Fair Work Act 2009
s.604 - Appeal of decisions

Permission to appeal against decision [2017] FWC 2589 of Deputy President Gooley at Melbourne on 15 May 2017 in matter number C2016/4305 – alleged unlawful termination of employment – extension of time – permission to appeal refused.

[1] This decision concerns an appeal by Dushanthi Wanninayake against a decision of Deputy President Gooley 1 to dismiss her application for an extension of time to file an unlawful termination application under the Fair Work Act 2009 (FW Act).

[2] The matter has a long history. On 7 November 2013, Ms Wanninayake was dismissed from her employment with the Queensland Department of Natural Resources and Mines (DNRM). She contested her dismissal by making an application to the Queensland Industrial Relations Commission (QIRC) under the Industrial Relations Act 1999 (Qld). She alleged that her dismissal was harsh, unjust or unreasonable, or in the alternative that her dismissal was for an invalid reason, namely a temporary absence from work because of illness or injury (the QIRC application).

[3] On December 2014, the QIRC application was dismissed (QIRC decision). Kaufman DP found that the dismissal was not harsh, unjust or unreasonable, and that the dismissal was not for an invalid reason. 2

[4] Ms Wanninayake appealed the QIRC decision to a Full Bench of the QIRC, and to the Industrial Court of Queensland. Both applications were dismissed. Ms Wanninayake exhausted her rights in the Queensland system in November 2015.

[5] Then on 28 June 2016, 3 Ms Wanninayake lodged an application in the Fair Work Commission (the Commission) under s773 of the FW Act, in respect of alleged unlawful termination of employment.

[6] The application was filed 904 days out of time.

[7] In her application, Ms Wanninayake sought an extension of time under s774 of the FW Act. 4

[8] Deputy President Gooley found that there were no exceptional circumstances to warrant an extension of time and declined to exercise her discretion to extend the period.

[9] Ms Wanninayake’s application for permission to appeal against the Deputy President’s decision was listed for hearing before us on 11 July 2017.

[10] At the hearing, the respondent sought permission to be represented by counsel, pursuant to section 596 of the FW Act. We were satisfied that, having regard to the complexity of the matter, granting permission to appear would allow the matter to be dealt with more efficiently. We exercised our discretion to grant permission to appear on that basis. 5

The Appeal

[11] An appeal under s604 is 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. 6 There is no right to appeal and an appeal may only be made with the permission of the Commission. Section 604 provides:

(1) A person who is aggrieved by a decision:

(a) made by the FWC (other than a decision of a Full Bench or an Expert Panel); or

(b) made by the General Manager (including a delegate of the General Manager) under the Registered Organisations Act;

may appeal the decision, with the permission of the FWC.

(2) Without limiting when the FWC may grant permission, the FWC must grant permission if the FWC 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). (2) A person may appeal the decision by applying to the FWC.

[12] Subsection 604(2) requires the Commission to grant permission to appeal if satisfied that it is “in the public interest to do so”. The assessment of whether the public interest test is met is discretionary, and involves a broad value judgment. 7 The public interest will not be satisfied simply by the identification of error,8 or a preference for a different result.9 In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of Fair Work Australia identified some of the considerations that may enliven the public interest:

“... the public interest might be attracted where a matter raises issue 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...” 10

[13] Aside from the special case in s604(2), the grounds for granting permission to appeal are not specified. Considerations which have traditionally been adopted in granting leave and which would therefore usually be treated as justifying the grant of permission to appeal include that the decision is attended with sufficient doubt to warrant its reconsideration and that substantial injustice may result if leave is refused. 11

[14] 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. 12

[15] However, the fact that a member of the Commission at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal. 13

[16] We would observe that a decision as to whether to extend time under s774 involves the exercise of a discretion, and that the test of ‘exceptional circumstances’ establishes a ‘high hurdle’ for an applicant for an extension. 14

Grounds of appeal

[17] Ms Wanninayake’s notice of appeal appends an attachment, which set out 49 paragraphs that are described as her grounds of appeal. From this document, two principal grounds of appeal can be distilled.

[18] First, she contends that the Deputy President erred in granting permission to the respondent to be represented by lawyers pursuant to section 596 of the FW Act.

[19] Secondly, she submits that the Deputy President erred in refusing to grant an extension of time for the filing of her application, and in dismissing it.

Permission to appear

[20] The granting of permission under s596 involves a two-step process. 15 The first is that there must be satisfaction that at least one of the criteria in s596(2) is satisfied. The consideration required by this first step “involves the making of an evaluative judgment akin to the exercise of discretion”.16 The second is that the discretion conferred by s596(2) must be exercised in favour of the appellant for permission. In respect of either step it will not be sufficient for an appellant to invite the Full Bench simply to substitute its own determination for that of the single member whose decision is the subject of the appeal. It is necessary to demonstrate error of the type identified in House v The King.17

[21] Ms Wanninayake contended that there was no reasonable basis for the Deputy President’s decision to grant the respondent’s counsel permission to appear. 18 She referred to the fact that English is her second language and that she is not legally qualified, and contended that she was at a disadvantage.

[22] The Deputy President considered these matters in her decision. 19 She noted that Ms Wanninayake had completed a Master’s degree from an Australian university, and that she had demonstrated, through the extensive material she had put before the Commission, that she was able to articulate issues in dispute.

[23] The Deputy President concluded that granting permission to the respondent’s counsel to appear would not cause Ms Wanninayake to be denied a fair hearing. She also concluded that, given the involvement of the respondent’s counsel in the earlier proceedings, it would be unfair to the respondent not to grant permission to appear. 20

[24] The Deputy President addressed the statutory considerations in s596, and identified matters relevant to the consideration of whether to grant permission to appear. There is nothing to suggest to us an arguable case that the Deputy President’s discretion was affected by error.

Extension of time, dismissal of application

[25] Ms Wanninayake contests the Deputy President’s decision not to exercise her discretion to extend the time limit within which to make her unlawful termination application. 21

[26] Ms Wanninayake separately contests the decision of the Deputy President to dismiss her application in respect of unlawful termination of employment. 22 In particular, she asked the Full Bench to review the Deputy President’s observation that the Commission has no capacity to hear the merits of an unlawful termination application at the same time as it hears an application for an extension of time.23

[27] In our view, the Deputy President correctly stated the position concerning the role of the Commission in matters brought under s773, and sought to explain this to Ms Wanninayake in her decision. She stated:

‘[21] Ms Wanninayake misunderstands the role of the Commission in unlawful dismissal cases. The role of the Commission in unlawful dismissal applications, if made within time or if an extension of time is granted, is to conduct a conference and if it forms the view that all reasonable steps to resolve the dispute are unsuccessful or are likely to be unsuccessful then it must issue a certificate. The issuing of the certificate entitles an applicant either to make an application to the court or if there is consent of both parties to have the matter arbitrated by the Commission. The role of the Commission in an unfair dismissal application is, subject to any jurisdictional objections, to hear and determine the merits of the application. As such the procedure described in the Unfair Dismissal Bench Book has no relevance to this application as this is not an unfair dismissal application.

[22] Further I accept that until such time as an extension of time is granted to Ms Wanninayake there is no application before the Commission.

[23] The Commission has no capacity to hear the merits of an unlawful termination application at the same time as it hears an application for an extension of time. Therefore the Commission must, as a first step, determine whether to grant an extension of time and therefore I rejected Ms Wanninayake’s application that I hear and determine the merits of her claim.’

[28] The merits of the application are one of the matters that are relevant to the Commission’s consideration of whether to extend the time limit for filing the application. 24 Thus, if an applicant appeared to have a strong case, this would be a factor telling in favour of the Commission exercising discretion to extend the time limit.

[29] An application in respect of unlawful termination must be brought within the time period specified by s.774(1)(a) of the FW Act, or such further period as the Commission allows under s.774(2). Currently, the specified period is 21 days. At the time Ms Wanninayake’s employment was terminated, the relevant period was 60 days. Unless the Commission exercises its discretion to extend the time limit under s.774(2), the application cannot proceed.

[30] Ms Wanninayake explained in her application why she believed the Commission should extend the time limit in her case. 25

[31] Deputy President Gooley considered Ms Wanninayake’s arguments as to why her application should be accepted out of time. She did so by reference to the statutory considerations set out in s774(2)(a) to (e).

[32] In particular, the Deputy President concluded that she was not satisfied that Ms Wanninayake had a reasonable explanation for the whole or part of the 904 day delay in filing the application, and that this weighed against a finding that there were exceptional circumstances. 26

[33] The Deputy President rejected Ms Wanninayake’s contention that she was ‘misled’ by her former employer, which had provided her with information about avenues to challenge the decision if she considered it was unfair.  27

[34] The Deputy President also concluded that, should an extension of time be granted, Ms Wanninayake’s claim would face a ‘significant hurdle’, namely the operation of sections 725 and 732 of the FW Act. Under these provisions, a person who has been dismissed must choose which of several possible FW Act applications to make. The Explanatory Memorandum to the Fair Work Bill states that the intention of these provisions is ‘to prevent a person ‘double dipping’ when they have multiple potential remedies relating to a dismissal from employment by seeking to limit a person to a single remedy’. 28 The Deputy President concluded that the merits of the case were a neutral consideration in determining exceptional circumstances;29 they did not tell in favour of extending the time limit.

[35] The Deputy President was not satisfied that there were exceptional circumstances warranting the granting of an extension of time. She noted that, in any event, she would not have exercised her discretion to grant an extension. The Deputy President pointed out that this is not a case where the denial of an extension of time will mean that Ms Wanninayake will be denied the opportunity to have her concerns about her dismissal heard and determined. She had such an opportunity in the QIRC.

[36] Ms Wanninayake’s written submissions contend that her application in the QIRC was of a different kind from the one she seeks to bring now in the Commission. She is correct on this point. Unfair dismissal and unlawful dismissal applications are different. However, under the FW Act, once an applicant has brought one claim, she cannot bring the other.

Other grounds of appeal

[37] Ms Wanninayake advanced several other grounds in her notice of appeal.

[38] She submitted that, if the proceedings before Deputy President Gooley had been conducted as a determinative conference, the matter would have been ‘finalised’ in a fair and just manner.

[39] However, in response to questioning from the Full Bench, Ms Wanninayake was unable to explain how a different procedural course could have made any difference to the outcome. 30 It appears that Ms Wanninayake misapprehended that a determinative conference would have been in the nature of a conciliation conference, providing an opportunity for her to negotiate with the respondent. In any event, we cannot identify any arguable case of error on the part of the Deputy President in connection with her decision to conduct the proceedings as a hearing rather than as a determinative conference.

[40] Ms Wanninayake also appeared to contend in her submissions that the decisions of the QIRC, as a tribunal established under state law, could not be considered independent in respect of disputes concerning employees of the State of Queensland. 31

[41] We reject this submission. There is simply no cogent argument or evidence to support it.

[42] Ms Wanninayake also challenged the Deputy President’s conclusion that the proper respondent to the application was the State of Queensland, rather than the Department of Natural Resources and Mining. However, we are not able to identify an arguable case of error in the Deputy President’s analysis of the relevant provisions of the Queensland legislation. 32

Conclusion

[43] Having regard to the grounds of appeal, the submissions of the parties and the circumstances of this matter, we do not identify any arguable case of an appealable error on the part of the Deputy President. In our opinion, there is no indication that the Deputy President’s decision is attended with doubt such as to warrant its reconsideration. We do not discern any apparent injustice.

[44] Permission to appeal is refused.

PRESIDENT

Appearances:

Ms D Wanninayake represented herself

Mr J Merrell on behalf of the State of Queensland

Hearing details:

2017

Melbourne:

11 July

 1   [2017] FWC 2589

 2   Wanninayake v State of Queensland (Department of Natural Resources and Mines) [2014] QIRC 215 at [22] to [29].

 3   The application is dated 28 June 2016 but was filed in the registry of the Commission on 29 June 2016.

 4   The application was first heard and dismissed by Deputy President Asbury. On appeal, this decision was overturned on the ground that the Deputy President had allowed the respondent to be represented without first determining the question of permission to appear in accordance with s596: [2017] FWCFB 1906 at [17]. See also the decision of the Federal Court in Warrell v Walton [2013] 233 IR 335, 342

 5   Transcript of proceedings before the Full Bench, PN15

 6  This is so because on appeal the Commission has power to receive further evidence, pursuant to s.607(2); see Coal and Allied v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ

 7   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 & Alllied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [44]-[46]

 8   GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, 197 IR 266 at [24]-[27]

 9  GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, 197 IR 266 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; Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 178; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663, 241 IR 177 at [28]

 10   [2010] FWAFB 5343, 197 IR 266 at [24] – [27]

 11   Also see CFMEU v AIRC (1998) 89 FCR 200 at 220; and Wan v AIRC (2001) 116 FCR 481 at [26]

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

 13   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, 241 IR 177 at [28]

 14   Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288 at [21], concerning s394(3) of the FW Act which is a provision in terms very similar to s774(2).

 15   Warrell v Walton [2013] FCA 291, 223 IR 335 at [24]

 16   Asciano Services Pty Ltd v Hadfield [2015] FWCFB 2618 at [19]

 17   (1936) 55 CLR 499 at 505

 18   Paragraphs 8 and 9 of the Attachment to the Notice of Appeal

 19   Paragraph 12

 20   Ibid

 21   Paragraphs 27 to 47 of the Attachment to the Notice of Appeal

 22   Paragraphs 15 to 26 of the Attachment to the Notice of Appeal

 23   See paragraph 23 of the Decision, and paragraph 27 of the Attachment to the Notice of Appeal

 24   Section 774(2)(d) of the FW Act

 25   The Form F9, at section 2.3, specifies the 21 day period that applied at the time she made her application. It was common ground however that at the time of her dismissal, the relevant period was 60 days, and that this is the period applicable to the current matter.

 26   Paragraph 51 of the decision

 27   Paragraph 40 and 41 of the decision

 28   The relevant provisions and the passage from the Explanatory Memorandum are set out in the decision at [65] to [69].

 29   Paragraph 78 of the decision

 30   Transcript at, PN135 – PN137

 31   Paragraph 7 of the Attachment to the Notice of Appeal

 32   Paragraphs 3 to 9 of the decision

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