follows.
“Made assumptions rather than relying on the facts:
·at paragraph [10] of the Decision the Deputy President states that “The Appellant is an experienced HR practitioner with over 30 years employment in the field of human resources and is very familiar with the Commission’s unfair dismissal jurisdiction.”
As to ground (d), the Appellant further stated in her written submissions that:
“1. It is counter intuitive for the Deputy President to assume all experienced HR generalists have an in-depth knowledge of unfair dismissals. The Appellant has only had exposure to the Commission by representing the PGA before the full bench (with Barristers) and opposing the Clubs Industrial reduction in penalty rates case. Other than that, she has limited familiarity with form preparation and mostly supporting or occasionally representing PGA members up to conciliation.
2. It was made very clear to the Deputy President that the Appellant only had “some experience with the Fair Work Commission and she understood unfair dismissals fairly well” [PN450]
3. The Appellant does not believe that the Deputy President applied appropriate weight to each of the extension of time criteria.”
Ground (d) was further supported by oral submission. The gravamen of the complaint was that – in relation to the Appellant’s understanding of the Commission’s unfair dismissal jurisdiction – there is “a significant difference between the Deputy President saying that I am very familiar and with me stating that I have some experience or exposure.” The Appellant also said in her oral submissions in the appeal, that she had previously assisted members of the Respondent by preparing unfair dismissal applications for them. Further, the Appellant submitted in the appeal that she had discussed with her lawyer the fact that she had an advantage in knowing how long it would take to complete an unfair dismissal application and that she believed that this would take approximately two to three days.
Ground (e)
As to ground (e) – being inconsistent with other decisions – the Appellant referred to Cheval Properties Pty Ltd v Smithers[2010] FWAFB 7251, Wolfgang v Boeing Defense Australia[10], Rodrigo v KDR Victoria Pty Ltd[11] and Weber v THR Developments Pty Ltd.[12] These cases are discussed below.
Consideration
Ground (a)
Ground (a) of the Notice of Appeal is directed at the reasons for delay. That ground is also directed to the Deputy President’s identification of alternative courses the Appellant could have pursued to lodge her unfair dismissal application in the required time. Essentially the Appellant contends that the Deputy President erred in his understanding of these alternatives and in focusing his attention upon them at the expense of the actual reason for delay – the issues with the Appellant’s laptop computer.
In the Appellant’s favour, the Deputy President accepted problems with the Appellant’s laptop computer were a cause of delay. However, the Deputy President also observed that the Appellant could have lodged her unfair dismissal application by: seeking the assistance of her son including by accessing his computer; using her smart phone to download and complete the Form F2; or by telephone. The transcript of the hearing at first instance indicates that these matters were raised by the Deputy President with the Appellant during the hearing, in a series of questions. After ascertaining that the Appellant had an iPhone, the Deputy President had the following exchange with the Appellant:
“PN181
THE DEPUTY PRESIDENT: Are you aware that the iPhone allows you to access the Commission's website and download forms and complete forms?
PN182
MS CROWE: I know I can access Safari, yes, but I've never done - I don't believe I've ever done an online application. I've always (indistinct) it.
PN183
THE DEPUTY PRESIDENT: No, it's not an online application. You can actually download a form onto your iPhone and complete the form on your iPhone and email it. Did you explore that?
PN184
MS CROWE: No. I wasn't aware - - -”
After ascertaining that the Appellant had not checked the Commission’s website when preparing the Form F2, the Deputy President asked whether she was aware that there the website sets out the various means by which an application can be filed including by email, fax, hard copy and telephone. The Appellant responded by stating that she had not previously been in this situation had not considered consulting the Commission’s website before completing her application.[13] The Deputy President went on to have the following exchange with the Appellant:
“PN195
THE DEPUTY PRESIDENT: Yes. The significant aspect of a telephone application is that the application can be made by telephone to ensure it's made within the 21 days, although no action can be taken in relation to the application until a form F2 is subsequently filed. But the telephone application can be made within the 21 days, with the F2 to be filed later, at which point the file would be actioned. So you're not aware of that?
PN196
MS CROWE: No, I wasn't.”
We note that the Applicant’s assertion at first instance that she had never done an on-line application is at odds with her submission in the appeal that had this been available it would have been her “go to”. The Deputy President also asked the Appellant why she had not used her son’s laptop to download and complete the Form F2 in circumstances where he had attended the Appellant’s residence to collect and deliver her laptop and the Appellant knew that there was a 21 day limit to file her application, which ended at midnight on 4 October 2021. In response to this question, the Appellant told the Deputy President that she would have borrowed her son’s laptop if he could not fix her laptop by “Saturday” (2 October). The Deputy President put to the Appellant that the evidence of her son was that the laptop was not fixed until Sunday (3 October) and the Appellant responded by stating that her son started the recovery on Sunday and had to reinstall each operating system as the laptop went back to its 2014 mode when it crashed.
The Appellant’s son provided a statement for the hearing at first instance, in which he said that he picked up the Appellant’s laptop on Friday 1 October and worked on it until Sunday 3 October, during which time he was able to recover the majority of the data and files and reboot the computer. The statement of the Appellant’s son also indicated that he returned the laptop to the Applicant and gave her instructions on what she was required to do to open her files and access her emails again.
In relation to ground (a) of the appeal, we accept that some of propositions that the Deputy President put to the Appellant at the hearing, were factually incorrect. The Form F2 can be downloaded on to a smart phone in Word or PDF format. Once downloaded in either Work or PDF format the Form F2 can be emailed from a smart phone to an email account. However, contrary to the proposition put by the Deputy President to the Appellant in the hearing at first instance, once the Form F2 is downloaded onto a smart phone, the phone cannot be used to insert information into the form unless the phone has Microsoft Office or Microsoft Word installed on it. There is no information on the Commission’s website specifically referring to a smart phone being used to complete and lodge a Form F2 Application.
There is also no information on the Commission’s website stating that an unfair dismissal application may be lodged orally by telephone. Rule 9 of the Fair Work Commission Rules 2013 provides that as an alternative to lodging an application in the approved form, a person may make an application under s. 365 of the Act or an unfair dismissal application, by telephone, to a number approved by the General Manager for that purpose. The process provided for in Rule 9 is that the Commission must prepare a written application for the person based on the telephone application and send the written application to the person who must complete and sign it within 14 days. Provided that the person pays the fee for the application (or obtains a waiver) and the person completes and signs the written application and lodges it with the Commission, the application is taken to be made on the day that the person telephones the Commission to make the application.
Telephone applications are not advertised or highlighted on the Commission’s website. There is no indication on the website that an unfair dismissal application can be made in this way. The Fair Work Rules and Regulations highlighted on the website in relation to making an unfair dismissal application, do not include Rule 9. There is a contact number on the Commission’s website with an invitation for persons who need help with a process or an application to contact the Commission. The option to make an application orally by telephone, may be offered to an applicant by Commission staff, in circumstances where the Applicant contacts the Commission to advise of difficulty lodging an application.
However, we do not accept the suggestion advanced by the Appellant in her submissions on appeal, that she could not have used her son’s computer because he would have been required to download word. As we have previously noted, the Form F2 can be downloaded from the Commission’s website in Word or PDF format. Once a Form F2 Application is downloaded a person completing the Form must have a computer which has Word installed or a reader that is capable of converting the word document into a compatible format. The Form F2 can also be printed so that information can be inserted into it by hand and the completed document can then be scanned and filed by email or posted. Contrary to the Appellant’s submission in the appeal, most Apple Mac computers have such a reader or have the capacity to download the PDF version of the Form F2 to enable it to be completed and sent by email. The Applicant’s laptop computer must have had such a reader for her to have been able to download the Form F2 Application and lodge it on 5 October 2021. It is probable that the Appellant’s son’s computer would also have a reader that would have enabled her to use that computer to download and complete the Form F2, had she sought to do so.
We are also of the view that on a fair reading of the Deputy President’s decision, the errors we have identified in the propositions put to the Appellant by the Deputy President at the hearing were not foundational to his decision. Further, the errors are not significant errors. As the Deputy President observed at paragraph [18] of the Decision (set out above): “The reality is that desktop/laptop computers and internet connections are not infallible and are prone to unreliability at times. The fact that one means of filing an application may be problematic is largely alleviated by the alternate options that are available.” We agree. This is not to say that such equipment failures will be incapable of providing a basis for exceptional circumstances in other scenarios, but they are not in the Appellant’s case.
The evidence in the Appellant’s case establishes that on the afternoon of 3 October 2021, the day prior to the deadline for filing her application, the Appellant’s laptop computer had been returned to her in a state which at least would have enabled the Appellant to download the Form F2 and complete it by midnight on 4 October. The Appellant knew that this was the deadline. Having completed unfair dismissal applications for the Respondent’s members, the Appellant also believed that it would take two to three days for her to complete the Form F2. The Appellant’s son was able to collect the Appellant’s laptop computer on 1 October 2021 and there is no reasonable explanation as to why the Appellant did not borrow her son’s computer to ensure that she could file the application in time.
We do not accept that the fact that the Appellant was seeking to recover documents that remained on her laptop, which were lost at the time that her laptop crashed is a reasonable explanation for the delay in the Appellant filing her application. It was conceivable at the time of the laptop failure that the files on the defective laptop might never have been recovered. There was nothing stopping the Appellant making an unfair dismissal application in those circumstances, even if the detail in it might have been less fulsome than an application where she had the full panoply of her documents available to her. The Appellant stated in the hearing at first instance, that she had not consulted the Commission’s website before making her unfair dismissal application and that it would not have occurred to her to do so. The Commission’s website – which the Appellant could have accessed using her smart phone before commencing to fill in the Form F2 – informs persons making unfair dismissal applications to have information including how long the person has worked for the employer, what type of employee the person was and why the person believes that the dismissal was harsh, unjust or unreasonable. The Form F2 – which the Applicant could have downloaded on her smart phone in Word or PDF formats – states only that a letter of termination or a separation certificate may be attached to the Form F2 application.
We do not accept that the Appellant needed to download her emails in order to lodge the Form F2. The letter advising of the termination of the Appellant’s employment was appended to her unfair dismissal application and tendered in the proceedings before the Deputy President.[14] The letter states that it was sent to the Applicant both by email and registered mail. A perusal of the transcript of the hearing before the Deputy President establishes that the Appellant also tendered screenshots of emails from Apple Support taken from her smart phone. It is evident that the Appellant had access to the internet on her phone and could access emails using her smart phone and that she did this while her laptop computer was not operational. Accordingly, the evidence before the Deputy President was that the termination letter was available to the Appellant in both hard copy (by virtue of having received it by registered mail) and electronically (via emails which she could access via her smartphone). The other appendices to the Applicant’s Form F2 application consisted of a medical certificate and a document relating to another redundancy effected by the Respondent. It was not necessary for these documents to be appended to the Form F2 application and there was no reason why it could not have been filed without those documents. In fact, after the Form F2 application was filed the Appellant sought to replace it with an updated version because a document referred to in the original application was not appended to it.
In full knowledge of the 21 day time frame in which her unfair dismissal application was required to be filed, the Appellant spent the available time downloading files and emails which were not necessary to lodge her application. The Appellant was able to download the Form F2 on 3 October but said that she could not fill it out because she did not have software installed on her computer. According to the Appellant the software was downloaded on 4 October and she spent the whole of that day transferring documents from her backup folder and downloading emails, which was not completed until 5 October 2021. As we have previously noted, it is not apparent from the Form F2 filed by the Appellant, that there was any necessity to download emails in order to file the Form F2 Application. Rather, what was required was for the Appellant to simply focus on completing the form F2 application and filing it within the required time. If it was necessary, the Appellant had access to the termination letter without needing to download her emails. On her own evidence before the Deputy President, the Appellant did not commence “writing” her unfair dismissal application until 5 October 2021. At that point, the time in which the application was required to be filed, had lapsed.
In relation to these matters, we agree with the Deputy President, that while the Appellant’s computer difficulties go some way to explain the delay in filing her application, they are not an adequate explanation given that it was not necessary for the Appellant to access her emails to file the Form F2 application within the required time. It is also the case, that as pointed out by the Deputy President during the hearing, the Appellant declared in the Form F2 Application that her application had been filed within the required time, when it had not. The Appellant knew that this declaration was incorrect and conceded this in the hearing before the Deputy President.
While the period of the delay is only some 15 hours, in all of the circumstances, it was open to the Deputy President to conclude that the computer issues were not an acceptable explanation for the Appellant’s delay in filing her application. We are also of the view that when the conduct of the Appellant is considered, the errors we have identified are moot. The Appellant did not attempt to file her application within time and did not make any inquiry to ascertain whether there was an alternative method of filing.
Ground (b)
Ground (b) – ‘Discarded relevant material and oral testimony’ – wrongly characterises paragraph [23] of the Decision as indicating that the only action taken to dispute the dismissal was by lodgement of the F2. As the opening sentence to paragraph [23] of the Decision records, the “Applicant states that for the first two weeks following her dismissal she was in discussions with the Respondent in an attempt to settle the matter.” The transcript indicates that the Appellant told the Deputy President that she was not expecting the Respondent to initiate the discussions and that she was given a deadline to sign a deed of settlement and was unable to consult her lawyer before that deadline expired.
Section 394(3)(c) requires the Commission to consider whether a person who has made an unfair dismissal application outside the required time, has taken other action to dispute the dismissal. This consideration includes whether some action taken by the employee, other than filing a late application, would have put the employer on notice that the dismissal was disputed. Where an employer is on notice that an employee disputes a dismissal, then the Commission may consider that this weighs in favour of extending time, in contrast with a case where an employee gives no indication that a dismissal is disputed, other than making a late application, in circumstances where the employer may have acted in reliance on the fact that the 21 day period for an application to be made has lapsed.
In the present case, there is no evidence that the Respondent was aware that the Appellant had contacted a lawyer. Further, the Appellant did not rely on the discussions she had conducted with the employer to explain the delay in filing her application. Those discussions had concluded before the 21 day period had expired. That the Deputy President does not record the surplus detail that the Appellant had consulted a lawyer, is of no moment.
Ground (c)
Ground (c) – failure to provide procedural fairness – misconceives the exchange with Mr Hergt. Mr Hergt was an employee of the Respondent. He represented the Respondent at the extension of time hearing. He did not provide a witness statement. The Respondent relied on a witness statement of Mr Kirkman, the Chief Executive Officer of the Respondent. Mr Kirkman was sworn and gave evidence by adopting his statement.
Reliance was placed by the Appellant on paragraphs PN455 and PN456 of the transcript from the extension of time hearing. Those paragraphs appear immediately following the conclusion of the Appellant’s oral submissions to the Deputy President. As this issue also appears to touch on ground (d) (being the characterisation of the Appellant’s HR experience), the full exchange is set out:
“PN455 THE DEPUTY PRESIDENT: Thank you. Mr Hergt, do you wish to say anything in reply?
PN456 MR HERGT: Only short, Deputy President. I think Ms Crowe demonstrated then that she has a significant knowledge of the process that we are undertaking at the moment, and that it would be reasonable to expect that there were other options available to her to lodge this application within the timeframe stipulated, with the 21 days.
PN457 So I acknowledge that she has computer issues and I can appreciate that, knowing Ms Crowe, that she, yes, would find it a stressful situation, with her computer. However, there were other options for her to take. Thank you.
PN458 THE DEPUTY PRESIDENT: Thank you. Ms Crowe, anything you wish to say in reply before I conclude the proceedings?
PN459 MS CROWE: No. All I can do is reiterate, your Honour, that I had no idea that I could have done it. I wouldn't have even thought the process was available on the phone. If I had have known that option, of course I would have taken that option. That's a very natural option for me to do.”
That exchange is not witness evidence by Mr Hergt but is submission. Even if it were otherwise, the Deputy President was entitled to consider it. As is clear, the Appellant was given an opportunity to respond and, in any case, the Deputy President did not rely upon it. Ground (c) discloses no error.
Ground (d)
Ground (d) – made assumptions rather than relying on the facts – is primarily directed that the statement in the Decision at [10], set out above, that the Appellant was an experienced HR practitioner of over 30 years and was “very” familiar with the Commission’s unfair dismissal jurisdiction.
The Appellant’s complaint is misconceived. That statement occurs in the ‘background’ section of the Decision. The further relevant references to the Appellant’s experience are at paragraphs [17] and [23] of the Decision, which form part of the Deputy President’s assessment of the reasons for delay. Specifically:
· At [17], the finding is that “I also accept that as an experienced HR professional she was acutely aware of the statutory time period within which her application needed to be filed.”
· At [20], the finding is that “As an experienced HR professional, it ought to have been within her capability to use one of those alternatives had she taken the step of reviewing the Commission’s website.”
As to the first of those matters, it is not in dispute that the Appellant was aware of the statutory time period. As to the second, the statement is, respectfully, a manifestly correct statement of the obvious. We have set out above that the Deputy President’s explanations about alternative options available to the Appellant were not intended to be exhaustive.
Such as the conclusion that the Appellant was “very” experienced in the unfair dismissal jurisdiction, that finding was plainly open to him based on the opening matters in paragraph [10]. We also note that at the hearing before the Deputy President, the Appellant herself invoked her experience in support of a submission concerning the unfair dismissal jurisdiction. The exchange was relevantly:
“PN332 THE DEPUTY PRESIDENT: Well, returning to the merits, I think I was asking you whether the summary I had provided was a fair summary. Is there anything else you wanted to say in relation to the question of the merits of the application?
PN333 MS CROWE: No, I don't believe so. From my 30 years' experience and qualifications in HR, I felt that it was a non‑genuine redundancy considering that the organisation knew the financial position they were potentially in long before they had forecasted that and before - they had not put any staff off in the tournament division or events division, which were the two areas most affected.”
Having completed unfair dismissal applications on behalf of members of the Respondent, the Appellant was in a much better position than most applicants and acknowledged as much to her lawyer. The Deputy President was entitled to have regard to this matter. Ground (d) discloses no error.
Ground (e)
Ground (e) is directed at authorities that are said to be inconsistent with the conclusions of the Deputy President. Other than dealing with a delay of one day or delay occasioned by technical difficulties, those cases are distinguishable from the present case. Ground (e) discloses no error.
Public Interest
Having considered the Appellant’s written and oral submissions and all the materials filed on appeal, we are not satisfied that there is an arguable case of error. The basis on which the Deputy President reached his Decision was an orthodox approach to the determination of whether the Appellant should be granted a further period to make the application, , applying the correct legal principles. The Deputy President considered, and dealt with the evidence that was before him, and made findings of fact based on the evidence. The errors of fact we have identified, while unfortunate, are not significant.
Further, we have considered whether this appeal attracts the public interest, and we are not satisfied, for the purposes of s.604(2) that:
· There is a diversity of decisions at first instance so that guidance from an appellate body is required;
· The appeal raises issues of importance and/or general application;
· The Decision at first instance manifests an injustice, or the result is counter intuitive; or
· The legal principles applied by the Deputy President were disharmonious when compared with other decisions dealing with similar matters.
Conclusion
Permission to appeal is refused.
VICE PRESIDENT
Appearances:
Ms Vicki Crowe, for the Appellant.
Mr Stuart Hergt, for the Respondent.
Hearing details:
2022.
Microsoft Teams (Video).
8 February.
[1] Vicki Crowe v The Professional Golfers Association of Australia Limited (“PGA”)[2021] FWC 6234.
[2] Coal and Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 [17] per Gleeson CJ, Gaudron and Hayne JJ (Coal and Allied Operations Pty Ltd).
[3] Fair Work Act 2009 (Cth) s.400(2).
[4] O’Sullivan v Farrer (1989) 168 CLR 210 at 216-217 per Mason CJ, Brennan, Dawson and Gaudron JJ: applied in Hogan v Hinch (2011) 243 CLR 506 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].
[5] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343, 197 IR 266 at [24]-[27].
[6] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343, 197 IR 266 at [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 178; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663, 241 IR 177 at [28].
[7] [2010] FWAFB 5343, 197 IR 266 at [24] – [27].
[8] Wan v AIRC (2001) 116 FCR 481 at [30].
[9] Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82].
[10] [2016] FWC 3807.
[11] [2021] FWC 6459.
[12] [2021] FWC 2422.
[13] Transcript PN191 – 194.
[14] Appeal Book p. 64 – 65.
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