| FWCFB 1257|
|FAIR WORK COMMISSION|
Mrs Renee Gutzeit
Fair Work Act 2009
s.604 - Appeal of decisions
JUSTICE ROSS, PRESIDENT
MELBOURNE, 24 MARCH 2015
Appeal against decision [ FWC 9288] - refusing to extend time for lodging an unfair dismissal application - s.394(3) - application determined ‘on the papers’ - contested factual matter about a critical issue - s.397 - conference or hearing required - permission to appeal granted and appeal upheld
 Mrs Renee Gutzeit (the appellant) was dismissed from her employment with Liquorland (Qld) Pty Ltd T/A Spirit Hotels Liquorland (South East Queensland) (the respondent, Liquorland) on 13 June 2014 and subsequently lodged an application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Cth) (the FW Act). The application was lodged on 8 July 2014.
 An unfair dismissal remedy application must be made within 21 days after the dismissal took effect or within such further time as the Commission allows under s.394(3). The appellant’s application appeared to have been lodged 4 days outside the 21-day time limit, and accordingly it was necessary for her to obtain an extension of time under s.394(3).
 On 1 September 2014 the Commission issued Directions requiring each party to file written submissions and witness statements addressing the matters the Commission is required to take into account in deciding whether to grant an extension of time under s.394(3). The Directions included the following statement:
“3.1 Each party is to advise in writing by 5.00pm on Friday 26 September 2014 whether the party wishes to cross-examine any witness who provides a statement for the other party.
3.2 In the event that there are no witnesses to be called by either party, or no cross-examination of any witnesses is required, the jurisdictional objection will be determined on the basis of the material filed by the parties in accordance with these Directions.”
 The parties filed their material in accordance with the Directions and both parties indicated that they did not wish to cross-examine any of the witnesses who had provided a statement for the other party.
 The Deputy President proceeded to determine the application ‘on the papers’ and on 23 December 2014 issued an order dismissing the appellant’s application1 and published the reasons for her decision the same day2 (the Decision). Mrs Gutzeit seeks permission to appeal the Deputy President’s order and decision and that is the matter before us.
 The decision subject to appeal was made under Part 3-2 – Unfair Dismissal – of the FW Act. Section 400(1) 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)). 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’.3 The Commission must not grant permission to appeal unless it considers 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 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.”5
 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.6 However, the fact that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.7
 As we have indicated, the Deputy President refused to grant the appellant an extension of time in relation to the lodgement of her unfair dismissal application and on that basis dismissed the appellant’s unfair dismissal application. A critical issue in the proceedings at first instance was the date on which the appellant’s dismissal took effect. The appellant contended that her employment was terminated on 25 June 2014 and this was consistent with the date stated on the Employment Separation Certificate issued by the respondent. The respondent submitted, in essence, that the date stated on the Employment Separation Certificate was an administrative error and that the appellant had in fact been dismissed at a meeting held on 13 June 2014. If the appellant’s contention as to the date of her dismissal was accepted by the Commission then her unfair dismissal application was lodged within the prescribed time and there would have been no need for her to seek an extension of time. If the respondent’s contention was correct then the appellant’s application was lodged 4 days outside the prescribed 21 day time period.
 The Deputy President found in favour of the respondent in relation to this issue and her reasons for doing so are set out at paragraphs  -  of the Decision:
“... According to her statement, Mrs Gutzeit attended a disciplinary meeting with Liquorland on 13 June 2014. At that meeting, Mrs Gutzeit was notified that her employment was to be terminated. Mrs Gutzeit contends that Liquorland was not clear to her about whether she would be required for any further shifts and states that she believed that the proper termination date would be confirmed by the human resources department of Liquorland. Ms Gutzeit stated that she was very distressed throughout the course of the meeting.
Mrs Gutzeit also states that she made enquiries with the Administration Officer on 26 June, 1 July, 16 July and 22 July and received an Employment Separation Certificate on 22 July 2014 indicating that the date her employment ceased was 25 June 2014. Ms Gutzeit points to the fact that the employment separation certificate indicates that she was dismissed with notice. Ms Gutzeit contends that when she received the employment separation certificate she believed that she had 21 days from the date of dismissal indicated in the certificate in which to make her application. Ms Gutzeit also asserts that her dismissal took effect on 25 June 2014 as stated in the Employment Separation Certificate. ...
...Liquorland refutes that claim made by Ms Gutzeit that she was not aware of the date of her dismissal. It is contended that Ms Gutzeit was informed at the meeting of 13 June 2014 that the decision had been made to terminate her employment, effective immediately. In this regard, Liquorland refers to a document entitled Record of Conversation that was completed and provided to Mrs Gutzeit. Part C of Section 5 of the Record of Conversation is entitled ‘termination of employment’ and a tick box that indicates that the outcome of the conversation is termination of employment.
Liquorland also submits that Ms Gutzeit was escorted from its premises and was required to return items such as her keys and uniforms. Liquorland concedes an administrative error in payroll which resulted in delayed processing of final payments for over two weeks and that the Employment Separation Certificate contains an incorrect date.
I am not satisfied in the circumstances of this case that there are exceptional circumstances so that the discretion to allow Ms Gutzeit an additional period to file her application should be exercised. The check box being ticked on the Record of Conversation on 13 June 2014 indicates that Ms Gutzeit’s employment has been terminated. It is also the case that Ms Gutzeit was escorted from the premises and required to return keys and uniforms.
Neither party tendered a copy of the Employment Separation Certificate. However, I accept that it contained an incorrect date. I also accept that because of administrative error there was a delay in paying Ms Gutzeit’s entitlements on termination. However, the incorrect date on the Employment Separation Certificate and the administrative error that lead to delays in paying Ms Gutzeit could not have impacted on the timing of filing her unfair dismissal application.
Ms Gurtzeit filed her application on 8 July 2014 but on her own evidence did not receive the incorrect Employment Separation Certificate until 22 July 2014. Although an incorrect date on such a document is unfortunate, and could be misleading in respect of when a particular dismissal took effect, in circumstances where Ms Gutzeit had already filed her unfair dismissal application, the incorrect date is not a basis for asserting lack of clarity about this matter for the purposes of determining whether the discretion to extend time should be exercised.
I am also of the view, based on the submissions provided by Mrs Gutzeit and Liquorland, that it must have been reasonably apparent to Ms Gutzeit that her employment had ceased at the conclusion of the disciplinary meeting. ...”
 Prior to the hearing of the appeal we drew the parties’ attention to the requirements of s.397 of the FW Act. Section 397 provides as follows:
“The FWC must conduct a conference or hold a hearing in relation to a matter arising under this Part if, and to the extent that, the matter involves facts the existence of which is in dispute.”
 It is apparent from the terms of s.397 that where a matter arising under Part 3-2 involves contested fact(s), the FWC must either hold a conference or conduct a hearing in relation to the contested fact(s).
 Whether an application was made within the time period prescribed in s.394(2) is clearly a ‘matter arising’ under Part 3-2 of the FW Act. Section 396 is relevant in this regard, it provides:
“The FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:
(a) whether the application was made within the period required in subsection 394(2) ...”
 In the present matter the respondent submitted that s.397 did not require the FWC to hold a determinative conference or hearing in relation to the contested fact. Further it was submitted that a conference was held in respect of the appellant’s application on 1 September 2014 and accordingly the requirements of s.397 had been met.
 We do not find the respondent’s submission persuasive. The telephone conference which took place on 1 September 2014 was described in the Notice of Listing as a ‘Mention/Directions Conference’ in relation to the appellant’s unfair dismissal application. The Notice of Listing stated, relevantly,:
“The above matter is listed for directions by Telephone ... Deputy President Asbury proposes to hold a Mention/Directions Conference. The conference will give the parties an opportunity to discuss the application, the employer’s response, whether the matter can be resolved, and if not, programming issues should the matter proceed to hearing.”
 On the respondent’s own submission there was only ‘some high level discussions of the facts in dispute’ during the course of the teleconference and it is conceded that it was not a ‘full and complete determinative type conference of those questions’.
 It is also relevant to observe that prior to the conference on 1 September it was not apparent that there was a dispute about the date of dismissal. The appellant’s Form F2 application says that the appellant was ‘unsure’ of the date on which the dismissal took effect because at the time the application was lodged she had not received a formal termination notice specifying a termination date. At paragraph 1.4 of the Form F2 the appellant acknowledges that the application was not made within the prescribed 21 day period and states: ‘I am unsure if I am within the 21 day period as I have still [not] received a formal termination notice stating the details regarding my termination’. In circumstances where it was not apparent that there was a dispute about the dismissal date at the time the 1 September conference was listed it is highly unlikely that the conference was convened in relation to such a dispute.
 We are not persuaded that what took place on 1 September was a conference of the type envisaged by s.397. The type of conference envisaged by s.397 is plainly a conference at which the parties would have an opportunity to make submissions and call evidence (and respond to the evidence and submissions of the other party) in relation to the contested fact(s). We reject the proposition that the reference to conducting ‘a conference’ in s.397 does not require the holding of a determinative conference in relation to the contested fact(s).
 The following propositions emerge from the foregoing analysis:
(i) There was a dispute between the parties as to the date on which the appellant’s dismissal took effect (the ‘contested fact’).
(ii) The resolution of the contested fact was a critical issue in that it would determine whether or not the application was made within the time period prescribed in s.394(2).
(iii) Whether an application was made within the time period prescribed in s.394(2) is a ‘matter arising’ under Part 3-2, within the meaning of that expression in s.397.
(iv) Section 397 provides that the FWC must conduct a conference or hold a hearing in relation to a ‘matter arising’ under Part 3-2, to the extent that the matter involves contested facts.
(v) The Deputy President did not conduct a conference or hold a hearing in relation to the dispute about the date on which the appellant’s dismissal took effect and hence did not comply with the requirements of s.397.
 The fact that neither party had requested a conference or hearing, and that neither party sought to cross-examine any of the witnesses, is not to the point. The requirements of s.397 are clear and the statutory obligation upon the FWC cannot be abrogated by the consent or acquiescence of the parties. A conference or hearing would also have provided the FWC with an opportunity to ask questions of the witnesses and to assess the credibility of their evidence.
 The Deputy President’s failure to comply with s.397 - in circumstances where the relevant contested fact was a critical issue in the proceeding - enlivens the public interest and on that basis we are satisfied that it is in the public interest to grant permission to appeal and permission is granted. 8 The failure to comply with s.397 in the context of this case was an error that warrants correction on appeal. We uphold the appeal and quash the Deputy President’s order dismissing the appellant’s application. We remit the matter to Senior Deputy President Drake for rehearing.
 In deciding to uphold the appeal we do not wish to be taken to be stating that the FWC must conduct a conference or hold a hearing in respect of every matter arising under Part 3-2 of the FW Act. As a general proposition the FWC is not required to hold a hearing in performing its functions or exercising its powers, ‘except as provided by [the] Act’ (see s.593(1)). Section 397 is a statutory exception to this general proposition. 9 The FWC may determine a matter arising under Part 3-2 ‘on the papers’, without conducting a conference or holding a hearing, provided the matter does not involve ‘facts the existence of which is in dispute’.
The Appellant: Mr J.C. Chapman
The Respondent: Mr A. Pollock
Melbourne with video link to Brisbane
18 March 2015
2  FWC 9288
3 (2011) 192 FCR 78 at paragraph 43
4 O’Sullivan v Farrer (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch (2011) 85 ALJR 398 at paragraph 69 per Gummow, Hayne, Heydon, Crennon, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others  FCAFC 54 at paragraphs 44 - 46.
5 (2010) 197 IR 266 at paragraph 27
6 Wan v AIRC  FCA 1803 at 
7 GlaxoSmithKline Australia Pty Ltd v Makin  FWAFB 5343 at -; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth  FWAFB 10089 at , affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler;  FCAFC 54; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office  FWCFB 1663 at 
8 Also see Tino v Regis Resources Ltd  FWCFB 5358
9 Also see s.607(1) in relation to appeals and the obligation to provide procedural fairness may require the FWC to conduct a hearing in certain circumstances.
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