Fair Work Act 2009
s.604 - Appeal of decisions

Appeal against Decision [2015] FWC 7659 and Order [PR573703] of Senior Deputy President O’Callaghan at Adelaide on 10 November 2015 in matter number U2015/12407- Appeal against refusal to extend time for lodging an unfair dismissal application s.394(3), no public interest in appeal identified, permission to appeal refused, appeal dismissed.

[1] On 29 September 2015, Laetisha Diotti (the appellant) was dismissed from her employment with Lenswood Cold Stores Co-op Society T/A Lenswood Organic (the respondent). An application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) was filed on behalf of Ms Diotti by her representative Mr Simon Blewett of United Voice on 22 October 2015.

[2] Section 396 of the Act provides that before the Commission determines the merits of an unfair dismissal application, it must first decide a number of jurisdictional matters, one of which relates to the 21 day period which an employee has to file an unfair dismissal application:

“396 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) ..."

[3] Subsection 394(2) of the Act provides that an unfair dismissal application must be made within 21days after the dismissal took effect:

“394 Application for unfair dismissal remedy

...

(2) The application must be made:

(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (3).”

[4] If an unfair dismissal application is filed outside of the 21 day time limit as per s.394 of the Act, the Commission is able to extend the time for filing if satisfied that “exceptional circumstances” exist, having taken into account a number of factors listed in s.394(3) of the Act. Section 394(3) provides:

“(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) whether the person first became aware of the dismissal after it had taken effect; and

(c) any action taken by the person to dispute the dismissal; and

(d) prejudice to the employer (including prejudice caused by the delay); and

(e) the merits of the application; and

(f) fairness as between the person and other persons in a similar position.”

[5] The application was filed on 22 October 2015 being 23 days after the dismissal took effect. The appellant acknowledged the late filing and in relation to why the application was filed outside the 21 day time limit, stated at question 1.4 of the Form F2 - Unfair Dismissal Application:

“Because the applicant was not provided with reasons for her dismissal, she was initially unsure what to do. However she spoke with United Voice on 15 October, and instructed United Voice to issue proceedings. The proceedings were not, however, issued until 22 October 2015. This was due to oversight by United Voice in the course of the transfer of the matter from one official to another.

There is no prejudice to the employer. A United Voice official contacted the employer on 19 October 2015 to request an explanation of the reasons for the dismissal of the applicant. In that discussion a United Voice official advised the employer that the matter may be contested, which was why United Voice sought the reasons for dismissal. The employer undertook to provide written reasons to the applicant.

Given the circumstances, in particular that the cause of the delay is an error by United Voice, and the lack of prejudice to the employer, an extension of time should be granted. ”

[6] The application was dealt with by Senior Deputy President O’Callaghan via a telephone conference on 9 November 2015. Witness statements and written submissions were provided by the parties prior to the conference to assist in the Senior Deputy President’s deliberation. On 10 November 2015, the Senior Deputy President handed down his decision stating he was not satisfied that the reasons for the late filing evidenced anything that would qualify as amounting to ‘exceptional circumstances’ that would support an extension of time being granted.

[7] The matters that the Commission must take into account under s.394(3) of the Act were addressed in the Senior Deputy President’s decision.

[8] In considering the matters required to be taken into account under s.394(3), the Senior Deputy President concluded that the totality of the period since the termination of employment must be considered, not just the circumstances post the 21 days. The Senior Deputy President was not satisfied that the representative error which was the substantial ground submitted by Ms Diotti was of such an impact that the appellant could not have filed her application on time.

[9] Ms Diotti seeks permission to appeal the Senior Deputy President’s decision (the Decision).

Consideration

[10] This matter was listed for the purpose of determining whether permission to appeal should be granted. Mr Simon Blewett, an official of United Voice, appeared for the appellant and Mr Jarrad Parker, a solicitor was granted leave pursuant to s.596(2(a) of the Act to represent the respondent employer.

[11] 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. 1 There is no right to appeal and an appeal may only be made with the permission of the Commission.

[12] As the decision was made under Part 3-2 - Unfair Dismissal of the Act, the right to appeal is further qualified by s.400:

“(1) Despite subsection 604(2), the FWC must not grant permission to appeal from a decision made by the FWC under this Part unless the FWC considers that it is in the public interest to do so.

(2) Despite subsection 604(1), an appeal from a decision made by the FWC 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.”

(Our underline)

[13] In the Full Federal Court decision 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”. 2 The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.3

[14] 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.” 4

[15] An appeal cannot succeed in the absence of appealable error 5 on this basis it will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error can be demonstrated. The fact that the member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.6

[16] In relation to extensions of time to lodge applications under s.394(3), the test of “exceptional circumstances” establishes a “high hurdle” for an applicant for an extension to be granted, and a decision as to whether to extend time under s.394(3) involves the exercise of a broad discretion. 7 Therefore it will be necessary, in an application for permission to appeal against a decision made under s.394(3), to demonstrate that there is an arguable case that there was an appealable error in the exercise of the discretion. This will require the identification of an error of the type described in House v The King8. That is, that the decision-maker has acted on a wrong principle, has mistaken the facts, has taken into account an irrelevant consideration, failed to take into account a relevant consideration, or has made a decision which is unreasonable or manifestly unjust.

[17] Further where an error of fact is alleged, s.400(2) requires that it must be a significant error of fact.

[18] The overriding public interest requirement of s.400(1) always remains.

[19] Ms Diotti’s appeal grounds alleges that the Senior Deputy President:

● erred in the exercise of his discretion;
● failed to pay sufficient regard to the reason for the delay being representative error, and focused on the appellant’s conduct prior to instructing her representatives;
● acted on a wrong principle in relying upon representative error in that the appellant must have engaged the representatives ‘well prior to the 21 day time limit’; and
● made a significant error of fact in finding that the appellant did not give instructions to initiate the application until after the 21 day limit had expired.

[20] The public interest is said to be enlivened on the basis that:

● errors in the exercise of the Senior Deputy President’s decision need to be corrected;
● the Full Bench should consider the correct approach to representative error; and
● the decision gives rise to a manifest injustice to the appellant.

[21] The appellant’s submission is that the Senior Deputy President ought to have focussed on the two day delay in filing subsequent to the 21 day time limit on the basis this is the only delay the Act is concerned with. As the two day delay was due solely to representative error, a further period in which to file the application should have been granted.

[22] In considering whether to grant leave to appeal, it is necessary to examine exactly what the Senior Deputy President took into consideration in arriving at his decision.

[23] The Senior Deputy President states that the appellant was dismissed on 29 September 2015, she then went away for a few days to Kangaroo Island and on her return checked the Fair Work Commission website to establish she was eligible to make an unfair dismissal application and that she had 21 days to lodge her claim. Ms Diotti did not pursue an application at that time as she was uncertain as to her chances of success and was not aware that United Voice could assist in filing her application. 9

[24] It was not until 16 October 2015 when Ms Diotti spoke to a United Voice official regarding an underpayment claim that Ms Diotti considered filing an unfair dismissal application. On 19 October 2015, she again spoke to a United Voice official and was advised that her claim had been referred to the industrial section of the union. To comply with the requirements of the Act, the appellant’s unfair dismissal application should have been filed on 20 October 2015, being 21 days since the dismissal took effect

[25] Mr Blewett from United Voice stated that the appellant’s file had been placed in his in-tray on 19 October 2015, but he was not made aware of the tight time line existing in which to file the application. On 22 October 2015, Ms Diotti spoke to Mr Blewett and during that discussion Ms Diotti confirmed that she wished to file an unfair dismissal application.

[26] The Senior Deputy President concluded that it was not until 22 October 2015 that Ms Diotti gave explicit instructions to initiate the application through a telephone discussion with Mr Blewett. While accepting that there was a degree of representative error, the Senior Deputy President observed that there was a period of 17 days when Ms Diotti effectively did nothing to pursue her unfair dismissal application. 10

[27] The Senior Deputy President referred to a number of authorities on ‘exceptional circumstances’ and in particular those concerning representative error, concluding that the long standing approach of the Commission is that representative error may constitute ‘exceptional circumstances’ on the basis that the applicant has not contributed to the delay. Taking into account all the circumstances and the conduct of Ms Diotti, the Senior Deputy President determined that the delay was fundamentally caused by lack of action on the part of Ms Diotti even though she was aware of the 21 day time limit.

[28] Contrary to the position of the appellant in this appeal, the Senior Deputy President did not accept that the delay in filing was ‘entirely’ attributable to the appellant’s representatives. 11

[29] The appellant relies upon the Full Bench decision in Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank 12 (Shaw and ANZ), at paragraph [12] the majority decision states:

“[12] This decision makes an important point which we consider deserves re-emphasising. The delay required to be considered is the period beyond the prescribed 21 day period for lodging an application. It does not include the period from the date of the dismissal to the end of the 21 day period. … “

[30] This extract must be read in its entirety. The decision goes on to state :

“[12] … The circumstances from the time of the dismissal must be considered in order to determine whether there is a reason for the delay beyond the 21 day period and ultimately whether that reason constitutes exceptional circumstances.”

[31] Hence, the decision emphasised that while the delay to be considered is the period subsequent to the expiration of 21 days, the circumstances from the time of the dismissal must be considered in determining whether the reason for the delay constitutes exceptional circumstances. For example if an applicant is in hospital for the first 20 days of the 21 day period this would be a relevant consideration if the application was filed 2 days out of time as occurred in this matter. The reason for the delay by reference to the circumstances from the date the dismissal took effect is as expressed in Shaw and ANZ 13 the correct approach.

[32] Representative error in our view does not provide an inviolable reason amounting to ‘exceptional circumstances’. Thus we do not accept as submitted by the appellant, that the Act is not concerned at what stage during the 21 day period an applicant instructs a representative.

[33] The decision of the Senior Deputy President was discretionary. It has not been shown that he acted on a wrong principle or that the decision is disharmonious with Commission authority. An arguable case of appealable error has been not been demonstrated by the appellant. On this basis; there being no other matters that might enliven the public interest, we decline to grant permission to appeal.

[34] The application for permission to appeal is dismissed.

VICE PRESIDENT

Appearances:

Mr S Blewett of United Voice on behalf of the Appellant

Mr J Parker Solicitor on behalf of the Respondent

Hearing details:

Melbourne with video link to Adelaide

2015

18 December

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

 2   (2011) 192 FCR 78 at [43]

 3   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, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [44] -[46]

 4   [2010] FWAFB 5343 at [27], 197 IR 266

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

 6   GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343 at [26]-[27], 197 IR 266; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089 at [28], 202 IR 288, affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663 at [28]

 7   Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288 at [21]

 8   (1936) 55 CLR 499

 9   At paragraph [6] of Decision

 10   Paragraph [13] of Decision

 11   See Appellant’s written submissions at [6]

 12   [2015] FWCFB 287

 13   Ibid at [16]

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