DECISION

Fair Work Act 2009
s.604—Appeal of decision

Steven Isles
v
Northern Territory Police, Fire and Emergency Services T/A Northern Territory Police Force
(C2018/3213)

Appeal against decision [2010] FWA 9147 of Commissioner Roe at Melbourne on 1 December 2010 in matter number U2010/10617.

[1] Mr Steven Isles (Appellant) has applied for permission to appeal against a decision issued by Commissioner Roe on 1 December 2010 (Decision). 1 In the Decision the Commissioner found that the Northern Territory Police, Fire and Emergency Services T/A Northern Territory Police Force’s (Respondent) dismissal of the Appellant was not harsh, unjust or unreasonable.

[2] We heard the matter on 7 August 2018 and on 19 September 2018 in respect of extension of time, permission to appeal and appeal. The Appellant appeared on his own behalf and Mr Joshua Ingrames of counsel, with Mr Bill Rogers instructing, appeared for the Respondent. We note that the Appellant did not object to the Respondent being legally represented, however in any event, we are of the view that granting leave to appear would enable the matter to be dealt with more efficiently taking into account the complexity of this appeal. 2

Extension of time

[3] Rule 56 of the Fair Work Commission Rules 2013 deals with appeals and the time period for lodging appeals. That rule relevantly provides that an appeal must be lodged within 21 days after the date of the decision appealed against. 3 This appeal was lodged on 13 June 2018, 2730 days or nearly 7 and a half years outside of the prescribed time.

[4] Rule 56(2)(c) confers a discretion on the Fair Work Commission (Commission) to extend the time within which the appeal is to be lodged. The principles to be applied in considering whether to grant an extension of time to lodge an appeal were set out in the Full Bench decision in Jobs Australia v Mrs Donna Eland 4 as follows:

“[5] Time limits of the kind in Rule 56 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 56(2)(c):

•  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.

[6] 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.” (Citations omitted).

Reason for the delay

[5] In its Notice of Appeal filed with the Commission on 13 June 2018, the Appellant put that the matter has been ‘drawn out’ and that the Respondent has been intentionally not forthcoming with the details of events and information of its actions.

[6] In its submissions filed with the Commission on 13 July 2018 and on 21 August 2018, the Appellant alleged that the Respondent was intentionally not forthcoming with an array of matters at the hearing at first instance. This included the following:

•  The then Northern Territory Assistant Commissioner’s had communicated with the Queensland Police Service (QPS) on 30 September 2009, in relation to “ongoing issues between the Appellant and the agency”. This information “was not forthcoming from the Respondent before or at the time of the [first instance] hearing”. Allegedly, this information was obtained as a result of the Queensland State Coroner’s inquest into the disappearance of the Appellant’s father which concluded in 2012 but was re-examined from October to December 2015. 5

•  The Respondent had communicated with the then Crime and Misconduct Commission (CMC) its intention to terminate the Appellant’s employment on 28 September 2009, in breach of the Appellant’s privacy as an employee and within five days of the disappearance of the Appellant’s father. Allegedly, this became known to the Appellant through the Queensland Information Commissioner on 9 February 2018. 6

•  A Consultant Psychiatrist had provided the Appellant with a copy of a formal complaint he had raised with the then Northern Territory Police Commissioner regarding the actions of the Respondent’s Human Resources Director on 17 August 2010. 7 The Respondent’s Human Resources Director, directly engaged in unconscionable conduct in breach of the Respondent’s ethics and code of conduct, by rumouring that the Appellant was a “psychopath” and that he was involved in killing his father. This information was allegedly obtained after the hearing at first instance because it was “withheld by the Respondent at the time of the [first instance] hearing”. The Consultant Physiatrist’s complaint was not investigated.

[7] In the hearing on 7 August 2018, the Appellant sought to adduce the affidavit of Mr Steven Isles sworn on 2 August 2018. Given that the Appellant did not serve a copy of the affidavit on the Respondent prior to the 7 August 2018 hearing, we decided to adjourn the hearing in order for the Respondent to consider the material and for us to determine the admissibility of the affidavit. The Appellant was then directed to provide a chronology of events, namely, the dates in which each particular document contained in the affidavit was received by the Appellant.

[8] Having considered the affidavit material, the Respondent’s written submissions in respect of that material, and the chronology of events detailed in the Appellant’s submissions filed on 21 August 2018, we determined to admit the affidavit material. 8

[9] In respect of the matters disclosed in the Appellant’s affidavit, we do not consider that the materials provided by the Appellant are at all relevant or indeed supportive of a credible reason for delay. It is apparent to us that the fresh evidentiary material the Appellant seeks to rely have been in the Appellant’s possession for a significant period of time before the appeal was eventually lodged on 13 June 2018. For instance;

•  the materials received from the Queensland State Coroner 9 was in the Appellant’s possession since 8 March 2011;

•  the materials received from the Queensland Information Commissioner 10 were in the Appellant’s possession since 9 February 2018;

•  the Consultant Psychiatrist’s complaint to the then Northern Territory Police Commissioner regarding the actions of the Respondent’s Human Resources Director was in the Appellant’s possession from, allegedly, March 2011.

[10] Given these circumstances, we do not consider that the Respondent’s actions in purportedly causing the matter to be “drawn out”, is of particular relevance for explaining the delay in filing this appeal. This is because, even if we were to find that the Respondent had “withheld” or not been “forthcoming” with the materials that the Appellant now seeks to rely, 11 the Appellant has by his own conduct, caused a considerable period of delay. Indeed, from as early as 9 February 2018 whereby the Appellant was in receipt of all the documents referred to above, the Appellant could have readily lodged the appeal.

[11] We also note that while it appears that the Appellant was waiting to discuss these matters with the Northern Territory Police Commissioner before proceeding to lodge the appeal, there was still a considerable period of delay between the date in which the Appellant sought a ‘without prejudice’ meeting with the Northern Territory Police Commissioner (that is from 29 March 2018) to the date in which the appeal was lodged on 13 June 2018. In these respects, we are not persuaded that the reasons for delay provided by the Appellant are satisfactory. Accordingly, this factor weighs against a finding that there are exceptional circumstances in this case such as to warrant an extension of time being granted.

The length of the delay

[12] The length of delay was significant at almost 2730 days or nearly 7 and a half years outside of the prescribed time. This factor weighs heavily against granting an extension of time within which to lodge the appeal.

Prejudice to the Respondent if time were extended

[13] Just as the length of delay was significant, the extent to which the Respondent would be prejudiced if the appeal was allowed to be lodged some 7 and a half years out of time would also be significant. We agree with the Respondent, that “due to the effluxion of time, relevant HR staff and police members involved may have moved on and memories of events from 2007-2010 will almost certainly have faded.” 12 Moreover, it would also cause the Respondent considerable time and expense to defend a matter which has been lodged significantly out of time, which for the reasons set out below, appear to have very limited prospects of success.

The nature of the grounds of appeal and the likelihood that one or more of those grounds being upheld if time was extended

[14] The Decision subject to appeal was made under Part 3-2 of the Act. Section 400(1) of the Act provides that permission to appeal must not be granted from such a decision unless the Commission considers that it is in the public interest to do so. Further, in such matters appeals on a question of fact may only be made on the ground that the decision involved a ‘significant error of fact’ (s.400(2) of the Act). 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 as ‘a stringent one’. 13 The Commission must not grant permission to appeal unless it considers that it is ‘in the public interest to do so’.14

[15] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment. 15 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." 16

[16] It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. 17 The fact that a Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.18

[17] The grounds of appeal detailed in the Appellant’s Notice of Appeal can be summarised as follows:

1. There are “significant errors of fact” arising from the alleged “intentional dishonesty” of the then Northern Territory Police Commissioner, and details surrounding the Appellant’s dismissal which were not previously known to the Appellant. 19 In that regard, the length of time for “rightful conclusion” is immaterial if the facts were not forthcoming or otherwise available to the Appellant at the time of the hearing at first instance.20

2. Contrary to the “façade” represented to the Commission at first instance, the Respondent did not have “any intention to repatriate a working relationship but rather a desire to impugn [the Appellant’s] character as an employee”.

[18] Going to ground one, the Appellant claims that the Decision at first instance was determined on significant errors of fact as there were, allegedly, factual matters which were not known to the Appellant or Commission at the time of, or before the hearing at first instance. In our view whether or not these factual matters were before the Commissioner at the time is immaterial. This follows because the Commissioner had found that there was a valid reason for dismissal on the basis that the medical evidence of both the Respondent’s and (more importantly) the Appellant’s medical practitioner had indicated that he was unable to return to work:

“[86] The [Appellant’s] own specialist doctor and the specialist doctor appointed by the Respondent (on two separate occasions) both confirm that the [Appellant] cannot return to work for the [Respondent] and that an essential step in his recovery from illness is that he plan an alternative career. His own specialist noted that the [he] “has the intellectual ability, the drive and the disposition to be able to be effectively employed elsewhere”. The Respondent’s specialist agreed that alternative employment outside of the [Respondent] was possible. The [Appellant] did not dispute this evidence.” (Citations omitted).

[19] It is also important to note that, at the time of dismissal the Appellant had been on sick leave for just short of three years (from 30 July 2007 to 9 July 2010). The Commissioner considered in extensive detail the events and conduct of the parties during this period and had concluded that it was “quite clear” that the employment relationship had become so “clearly irreparable” such that he was “was unable to perform the inherent requirements of the job”. 21 On this basis, it was also found that internal redeployment was not in fact an option available to the Respondent.22

[20] Given these findings, the fact that the Respondent had corresponded with the QPS and CMC regarding the Appellant’s dismissal, and that a complaint from a Consultant Psychiatrist was not investigated; would have had no bearing (either independently or collectively) on the Commissioner’s ultimate findings. Accordingly, we do not consider that the first ground of appeal is likely to have succeeded. In any event, we are not persuaded that the Decision involved a significant error of fact for the purposes of s.400(2) of the Act.

[21] Going to the second ground of appeal, it is apparent that the Respondent had sought to resolve the Appellant’s complaint and grievance, to move the dispute into mediation, and in attempting to facilitate a return to work. 23 The Respondent in our view did not create any sort of “façade”, nor do we find that the Appellant's incapacity for work was because of the alleged fault of the Respondent.24 Therefore we do not consider that the second ground of appeal would likely have succeeded.

[22] It is apparent from the nature of the grounds of appeal that the Appellant seeks to persuade us that the Commissioner would have reached a different conclusion had the matters raised in this appeal been known at first instance. For the reasons given above, we are of the view that these matters would not have changed the Commissioner’s findings and the ultimate conclusion that he arrived at.

[23] Having considered all the materials we are not persuaded that there is an arguable case of error. The basis on which the Commissioner reached his Decision discloses an orthodox approach to the determination of the Appellant’s unfair dismissal application. In any event, even if an extension of time were to be granted, we are not satisfied that we would have granted permission to appeal. The appeal does not attract the public interest such that:

•  There is a diversity of decisions at first instance so that guidance from an appellate body is required of this kind;

•  The appeal raises issues of importance and/or general application;

•  The Decision at first instance manifests an injustice, or the result is counter intuitive; or

•  The legal principles applied by the Commissioner were disharmonious when compared with other decisions dealing with similar matters.

[24] Our finding weighs heavily against the grant of an extension of time.

Conclusion

[25] In our view there is no public interest in the present matter such as to support a grant of permission to appeal and we are not persuaded that an arguable case has been made out that the Commissioner made any significant errors of fact. Having regard to all of the relevant considerations we are not persuaded that it is in the interests of justice for us to exercise our discretion to extend time to lodge the appeal. Accordingly, the Appellant’s extension of time application is dismissed.

VICE PRESIDENT

Appearances:

Mr S. Isles, Appellant, on his own behalf

Mr J. Ingrames, of counsel, instructed by Mr B. Rogers for the Respondent

Hearing details:

2018

Sydney with video-link to Darwin

August 7 and September 19

Printed by authority of the Commonwealth Government Printer

<PR701211>

 1   [2010] FWA 9147.

 2   Fair Work Act 2009 (Cth) (Act), s.596(2)(a).

 3   Relevantly, the last day in which this appeal could have been lodged within the prescribed time is 22 December 2010.

 4   [2014] FWCFB 4822 at [5]-[6].

 5   Affidavit of Steven Isles sworn on 2 August 2018, Appendix 39.

 6   Affidavit of Steven Isles sworn on 2 August 2018, Appendix 14.

 7   Affidavit of Steven Isles sworn on 2 August 2018, Appendix 9.

 8   Transcript of Proceedings dated 19 September 2018 at PN17-PN21.

 9   Affidavit of Steven Isles sworn on 2 August 2018, Appendix 39.

 10   Affidavit of Steven Isles sworn on 2 August 2018, Appendix 14.

 11   For the avoidance of doubt, we make no such finding.

 12   Respondent’s written submissions dated 30 July 2018 at [19]-[20].

 13   Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [43].

 14   Fair Work Act 2009 (Cth) s.400(1).

 15    O’Sullivan v Farrer and another (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].

 16   (2010) 197 IR 266 at [27].

 17   Wan v Australian Industrial Relations Commission (2001) 116 FCR 481 at [30].

 18   GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343; (2001) 197 IR 266 at [26]-[27]; Lawrence v Coal & Allied Mining Services Pty Ltd T/A Mt Thorley Operations/Warkworth [2010] FWAFB 10089; (2010) 202 IR 388 at [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78; 207 IR 177; New South Wales Bar Association v McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663; (2014) 241 IR 177 at [28].

 19   See also paragraph [6] of this decision; further we consider that grounds 1, 2, 3 and 5 detailed in the Appellant’s Notice of Appeal are related grounds of appeal - therefore we have not enumerated these grounds into 4 separate grounds of appeal.

 20   Citing Crime and Corruption Commission v Assistant Commissioner Paul Taylor [2018] QCAT 80.

 21   Decision at [95].

 22   Decision at [100].

 23   Decision at [43]-[55].

 24   Decision at [89]; citing Y Iliadis and Rail Corporation New South Wales 2007 AIRCFB 1041.