Yenny Ong v Sunglass Spectacular Pty Ltd
[2015] FWCFB 4031
•7 JULY 2015
| [2015] FWCFB 4031 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
Sunglass Spectacular Pty Ltd
(C2015/2753)
VICE PRESIDENT HATCHER | SYDNEY, 7 JULY 2015 |
Permission to appeal sought against Order [PR563167] on 16 April 2015 and decision [2015] FWC 3030 of Senior Deputy President Drake at Sydney on 1 May 2015 in matter number U2015/1150.
Introduction
[1] Ms Yenny Ong has applied for permission to appeal an order issued by Senior Deputy President Drake on 16 April 2015 1 (Order). The effect of the Order was to:
a) refuse Ms Ong an extension of time to lodge an unfair dismissal remedy application made by her against Sunglass Spectacular Pty Ltd (employer/respondent) under s.394 of the Fair Work Act 2009 (FW Act); and
b) dismiss, pursuant to s.587(1)(a) of the FW Act, the unfair dismissal remedy application which Ms Ong had lodged on the basis that it had not been made in accordance with the FW Act.
[2] The Senior Deputy President published reasons for the decision embodied in the Order on 1 May 2015 2 (Decision).
[3] Section 394(2) of the FW Act requires an unfair dismissal remedy application to be lodged within 21 days after the dismissal took effect or within such further period as the Commission allows under s.394(3). Section 394(3) provides:
(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) whether the person first became aware of the dismissal after it had taken effect; and
(c) any action taken by the person to dispute the dismissal; and
(d) prejudice to the employer (including prejudice caused by the delay); and
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.
[4] The factual background is as follows:
a) On 3 February 2015 Ms Ong’s employment was terminated 3;
b) On 4 February 2015 the owner of the respondent, Mr Dean Glasser confirmed the dismissal. This was conceded by the applicant; 4
c) On 4 February 2015 Ms Ong requested a Separation Certificate;
d) On 13 February 2015 Ms Ong received a Separation Certificate from the respondent;
e) Ms Ong disputed the contents of the Separation Certificate and raised this with Mr Glasser;
f) Arising out of that exchange Ms Ong was hopeful that her employment might be reinstated because on 19 February 2015 Mr Glasser wrote “… I am happy to try to re-roster you on if you want to remain on.”;
g) 24 February 2015 is the day by which Ms Ong should have filed her unfair dismissal application in order for it to be within time; and
h) On 16 March 2015 Ms Ong lodged her unfair dismissal remedy application. That is, 20 days after the 21 day time period and 25 days after she last heard from Mr Glasser. Ms Ong gave evidence that she waited because Mr Glasser had indicated he needed to wait for another employee to return from leave before he could further consider the employment situation. 5
[5] The application was treated by the Senior Deputy President as having been lodged 20 days outside the 21-day time limit prescribed by s.394(2)(a) and thereby requiring an extension of time to be granted under s.394(3).
[6] In the Decision, the Senior Deputy President dealt with all the matters she was required by s.394(3) of the FW Act to take into account.
[7] In relation to the reason for the delay (s.394(3)(a)), the Senior Deputy President noted that there was subsequent contact between the parties which Ms Ong contended had caused her think that her employment had been or would be reinstated” 6 and that the reason for the delay advanced by Ms Ong was that she had an “expectation that she would be reinstated following the correspondence received from Mr Glasser (on 19 February 2015).”7
[8] Having recorded the reason advanced by Ms Ong, the Senior Deputy President determined that she “was not persuaded that [Ms Ong’s] difficulties were out of the ordinary, unusual or uncommon.” 8 In the course of the hearing the Senior Deputy President noted that Ms Ong had waited a long time after Mr Glasser’s email of 19 February 2015 to lodge her application for an unfair dismissal remedy.9
[9] Before the Full Bench Ms Ong submitted that “the clock for submitting an [unfair dismissal application] should have stopped at the point [the 19 February] email was proffered by the employer.” 10 However, there is no legislative basis for the ‘clock stopping’ in these circumstances. Nor was this argument advanced before the Senior Deputy President. If it had been the Senior Deputy President would have been correct in rejecting it.
[10] In relation to when Ms Ong first became aware of the dismissal after it had taken effect (s.394(3)(b)), the Senior Deputy President accepted Ms Ong’s evidence that she became aware of the dismissal on 3 February 2015. 11
[11] In relation to whether Ms Ong had taken any action to dispute the dismissal (s.394(3)(c)), the Senior Deputy President noted that Ms Ong “disputed her dismissal by corresponding with the respondent and lodging [her unfair dismissal] application”. 12
[12] In relation to whether there was any prejudice to the employer (s.394(3)(d)), the Senior Deputy President was satisfied “that there would be no greater prejudice to the respondent caused by [the] application being listed now than there would have been had it been lodged in time.” 13 The Senior Deputy President noted that this was a “neutral consideration.”14
[13] In relation to the merits of the application (s.394(3)(e)), it is an accepted practice in jurisdictional hearings that the Commission not embark upon a detailed consideration of the substantive case. That is because in a jurisdictional hearing the Commission will not usually be in a position to make findings of fact on contested issues. That is an assignment to be undertaken by the Commission during the substantive hearing. In the present matter the Senior Deputy President said the merits of the application “was a neutral issue in [her] consideration of [the] application [for an extension of time].” 15
[14] In relation to fairness between Ms Ong and other persons in a similar position (s.394(3)(f)), the Senior Deputy President found there was no issue arising. 16
[15] Having considered all of the matters required by the FW Act the Senior Deputy President said she:
“… was not satisfied that there were exceptional circumstances which would warrant [her] granting an exception to the statutory time limit…. Ms Ong’s circumstances were not out of the ordinary course, unusual, special or uncommon.” 17
[16] The Senior Deputy President dismissed the application.
Consideration
[17] This appeal is one to which s.400 of the FW 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.
[18] 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(1) as “a stringent one”. 18
[19] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment. 19 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.” 20
[20] 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. 21 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.22
[21] The substantive ground of appeal in Ms Ong’s Notice of Appeal is that the Senior Deputy President erred in not treating the ambiguity caused in Ms Ong’s mind by the email from Mr Glasser on 19 February 2015 as an “exceptional circumstance”. We reject that ground of appeal.
[22] There is nothing “out of the ordinary, unusual, special or uncommon” about correspondence passing between parties after the termination of employment has occurred. There is nothing “out of the ordinary, unusual, special or uncommon” about an employer possibly reconsidering the decision to terminate employment. Ms Ong chose to grant the respondent additional time to respond to her desire to be reinstated. Neither before the Senior Deputy President or this Full Bench did Ms Ong explain why she could have not have filed an unfair dismissal application even if only to safeguard her position while exchanges about possible reinstatement continued. We discern no error in the Senior Deputy President’s finding in relation to the reason for the delay (s.394(3)(a)).
[23] In her Notice of Appeal Ms Ong indicated that she was “not qualified to determine public interest with respect of the appeal.” For its part the respondent submitted that the Senior Deputy President:
a) “… properly and correctly exercised her discretion;
b) [did not make] an error in exercising her discretion either in law or in fact;
c) [did not act] on a wrong principle;
d) [did not allow] extraneous or irrelevant matters to guide or affect her;
e) [did not mistake] the facts;
f) [took] into account all the material considerations relevant to the matter.” 23
[24] We agree with the respondent’s submissions.
[25] For completeness we find that there is no public interest in the matter. The matter:
a) does not raises issues of importance and or general application;
b) is not in a class where there is a diversity of decisions at first instance so that guidance from an appellate bench is required;
c) is not one 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.
Conclusion
[26] We are not persuaded that Ms Ong has established that it is in the public interest to grant permission to appeal. The Senior Deputy President addressed the relevant statutory criteria and we are not persuaded that there is an arguable case that the Decision or Order were attended by any error of principle or any significant error of fact.
[27] As we have mentioned, s.400(1) provides that permission to appeal must not be granted unless the Commission considers that it is in the public interest to do so. We do not consider that it is in the public interest to grant permission to appeal and accordingly we refuse permission to appeal.
VICE PRESIDENT
Appearances:
D. Friedman representative for Y. Ong.
R. Shakenovsky solicitor for Sunglass Spectacular Pty Ltd.
Hearing details:
2015.
Sydney:
18 June.
1 PR563167
2 [2015] FWC 3030
3 Although in her application for an unfair dismissal remedy Ms Ong stated that she was dismissed on 6 February 2015 because that was the date that the employer included on the Separation Certificate that it provided to her on or about 13 February 2015. Before the Senior Deputy President, the employer conceded that 6 February was an error (Transcript at PN32).
4 PNs 87-89
5 PN82
6 Decision at [13]
7 Ibid at [19]
8 Ibid at [20]
9 PN139
10 Appellant’s Submissions, 4 June 2015 at page 2
11 Decision at [21]
12 Ibid at [22]
13 Ibid at [23]
14 Ibid
15 Ibid at [24]
16 Ibid at [25]
17 Ibid at [26]
18 (2011) 192 FCR 78 at [43]
19 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]
20 [2010] FWAFB 5343 at [27], 197 IR 266
21 Wan v AIRC (2001) 116 FCR 481 at [30]
22 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 288, 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]
23 Respondent’s Submissions, 15 June 2015 at paragraph [5]
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