Fair Work Act 2009
s.604 - Appeal of decisions

Appeal against decision [2014] FWC 3127 of Commissioner Cloghan at Perth on 15 May 2014 in matter number U2013/17128 - Decision declining to grant an extension of time - Permission to appeal - Whether grounds of appeal attract the public interest - Permission to appeal not granted - Fair Work Act 2009 - s.394, s.400, s.604, s.607.

Introduction

[1] This decision concerns an application for permission to appeal against a decision of Commissioner Cloghan handed down on 15 May 2014. The decision of the Commissioner concerned an application for an extension of time to lodge an unfair dismissal application made by Christopher Wingate on 6 December 2013 under s.394 of the Fair Work Act 2009 (the Act) in relation to the termination of his employment by Monadelphous Engineering Associates Pty Ltd (Monadelphous).

[2] Throughout these proceedings, Monadelphous was represented by Ms K. Aistrope, solicitor. Mr Wingate has represented himself.

[3] The matter was listed for hearing before a Full Bench of the Fair Work Commission. However, the parties later agreed that the appeal could be dealt with on the papers. Pursuant to s.607 of the Act the Commission agreed to that course. The parties were given an opportunity to file full written submissions in relation to the matter.

Background

[4] Mr Wingate was employed by Monadelphous from 13 April 2013. His employment with Monadelphous was terminated due to alleged abusive and threatening behaviour towards a fellow employee in November 2013.

[5] Section 394 of the Act provides that an unfair dismissal application must be made within 21 days after the dismissal took effect unless the Commission extends that period under s.394(3). That subsection 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.”

[6] The Commissioner considered the relevant criteria. He found that the termination of employment occurred on 12 November 2013, and in filing his application on 6 December 2013, Mr Wingate’s application was three days outside the statutory limit. The Commissioner concluded, by reference to the factors in s.394(3), that exceptional circumstances did not exist.

The Appeal and Grounds of Appeal

[7] An appeal in relation to an unfair dismissal matter is governed by the provisions of s.604 and s.400 of the Act. Section 604 of the Act deals with appeals generally. These requirements are modified with respect to unfair dismissal appeals by s.400 of the Act which provides:

“400 Appeal rights

(1) Despite subsection 604(2), FWA must not grant permission to appeal from a decision made by FWA under this Part unless FWA 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.”

[8] Mr Wingate states in his written submissions that after he was orally asked to leave the work site and return to Perth, he attempted to clarify whether his employment was terminated or whether he was between projects. It was not until 21 November that he received written confirmation that his employment had been terminated. He disputes any clear earlier advice that his employment was terminated and he otherwise disputes the allegations against him that led to the decision to terminate his employment.

[9] The test for determining the public interest has been described as follows:  1

“[26] Appeals have lain on the ground that it is in the public interest that leave should be granted in the predecessors to the Act for decades. It has not been considered useful or appropriate to define the concept in other than the most general terms and we do not intend to do so. The expression ‘in the public interest’, when used in a statute, classically imports a discretionary value judgment to be made to be made by reference to undefined factual matters, confined only by the objects of the legislation in question. [Comalco v O’Connor (1995) 131 AR 657 at p.681 per Wilcox CJ & Keely J, citing O’Sullivan v Farrer (1989) 168 CLR 210]

[27] Although 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, it seems to us that none of those elements is present in this case.”

[10] The decision under appeal is of a discretionary nature. Such a decision can be successfully challenged on appeal only if it is shown that the discretion was not exercised correctly. 2 It is not open to an appeal bench to substitute its view on the matters that fell for determination before the Commissioner in the absence of error of an appealable nature in the decision at first instance. As the High Court said in House v The King3:

“The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.”

Permission to Appeal

[11] In order to grant permission to appeal we need to be satisfied that it is in the public interest to do so. In determining that question we have regard to the nature of the public interest and the nature of the appeal described in the above authorities.

[12] The matters raised by Mr Wingate in the appeal were raised in his submissions to the Commissioner. The Commissioner convened a conference of the parties on 5 March 2014. He considered the material subsequently filed and handed down his decision on 15 May 2014. The Commissioner’s decision makes it clear that he considered those matters, he made findings of fact, he applied the correct statutory test and he had regard to the relevant factors in s.394. The decision addressed the submissions of Mr Wingate and Monadelphous.

[13] In our view, Mr Wingate has not demonstrated that the matter raises issues of general importance, there is a diversity in decision-making on these matters, the decision manifests an injustice, the result is counterintuitive or that incorrect legal principles were applied. Despite Mr Wingate’s initial contentions in the grounds for appeal, no significant error of fact has been demonstrated. We are not of the view that it is in the public interest to grant permission to appeal.

Conclusion

[14] For the above reasons, the application for permission to appeal is dismissed.

VICE PRESIDENT

Final written submissions:

Mr Wingate on 25 July 2014.

Monadelphous Engineering Associates Pty Ltd on 8 August 2014.

 1   GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343.

 2   House v King (1936) 55 CLR 499 at [504]-[505] per Dixon, Evatt and McTiernan JJ.

 3   Ibid.

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