DECISION

Fair Work Act 2009
s.604—Appeal of decision

Robert Webb
v
Minterra Pty Ltd
(C2021/7248)

Appeal against decision [2021] FWC 6066 of Deputy President Mansini at Melbourne on 7 October 2021 in matter number C2021/2584 – permission to appeal refused.

[1] Mr Robert Webb (the Appellant) has lodged an appeal under s 604 of the Fair Work Act 2009 (Cth) (the Act) for which permission to appeal is required against a decision 1 (the Decision) of Deputy President Mansini issued on 7 October 2021. The Decision concerned an application, brought by the Appellant, for the Commission to deal with a general protections dispute involving dismissal from his employment with Minterra Pty Ltd (the Respondent).

[2] The Appellant’s application was filed 58 days out of time, necessitating the Appellant to ask the Commission to grant a further period for the application to be made under s 366(2) of the Act. The Deputy President was not satisfied that there were exceptional circumstances to grant an extension of time in which to file the application. Accordingly, she dismissed the Appellant’s application.

[3] Directions were set for the filing of material by the Appellant. As this matter was listed for permission to appeal only, the Respondent was not required to file any material and it did not do so.

[4] At the hearing of this appeal, the Full Bench granted the Appellant permission to be represented by a lawyer following there being no objection from the Respondent. The Full Bench has heard the parties regarding permission to appeal. For the reasons that follow, permission to appeal is refused.

The Decision under appeal

[5] The Deputy President commenced her decision by briefly outlining the context in which the Appellant’s application was filed. That contextual background can be summarised as follows:

•  On 9 March 2021 the Appellant lodged an unfair dismissal claim with the Commission. Rebus Legal Pty Ltd (Rebus Legal) was named as his representative and a Mr Christopher James was the nominated contact person.

•  On 17 March 2021 the Respondent filed and served its response to the unfair dismissal claim. The Respondent raised a jurisdictional objection on the basis that the Appellant exceeded the high income threshold. Therefore, Mr James and the Appellant were on notice from this date of this jurisdictional issue.

•  On 24 March 2021, a conciliation before a Commission staff conciliator occurred and the unfair dismissal claim was withdrawn that same day.

•  On 6 May 2021, the general protections application was filed by email. In this email, Mr James purported to have lodged the Appellant’s general protections claim on 21 April 2021. The Deputy President noted there was no record of such an attempt and nor was there any record of a technology outage on that date which would have prevented any attempts to file. As such, the general protections application was taken to be received by the Commission on 6 May 2021.

•  The Respondent objected to conciliation of the matter pending determination of the Appellant’s request for an extension of time to file the application. Subsequently, materials were filed and a hearing took place on 19 July 2021. Further materials were filed at the conclusion of the hearing, there being no opposition from the Respondent to the filing of this further material.

[6] The Deputy President then considered the evidence before her. The evidence was canvassed at length and in detail by the Deputy President and we will not reproduce that outline here, especially as the Appellant does not seek to challenge the evidence on appeal. In short, the Appellant contended at first instance that representative error caused the delay in filing the general protections application and he submitted evidence of his communications with his representative in support of this contention.

[7] The Deputy President then turned to consider whether or not exceptional circumstances for the delay in filing the application existed in accordance with s 366(2) of the act which requires that, in considering whether to grant an extension of time, the Commission must take into account the following:

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.

[8] It is the Deputy President’s conclusions regarding reasons for delay that are challenged by the current appeal. As aforementioned, the Appellant submitted that the “primary reason” for the delay in filing his general protections application was due to representative error in lodging an unfair dismissal application when it should have been lodged as a general protections claim. In the matter at first instance, the Respondent submitted that this did not explain the delay in filing when the Appellant and his representative were on notice from at least 17 March 2021 that the unfair dismissal claim could not succeed.

[9] The Appellant contended that his representative’s failure to promptly file the general protections application despite his instructions was also a matter of representative error. The Respondent contended that the Appellant was placed on notice, by the Commission’s staff conciliator, that the general protections application was already late as of 24 March 2021 and that the lengthy period of time between that date and when the application was finally filed on 6 May 2021 was inexcusable and not exceptional.

[10] The Deputy President identified the principles which apply to cases concerning representative error in the context of an application for an extension of time. After considering those principles and the evidence before her, the Deputy President was satisfied that it was understandable for the Appellant to rely on his representative’s guidance until he was informed by the Commission’ staff conciliator on 24 March 2021 that his general protections claim was out of date. The Deputy President considered that that period was acceptably or reasonably explained by representative error.

[11] The Deputy President was not satisfied that the Appellant gave an instruction to file his general protections claim until 21 April 2021 at the earliest. The Deputy President was satisfied that the Appellant was not completely ignorant as to the timeframe for filing, noting that even if he did not receive the necessary guidance from his representative, and did not understand the guidance of the Commission’s staff conciliator on 24 March 2021, that there are a range of publicly available sources of information from which he could have obtained appropriate guidance.

[12] Relevantly, at [47] – [48] of the Decision, the Deputy President found:

“[47] There is no explanation before the Commission as to why Mr Webb did not escalate matters or end the engagement with Rebus Legal on 14 April 2021 (as foreshadowed in his 13 April 2021 text message), engage alternate representation or attend to filing the application form (a relatively straightforward exercise to at least commence proceedings) himself. By this time, there appears to be limited (if any) valid basis for Mr Webb to have relied blindly or without question on his representative to properly represent his interests. Mr Webb was concerned and upset, and by 13 April 2021 told his representative directly that he had “lost faith in the promises made to act on his application”. That he did not avail of other options and chose to persist with his representative is a matter for Mr Webb but is not an acceptable or credible explanation for such lengthy delay, nor is it exceptional.

[48] Even accepting that Mr Webb gave his instruction to file the claim on 21 April 2021, when regard is had to the evidence of Mr Webb’s further attempts to contact Mr James on 27 April, 3 and 5 May 2021 and escalation to Mr Yenkenna (Director of Rebus Legal) on 5 May 2021 I consider it likely that Mr Webb was at least aware that his application may not have been filed, and certainly he had not received confirmation of such. In oral evidence, Mr Webb also confirmed that he never saw the final application and did not believe he had signed the final version of the application indicating he did not consider the signed form which he returned on 21 April 2021 to have been final. There is no evidence that Mr Webb contacted the Commission directly to so verify and, by 21 April 2021, Mr Webb was certainly in possession of a form which he had already signed and might have lodged himself.”

[13] Regarding the reason for delay, the Deputy President ultimately concluded that the Appellant did not establish a clear instruction given in a timely manner after withdrawal of his unfair dismissal claim. The Deputy President noted that at the time of the withdrawal of the unfair dismissal claim, the Appellant was “privy to the relevant information, was aware of other alternative courses of action and did not act to protect his own interests.” 2 After considering all the circumstances, the Deputy President was not satisfied that a reasonable, acceptable or credible explanation for the delay in filing the application existed, noting that this weighs strongly against a finding of exceptional circumstances.

[14] The Deputy President then considered the remaining factors as prescribed in ss 366(2)(b) – 366(2)(e) of the Act. Having regard to all of the matters under s 366, she was not satisfied that exceptional circumstances exist. Accordingly, she dismissed the Appellant’s application.

Principles of appeal

[15] An appeal under s 604 of the 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. 3  There is no right to appeal and an appeal may only be made with the permission of the Commission.

[16] Subsection 604(2) 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. 4 The public interest is not satisfied simply by the identification of error,5 or a preference for a different result.6 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 issue 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...” 7

[17] 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. 8 However, that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.

[18] An application for permission to appeal is not a de facto or preliminary hearing of the appeal. In determining whether permission to appeal should be granted, it is unnecessary and inappropriate for the Full Bench to conduct a detailed examination of the grounds of appeal. 9 However, it is necessary to engage with the appeal grounds to consider whether they raise an arguable case of appealable error.

Grounds of appeal

[19] The Appellant advances 4 grounds of appeal in his F7 Notice of Appeal. They are as follows:

“1. Deputy-President Mansini erred in law by wrongly applying the principles to be applied in determining whether representative error constituted an acceptable explanation for delay, so as to constitute exceptional circumstances justifying an extension of time for filing a general protections application involving dismissal.

PARTICULARS OF FIRST GROUND OF APPEAL

a. Deputy-President Mansini erroneously failed to conclude that the representative error was such as to provide sufficient reason to conclude that there were exceptional circumstances in justifying an extension of time.

b. Deputy-President Mansini erroneously concluded that delay was occasioned by Mr Webb, even though such a conclusion was not reasonably open to her on the face of the evidence.

c. Deputy-President Mansini erroneously adopted a test which required Mr Webb to demonstrate blamelessness.

2. Deputy-President Mansini erred in law by misdirecting herself that, by not 'escalating' inquiries with his legal representatives, ending the engagement with Rebus Legal on 14 April 2021, engaging alterative representation or attending to the filing of the General Protections application himself, Mr Webb acted otherwise than reasonably or blamelessly in relation to his representative's error.

3. Deputy-President Mansini misdirected herself as to the conclusions open on the facts to the extent that she concluded that exceptional circumstances justifying the grant of an extension of time were not established because Mr Webb did not give clear instructions in a timely manner to his legal representatives.

4. Deputy-President Mansini misdirected herself as to the conclusions open on the facts to the extent that she concluded that exceptional circumstances justifying the grant of an extension of time were not established because Mr Webb did not act in a timely manner in protecting his interests.”

Consideration

[20] There is no dispute that the Deputy President correctly identified the principles to be applied in relation to representative error as an exceptional circumstance to granting an extension of time. Rather, the Appellant’s grounds of appeal and submissions, made both in writing and orally, take issue with the conclusions reached by the Deputy President in her application of the relevant principles.

[21] Ground 1 of the appeal and the submissions made in support of that ground are simply blanket statements that error existed in the Decision. For reasons which will become clear, we do not accept this ground of appeal.

[22] It is convenient to deal with grounds 2 and 3 of the appeal together.

[23] Ground 2 of the appeal contends that the Deputy President erred in concluding that the applicant did not establish a clear instruction given in a timely manner after the withdrawal of his unfair dismissal application in circumstances where he was aware of alternative courses of action to protect his own interests. The Appellant contends that in arriving at this conclusion, the Deputy President erroneously attributed blame to the Appellant for not escalating matters further and not ending his engagement with Rebus Legal on 14 April 2021 as he had threatened to do so the previous day on 13 April 2021. It is the Appellant’s contention that it was not unreasonable for him to not terminate his retainer given that his legal representative was in contact with him on 14^th, 15^th and 16^th of April, progressing the drafting of the application.

[24] Ground 3 of the appeal contends that the Deputy President erred in finding that a direction to file the general protections application was not given by the Appellant to his legal representative until 21 April 2021. The Appellant takes issue with the Deputy President’s conclusion that a text message of 13 April 2021, instructing that the application only be actioned if it had strong prospects of success, is not a clear instruction. The Appellant asserts that the placing of a pre-condition on prospects of success is not a failure to provide instructions to lodge a claim.

[25] We do not accept that these grounds of appeal have identified an error in the Decision. It was open to the Deputy President to come to the conclusion above with which the Appellant cavils. However, even if we were to accept the Appellant’s contentions the result would be a finding that the Appellant directed his legal representative to file the application by 13 April 2021. This does not assist the Appellant in circumstances where he was aware, from 24 March 2021, that his general protections application was already out of time. As outlined by the Deputy President, in the period between 24 March 2021 and 13 April 2021, the Appellant did nothing until 29 March 2021 when he attempted to call his legal representative (this is 5 days after the withdrawal of his unfair dismissal claim). From 29 March 2021 to 13 April 2021, there were 3 efforts made by Mr Webb, all being telephone calls to contact his legal representative. On the evidence before the Deputy President, she concluded 2 resulted in conversations with his representative. The Appellant has not identified a reasonable or acceptable explanation as to why nothing was done for 5 days after the withdrawal of the unfair dismissal claim and furthermore, why a direction was not given to file the general protections claim in the 15 days after that. Even accepting the Appellant’s submissions at their highest, that he gave a clear direction to file on 13 April 2021, there are 20 days in which nothing was done by the Appellant to progress his matter.

[26] Furthermore, this case must be viewed in the entirety of its factual circumstances. The Appellant was on notice, from 24 March 2021, that any general protections application was already out of time. It would be expected that he act expeditiously to file his general protections application in circumstances where he was fully aware that such an application was already significantly out of time.

[27] Ground 4 of the appeal takes issue, generally, with the Deputy President’s analysis of the timeline of the Appellant’s conduct. The Appellant cavils with the Deputy President’s analysis of how many days passed between each attempt at giving instructions, contending that she erred by counting in multiple instances, the weekends. The Appellant submits that only one or two business days and, on one occasion, four business days elapsed between attempts at contact with his legal representative. For example, the Appellant takes issue with the Commissioner’s statement that 5 days elapsed between 24 March 2021 and 29 March 2021 in which the Appellant did nothing following the withdrawal of his unfair dismissal claim, contending that in fact only two business days had passed. The rest of the Appellant’s submissions regarding this ground of appeal take issue with other periods of time in which the Appellant did nothing.

[28] We do not accept this ground of appeal. The Commission’s statutory timeframes regarding when a s 365 application must be lodged is expressed in terms of days and not business days. In argument, this was put to the Appellant’s representative and he accepted that the Commission does indeed deal in the number of days total – not in the number of business days. We see no reason why the Appellant should be measured to a different standard of business days. The Deputy President reached a conclusion that for significant periods of time the Appellant did nothing to progress his application. We find no error in this conclusion.

Public Interest

[29] Having considered the Appellant’s submissions and all the materials filed on appeal, we are not satisfied that there is an arguable case of error. It is clear that the basis on which the Deputy President reached her Decision discloses an orthodox approach to the determination of the Appellant’s unfair dismissal application. The Deputy President applied the correct legal principles, considered, and dealt with the evidence that was before her, and made findings of fact based on the evidence before her. Further, we have considered whether this appeal attracts the public interest, and we are not satisfied, for the purposes of s 604(2) 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 Deputy President were disharmonious when compared with other decisions dealing with similar matters.

Conclusion

[30] Permission to appeal is refused.

VICE PRESIDENT

Appearances:

Mr G McIntyre SC and Mr J Jo for the Appellant.

Ms N Mann for the Respondent.

Hearing details:

2021.

By telephone.

1 December.

Printed by authority of the Commonwealth Government Printer

<PR737170>

 1   Webb v Minterra Pty Ltd [2021] FWC 6066.

 2   Decision at [51].

 3   Coal and Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 [17] per Gleeson CJ, Gaudron and Hayne JJ (Coal and Allied Operations Pty Ltd).

 4   O’Sullivan v Farrer (1989) 160 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].

 5   GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, 197 IR 266 at [24]-[27].

 6   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 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].

 7   [2010] FWAFB 5343, 197 IR 266 at [24] – [27].

 8   Wan v AIRC (2001) 116 FCR 481 at [30].

 9   Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]