Zhan Gao v Tin Staffing Services t/a Tile Importer
[2019] FWCFB 8432
•13 DECEMBER 2019
| [2019] FWCFB 8432 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
Zhan Gao
v
Tin Staffing Services t/a Tile Importer
(C2019/5714)
VICE PRESIDENT HATCHER | SYDNEY, 13 DECEMBER 2019 |
Appeal against decision [[2019] FWC 5477] of Deputy President Cross at Melbourne on 13 September 2019 in matter number C2019/2580.
Introduction and background
[1] Mr Gao has applied for permission to appeal against a decision of Deputy President Cross issued on 13 September 2019 1 (decision) in which he declined, under s 366 of the Fair Work Act 2009 (FW Act), to extend time for Mr Gao to file a general protections dismissal application under s 365 of the FW Act.
[2] The time frame for filing a s 365 application, and the ability for the Commission to extend the time for filing, is set out at s 366(1) of the FW Act as follows:
366 Time for application
(1) An application under section 365 must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (2).
[3] Section 366(2) of the Act states that the Commission may allow a further period in which to file an application when satisfied that exceptional circumstances exist:
(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.
[4] The background to the matter is that Mr Gao initially, on 25 March 2019, filed an unfair dismissal application in the Commission. 2 He discontinued this application on 17 April 2019 following a telephone conciliation conducted by a staff conciliator of the Commission. On the same day, he filed his general protections dismissal application.3 In this application he identified the date of his dismissal as 9 March 2019. If the dismissal occurred on 9 March 2019 his general protections dismissal application was filed 39 days after this date, or 18 days in excess of the 21-day period prescribed in s 366(1)(a).4 It was therefore necessary for Mr Gao to obtain an extension of time under s.366(2) in order to make his application.
The decision
[5] In the decision, the Deputy President addressed each of the matters he was required to take into account under s 366(2) of the Act and in doing so considered the reason for the delay advanced by Mr Gao. The Deputy President found as follows (using the paragraph designations in s 366(2)):
(a) Mr Gao’s lack of knowledge on the filing date requirements was not an exceptional circumstance, particularly having stated he “meticulously researched” the differences between unfair dismissal and general protection applications.
(b) Having already filed an unfair dismissal application, the Deputy President held that Mr Gao had taken action to dispute his dismissal.
(c) The respondent would be financially prejudiced by having to defend another application as Mr Gao had decided not to continue his unfair dismissal application.
(d) In the circumstances it could not be said that the application is of any significant merit.
(e) The consideration of fairness between Mr Gao and other persons in a like position weighed against granting an extension of time.
[6] On the basis of the above findings the Deputy President was not persuaded that there were exceptional circumstances and the application to extend time for filing was dismissed.
Grounds of appeal
[7] Mr Gao’s notice of appeal raises 11 appeal grounds which are summarised below in a manner that can best be made out from the wording of his application:
1. The Deputy President miscounted the days from the time of the dismissal, which was 12 March 2019, not 9 March 2019 when the notice was given. 5
2. The Deputy President did not mention that the respondent failed to send a copy of the respondent’s Form F3 to the applicant on 11 April 2019, prior to the conciliation.
3. The reference at [8](a) of the decision “… confirm his decision as to his resignation by 12 March, 2019” should be read as “on” because his email of 9 March 2019 stated that “…I will let you know my consideration on the following Tuesday (12 March, 2019) …”
4. The reference at [8](d) of the decision “During the conciliation, the Applicant verbally discontinued his unfair dismissal application.” The wording “During” should have read [at the] “End of” the conciliation.
5. The Deputy President made a mistake in stating at [10] of the decision that an Employment Separation Certificate was “issued by Centrelink” when the Certificate was provided by the respondent.
6. In assessing the reason for the delay, the Deputy President failed to establish a logical connection between paragraphs [14] and [15] of the decision. Paragraph [14] states:
“…that following the conciliation of his unfair dismissal claim, the Applicant meticulously researched the differences between unfair dismissal and general protection applications…”
while paragraph [15] states:
“All relevant material and information pertaining to lodging the various types of applications are readily available from the Commission’s website. It is quite likely that the Applicant had access to those when originally determining which application to file”.
7. While stating that Mr Gao did not directly address the question of whether he had taken any action to dispute his dismissal the Deputy President considered that Mr Gao’s unfair dismissal application was action taken to dispute his dismissal. Mr Gao disputes the Deputy President’s conclusion that he did not directly address this question.
8. The Deputy President was “satisfied that the Respondent would indeed be financially disadvantaged by defending another claim put by the Applicant, particularly as it was the Applicant’s own choosing to discontinue his own unfair dismissal application.” Mr Gao asserts that his dismissal was totally agitated by the respondent, who deprived him of a number of entitlements.
9. The Deputy President failed to take into account the merits of the application. The application involves workplace bullying and he was not given an opportunity to respond. There were substantial outstanding entitlements payable and the Deputy President’s conclusion that Mr Gao’s contention that he had misstated the term “resignation” for “argument” was an incorrect assessment of the evidence.
10. There was sufficient evidence before the Deputy President that he was treated differently compared to another person in a like position.
11. The validity of the respondent’s Form 8A response to the application, which only shows the date on the top but no typed name nor a signature on the bottom, is questioned.
[8] Mr Gao submitted that the grant of permission to appeal would be in the public interest because:
1. dishonest and deceitful behaviour is not acceptable as the respondent lied on their response Form F8A; and
2. ignoring the respondent’s bad behaviour and business practices would lead to other employees suffering the same harassment. The appeal would require the respondent to comply with employment regulations and would benefit the community.
Consideration
[9] An appeal under s 604 of the FW 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. 6 There is no right to appeal and an appeal may only be made with the permission of the Commission. Section 604 of the FW Act provides as follows:
(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).
(3) A person may appeal the decision by applying to the FWC.
[10] Section 604(2) of the Act 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. 7 The public interest is not satisfied simply by the identification of error,8 or a preference for a different result.9
[11] The public interest may for example be attracted if an appeal 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 or tribunal is required, or where the decision the subject of appeal manifests an injustice, or the result in that decision is counterintuitive or if the legal principles applied in the decision appear disharmonious compared with other recent decisions dealing with similar matters. 10
[12] 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. 11 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.12 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.13
[13] The test of “exceptional circumstances” establishes a “high hurdle” for an applicant requesting an extension of time to file their application. 14 A decision determining whether to allow a further period under s 366(2) of the FW Act involves the exercise of a discretion,15 so that any appeal from such a decision requires demonstration of an error of the type identified in House v King.16
[14] As we are dealing in this decision only with permission to appeal, it is not appropriate to conduct a detailed examination of Mr Gao’s grounds of appeal although it is necessary to examine the grounds to ascertain whether they raise an arguable case of appealable error. 17
[15] Appeal ground (1) concerns the date of dismissal. Mr Gao’s general protections dismissal application (Form F8) at 1.1, and his subsequent written submissions of 21 May 2019 at paragraph [4], refer to the dismissal occurring on 9 March. That is the date upon which the Deputy President proceeded. However in his written submissions of 13 May 2019, Mr Gao refers to 12 March 2019 as being the date of dismissal. His earlier unfair dismissal application (Form F2) at 1.2 and 1.3 states he was notified of the dismissal on 9 March and the dismissal took effect on 12 March 2019. If this is correct, the 21-day period for the purpose of s 366(1)(a) ended on 2 April 2019, so that Mr Gao’s general protections court application would have been filed 15 days (rather than 18 days) outside the prescribed time limit. However nothing in Mr Gao’s appeal grounds disclose any basis to conclude why this could conceivably lead to a different outcome under s 366(2). Based on the Deputy President’s reasons for not accepting that there were exceptional circumstances to grant an extension of time, we cannot identify any arguable basis for concluding that a marginally shorter period of delay in filing the application could have affected any of the conclusions reached concerning the matters required to be considered under s 366(2) or the overall conclusion.
[16] Mr Gao’s appeal grounds (2)-(5), (7), (8) and (11) raise matters which have no logical bearing upon the reasoning or outcome in the decision. Appeal grounds (6), (9) and (10) argue for a different conclusion with respect to some of the matters required to be taken into account under s 366(2) without identifying any arguable case of material error. The issues raised do not contribute towards explaining why the delay in filing his application amounts to exceptional circumstances or disclose any arguable contention that the decision was unreasonable or plainly unjust.
[17] On the material before us, and for the reasons stated above, we are not persuaded that the matters set out in the grounds of appeal raise any arguable case of material error in the exercise of the Deputy President’s discretion of the kind discussed in House v King or otherwise. We consider that the Deputy President has asked the right questions, considered the matters that he was required to take into account, and accorded each matter such weight he considered appropriate. The result was within the reasonable bounds of outcomes that would be expected from a consideration and weighing of the matters relevant to the Deputy President’s exercise of the discretion.
[18] We also do not consider that the Deputy President’s conclusion was unreasonable or manifested any injustice, nor is it counterintuitive. We are not persuaded that the appeal raises any issues of importance or general application, or that there is a need for Full Bench guidance on the question of what constitutes “exceptional circumstances” for the purposes of s 366(2) of the FW Act. The matters identified by Mr Gao as justifying the grant of permission in the public interest lack any real connection to the subject matter of the decision, and we do not consider that they are such as to require the grant of permission under s 604(2).
[19] We do not consider the grant of permission to be in the public interest nor do we consider there is any other basis upon which permission to appeal should be given. Permission to appeal is therefore refused.
VICE PRESIDENT
Appearances:
Z Gao, Appellant.
S Kaintatsis Solicitor for the Respondent.
Hearing details:
2019.
Sydney (Mr Gao by telephone):
November 11
Printed by authority of the Commonwealth Government Printer
<PR715235>
1 [2019] FWC 5477
2 Matter U2019/3343.
3 Matter C2019/2580.
4 The Decision states at [2] that if the dismissal took effect on 9 March the application should have been filed by 31 March; although nothing would appear to turn on this issue, 21 days from 9 March is 30 March.
5 Mr Gao asserts he was given notice of his dismissal on 9 March 2019 and the dismissal took effect on 12 March 2019.
6 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
7 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]
8 GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343, 197 IR 266 at [24]-[27]
9 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, 202 IR 388 at [28], 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]
10 See GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343, 197 IR 266 at [24] - [27]
11 Also see CFMEU v AIRC [1998] FCA 1404, 89 FCR 200 at 220; and Wan v AIRC [2001] FCA 1803, 116 FCR 481 at [26]
12 Wan v AIRC [2001] FCA 1803, 116 FCR 481 at [30]
13 Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth[2010] FWAFB 10089, , 202 IR 388 at [28], 202 IR 388, affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54, 192 FCR 78, 207 IR 177; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office[2014] FWCFB 1663, 241 IR 177 at [28]
14 Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21]
15 Ibid
16 House v King [1936] HCA 40, 55 CLR 499 at 505 per Dixon, Evatt and McTiernan JJ
17 Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]
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