Woolworths Limited v Ms Yu Duo (Lynda) Lin

[2017] FWCFB 5081

[2017] FWCFB 5081

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Woolworths Limited
v
Ms Yu Duo (Lynda) Lin
(C2017/4463)

DEPUTY PRESIDENT GOSTENCNIK
DEPUTY PRESIDENT CLANCY
COMMISSIONER SAUNDERS MELBOURNE, 11 OCTOBER 2017

Appeal against decision ([2017] FWC 4019) of Commissioner Wilson at Melbourne on 2 August 2017 in matter number U2017/6436 – permission to appeal granted.

Introduction

[1] On 14 August 2017, Woolworths Limited (Woolworths) lodged an appeal, for which permission is necessary, against a decision 1 (Decision) of Commissioner Wilson in which the Commissioner granted Ms Yu Duo (Lynda) Lin an extension of time under s.394 of the Fair Work Act 2009 (the Act) for the making of an application for an unfair dismissal remedy in accordance with Part 3-2 of the Act.

[2] At the permission to appeal hearing (PTA hearing), Woolworths sought permission, under s.596 of the Act, to be represented by a lawyer. We were satisfied having regard to the complexity of the matter that the matter would be dealt with more efficiently if we allowed Woolworths to be represented by Mr Luke Connolly, solicitor, and we granted Woolworths permission to be so represented.

[3] On 4 September 2017, two days prior to the PTA hearing scheduled for 6 September 2017, Ms Lin had sought an adjournment. This was refused. On 5 September 2017, an offer was made to Ms Lin to attend the PTA hearing via telephone. It was declined and Ms Lin confirmed she would not be attending.

[4] At the conclusion of the PTA hearing, we indicated the transcript and electronic copies of the authorities Woolworths had referred to would be provided to Ms Lin and she would be given the opportunity to file any submissions in reply by close of business, 15 September 2017. In turn, Woolworths would have until close of business, 19 September 2017 to file a reply.

[5] Ms Lin filed submissions at 9.18pm on 15 September 2017 and on 18 September 2017, Woolworths confirmed it would not be submitting anything further in reply.

Background

[6] Ms Lin’s application for unfair dismissal remedy dated 15 June 2017 (the Application) was received in the Fair Work Commission on 16 June 2017. While the Application stipulated the date upon which Ms Lin’s dismissal took effect as 14 December 2016, Commissioner Wilson determined 13 December 2016 as being Ms Lin’s last day of employment, based on material provided by Woolworths.

[7] In order for the Application to have been made within the required 21 days after the dismissal took effect, it should have been made to the Commission by no later than 3 January 2017. 2 The Application was lodged on 16 June 2017. This was 164 days out of time.

[8] Woolworths objected to the Application because it was commenced after the 21-day statutory period and submitted that the circumstances of the matter were such that an extension of time should not be granted. Woolworths also argued that Ms Lin had not been dismissed but rather, she had resigned on 14 December 2016.

[9] Section 394(2) of the Act requires an application for unfair dismissal remedy to be made within 21 days after the dismissal took effect or within such further period as the Commission allows under s.394(3). The Commissioner considered whether an extension of time should be granted to Ms Lin and was satisfied there were exceptional circumstances for a further period to be allowed for the making of the Application.

[10] In lodging its appeal, Woolworths sought a stay of Commissioner Wilson’s decision and orders, together with the whole of the directions issued by the Commission on 8 August 2017, pertaining to the Jurisdiction (No Dismissal) and Arbitration conference/hearing.

[11] A stay hearing was conducted by Deputy President Clancy on 16 August 2017 and the following day, the Deputy President issued a decision 3 and order4 staying the Decision and orders of Commissioner Wilson, together with the whole of the directions issued by the Commission on 8 August 2017.

Decision under appeal

[12] The Commissioner noted that in considering an application for an extension of time for the making of an application for unfair dismissal remedy, the Actrequires him to have been satisfied there were exceptional circumstances to warrant the extension, taking into account the criteria outlined in s.394(3) of the Act.

[13] The Commissioner considered the factors he was required to take into account pursuant to sections 394(3)(b), 394(3)(c), 394(3)(e) and 394(3)(f) to be neutral 5 and he did not consider there would be “undue prejudice” to Woolworths (s.394(3)(d)) if an extension was granted.6

[14] As to whether there was an acceptable explanation for Ms Lin’s delay in making the Application (s.394(3)(a)), the Commissioner found Ms Lin’s explanation about the delay to be three things in combination:

• her mental illness;


• her lack of knowledge about her rights to challenge what she perceived to be a dismissal; and


• her misapprehension that the making of an anti-bullying application to the Fair Work Commission may have provided a remedy after she left Woolworths. 7

[15] The Commissioner’s conclusion as to whether there was an acceptable reason for the delay was as follows:

“[38] In relation to these three potential explanations for the making of a late application, in my view none would be sufficient on their own to rise to the level of being exceptional circumstances for the granting of an extension of time for the making of an unfair dismissal application.

[39] While the Commission is sympathetic to people with mental illness, on its own mental illness would be unlikely to be a sufficient reason to grant an extension of time, and especially one for such a long period as Ms Lin’s. This would be especially so where there was no evidence that a period of hospitalisation covered the whole of the delay, or where the evidence about the debilitation of the illness, other than in the period of hospitalisation, was as generalised as that put forward by Ms Lin.

[40] In relation to the lack of knowledge about her capacity to make an unfair dismissal application, the fact that a person knows little of their rights, or that they may have been seeking general advice about what to do, is neither unusual nor exceptional. Similarly, mere ignorance of the statutory time limit is not an exceptional circumstance.

[41] Similarly misapprehension about the potential range of results from a particular form of application to the Fair Work Commission would, on its own, be insufficient for the Commission to grant an extension of time.

[42] However, in combination the presence of these three factors leads me to form the view that Ms Lin has put forward an acceptable reason for the delay in making her application. In combination the matters are unusual and significant and cogently explain why the application was made as late as in Ms Lin’s case. The factors combined, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.

[43] Accordingly, this criterion resolves in Ms Lin’s favour in my consideration of whether an extension of time for filing should be granted.”  8

[16] Ultimately, the Commissioner was satisfied there were exceptional circumstances for a further period to be allowed for the making of the Application. He ordered that the time for Ms Lin to file the Application be extended until 16 June 2017.

Grounds of appeal

[17] Woolworths’ Notice of Appeal sets out eight grounds of appeal. 9

[18] In ground 1, Woolworths contends the Commissioner erred by exercising his discretion in an erroneous manner in that he did not find one factor that convinced him was acceptable for the delay, yet when he combined them, he found there was an acceptable reason for delay. Woolworths submitted the Commissioner gave no reasoning for coming to this ultimate conclusion.

[19] In ground 2, Woolworths contends the Commissioner erred by considering and being guided by irrelevant factors in exercising his discretion and finding that there was an acceptable reason for the delay.

[20] In ground 3, Woolworths contends the Commissioner erred in exercising his discretion by putting too much weight on the Applicant’s evidence of her illness and its background and despite objection from the Appellant on the acceptance of medical evidence without calling evidence from a qualified medical practitioner and the Applicant being on notice to do so.

[21] In ground 4, Woolworths claims the Commissioner erred in finding that Ms Lin, in becoming aware of the termination of her employment on 14 December 2016, that this was then a “neutral factor”, when it ought have been a factor in favour of Woolworths and a factor militating against a finding of exceptional circumstances.

[22] In ground 5, Woolworths contends the Commissioner erred by failing to take a range of material considerations into account:

• its filed written submissions in the reasoning of his decision;


• its objections to medical evidence being given by Ms Lin as to her illness without calling a qualified doctor who could, with proper qualifications, explain the effect of the Ms Lin’s illness on her capacity and to explain the whole and extended delay;


• its written submissions on the impact of the Release Agreement and the contents of the Release Agreement itself and its likely effect on the merits and his failure to consider the whole of the Agreement;


• the submissions of Union (The Shop, Distributive and Allied Employees’ Association [SDA]) presence and support given to Ms Lin and its effect in coming to his conclusion that exceptional circumstances existed and also in determining that ignorance of the Commission’s functions was a valid consideration;


• the entirety of the period between the expiration of the 21-day time limit and the ultimate filing of the unfair dismissal application and the lack of accountability of Ms Lin for the whole of the period, including, from the date she said in her evidence that she first found out she could file an unfair dismissal proceeding and the strict time limit and 16 June 2017;


• Ms Lin’s ability to file Commission anti-bullying proceedings in as early October 2016 and her awareness of the Commission and its functions as far back as then, and that she had access to Union advice and assistance at the relevant times; and


• the extended length of time the Application was late and a failure to properly apply the higher threshold this matter required, given its extended lateness and given all the circumstances.

[23] In ground 6, Woolworths contends the Commissioner erred by finding that the merits was a neutral factor, when it ought to have been a factor in favour of Woolworths.

[24] In this regard, it relies on the material before the Commissioner, decided cases on the issue of signed Release Agreements in the Commission and the full content of the Release Agreement that was before the Commissioner in evidence.

[25] In ground 7, Woolworths claims the Commissioner erred by not accepting that an employer and employee can, by agreement, reclassify and re-determine how the employment is to be characterised as coming to an end (under a Release Agreement), which if properly found/accepted would have further supported “merits” being found in its favour.

[26] In ground 8, Woolworths contends the Commissioner erred in that his decision was guided by irrelevant factors, namely:

• Ms Lin’s lack of knowledge of the unfair dismissal jurisdiction – this is not accepted by the Commission as a relevant or acceptable factor in determining exceptional circumstances;


• Ms Lin’s ignorance that the one anti-bullying application would cover all applications in the Commission – again, ignorance of the Commission’s functions and processes is not a relevant or acceptable factor in determining exceptional circumstances; and


• Ms Lin’s evidence, without any corroborating expert medical evidence, on the whole history and detail of her medical condition including background and health before the cessation of employment and it being accepted as accounting for the whole of the 164-day period of the delay despite the Commissioner being critical of the Applicant’s evidence and its impact on her reason for delay.

Submissions

Woolworths’ submissions

[27] Woolworths submitted that s.400(1) of the Act is satisfied, that it is in the public interest to grant permission to appeal, for the following reasons:

“a) issues of importance and general application on section 394(3) of the FW Act are raised here and, if not addressed by the Full Bench, would allow an incorrect decision to stand and be improperly relied upon by other members of the community going forward;

b) it is time further guidance was issued by the Full Bench on the proper application of section 394(3) of the FW Act given this decision at first instance and the confusion it now raises on the appropriate approach to ‘out of time’ considerations;

c) the decision at first instance manifests an injustice to the Appellant; and

d) the result at first instance is counter intuitive and needs to be corrected by the Full Bench.” 10

[28] Woolworths submitted the eight grounds of appeal are based on House v King 11 principles and summarised its appeal grounds as follows.

s.394(3)(a) – reason for delay

[29] Woolworths submitted that the Commissioner erred in exercising his discretion under this provision because he did not find one factor that convinced him there was an acceptable reason for the delay, yet when he combined the three factors, he found there was an acceptable reason for the delay, though provided no reasoning for doing so.

[30] Woolworths submitted the Commissioner allowed irrelevant factors to guide and influence him, in accepting ignorance of the Commission’s functions and of the 21-day time limit. Woolworths submitted it is well established that ignorance of the Commission’s functions/time limits is not an exceptional circumstance. These two reasons, Woolworths submitted, were irrelevant and improperly guided the Commissioner.

[31] Woolworths contended the Commissioner placed too much emphasis on Ms Lin’s lay medical evidence, despite its objection and submission that proper medical evidence was required and in doing so, fell into error. It also said she did not explain the whole period of the delay and how that correlated with her illness, relying on Australia Postal Corporation v Zhang. 12

[32] By incorrectly taking the above irrelevant factors into consideration, Woolworths said the Commissioner erred in finding that s.394(3)(a) went in favour of Ms Lin.

[33] Woolworths further submitted that the Commissioner failed to take into account the entirety of the period between the 21-day time limit and the filing of the Application and Ms Lin’s lack of accountability for the whole of the period, including significantly, from the date Ms Lin said she became aware she could file an unfair dismissal application and that strict time limits applied. Woolworths contended this error was manifestly unjust.

[34] Woolworths submitted compounding his error in considering and accepting Ms Lin’s ignorance of the Commission and its functions was the Commissioner’s failure to take into account Ms Lin’s ability to file anti-bullying proceedings in the Commission as early as October 2016 and her access to union advice and assistance at the relevant times.

[35] Woolworths submitted the Commissioner failed to properly apply the generally higher threshold the matter required given the extended length of time the application was late.

s.394(3)(b) – when became aware

[36] Woolworths submitted that generally, a finding of the Commission that an Applicant knew of their dismissal on the day or close thereto, and there are no other extraneous reasons, would generally result in this factor being found in favour of the Respondent. 13

[37] Woolworths submitted this factor ought to have been found in its favour and the Commissioner erred in determining it to be neutral, given the Commissioner’s finding that Ms Lin became aware of the ending of her employment as early as 14 December 2016. Woolworths said Commissioner Wilson misapplied the subsection which amounts to an error and an improper exercise of his discretion, which has led to an unjust result given his findings on the evidence.

s.394(3)(c) – action taken to dispute

[38] Woolworths submitted that having been incorrectly guided by ‘ignorance’ as a relevant factor, the Commissioner erred in finding that s.394(3)(c) was a neutral factor. It submitted if ignorance had not been accepted as a relevant factor, there was no evidence of Ms Lin having disputed her dismissal until she filed the Application and s.394(3)(c) ought to have fallen in its favour.

[39] As to the anti-bullying application filed by Ms Lin prior to her dismissal, Woolworths submitted the Commissioner ought to have found there was no dispute regarding her dismissal and he should not have taken it into account the anti-bullying application.

s.394(3)(d) – prejudice to the employer

[40] Woolworths did not press this factor.

s.394(3)(e) - merits

[41] Woolworths submitted the Commissioner erred by finding the merits consideration was a neutral factor given all the material before him, including decided cases on the issue of signed Release Agreements in the Commission, the full content of the Release Agreement, there being no evidence before him that Ms Lin did not understand what she was signing, union presence at the signing of the Release Agreement and the written submissions of Woolworths on this issue. Woolworths submitted there was insufficient weight attributed to the Release Agreement and that the Commissioner failed to take into account its written submissions on the content and impact of the Release Agreement.

[42] Woolworths submitted the Commissioner’s finding that the merits was a neutral factor, in light of the evidence, was unreasonable and unjust and ought to have been found in Woolworths’ favour. It said there was a misapplication of the Commissioner’s discretion.

s.394(3)(f) – fairness

[43] Woolworths did not press this factor.

[44] In summary, Woolworths contend that the considerations in s.394(3)(a)(b)(c) and (e) ought to have been weighed against a conclusion that there were exceptional circumstances.

Ms Lin’s submissions

[45] Ms Lin’s submissions largely went to her mental illness and the purported role Woolworths had in the development of that illness. Ms Lin contends that a formal diagnosis of schizophrenia was made in January 2017 but Ms Lin still denies her mental illness and refuses to take medication.

[46] Ms Lin submitted that she had appealed to the Commission regarding a bullying matter in January 2016 [sic] and thought the unfair dismissal matter was also included. She said her resignation in 2016 was signed under duress and the resignation letter was made up.

Consideration – Permission to Appeal

[47] 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. 14 There is no right to appeal and an appeal may only be made with the permission of the Commission.

[48] This appeal is one to which s.400 of the Act applies. Section 400 provides:

(1) Despite subsection 604(2), the FWC must not grant permission to appeal from a decision made by the FWC under this Part unless the FWC considers that it is in the public interest to do so.

(2) Despite subsection 604(1), an appeal from a decision made by the FWC in relation to a matter arising under this Part can only, to the extent that it is an appeal on a question of fact, be made on the ground that the decision involved a significant error of fact.

[49] In the Federal Court Full Court decision in Coal & Allied Mining Services Pty Ltd v Lawler and others, Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s.400 as “a stringent one”. 15  The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.16 In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of the Commission identified some of the considerations that may attract the public interest:

“... the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters.” 17

[50] It will rarely be appropriate to grant permission to appeal unless an arguable case of appellable error is demonstrated. This is so because an appeal cannot succeed in the absence of appellable error. 18 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.19

[51] 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. 20

[52] The existence of “exceptional circumstances”, as a precondition to the exercise of the discretion to extend the time within which applications under s.394(3) may be made, establishes a “high hurdle” for an applicant, and a decision as to whether to extend time under s.394(3) involves the exercise of a broad discretion.²¹ Therefore it will be necessary, in an application for permission to appeal against a decision made under s.394(3) 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 King²² – 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. Additionally, where an error of fact is alleged, s.400(2) requires that it must be a significant error of fact. The overriding public interest requirement of s.400(1) remains.

[53] The Commissioner correctly noted that a decision as to whether to extend the time period under s.394(3) involves both a broad discretion and a high hurdle of exceptional circumstances.

[54] The Commissioner also correctly stated the relevant principles in relation to s.394(3)(a) of the Act:

• The prima facie position is that the time limit prescribed by the Act should be complied with unless there is an acceptable explanation for the delay which makes it equitable to so extend. 23


• An applicant needs to provide a credible reason for the whole of the period that the application was delayed. 24


• The delay required to be considered is the period beyond the prescribed 21 day period for lodging an application. It does not include the period from the date of the dismissal to the end of the 21 day period. 25


• The longer the delay in making an unfair dismissal application the more difficult it will generally be to get over the high hurdle of exceptional circumstances. 26

[55] In noting the delay in question was 164 days, the Commissioner found Ms Lin’s explanation about the delay:

“…to be three things in combination: - her mental illness; her lack of knowledge about her rights to challenge what she perceived to be a dismissal; and her misapprehension that the making of an anti-bullying application to the Fair Work Commission may have provided a remedy after she left Woolworths.” 27

[56] As to these he concluded:

“…in combination the presence of these three factors leads me to form the view that Ms Lin has put forward an acceptable reason for the delay in making her application. In combination the matters are unusual and significant and cogently explain why the application was made as late as in Ms Lin’s case. The factors combined, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.” 28

[57] As has been oft noted, the question of exceptional circumstances was dealt with by a Full Bench of the then Fair Work Australia in the decision of Nulty v Blue Star Group Pty Ltd 29(Nulty)in the following way:

“[13] In summary, the expression “exceptional circumstances” has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.

[14]Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance.” (our emphasis)

[58] When adopting this formulation, the Full Bench in Nulty had made reference to the observation of Rares J in Ho v Professional Services Review Committee No 295. 30In that decision, his Honour had observed:

“26. Exceptional circumstances within the meaning of s 106KA(2) can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. Thus, the sun and moon appear in the sky everyday and there is nothing exceptional about seeing them both simultaneously during day time. But an eclipse, whether lunar or solar, is exceptional, even though it can be predicted, because it is outside the usual course of events.

27. It is not correct to construe ‘exceptional circumstances’ as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural ‘circumstances’ as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of ‘exceptional circumstances’ in s 106KA(2) includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon. And, the section is directed to the circumstances of the actual practitioner, not a hypothetical being, when he or she initiates or renders the services.” (our emphasis)

[59] With respect, we consider despite having correctly stated Ms Lin needed to provide a credible reason for the whole of the period that the Application was delayed, there is an arguable case the Commissioner erred in coming to the conclusion that the combination of factors before him, when viewed together, could reasonably be seen as producing a situation which was out of the ordinary course, unusual, special or uncommon.

[60] For the reasons that follow below, we are satisfied that Woolworths has made out an arguable case of appellable error in relation to ground 5 of its Notice of Appeal.

[61] Specifically, it is arguable that the fact Ms Lin was made aware during hospitalisation, from which she was discharged on 28 April 2017, that she may be able to make an application for unfair dismissal remedy and there might be a 21 day limit for doing so and yet did not do so until a further 49 days had passed was not taken into account by the Commissioner.

[62] Similarly, it is arguable that the fact that Ms Lin was made aware, both during a hearing relating a jurisdictional objection to her anti-bullying application on 29 May 2017 and upon the subsequent publication of the Commission’s decision on 2 June 2017, 31 that there was the option of a separate proceeding to challenge her termination was not taken into account by the Commissioner, despite his statement “If there were fewer factors combining to favour an extension of time, this knowledge would likely weigh decisively against the Applicant.”32

[63] Moreover, it seems to us arguable that if the three explanations given do not provide a satisfactory explanation for any identified period of the delay (given no finding was made), they cannot in combination provide an acceptable explanation for the whole period of the delay.

[64] These factors raise an arguable case that the Commissioner erred in determining that Ms Lin had established an acceptable explanation for the whole of the period of the delay and thus an arguable case of the kind of error identified in House v King. 33

[65] We are also satisfied Woolworths has made out an arguable case of appellable error in relation to grounds 2 and 8 of its Notice of Appeal by allowing irrelevant matters to guide the Commissioner.

[66] Specifically, it is arguable that the Commissioner erred in allowing Ms Lin’s evidence as to her mental illness, in circumstances where there was only generalised evidence going to her level of debilitation, together with her lack of knowledge about both her unfair dismissal rights and the potential range of results from her anti-bullying application, to guide him. Ms Lin’s evidence as to her mental illness provides little insight into the extent to which she was incapacitated during the vast majority of the period of the delay, with the period of hospitalisation covering just 11 days of the 164 day delay. Furthermore, as was noted by the Commissioner, it is well established that ignorance of one’s rights is neither unusual nor exceptional and ignorance of the statutory time limit is not an exceptional circumstance. 34

[67] Finally, we are satisfied Woolworths has made out an arguable case of appellable error in relation to ground 1. Taking into account the state of the evidence as to Ms Lin’s medical condition, her ignorance of the statutory time limit for much of the delay period and her lack of knowledge and misapprehension concerning her legal rights before being on notice as to both, we consider there is an arguable case that the Commissioner erred in finding there was an acceptable explanation for the whole of the period of the delay and concluding that, in combination, these particular factors produced a situation which could have been seen as being ‘outside the usual course of events’ in the sense described by Rares J in Ho v Professional Services Review Committee No 295 35.

[68] As to grounds 6 and 7, these go to a release agreement signed by Ms Lin 36 and the Commissioner’s finding that the merits of the Application was a neutral consideration. The position advanced by Woolworths in relation to the release agreement was that it was a bar to any subsequent proceedings against it.37 It is evident the Commissioner’s focus was on the contents of the release agreement and what it said about the cessation of Ms Lin’s employment, as opposed to the impact her signature had on her ability to pursue the Application. In this regard, it is arguable the Commissioner failed to take into account a relevant consideration when determining the merits of the Application was a neutral consideration.

[69] As to ground 3 of the Notice of Appeal, we consider it is largely reflective of considerations raised in appeal grounds 1, 2 and 8.

[70] As to ground 4 of the Notice of Appeal, we note the effect of the Commissioner’s finding that Ms Lin’s becoming aware of the termination of her employment on 14 December 2016, in circumstances where it took effect on 13 December 2016, was a neutral factor because it was “not a circumstance where the Applicant only became aware of her termination at some point after the time that it occurred”. 38 Given the close proximity (one day) between the date of termination and the date on which Ms Lin became aware of her termination, we are persuaded there is an arguable case of error that this factor ought to have weighed against a finding of exceptional circumstances and the grant of an extension of time.

Conclusion

[71] In the manner outlined above, we are persuaded the matters addressed in the grounds of appeal raise an arguable case that the Commissioner failed to take into account relevant considerations, allowed irrelevant matters to guide him and mistook the facts in finding there were exceptional circumstances that warranted the exercise of discretion to grant a further period for an unfair dismissal application to be made by Ms Lin, such that an arguable case of the kind of error identified in House v King 39arises.

[72] Further, we consider that an arguable case has been made out that the Commissioner’s exercise of discretion manifests an injustice and the result is counter intuitive, so as to enliven the public interest. We also consider the Commissioner’s combining a number of ordinary factors and concluding they give rise to exceptional circumstances appears disharmonious when compared with other recent decisions dealing with similar matters. 40

[73] For the reasons given, permission to appeal is granted. The parties will be separately advised as to the further conduct of the appeal.

DEPUTY PRESIDENT

Appearances:

Mr L Connolly for the Appellant.
No appearance for the Respondent.

Hearing details:
2017.
Melbourne:
September 6.

Final written submissions:

Applicant’s Final Written Submissions dated 15 September 2017.

 1  [2017] FWC 4019.

 2   Fair Work Act 2009(Cth), s 394(2).

 3  [2017] FWC 4298.

 4  PR595425.

 5  [2017] FWC 4019 at [4], [47], [56] and [57].

 6   Ibid at [50].

 7   Ibid at [32].

 8   Ibid at [38] – [43].

 9   Form F7 – Notice of Appeal dated 14 August 2017 at 2.1.

 10   Appellant’s Outline of Submissions dated 28 August 2017.

 11   (1936) 55 CLR 499.

 12  [2015] FWCFB 5285.

 13   See Australian Postal Corporation v Zhang[2015] FWCFB 5285, Pavlenko v Dirtybits Pty Ltd T/A SA Motorcycles[2017] FWC 3098 and Ozsoy v Monstamac Industries Pty Ltd[2014] FWCFB 2149.

 14   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.

 15   (2011) 192 FCR 78 at [43].

 16   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 & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [44] -[46].

 17  [2010] FWAFB 5343, 197 IR 266 at [27].

 18   Wan v AIRC (2001) 116 FCR 481 at [30].

 19   GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343 at [26]-[27], 197 IR 266; 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 at [28].

 20   Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82].

²¹ Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21]

²² (1936) 55 CLR 499

 23   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300.

 24   Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers (2010) 197 IR 403, 408‒409.

 25   Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287.

 26   Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288 at [21].

 27  [2017] FWC 4019 at [32].

 28   Ibid at [42].

 29  [2011] FWAFB 975.

 30   [2007] FCA 388 (27 March 2007)

 31  [2017] FWC 2947

 32  [2017] FWC 4019 at [37]

 33   (1936) 55 CLR 499

 34  [2017] FWC 4019 at [40] and citing Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [14].

 35   [2007] FCA 388 (27 March 2007) at [26].

 36 AB 101.

 37 AB 35 at PN 166.

 38   Decision at [44]

 39   (1936) 55 CLR 499

 40   For example, see Australian Postal Corporation v Zhang[2015] FWCFB 5285 at [43]-[45].

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