Zareen Nisha v Australian Taxation Office

[2018] FWCFB 364

[2018] FWCFB 364

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604—Appeal of decision

Zareen Nisha
v
Australian Taxation Office
(C2017/6607)

JUSTICE ROSS, PRESIDENT
DEPUTY PRESIDENT GOOLEY
COMMISSIONER JOHNS MELBOURNE, 18 JANUARY 2018

Appeal against decision [2016] FWC 8581 of Vice President Catanzariti at Sydney on 30 November 2016 in matter number U2016/11405.

[1] By a decision 1 issued by Vice President Catanzariti on 30 November 2016, an application for an unfair dismissal remedy lodged by Ms Zareen Nisha was dismissed. On 29 November 2016, some 12 months later, Ms Nisha lodged a notice of appeal against the decision. Rule 12.3 of the Fair Work Australia Rules 2013 requires that an appeal must be instituted within 21 days after the decision appealed against, or within such time as is allowed on application. Ms Nisha has applied for an extension of time to institute her appeal.

[2] The principles to be taken into account in considering whether to grant an extension of time were set out in the Full Bench decision in Tokoda v Westpac Banking Corporation 2 as follows:

“[3] Time limits of the kind in Rule 12 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 12.3(b): 

•  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.

[4] In broad terms the issue for the Tribunal is whether, in all the circumstances and having regard to the matters set out above, the interests of justice favour an extension of the time within which to lodge the appeal.”

[3] At the commencement of the hearing we asked Ms Nisha to make submissions as to why she should be granted an extension of time to have her appeal heard.

Background

[4] Ms Nisha’s unfair dismissal application was dismissed because the Vice President found that a binding agreement had been reached between Ms Nisha and the Australian Taxation Office on 24 October 2016. The Vice President found that the existence of that agreement meant that Ms Nisha’s unfair dismissal application had no reasonable prospects of success.

[5] On 20 December 2016, Ms Nisha signed terms of settlement which provided for the ATO to pay her an amount of money in exchange for which she was to discontinue the proceeding. The terms of settlement include a bar to any further proceedings arising out of or connected with Ms Nisha’s employment.

[6] In the proceedings before us Ms Nisha accepted that she signed the terms of settlement and received the monies payable under the terms of settlement.

[7] At the time Ms Nisha reached the agreement referred to in the Vice President’s decision she was represented by a solicitor. Ms Nisha could not recall if she was still represented at the time she signed the terms of settlement. It was her submission that she did not understand the legal implications of the terms of settlement.

The reasons for the delay

[8] Ms Nisha said that upon being dismissed she needed to find alternative employment. She gained employment from 28 April 2017 until 31 August 2017. After this employment ended she came into conflict with her bank and she anticipates that she will be issued with a default notice shortly. She has made a complaint to the Financial Ombudsman and is awaiting a decision on that complaint. She has suffered some stress. In her appeal document she referred to an illness but did not provide any evidence of how any illness prevented her from lodging her appeal within the 21 days provided in the Rules.

[9] We are not satisfied that Ms Nisha has provided a reasonable explanation for the whole of the delay. We appreciate that it was Ms Nisha’s focus to find other employment. However this explanation does not reflect the events in this matter. In the 20 days after the decision was issued Ms Nisha was involved in negotiations with the ATO to ensure she received the benefits of the agreement the Vice President found had been reached.

[10] Further Ms Nisha had a significant period of employment from April to August 2017 yet during this time she did not lodge this appeal. From her oral submissions it appears that Ms Nisha only turned her mind to the appeal when she was unable to find employment either with the ATO or other employers. This is not a reasonable explanation for the delay in lodging her appeal.

The length of the delay

[11] The delay in this case is just over 11 months. This is a substantial delay.

The prospects of the appeal

[12] This is an appeal for which permission to appeal is required. The decision under appeal involved a finding by the Vice President that a binding settlement was reached between the parties at conciliation. The Vice President also found that the three day cooling off period did not apply to the agreement because both parties had been represented by lawyers at the conciliation. The Vice President therefore found that the application had no reasonable prospect of success.

[13] Ms Nisha subsequently signed the terms of settlement and received the benefit of those terms of settlement. Ms Nisha advised us that she was tertiary educated. Even though not legally trained, Ms Nisha did not suffer any particular disadvantage that would cause us to look behind these terms of settlement even if it was appropriate to do so.

[14] We are not satisfied that Ms Nisha’s appeal has any real prospect of success in light of the terms of settlement signed by her after the decision of the Vice President was delivered.

[15] Those terms of settlement are a bar to these proceedings and that is a significant consideration in assessing the prospect that permission to appeal would be granted.

Prejudice to the employer

[16] The ATO submitted that it would be prejudiced if an extension of time were granted as it was entitled to treat the unfair dismissal dispute as finalised and it would not be required to take any further action. It submitted that the ATO would be prejudiced by having to expend further time and resources in defending the appeal.

Conclusion

[17] We are not satisfied taking into account all these factors that the interests of justice favour the granting of an extension of time. Ms Nisha has not provided a reasonable explanation for the delay; the delay is significant; we accept the ATO will be prejudiced if the extension of time is granted; and there is little or no prospect that Ms Nisha would be granted permission to appeal. Further, the decision to grant an extension of time is discretionary and we see no reason to exercise our discretion in Ms Nisha’s favour. A party who makes an agreement to settle an unfair dismissal claim who receives the benefit of the agreement should be held to that agreement.

[18] We therefore refuse the application for an extension of time and accordingly the appeal is dismissed.

PRESIDENT

Appearances:

Z. Nisha on her own behalf.

L. Lu for the Respondent.

Hearing details:

2018.

Melbourne and Sydney, via telephone and video:

8 January.

 1   [2016] FWC 8581.

 2   [2012] FWAFB 3995.

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