Weir v Hydro-Chem Pty Ltd
[2017] FWCFB 758
•13 FEBRUARY 2017
| [2017] FWCFB 758 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
Hydro-Chem Pty Ltd
(C2017/84)
VICE PRESIDENT HATCHER |
|
Permission to appeal against decision [2016] FWC 9095 of Deputy President Lawrence at Sydney on 19 December 2016 in matter number C2016/5745.
Introduction
[1] This is an appeal, for which permission to appeal is required, against a decision and order of Deputy President Lawrence issued on 19 December 2016 1 (Decision) in which he declined, under s.366 of the Fair Work Act 2009 (FW Act) to extend time to the appellant, Mr Robert Weir, to file a general protections dismissal application under s.365 of the FW Act.
[2] At the hearing of the appeal before us Mr Weir represented himself. Permission was granted, under s.596 of the FW Act, for the respondent to be represented by Mr Ian Heathwood, solicitor.
[3] Mr Weir filed his general protections dismissal application in the Commission on 23 September 2016. In that application he identified the date of the dismissal the subject of the application as being 28 July 2016.
[4] Section 366(1) requires a general protections dismissal application to be made within 21 days after the dismissal took effect or within such further period as the Commission allows under s.366(2). The application was filed 36 days after the 21-day time period, and it was therefore necessary for Mr Weir to obtain an extension of time under s.366(2) in order to make his application.
[5] Section 366(2) sets out the circumstances in which the Commission may grant an extension of time as follows:
(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.”
[6] In the Decision, the Deputy President addressed each of the matters he was required to take into account under s.366(2).
The Decision
[7] In relation to s.366(2)(a), the reason for the delay, the Deputy President considered the reasons for the delay advanced by Mr Weir. He summarised the reasons as follows:
“[14] The primary reason for the delay in filing, given by the Applicant, is his medical condition and he does provide some medical evidence. However, the main explanation appears to be difficulty in getting an appointment with his psychologist.
[15] The Respondent points out that the Applicant did not attend his doctor until 25 August. The Respondent also relies on the decision of WorkCover Queensland with respect to the Applicant’s workers compensation claim. It is noted that he was declared fit to return to work in mid-July. There is no evidence that the Applicant was incapacitated such that he could not file the application in time.
[16] Accordingly, the reasons for delay cited by the Applicant fall short of establishing exceptional circumstances.”
[8] The Deputy President then went on to consider and made findings about the remaining matters specified in s.366(2) as follows:
● s.366(2)(b) - action taken by the person to dispute the dismissal:
“[17] There is no evidence that the Applicant separately disputed his dismissal.”
● s.366(2)(c) - prejudice to the employer (including prejudice caused by the delay):
“[18] Given the overall facts, the Respondent would be prejudiced by the time and costs involved in further litigation.”
● s.366(2)(d) - merits of the application:
“[19] The Applicant makes a number of assertions of manufactured allegations against him. It is difficult to discern a workplace right which would be held to be breached.
[20] On the other hand, the Respondent provides a lot of convincing detail about the warnings given to the Applicant about his conduct and performance. This is particularly the case with respect to the incident at Arnotts. It is very likely, in my view, that the Applicant’s performance problems would be considered to be the operative reasons for his dismissal.”
● s.366(2)(e) – fairness as between the person and other persons in a like position:
“[21] This factor was not addressed and has not been taken into account.”
[9] The Deputy President’s overall conclusion was that having considered the factors set out in s.366(2), he was not persuaded that there were exceptional circumstances justifying an extension of time.
Grounds of appeal
[10] In his Notice of Appeal Mr Weir contended that the Decision was subject to appealable error in the following respects:
He wasn’t aware that in consideration of the out of time jurisdictional issue, issues of merit would have been taken into consideration
[11] Mr Weir contends that because he has declared within a statutory declaration a number of stated breaches by the respondent or anomalies, evidence exists to support the allegations and they are not “made up”. Mr Weir expressed that he stands punishable by imprisonment if he has made false declarations.
The Deputy President had regard to significant errors of fact
[12] Mr Weir’s submissions detail why he should not have been dismissed. He submitted that a complaint made about him was false and procured, and other than this complaint, there were no performance deficiencies that had been brought to his attention before the dismissal. Further, he submitted that there had not been significant loss to the respondent’s client as a result of Mr Weir’s performance of work.
The Deputy President erred in finding Mr Weir could not make an appointment with his psychologist
[13] Mr Weir takes exception to the Deputy President’s use of the word “some” when he stated that Mr Weir had provided “some medical evidence” as to his medical condition being a suitable reason for the delay in filing the application. Mr Weir contends this implies that the medical evidence was insufficient.
[14] Mr Weir stated he was unable to provide any other medical evidence as his psychologist had moved to Melbourne on 1 July 2016. Mr Weir does not accept that the reason for his delay in bringing his application was because of his psychologist’s relocation to Melbourne; the main explanation is the recurrence of an Adjustment Disorder, together with the condition of Severe Airways Disease which occurred at around the time of dismissal.
[15] It was Mr Weir’s evidence that he could not see Dr Lister, his General Practitioner until 25 August 2016 due to Dr Lister himself being unwell. It is Mr Weir’s submission that Dr Lister’s letter of 21 October 2016 explains the difficulty he had in obtaining medical assistance at the relevant time.
[16] It is Mr Weir’s contention that these elements above did constitute exceptional circumstances, and were out of the ordinary course, unusual, special or uncommon.
The Deputy President erred in in failing to recognise breaches of workplace rights
[17] Mr Weir relies on his purported statutory declaration alleging breaches of workplace rights. He alleges that he was subject to bullying and unfair treatment, including coercion, public humiliation and denial of natural justice.
[18] With respect to the Deputy President’s finding that the respondent provided a lot of convincing detail as to poor performance and conduct, it is Mr Weir’s contention that the Deputy President did not properly take into consideration that the allegations (other than the matter referred to in paragraph [12]) were not provided to Mr Weir until after the dismissal. It is Mr Weir’s contention that the Deputy President favoured the respondent’s submissions. On a pure word count only, Mr Weir contends that his application contained 2,850 words, and the respondent’s dismissal letter only 1,946 words, and therefore he provided more “detail”.
Public interest considerations
[19] It is understood Mr Weir has in place a supported care plan to assist him with his condition of Adjustment Disorder with depressed and anxious mood. It is his contention that because he has medical certificates providing for this support through the Department of Human Services, and the disorder being a recognised and well-documented medical condition, the public interest test is met.
[20] Mr Weir’s contention is that the condition can affect a person’s ability to work, and therefore the Deputy President failed to recognise that the condition causes sufficient impairment to delay the bringing of an application to the Commission within the statutory time limit.
[21] It is Mr Weir’s contention that if the Commission fails to recognise this condition and the ability of sufferers to function appropriately, the Commission might be “out of step” with other government departments, resulting in incoherent governance.
[22] Mr Weir’s submissions address his acknowledgement that it is appropriate for there to be a time limit for the bringing of applications; however he considers that the enforcement of a 21-day statutory time limit where the person is suffering from a diagnosis of Adjustment Disorder is an unrealistic expectation of the person. Mr Weir contends that dogmatic adherence to time limits may inadvertently exacerbate the condition for a person with the condition due to having to relive their experiences in completing the application form.
[23] It is submitted that there is no superior authority than a patient’s own general practitioner to determine a patient’s health. The Commission is not qualified to make an assessment on matters of health and psychology, and accordingly the Commission should rely on the statements of suitably qualified professionals and accept those statements unless there is a valid reason not to.
Submissions at hearing
[24] During the hearing, Mr Weir contended that he was aware that he needed to do something to challenge his dismissal, however it wasn’t until he spoke with Legal Aid that he became aware of a time limit to file an application. His first appointment with a legal adviser was on 7 September 2016, however he had to cancel the appointment as he was too unwell to attend. The next available appointment was 21 September 2016, and he filed the application on 23 September 2016.
[25] Mr Weir further stated that the Commission is not qualified to assess the medical position of applicants and it is a problem with the FW Act. It is Mr Weir’s submission that this appeal will not “fix it”.
[26] It is Mr Weir’s contention that following the dismissal he required medication and once the medication was working he was then ready to tackle the next chapter, the bringing of the application. It was Mr Weir’s preference to see Dr Lister, and with Dr Lister being unwell, he did not have another GP to visit.
[27] It is evident that Mr Weir did visit another GP, Dr Bisshop, who declared Mr Weir fit to return to work in early July 2016. It is apparent that Mr Weir did not return to Dr Bisshop following the dismissal, and he was not seen by Dr Lister until 25 August 2016, a period of 28 days following the dismissal.
Consideration
[28] An appeal under s.604 of the FW Act is an appeal by way of rehearing and the Fair Work Commission’s (Commission) 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. Section 604 provides:
(1) A person who is aggrieved by a decision:
(a) made by the FWC (other than a decision of a Full Bench or an Expert Panel); or
(b) made by the General Manager (including a delegate of the General Manager) under the Registered Organisations Act;
may appeal the decision, with the permission of the FWC.
(2) Without limiting when the FWC may grant permission, the FWC must grant permission if the FWC is satisfied that it is in the public interest to do so.
Note: Subsection (2) does not apply in relation to an application for an unfair dismissal (see section 400). (2) A person may appeal the decision by applying to the FWC.
[29] 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. 3 The public interest is not satisfied simply by the identification of error4, or a preference for a different result.5 In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of Fair Work Australia 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...” 6
[30] Other than the special case in s.604(2), the grounds for granting permission to appeal are not specified. Considerations which have traditionally been adopted in granting leave and which would therefore usually be treated as justifying the grant of permission to appeal include that the decision is attended with sufficient doubt to warrant its reconsideration and that substantial injustice may result if leave is refused. 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, the fact that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.9
[31] The test of “exceptional circumstances” establishes a “high hurdle” for an applicant for an extension. 10 A decision as to whether to extend time under s.366(2) involves the exercise of a discretion.11 Usually such a decision can only be successfully challenged on appeal if it is shown that the discretion was not exercised correctly.12
[32] 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. 13
[33] Noting the test for public interest, it is not immediately apparent to us how the matters submitted by the appellant raise any issue of wider relevance beyond his immediate interests. Any applicant who comes before the Commission claiming that a medical condition has contributed to a delay in bringing an application within a statutory time limit is entitled to expect that reason will be considered by the Commission.
[34] It does not correlate that because one Commonwealth Department has in place procedures for how a medical care plan operates, it obviates the functions of the Commission, or puts the Commission at odds with the Department of Human Services. As we understand it, Mr Weir held long-term medical certificates for the purposes of eligibility to the care plan. One of those certificates covered Mr Weir for the care plan up until 31 July 2016. At the same time in early July 2016, Mr Weir obtained from Dr Bisshop a medical clearance declaring him fit for work. The medical certificates Mr Weir obtained from Dr Bisshop serve distinct purposes. Mr Weir’s argument cannot be accepted when it was he who obtained the medical clearance declaring him fit for work.
[35] It matters not that a further medical certificate for the care plan was issued, and on Mr Weir’s submissions was back-dated covering the period between the dismissal and the application being lodged. The evidence before the Commission is that following the dismissal on 28 July 2016, Mr Weir did not attend a medical practitioner until 25 August 2016. There is no evidence that Mr Weir was incapacitated to the extent that he could not complete the application and lodge it.
[36] Individuals suffering with Adjustment Disorder with depressed and anxious moods will have varying degrees of capacity to undertake daily tasks, work obligations, family commitments and the like. We reject Mr Weir’s submission that adherence to the statutory time limit is unrealistic for each person who suffers from the condition. Each case will turn on its own facts and the medical information available for consideration.
[37] Mr Weir is correct that the Commission must have regard for the medical opinion of a person’s practitioner. It is not correct, however, to conclude that simply because a medical practitioner declares a person to be suffering from a relevant condition it renders the person incapable of completing and lodging an application under the FW Act in the required time. It is a relevant consideration to be taken into account by the member of the Commission hearing the application for an extension of time together with all the other available information before the member.
[38] We do not have any difficulty with the Deputy President’s determination that there was insufficient medical evidence provided by Mr Weir to support his claim that he was incapacitated such that he could not file the application in time. Mr Weir’s submission that he did not have another GP that he could visit at the time of Dr Lister’s own illness is not sound, given he had earlier seen Dr Bisshop at the same medical practice. There was no evidence before the Deputy President that Mr Weir was unable to attend on Dr Bisshop or any other doctor within the practice.
[39] Mr Weir asserts that the Deputy President did not have sufficient regard to the workplace rights claimed by him to have been breached by the respondent when consideration was had as to the merit of the application. In our view, it is not appropriate to analyse the detail of each of the competing claims by a contest of word count in submissions of the parties.
[40] Evidence on the merits is rarely called at an extension of time hearing. As a result, the Commission “should not embark on a detailed consideration of the substantive case”14 for the purpose of determining whether to grant an extension of time to an applicant to make their application.
[41] In the matter of Kornicki v Telstra-Network Technology Group15 the Commission considered the principles applicable to the extension of time discretion under subsection 170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Full Bench said:
“If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.”
[42] To require an applicant to establish more than that the substantive application was not without merit would, as noted by the Full Bench in Kyvelos v Champion Socks Pty Ltd16:
“… serve as an encouragement to other applicants for late acceptance pursuant to subsection 170CE(8) to put the whole of their evidentiary case and seek to cross examine the respondent’s witnesses to reduce the possibility of an adverse finding on the merits. This would lead to unjustifiable delay and expense.”
[43] Having considered all the matters put by Mr Weir we are not satisfied that Mr Weir has identified any arguable case of appealable error in the decision which would meet any of the criteria for appealable error in a discretionary decision enunciated in House v The King. 17
Conclusion
[44] We are not satisfied that any of the matters raised by Mr Weir justify the grant of permission to appeal in the public interest or on discretionary grounds. Mr Weir’s appeal does not raise any issue of law or policy which is novel and/or has broader implications. It is not inconsistent with any other relevant Commission decisions. The determination of his extension of time application turned entirely on its particular facts.
[45] We are not satisfied that it is in the public interest to grant Mr Weir permission to appeal. Nor are not satisfied that he has established an arguable case of appealable error to justify the grant of permission to appeal on discretionary grounds.
[46] Accordingly permission to appeal is refused.
VICE PRESIDENT
Appearances:
R. Weir on his own behalf.
I. Heathwood solicitor for Hydro-Chem Pty Ltd.
Hearing details:
2017.
Sydney:
7 February.
1 [2016] FWC 9095
2 This is so because on appeal the Commission has power to receive further evidence, pursuant to s.607(2); see Coal and Allied v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ
3 O’Sullivan v Farrer (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ: applied in Hogan v Hinch (2011) 85 ALJR 398 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Alllied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [44]-[46]
4 GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343, 197 IR 266 at [24]-[27]
5 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], 202 IR 388, affirmed on judicial review; Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663, 241 IR 177 at [28]
6 [2010] FWAFB 5343, 197 IR 266 at [27]
7 Also see CFMEU v AIRC (1998) 89 FCR 200 at 220; and Wan v AIRC (2001) 116 FCR 481 at [26]
8 Wan v AIRC (2001) 116 FCR 481 at [30]
9 Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth[2010] FWAFB 10089 at [28], 202 IR 388, affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office[2014] FWCFB 1663, 241 IR 177 at [28]
10 Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21]
11 Halls v McCardle and Ors [2014] FCCA 316
12 House v The King (1936) 55 CLR 499 at [504]- [505] per Dixon, Evatt and McTiernan JJ
13 Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]
14 Kyvelos v Champion Socks Pty Ltd , Print T2421 (10 November 2000) at [14]
15 Kornicki v Telstra Network Technology Group , Print P3168 (22 July 1997)
16 Kyvelos v Champion Socks Pty Ltd , Print T2421 (10 November 2000) at [15]
17 (1936) 55 CLR 499
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