Yolande Victoria Frances Dubow v East Coast Law Pty Ltd
[2024] FWCFB 275
•3 JUNE 2024
| [2024] FWCFB 275 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Yolande Victoria Frances Dubow
v
East Coast Law Pty Ltd
(C2024/2815)
| DEPUTY PRESIDENT MILLHOUSE | MELBOURNE, 3 JUNE 2024 |
Appeal against decision [2024] FWC 1140 of Deputy President Saunders at Newcastle on 2 May 2024 in matter number C2024/1804 – permission to appeal refused.
First Instance Decision
On 2 May 2024, Deputy President Saunders issued a decision in Yolande Victoria Frances Dubow v East Coast Law Pty Ltd [2024] FWC 1140 (Decision). The Deputy President declined to grant an extension of time for the appellant, Yolande Victoria Frances Dubow, to file a general protections application pursuant to s.365 of the Fair Work Act 2009 (FW Act). The application concerns Ms Dubow’s alleged dismissal by East Coast Law Pty Ltd (East Coast Law) on 31 January 2024. Ms Dubow’s application was filed on 20 March 2024 which was 28 days after the end of the 21-day statutory filing period. Given the Deputy President’s decision not to grant an extension of time, Ms Dubow’s application was dismissed.
Section 366(2) provides jurisdiction for the Commission to extend the filing period for a general protections application made under s.365 of the FW Act. Section 366(2) of the FW Act states:
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.
The Deputy President considered each of the factors in s.366(2) of the FW Act and determined:
· Ms Dubow did not have an acceptable or reasonable explanation for the 28-day delay in lodging her application and this weighs against a conclusion that there are exceptional circumstances.[1]
· Ms Dubow’s personal litigation during the relevant period did not constitute action taken to dispute her dismissal and this factor does not weigh in support of finding there are exceptional circumstances.[2]
· There would be no significant prejudice that would accrue to East Coast Law if an extension of time is granted but the absence of prejudice should be attributed little weight in considering whether there are exceptional circumstances.[3]
· Ms Dubow’s prospects of success with her application weighed against a conclusion that there are exceptional circumstances. The Deputy President referred to a lack of particulars concerning the alleged contravention and that her case that she was forced to resign and hence dismissed was “weak”.[4]
· Fairness between Ms Dubow and other persons in a like position is a neutral consideration.[5]
After considering these factors, the Deputy President concluded:
“Taking into consideration the matters I am required to take into account under s366(2) of the Act and all the matters raised by Ms Dubow, I am not satisfied that there are exceptional circumstances in this case, either when the various circumstances are considered individually or together. In my view, the circumstances of this case are not out of the ordinary course, unusual, special or uncommon.”[6]
The Appeal
On 3 May 2024, Ms Dubow filed a Form F7 notice of appeal pursuant to s.604 of the FW Act concerning the Decision. The notice of appeal identified the following grounds:
Unusual circumstances of litigation and injury preventing further challenge to dismissal.
Exceptional circumstances that a senior lawyer working at a branch office without accommodation being terminated whilst injured. Accommodation availability in current circumstances.
In relation to the public interest, the notice of appeal referred generally to the housing crisis, domestic violence, and unfair behaviour of an employer.
Ms Dubow also filed an outline of submissions on 21 May 2024. The submissions raise the following matters:
· Broad concerns about the legal system and society.
· The Decision’s first paragraph includes a reference to Ms Dubow’s animals which was irrelevant.
· The Decision refers to a farm in several instances when there was “no evidence of a farm.”
· Ms Dubow provided medical evidence regarding her injury and identified that she was making a claim of dismissal due to temporary absence from work pursuant to s.352 of the FW Act.
· Factual errors in a timeline included in the Decision and no reference to Ms Dubow being able to previously stay with her son while working at East Coast Law’s head office in Edgeworth.
· Insufficient weight was placed on Ms Dubow’s difficulties locating accommodation during the relevant period.
· Ms Dubow has a 40-year legal career and is bankrupt and homeless. Ms Dubow also has criminally inclined neighbours. These matters are exceptional.
· The Decision blocks what is a legitimate claim.
Both parties agreed to the issue of whether permission to appeal should be granted to Ms Dubow being dealt with on the papers. We are satisfied having regard to s.607(1)(a) of the FW Act that the application can be adequately determined without an oral hearing.
Statutory provisions
Section 604 of the FW Act allows for appeals of decisions by Commission members and states:
Appeal of decisions
(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 under the Registered Organisations Act by the General Manager (including a delegate of the General Manager);
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).
(3)A person may appeal the decision by applying to the FWC.
Authorities
There is no right to appeal and an appeal may only be made with the permission of the Commission. Section 604(1) requires the Commission to grant permission if the Commission is 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.[7] The public interest is not satisfied simply by the identification of error or a preference for a different result.[8] Considerations that may attract the public interest include that the matter raises issues of importance and general application, that the decision manifests an injustice or that the result is counterintuitive.[9]
It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. 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 preliminary hearing of the appeal. In determining whether to grant permission to appeal, it is unnecessary and inappropriate to conduct a detailed examination of the appeal grounds.[10] However, it is necessary to engage with the grounds to consider whether they raise an arguable case of appealable error.
Consideration
The contention that the opening paragraph of the Decision is “pejorative” is unsupported and is not sustainable. The inclusion of background or other contextual matters in a decision is not, as Ms Dubow’s submissions appear to concede, unusual and does not constitute appealable error. Further, while we accept that the reference to Ms Dubow’s animals did not bear upon the matters to be determined, the submission that the Deputy President included inaccurate matters in the opening paragraph cannot be accepted in circumstances where the material in dispute is taken from paragraph [7] of Ms Dubow’s witness statement. There is nothing in the Decision that suggests that the reference to matters that Ms Dubow specifically raised as part of her evidentiary case impacted the Deputy President’s assessment of whether there were “exceptional circumstances” or resulted in the miscarriage of the Deputy President’s discretion.
Ms Dubow’s grounds of appeal refer to her personal circumstances, specifically being involved in other litigation, being injured, and not having accommodation. These issues were all raised by Ms Dubow in the proceedings before the Deputy President as arguments in favour of there being exceptional circumstances. It is clear the Deputy President considered these issues in the Decision. The Deputy President set out Ms Dubow’s unfortunate recent personal history in significant detail in paragraph [13] of the Decision. The reidentification of issues and arguments that were clearly considered by the Deputy President does not constitute the identification of error.
The Deputy President made findings in the Decision that were clearly open to him and in doing so, considered all the statutory factors that were required to be considered. Ms Dubow’s notice of appeal and outline of submissions do not identify any legitimate errors in the Decision. An arguable case has not been advanced that the Decision was attended by appealable error.
Nor are we satisfied that the public interest is enlivened. The appeal does not raise any genuine issue of law, principle, or wider application, but rather turns upon its own facts. While Ms Dubow has identified some legitimate issues that impact the public, such as a lack of affordable accommodation, the identification of these issues does not make it in the public interest to grant permission for an appeal where no arguable case of appealable error has been identified.
Order
Permission to appeal is refused.
DEPUTY PRESIDENT
Matter determined on the papers
[1] Decision at [16] and [17]
[2] Decision at [18]
[3] Decision [19]
[4] Decision at [21], [22] and [23]
[5] Decision at [25]
[6] Decision at [26]
[7] 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]
[8] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343; 197 IR 266 at [24]-[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]
[9] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343, 197 IR 266 at [24]-[27]
[10] Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]
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