| [2016] FWCFB 3410 [Note: Judicial review of decision [MLG260/2016] struck out on 11 April 2016.] |
| FAIR WORK COMMISSION |
|
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
|
VICE PRESIDENT CATANZARITI |
|
Appeal against decision [[2016] FWC 302] of Deputy President Kovacic at Canberra on 15 January 2016 in matter number U2014/16657.
[1] Brendan Joseph Farnhill (Appellant) lodged a Notice of Appeal, for which permission is necessary, against a decision 1 and order2 of Deputy President Kovacic dismissing his application for an unfair dismissal remedy made under s.394 of the Fair Work Act 2009 (Act). Prior to his dismissal on 16 December 2014, the Appellant had been employed by Australian Business Academy Pty Ltd (Respondent) as a Training Manager. The Appellant commenced employment with the Respondent on or about 7 January 2013. The Appellant was dismissed for reasons said to relate to out of hours conduct engaged in by him and involving a person who was said to be a student of the Respondent at the time of the conduct.
[2] The Notice of Appeal was lodged by the Appellant on 11 April 2016. Rule 56 of the Fair Work Commission Rules 2013 (FWC Rules 2013) deals with appeals and the time period for instituting appeals. That rule relevantly provides that an appeal must be instituted within 21 days after the date of the decision appealed against. The appeal was instituted some 66 days outside of the time prescribed. 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.
[3] 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.
[4] The authorities 3 indicate that the following matters are relevant to considering whether to exercise the Commission’s discretion under Rule 56(2)(c):
[1] In broad terms, the issue for the Commission 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. 4
[2] In support of his application to extend time for the institution of the appeal, the Appellant says that following the issuing of the decision in respect of which permission to appeal is sought, the Appellant filed an application in the Federal Circuit Court for judicial review of the decision. On 11 April 2016, during a directions hearing of the Appellant’s judicial review application, the Court concluded that it did not have jurisdiction to deal with the application and dismissed it. The Appellant says that the making of the application to the Court was a matter of practitioner error and not due to any delay attributable to him. 5 Before us, the Appellant through his solicitor explained the delay in lodging the Notice of Appeal as follows:
“MR DAVEY: Yes. If it pleases the Commission, the leave to appeal has arisen out of time because of a misadventure into the Federal Circuit Court of Australia. We were advised and believed that there was jurisdiction. It was later found not to be the case otherwise the application would have been filed within time. So that is the explanation.” 6
[3] On 19 February 2016, solicitors acting for the Respondent wrote to the Appellant’s solicitors about the Appellant’s application to the Court. In the correspondence, the Respondent’s solicitors asserted that the Court did not have jurisdiction to deal with the application, invited the Appellant to withdraw the application and indicated that the appropriate vehicle by which to agitate any issue with the decision the subject of this application for permission to appeal, is by way of application to the Federal Court of Australia or alternatively by lodging an appeal in the Commission under s.604 of the Act. 7 The Appellant did not take up the suggestion.
[4] It became clear during the hearing before us, that the Appellant was aware, before instructing his solicitors to file the judicial review application in the Court, of his right to lodge an appeal to this Commission pursuant to s.604 of the Act, but he made an active choice, based on advice, to pursue the judicial review application instead. 8 Even though the Appellant received apparently erroneous advice as to the jurisdiction of the Court to deal with the judicial review application, he was nevertheless aware of his appeal rights here and chose not to pursue those rights at that time. It is not as though the Appellant, unaware of his right to appeal, pursued another course. He made a choice.
[5] In the circumstances, we are not persuaded that the Appellant was blameless and inactive, with the result that representative error alone caused the delay. We are therefore, not persuaded that a satisfactory explanation for the delay has been provided.
[6] The period of the delay is also not insignificant in the context of an initial prescribed period within which appeals are to be lodged of 21 days. The period of the delay is 66 days.
[7] Before turning to consider the nature of the appeal grounds and the likelihood of one or more of those grounds being upheld if an extension of time were granted, we should say something about prejudice to the Respondent. The Respondent submits that it would be prejudiced if time were extended, as the Appellant’s employment was terminated some time ago in December 2014. We are not persuaded that the time that has elapsed since the Appellant’s dismissal would result in any significant prejudice to the Respondent if time to lodge an appeal were extended. This is so, first, because if an extension of time were granted, the Appellant would need to persuade the Commission that there are appropriate grounds for permission to appeal to be given. Secondly, in the event that permission to appeal is granted, the principal question requiring resolution is whether the Deputy President was correct in his conclusion that the person at the centre of the out of hours conduct allegation which founded the reasons for the dismissal, was a student. This is not a case where witnesses who may be required to give evidence are no longer available or that memories of key witnesses are likely to have faded through the effluxion of time. In the circumstances, no real prejudice, other than the usual cost and inconvenience of participating in litigation, has been established.
[8] As to the nature of the grounds of appeal and the likelihood of one or more of those grounds being upheld if time was extended, we make the following observations. The decision, the subject of the application for permission to appeal, was made under Part 3-2 – Unfair Dismissal of the 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’. 9 The Commission must not grant permission to appeal unless it considers that it is ‘in the public interest to do so’.
[9] The task of assessing whether the public interest test is met, is a discretionary one involving a broad value judgment. 10 In GlaxoSmithKline Australia Pty Ltd v Makin11 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.” 12
[10] 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. 13 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.14
[11] The several grounds of appeal set out in the Appellant’s Notice of Appeal each ultimately turns on the question of whether the Deputy President was correct in his conclusion, that the person at the centre of the out of hours conduct allegation which founded the reasons for the dismissal, was a student. The Appellant says that the Deputy President erroneously concluded that the person was a student and that he erred in his construction of relevant legislation and its application to the issue requiring determination. The public interest is said to be enlivened because it is in the public interest that the Commission correctly apply and interpret relevant law and that there is a need for clear standards relating to when out of hours lawful conduct can correctly impact on the employment relationship.
[12] As to the latter, we are not persuaded that the arguments sought to be advanced on appeal demonstrate an appellable error in the Deputy President’s decision and we are therefore not persuaded that this case would be an appropriate vehicle through which to undertake any reconsideration, clarification or restatement of the principles relating to the scope and circumstances in which out of hours conduct of an employee might impact upon the employment relationship so as to found a valid reason. This appeal will not enliven the public interest in this regard.
[13] Turning then to the principal issue raised by each of the grounds of appeal, we are not persuaded that the Appellant will be able to demonstrate an arguable case that the Deputy President’s reasoning, construction of the relevant legislation and other documents, or the ultimate conclusion that the person with whom the Appellant was involved in the out of hours conduct resulting in his dismissal were erroneous. Moreover, even if he were able to do so, that basis alone will not be sufficient to enliven the public interest.
[14] We therefore consider, that if time was extended, there is a real likelihood that permission to appeal would not be granted having regard to nature of the grounds of appeal and public interest grounds asserted by the Appellant.
[15] With the exception of the prejudice point, each of the other considerations discussed above weigh against the Appellant and taking into account the above matters, we do not consider that the interests of justice favour an extension of the time for the Appellant to institute an appeal.
Conclusion
[16] The appeal was instituted outside of the time prescribed in Rule 56 of the FWC Rules 2013 and for the reasons given above we are not persuaded that an extension of time should be given.
[17] The Appellant’s application for an extension of time to institute this appeal is refused and the appeal is dismissed.
VICE PRESIDENT
Appearances:
Mr J Davie, Solicitor for the Applicant.
Mr I Dixon, Solicitor for the Respondent.
Hearing details:
18 May 2016.
Melbourne.
3 See for example Stevenson-Helmer v Epworth Hospital, Print T2277, 19 October 2000; Dundovich v P&O Ports, Print PR923358, 8 October 2002 per; SPC Ardmona Operations Ltd v Esam and Organ (2005) 141 IR 338; Jobs Australia v Eland [2014] FWCFB 4822.
4 Jobs Australia v Eland [2014] FWCFB 4822.
5 Notice of appeal, p 6.
6 Transcript PN 12.
7 Respondent's outline of submissions, attachment 1.
8 Transcript PN 13 – PN 24.
9 (2011) 192 FCR 78 at [43].
10 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 [69] per Gummow, Hayne, Heydon, Crennon, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54 at [44] – [46].
11 (2010) 197 IR 266.
12 Ibid at [27].
13 Wan v AIRC [2001] FCA 1803 at [30].
14 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343 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 in Coal & Allied Mining Services Pty Ltd v Lawler; [2011] FCAFC 54; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663 at [28].
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