Note: Judicial review of this decision 22 March 2012 [2012] FCA 267.
[2011] FWAFB 7548 |
FAIR WORK AUSTRALIA |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
SENIOR DEPUTY PRESIDENT O’CALLAGHAN |
|
Appeal against decision [2011] FWA 6184 of Senior Deputy President Drake at Sydney on 12 September 2011 in matter number U2011/9217.
[1] Mr Warrell has filed an appeal, for which permission is required, against a decision 1 made by Drake SDP on 12 September 2011. In that decision, her Honour dismissed Mr Warrell’s application for relief with respect to the termination of his employment by Bacto Laboratories Pty Ltd (Bacto Laboratories).
[2] The background to Mr Warrell’s application before her Honour was that Mr Warrell re-commenced employment with Bacto Laboratories in July 2010 some time after an earlier period of employment concluded. He worked as a casual gardener. In early 2011 Mr Warrell lodged a workers compensation claim. He subsequently understood that he had been dismissed and lodged an initial unfair dismissal claim pursuant to s.394 of the Fair Work Act 2009 (the FW Act). The Bacto Laboratories’ position at that time was that Mr Warrell’s employment had not been terminated. However, in the course of discussions which were directed at arranging a return to work for Mr Warrell, Bacto Laboratories concluded that Mr Warrell’s behaviour and actions represented misconduct and dismissed him effective from 17 March 2011. We note that the initial application was ultimately discontinued.
[3] Mr Warrell’s position is that, after the termination of his employment he mistakenly sent a second unfair dismissal application to the Fair Work Ombudsman on 22 March 2011. Mr Warrell asserts that, at some unspecified later time, he was informed of this error. He lodged the unfair dismissal application which is the subject of this appeal, on 24 June 2011. The status of these applications was addressed by her Honour.
[4] The matter of whether an extension of time should be granted was the subject of a hearing before Drake SDP on 7 September 2011. Her Honour also heard evidence and submissions about the merits of the application in that hearing and Bacto Laboratories’ submission that it was a small business employer. In her decision her Honour addressed each of the factors specified in subsection 394(3) of the FW Act relevant to the grant of an extension of time. She also made findings as to the merits of Mr Warrell’s application. It is appropriate that we set out that part of her Honour’s decision:
“[6] I have given consideration to Mr Warrell’s reason for delay.
[7] Mr Warrell gave evidence that he placed all of his information in an envelope and posted it to the Fair Work Ombudsman by mistake. He had intended to forward it to Fair Work Australia. He said that he had made a mistake and filed with the wrong entity. It is not clear to me when this took place.
[8] Mr Warrell is undoubtedly impaired in relation to written applications and correspondence because of his inability to read and write comprehensively. Balanced against that is the fact that Mr Warrell had already filed an application before Fair Work Australia prior to the lodgement of this application. That application had been filed with the correct entity and was still an outstanding application at the time Mr Warrell attended a conciliation before me. Mr Warrell had already participated in a conciliation before a Fair Work Conciliator in the previous application.
[9] There is nothing about the date on which Mr Warrell first became aware of his dismissal which would affect my decision, and neither is there any action taken by Mr Warrell to dispute the dismissal which would be significant.
[10] There is no prejudice to Bacto caused by this delay except for the ordinary obligation on Bacto to conduct their defence of Mr Warrell’s application.
[11] There is no matter involving fairness as between Mr Warrell and some other person for me to consider.
[12] The most significant matter for me, in my consideration of Mr Warrell’s application for an extension of time was the merit of his application. I heard Mr Warrell’s substantive application at the same time as I heard his application for an extension of time.
[13] The absence of merit in Mr Warrell’s application was particularly significant. I have concluded that Mr Warrell’s application is without merit. I accept Mr Carter’s evidence regarding Mr Warrell’s conduct. I do not consider that Mr Warrell was a witness of truth in relation to the matters about which Mr Carter gave evidence. I am satisfied that Mr Warrell engaged in gross misconduct in his interaction with Mr Carter and that there was a valid reason for the summary termination of his employment. Mr Warrell’s application would fail on the evidence before me were I to extend the time.
[14] Should there be an error in my conclusion that there is no exceptional circumstance warranting an extension of time, I am also satisfied that there was a valid reason for the termination of Mr Warrell’s employment. The termination of Mr Warrell’s employment was not harsh unjust or unreasonable.”
[5] In reaching her decision, her Honour noted, as do we, that Mr Warrell has difficulty reading and writing. We also note that Mr Warrell is involved in a number of other disputes with Bacto Laboratories, and that he tended to conflate these matters.
[6] The background to the appeal proceedings is also relevant to this matter. Mr Warrell filed his Notice of Appeal on 16 September 2011. This did not identify the grounds for his appeal. While he subsequently filed additional material this did not specify any specific grounds for his appeal. The appeal was therefore listed for a directions hearing on 28 September 2011. At this hearing he advised that he was in the process of engaging a barrister to represent him in the appeal proceedings. The requirement that he provide appeal books consistent with the Fair Work Australia Rules 2010 was waived but Mr Warrell was advised that he was required to provide grounds for his appeal by 8 October 2011. A Notice of Listing confirming that the appeal would be heard on 27 October 2011 was sent to the parties on 30 September 2011 together with written directions confirming the advice provided at the hearing on 28 September 2011.
[7] Mr Warrell did not comply with these directions. Shortly before the hearing, he instructed a barrister who requested an adjournment. The request for an adjournment was made on the basis that the barrister advised that, if it was refused, efforts would be made to obtain alternative representation for Mr Warrell.
[8] On the morning of the appeal, Mr Warrell advised that he would be represented by a solicitor from Legal Aid New South Wales (Legal Aid). As there was no attendance by a solicitor, FWA contacted Legal Aid. Legal Aid subsequently advised that Mr Warrell’s application for legal aid, made two days before the appeal, had been rejected and that telephone messages to that effect had been left for him.
[9] At the commencement of the appeal proceedings, Mr Warrell reiterated that he sought an adjournment. That request was refused. We explained to Mr Warrell that he had been given extensive notice of both the hearing of the appeal and the requirement that he provide grounds for his appeal and he had not complied with these directions. Secondly, Mr Warrell did not provide us with information that persuaded us that an adjournment would alter his current situation. Thirdly, we noted that Mr Warrell sought to provide new evidence in the appeal and we were not persuaded that any such evidence, if admitted would be relevant to the appeal proceedings given her Honour’s decision. Finally, we noted that the delay sought would involve additional costs to Bacto Laboratories and that Mr Warrell was already on notice of a costs application 2.
[10] Mr Warrell outlined three grounds upon which he relied in this appeal 3. Firstly, he asserted that her Honour was in error in not concluding that his application was made within time in that it had been erroneously filed with the Fair Work Ombudsman within time4. Secondly, he asserted that he had not abused his employer and that her Honour’s decision was in error in her conclusion that he engaged in gross misconduct5. Finally, he asserted that he had a medical certificate which should be taken into account in as much as it explains some of his actions6.
[11] We note that Mr Warrell left the court room asserting that he was not being treated fairly, before the appeal proceedings concluded.
[12] We have considered each of the grounds identified by Mr Warrell but are not persuaded that her Honour’s decision was in error. Mr Warrell’s application was filed substantially out of time and we are satisfied that her Honour appropriately addressed the matters set out in s.394(3) of the FW Act. We are satisfied that, on the evidence before her, her Honour was entitled to conclude that Mr Warrell engaged in gross misconduct. Finally, there is nothing about the proceedings before her Honour which indicated that she failed to properly take account of any relevant evidence. In this latter respect we are satisfied that her Honour went to substantial lengths to recognise Mr Warrell’s circumstances and ensure that he was treated fairly in the proceedings. Her Honour adjusted the normal sequence of proceedings to accommodate Mr Warrell and gave him ample opportunity to put his position, including the opportunity to lead evidence that he considered relevant to his case. We note that the evidence Mr.Warrell proposed to lead on appeal related to his claim that the employer never took any action in respect of his return to work plan 7. Even if this claim was established it could not or would be most unlikely to affect the decision under appeal.
[13] Mr Warrell’s appeal is made pursuant to s.604 which states:
“604 Appeal of decisions
(1) A person who is aggrieved by a decision:
(a) made by FWA (other than a decision of a Full Bench or the Minimum Wage Panel); or
(b) made by the General Manager (including a delegate of the General Manager) under the Fair Work (Registered Organisations) Act 2009;
may appeal the decision, with the permission of FWA.
(2) Without limiting when FWA may grant permission, FWA must grant permission if FWA 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 FWA.”
[14] Additionally, s.400 states:
“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 FWA 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.”
[15] In GlaxoSmithKline Australia Pty Ltd v Colin Makin 8 public interest considerations were addressed in the following terms:
“[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.
[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.”
[16] Mr Warrell has not established to us, any public interest considerations which would support a grant of permission to appeal.
[17] Permission to appeal is refused and Mr Warrell’s appeal is dismissed.
Appearances:
E Warrell on his own behalf.
A Johnson counsel and P Carter for Bacto Laboratories Pty Ltd
Hearing details:
2011.
Sydney:
October 27.
1 [2011]FWA 6184
2 PN126-131
3 PN176-180
4 PN160-161
5 PN163-166
6 PN169-175
7 PN111-124
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