Vinh khuong Tran v Australian Pharmaceutical Manufacturers Pty Ltd
[2024] FWCFB 148
•15 MARCH 2024
| [2024] FWCFB 148 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Vinh khuong Tran
v
Australian Pharmaceutical Manufacturers Pty Ltd
(C2024/601)
| DEPUTY PRESIDENT MILLHOUSE | MELBOURNE, 15 MARCH 2024 |
Appeal against decision [2024] FWC 2 of Commissioner Perica at Melbourne on 2 January 2024 in matter number C2023/6446 - appeal filed out of time - extension of time not granted.
Vinh Khuong Tran has lodged an appeal under s 604 of the Fair Work Act 2009 (Cth) (Act) against a decision of Commissioner Perica delivered on 2 January 2024.[1]
The decision related to an application under s 365 of the Act. Mr Tran alleged that he had been dismissed by Australian Pharmaceutical Manufacturers (APM) and the dismissal was in breach of the general protections provisions of the Act. APM objected to the application on the grounds that it did not dismiss Mr Tran as he was not an APM employee. The Commissioner dismissed Mr Tran’s application on the basis that he was satisfied that Mr Tran was a labour hire worker employed by Labourpower Recruitment Services (Labourpower), and as APM was not Mr Tran’s employer it could not dismiss him.
Rule 56(2) Fair Work Commission Rules 2013 (Rules) requires that a Notice of Appeal must be lodged within 21 days of the date of the decision appealed against, which was 2 January 2024. The Commission may allow further time to lodge an appeal on application. Mr Tran’s notice of appeal was filed on 2 February 2024, 10 days after the end of the 21-day period. Accordingly for Mr Tran’s appeal to proceed, the Commission must first grant an extension of time.
We do not allow further time for Mr Tran to lodge his appeal. Our detailed reasons follow.
Decision on the papers
On 14 February 2024, the parties agreed to the matter being determined by the Full Bench on the papers. However, there was some confusion on the part of Mr Tran about this process. We set out below the steps taken that informed our view that Mr Tran genuinely consented to his appeal being determined without an oral hearing.
On 16 February 2024, following an exchange of calls and emails between Mr Tran and the presiding member’s chambers, the Commission sent an email in the following terms to Mr Tran (emphasis in the original):
Dear Mr Tran,
Thank you for your telephone call. I confirm that we discussed that there are two options for how your appeal may be heard:
Option 1: Oral Hearing - At an oral hearing you and will have the opportunity to speak to the Full Bench in support of any written material you file. A Cantonese interpreter will be arranged for you.
Option 2: On the papers - If you want your matter to be heard ‘on the papers’ this means that the Full Bench will decide your matter using only the written material that you file. You will not speak to the Full Bench.
The oral hearing was vacated because you wrote to me and said that you “consent” to an on the papers hearing. Your application to appeal has not been cancelled.
Please tell me by 4:00 pm Monday 19 February 2024 whether you want an oral hearing (option 1 above) or for the hearing to be on the papers (option 2 above).
On 16 February 2024, Mr Tran replied to the above email and stated that he chose option 2. He also sent an email on 21 February 2024 confirming that he understood the Commission’s explanation about the distinction between an oral hearing and deciding the matters ‘on the papers.’ However, on 6 March 2024 around the time of the initially listed hearing, Mr Tran attempted to attend the hearing by accessing the link to the vacated video hearing. As a result, the Full Bench subsequently advised the parties that the matter would proceed to an oral hearing on 15 March 2024.
Following receipt of this correspondence, Mr Tran called the Commission and sent an email in which he advised that he did not want the oral hearing on 15 March 2024 to proceed. Having regard to the proactive steps taken by Mr Tran to confirm that he did not require an oral hearing, we are of satisfied having regard to s 607(1)(a) that the matters before us can be adequately determined on the papers.
Materials before us
Mr Tran relies on two Notices of Appeal, each structured in a slightly different manner but raising similar issues. Despite requesting and receiving an extension to file any further materials (which included submissions on an extension of time and an appeal book), no additional materials were filed.
APM filed written submissions.
Extension of time
Mr Tran lodged his first Notice of Appeal on 2 February 2024, 10 days after the end of the 21-day period in Rule 56(2). On 21 February 2024, Mr Tran sent the following email to the Commission, which we understand to be responsive to his application for an extension of time for filing his appeal:
English is my second language, I need more time to complete and really hard to find a job during Christmas period and looking to borrow some money to pay a lot of bills.
With respect to the 21-day timeframe contained in Rule 56(2), the Full Bench in Jobs Australia v Eland[2] said as follows:
Time limits of the kind in Rule 56 should not simply be extended as a matter of course. There are sound administrative and industrial reasons for setting a limit to the time for bringing an appeal and it should only be extended where there are good reasons for doing so. The authorities indicate that the following matters are relevant to the exercise of the Tribunal’s discretion under Rule 56(2)(c):
· whether there is a satisfactory reason for the delay;
· the length of the delay;
· the nature of the grounds of appeal and the likelihood that one or more of those grounds being upheld if time was extended; and
· any prejudice to the respondent if time were extended.
Taking these matters into account, the exercise of the discretion will be guided by a consideration of whether, in all the circumstances, the interests of justice favour Mr Tran being granted an extension of the time within which to lodge his appeal. We consider these matters in the analysis that follows.
Period of the delay and reasons for delay
While aspects of the reasons proffered by Mr Tran to explain the 10-day delay could be viewed in certain circumstances as satisfactory reasons, Mr Tran did not endeavour in these proceedings to explain how any of these factors contributed to the delayed lodgement of his Notice of Appeal. In the absence of Mr Tran drawing such a connection, we are unable to conclude that these matters provide an adequate explanation for the not insignificant delay. This factor cannot therefore weigh in favour of an extension of time.
Prejudice to the respondent
APM has not advanced submissions addressing any prejudice to it if time were extended. While we do not consider that any prejudice would arise as a consequence of an extension of time, the mere absence of prejudice is not a factor that would tell in favour of the grant of an extension of time.[3] We regard this factor as neutral to our consideration.
Grounds of appeal
Weighing against granting an extension is the nature of the grounds of appeal, which do not disclose any arguable case of appealable error. Nor does Mr Tran’s application enliven the public interest.
Taken at their highest, Mr Tran’s grounds of appeal appear to be that APM provided false evidence to the Commission in the proceedings at first instance. In relation to the public interest, Mr Tran raised a number of matters relating to his perceived mistreatment at work by individuals who may have been employees of APM or Labourpower, and contends that it is in the public interest to ensure that such mistreatment not be permitted to continue.
Section 604(2) of the Act provides that that the Commission must grant permission if it is satisfied that it is in the public interest to do so. Determining whether a matter raises the public interest is a discretionary value judgment. The decision in GlaxoSmithKline Australia Pty Ltd v Makin[4] identifies that the following types of considerations may attract the public interest:
· Where a matter raises issues of importance and general application;
· Where there is a diversity of decisions at first instances so that guidance from an appellate court is required;
· Where the decision at first instance manifests an injustice or the result is counter intuitive; or
· Where the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters.
An appellant should also show that there is an arguable case of appealable error in the original decision, because an appeal cannot succeed without an appealable error. However, that an error was made in the original decision is not necessarily a sufficient basis for granting permission to appeal.
The grounds advanced by Mr Tran do not raise an arguable case of appealable error. Mr Tran has not identified any errors in the Commissioner’s decision in his grounds of appeal. While Mr Tran submits that APM provided false evidence to the Commissioner, he did not indicate what that false evidence was or how it affected the outcome of his application. In any event, the Commissioner’s decision did not solely rely upon APM’s evidence and submissions but also relied on evidence provided by Mr Tran (payslips and separation certificate). Nor do any of the matters raised by Mr Tran challenge the finding of the Commissioner that Mr Tran was not an employee of APM; they instead go to the substance of Mr Tran’s complaints about his employment and how it ended rather than to the decision under appeal.
The matters advanced by Mr Tran do not enliven the public interest; they are matters that, of course, have great significance for him but do not raise an issue of general application and importance.
Order and disposition
We are not persuaded, having regard to the matters referred to at [12] above, that it is in the interests of justice to allow Mr Tran further time within which to lodge his appeal; and the lack of prospects of success makes any grant futile. Mr Tran’s application for an extension of time is therefore dismissed.
DEPUTY PRESIDENT
Hearing details:
Matter determined on the papers
[1] [2024] FWC 2
[2] [2014] FWCFB 4822 at [5]
[3] Ozsoy v Monstamac Industries Pty Ltd[2014] FWCFB 2149 at [38]
[4] [2010] FWAFB 5343 at [26]-[27]
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