FWAFB 8480
FAIR WORK AUSTRALIA
Fair Work Act 2009
s.604 - Appeal of decisions
SENIOR DEPUTY PRESIDENT HARRISON
SYDNEY, 8 DECEMBER 2011
Appeal against decision  FWA 1386 of Commissioner Simpson at Brisbane on 4 March 2011in matter number C2010/5406.
 This is an appeal by Mr Burke against a decision of Commissioner Simpson which relates to an application made under s.365 of the Fair Work Act 2009 (the Act). Mr Burke was dismissed by the Department of Agriculture, Fisheries, and Forestry - Australian Quarantine and Inspection Service (AQIS) on 21 August 2009. Applications under s.365 must be filed within 60 days of the date a dismissal took effect or within such further period as Fair Work Australia (FWA) may allow. The Commissioner declined to exercise his discretion to extend the time for filing and it is against that decision that Mr Burke has appealed. Mr Burke’s application under s.365 was filed 377 days out of time.
 Before us Mr Burke represented himself and the Respondent was represented by Mr Merrell of counsel.
 This appeal was listed for mention by Senior Deputy President Harrison prior to the hearing before this Full Bench. The terms of Mr Burke’s notice of appeal and the failure to file, or seek to be excused from filing, any appeal books were discussed. Additionally, the filing by Mr Burke of numerous documents that were inappropriate to be contained in any appeal book was also addressed. The outcome of that mention was that appeal books would be prepared by FWA and AQIS would file and serve written submissions prior to the hearing so as to ensure Mr Burke would know what it would be submitting to this Full Bench. This was undertaken by AQIS well prior to the hearing before us.
 The appeal is brought pursuant to s.604(1) of the Act and the permission of FWA to do so is required. The conventional considerations for the granting of permission under s.604(1) apply, namely whether the decision is attended with sufficient doubt to warrant its reconsideration or whether substantial injustice would result if permission was refused. Section 604(2) of the Act also provides that FWA must grant permission if it is satisfied that it is in the public interest to do so.
 If we are persuaded to grant permission the appeal proceeds by way of a re-hearing. However, the appellant needs to identify some error in the Commissioner’s decision before we would do so. No jurisdictional error has been identified by Mr Burke and to the extent we are able to categorise the grounds contained in the notice of appeal, they relate to the manner in which the Commissioner exercised his discretionary powers as contained in s.366. Accordingly, the decision subject to appeal in this matter is properly viewed as a discretionary decision and the approach we should take is in accordance with the High Court decision in Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission. 1 Although this decision concerned s.45 of the Workplace Relations Act 1996 it is equally applicable to s.604 of the Act. The appeal is to be considered in accordance with the principles of House v R.2 Those principles are as follows:
“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.”
 The considerations the Commissioner was required to take into account when considering if he should exercise his discretion to extend the time for filing of the s.365 application are contained in s.366 of the Act. That section is in these terms:
“366 Time for application
(1) An application under section 365 must be made:
(a) within 60 days after the dismissal took effect; or
(b) within such further period as FWA allows under subsection (2).
(2) FWA may allow a further period if FWA 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.”
The Commissioner’s decision
 The Commissioner noted that Mr Burke had initially filed an application for an unfair dismissal remedy under s.394 of the Act and that matter had been listed for a hearing before Deputy President Swan in early 2011. However, he withdrew that application on 29 November 2010. On 1 November 2010, that is at a time when his s.394 application was still on foot, he made his application pursuant to s. 365 of the Act. Each application related to the same termination of his employment. The Commissioner noted that the s.365 application was filed 437 days after his dismissal and 377 days out of time.
 The Commissioner referred to the reasons given in the s.365 application for its being filed out of time. Mr Burke had acknowledged that his application was late and said that he had a medical condition and an inability to access legal representation due to a lack of funds. He had also said he decided to lodge his s.394 application after speaking with FWA staff shortly after his dismissal but a general protections application was not raised. 3
 The Commissioner’s comments in paragraph 11 should be reproduced by us.
“ The applicant filed a 10 page written submission in accordance with the directions order. For the most part the submission did not squarely address the matters I am required to consider for the purposes of section 366(2). The applicant’s submission did however revisit the matters he raised in his application filed on 1 November, which were his health affecting his ability to properly prepare, an inability to access legal advice and a realisation on his part that a hearing through a general protections application was preferable to an unfair dismissal application.”
 The case put by AQIS in opposition to time being extended was then referred to by the Commissioner. A summary of the major points it had made was contained in its written submissions before us. We reproduce those submissions:
“(a) the Appellant had filed no evidence to support a claim of his medical condition inhibiting his ability to make a general protections application in time;
(b) the Appellant's alleged medical condition did not appear to inhibit the Appellant from filing the unfair dismissal application within the shorter period of time permissible under the Act;
(c) the failure to obtain legal advice was not an acceptable reason for the delay and did not constitute an exceptional circumstance; and that the decision made by the Appellant to prosecute an unfair dismissal application in the first instance, withdraw that application and then make a general protections dismissal application was not an acceptable reason for the delay and did not constitute an exceptional circumstance
(d) the Respondent had suffered prejudice given that it would be defending a claim in quite different in terms from the unfair dismissal claim and where a significant period of time had passed since the Applicant's dismissal;
(e) the Appellant had failed to identify a workplace right under s. 341 (1) of the Act that the Respondent was seeking to prevent him from exercising and that the Appellant's claim appeared to lack merit;
(f) the length of the delay, being 377 days, was significant; and
(g) this was not a case where the Applicant had received incorrect advice from a representative or from FWA and that the real reason for the delay was that the Applicant first sought to prosecute an unfair dismissal application before he determined that a general protections dismissal application was more likely to provide the remedy that he sought and, in those circumstances, that did not amount to an exceptional circumstance.” 4
 In that part of the Commissioner’s decision titled “Conclusions” he referred to the reasons given by Mr Burke for the delay in filing his application. He said they were:
“(a) a medical condition,
(b) difficulties in accessing legal representation,
(c) not being advised about general protections applications by FWA staff, and
(d) a view he formed over time that an unfair dismissal claim would not provide him with effective relief as compared to a general protections claim.” 5
 The Commissioner was not persuaded any of these reasons were adequate to satisfy him that he should extend time. He said that Mr Burke had not made any sufficient argument in support of these grounds nor tendered any relevant evidence. In particular, there was no specific material provided regarding his medical condition or the difficulties he said he had encountered in accessing legal advice. The submission Mr Burke had made about FWA not giving him advice about general protections applications was also dismissed as being without merit. Mr Burke could not rely on what he alleges was said (or not said) by unidentified FWA staff to justify an extension of time. The fact Mr Burke formed the view that his s.394 application may not provide him with the remedy he had hoped for, and consequently had decided to withdraw that application and file the s.365, did not constitute an exceptional circumstance. The Commissioner observed that this was even more so when Mr Burke’s decision to change the nature of the challenge to his dismissal was acted upon over a year after the initial unfair dismissal application was filed.
 The Commissioner said he accepted the submission of AQIS that it will suffer prejudice in defending a claim due to the delay in filing. He also noted that neither the particulars contained in the s.365 application nor the submissions made by Mr Burke identified the workplace right under s.341(1) of the Act that was relied upon. About the merits of the application, the Commissioner acknowledged that although it was “at a preliminary stage” nonetheless, the merits appeared weak. As to the consideration of fairness between Mr Burke and other persons in a like position he said that in similar cases FWA had denied much shorter extensions and it would not be appropriate to grant a 377 day extension in this case when considered in the light of previous similar cases.
 The Commissioner decided he would not exercise his discretion to extend time. As a result the s.365 application was dismissed.
 We have considered the matters raised in the notice of appeal. It does not identify errors in the Commissioner’s decision which could properly form the basis of a ground of appeal. The matters addressed are in respect to numerous wide ranging complaints about AQIS and certain individuals and are similar to the matters Mr Burke had relied on below. In summary they concern reasons why he had not complied with a request to attend anger management classes and medical appointments. He complained about the content of a medical report and the use that had been made of it. He criticised the objectivity and competence of persons who had been appointed to enquire into work related issues that had arisen between him and other employees. He also complained about the failure of AQIS to release reports to him. The precise nature of these reports was not identified.
 Having considered the notice of appeal and Mr Burke’s oral submissions to us in the hearing, it seems clear that the main reason Mr Burke relies on to explain the delay in lodging his application was that he had formed the opinion he would be able to obtain a larger monetary remedy under a s.365 application than the maximum amount available by way of compensation under s.394.
 We do not propose to deal with the submission made by AQIS relying, as it did, on ss725 and 729 of the Act. It was, in short, that at the time the s.365 application was filed it was not a valid application as the s.394 application was still being pursued. This submission was not made to the Commissioner below and we think it unnecessary to deal with it further in this decision.
 The written and oral submissions made by Mr Burke did not identify any appealable error in the Commissioner’s decision. The Commissioner properly considered and applied the relevant provisions of the Act to the facts established by the evidence before him. The exercise of his discretion was not affected by any error of the kind referred to by us in paragraph 5. In particular, it is apparent that he did not act upon any wrong principle, did not allow irrelevant matters to guide or affect him and did not mistake the facts nor overlook any material consideration. The submissions and evidence before the Commissioner did not establish there were any exceptional circumstances warranting the extension of time sought by Mr Burke.
 It is not in the public interest that permission to appeal be granted. We have not been persuaded there are any other grounds which may warrant the grant of permission and consequently we refuse permission to appeal. The appeal is dismissed.
SENIOR DEPUTY PRESIDENT
D. Burke on his own behalf.
J W Merrell of counsel for Department of Agriculture, Fisheries and Forestry - Australian Quarantine and Inspection Service.
1  HCA 47,  203 CLR 194.
2  55 CLR 499
3 Ibid paragraph 9
4 Exhibit R1 paragraph 14
5 Ibid paragraph 23
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