VICE PRESIDENT
| [2018] FWCFB 2752 Note: Refer to the Federal Court decision of 4 February 2020 for the result of this matter. |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Ian Menzies
v
Lindsay Australia Limited T/A Lindsay Brothers Management P/L
(C2018/1725)
VICE PRESIDENT CATANZARITI |
SYDNEY, 5 JUNE 2018 |
Permission to appeal sought against decision [2018] FWC 1850 of Commissioner Johns at Melbourne on 29 March 2018 in matter number C2017/6462 - permission to appeal refused.
[1] On 22 November 2017, Mr Menzies lodged a general protections application with the Fair Work Commission (Commission) under s.365 of the Fair Work Act 2009 (Cth) (Act). In that application, Mr Menzies identified 24 October 2017 as the date of dismissal.
[2] Section 366(1) requires a general protections dismissal application to be made within 21 days after the dismissal took effect or within such further period as the Commission allows under s.366(2) of the Act. The latest date in which Mr Menzies could have lodged his general protections application was on 14 November 2017. In lodging the application on 22 November 2017, Mr Menzies’ general protections application was 8 days late. It was therefore necessary for Mr Menzies to obtain an extension of time under s.366(2) of the Act in order to make his general protections application.
[3] On 22 December 2017, Commissioner Riordan declined to grant an extension of time for which Mr Menzies’ general protections application could be made.
[4] On 16 February 2018, a Full Bench of the Commission 1 upheld an appeal against the decision of Commissioner Riordan, and the matters with respect to legal representation and extension of time were referred to Commissioner Johns for rehearing.
[5] On 29 March 2018, Commissioner Johns issued a Decision 2 in which he declined, under s.366(2) of Act, to extend time for which Mr Menzies could make his general protections application. That Decision is the subject of this appeal.
[6] On 2 May 2018, we heard the parties on whether permission to appeal is to be granted. Mr Menzies represented himself and the Respondent was represented by Ms K Southworth, HR Business Partner of the Respondent.
[7] Section 366(2) sets out the circumstances in which the Commission may grant an extension of time as follows:
“(2) The FWC may allow a further period if the FWC 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.”
[8] The test of “exceptional circumstances” establishes a “high hurdle” for an application for an extension. 3 A decision as to whether to extend time under s.366(2) involves the exercise of discretion.4
[9] 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. 5 There is no right to appeal and an appeal may only be made with the permission of the Commission. Section 604 of the Act 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.”
[10] Subsection 604(2) requires the Commission to grant permission to appeal if it is satisfied 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. 6 The public interest is not satisfied simply by the identification of error7, or a preference for a different result.8 In GlaxoSmithKline Australia Pty Ltd v Makin, a Full Bench identified some of the considerations that may attract 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 …” 9
[11] Other than the special case in s.604(2) of the Act, 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. 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.11 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.12
[12] In his Decision, Commissioner Johns gave consideration to each of the matters he was required to take into account under s.366(2) of the Act.
[13] In relation to the reason for the delay pursuant to s.366(2)(a) of the Act, the Commissioner considered the various reasons advanced by Mr Menzies which included his ignorance as to the existence of the Commission, and the 21 day time limit in which to bring a claim. The Commissioner noted that ignorance of the time limit is ‘something that is regularly, routinely or normally encountered. It is not exceptional.’ 13
[14] Relevant to Mr Menzies’ wife having incorrectly identified the time limit as 60 days and not 21 days, the Commissioner determined that it is ‘all too common for people to incorrectly inform themselves when searching for information on the internet or otherwise undertaking research.’ 14
[15] Another explanation provided for the delay was Mr Menzies’ account that upon visiting the Sydney Registry on 17 November 2017 he could not complete the form as he did not have all of the information he considered necessary. He drove some distance to his home, worked the weekend, completed the form and then returned to the Sydney Registry to lodge the form. The Commissioner did not accept this reason as a reasonable explanation for the delay for the following reasons:
“[27]… The Applicant was given the F8 by the Registry staff. He was told it was already late. The essential information the Applicant needed to complete the Form F8 would have been known to him at the time (i.e. the details of the Applicant, who the Respondent was, the date of dismissal, when his employment commenced, the reasons given for dismissal, whether the application was being made within 21 days, whether he had made any other claim, what remedy he was seeking). The Form F8 did not require any special information.
d) the Applicant had to wait until he next attended Sydney on 22 November 2017 to file the Application – the absence of online facilities in remote areas is also not uncommon, and
e) the Applicant’s state of mind at the time of the dismissal, while sympathetic to his plight, it is not out of the ordinary course, unusual, special or uncommon for the Applicant to have felt that way following the termination of his employment. His state of mind does not found an exceptional circumstance.”
[16] On that basis, the Commissioner determined that the reasons offered by Mr Menzies for the delay, weighed against the exercise of discretion to allow for an extension of time.
[17] In relation to s.366(2)(b), the Commissioner accepted that Mr Menzies “has been vigorous in contesting the dismissal” and that this weighed in favour of the exercise of discretion to allow for an extension of time. 15
[18] In relation to s.366(2)(c), the Commissioner found that there was no prejudice to the employer and that this was a neutral factor in determining whether to exercise the discretion to allow for an extension of time. 16
[19] In relation to s.366(2)(d), the Commissioner found that Mr Menzies’ case was not one without merit or lacking in substance. To that end, the Commissioner determined that this would be a neutral factor in considering whether to grant an extension of time.
[20] In relation to s.366(2)(e), the Commissioner found that this factor did not appear to be relevant in the circumstances as there were no persons in a similar position. The parties before the Commissioner agreed to the same. 17
[21] Taking into account all of the matters under s.366(2)(a)-(e), the evidence filed and the submissions of the parties, the Commissioner concluded that he was not satisfied that exceptional circumstances as required had been made out and was not convinced he should exercise his discretion to extend time within which the application could be made.
[22] The grounds of appeal filed by Mr Menzies on 30 March 2018 are summarised as follows:
• The Commissioner ought not to have heard the matter as he was a member of the Full Bench 18 that ruled against the Appellant on grounds 1 and 2 of the appeal.
• The Decision is contrary to the facts and against the evidence with the usual art of lawyer sophistry in convoluting the facts.
• The Commissioner’s discretion has miscarried and has not been exercised judicially in accordance with the rules of reason and justice. The Commissioner’s Decision is arbitrary and capricious. It was made in accordance with the Commissioner’s private opinion as to s.366(2)(a) of the Act, as well as the meaning of ‘exceptional’ in Nulty v Blue Star. Further, the Decision was unjust given that s.366(2)(b)(c)(d) and (e) were found in the Appellant’s favour or otherwise given neutral weight.
• Employers ought not to be allowed to misuse s.596 of the Act by using lawyers to represent them without permission in the lead up to the hearing.
[23] Mr Menzies submitted that it was in the public interest for permission to appeal to be granted because:
• He had been dismissed without a lawful reason and he ought not to be denied the overriding intentions of the Act to deliver justice by at least hearing the case.
• The Respondent ought not to be allowed to “get away” with not supplying employment documents to their employees as has been [accepted] by Commissioner Johns at paragraph [19] of the Decision.
• Contrary to s.596 and the intention of the Act, the Respondent enjoyed the benefit of legal representation and having its written submissions prepared by lawyers. It was only 1 day prior to the hearing that its lawyers ceased to act. These circumstances are “far more than” what is described as “shadow lawyers” in Fitzgerald v Woolworths. 19
[24] At the conclusion of the Hearing before us on 2 May 2018 we reserved our decision. On 6 May 2018 Mr Menzies filed further submissions alleging apprehended bias by some members of the Full Bench on the basis of his dissatisfaction relevant to the backgrounds the members held prior to their respective appointment to the Commission.
[25] Whilst Mr Menzies did not formally request that the Full Bench (or members of the Bench) recuse themselves we would observe that the employment background of members of the Commission prior to their appointment of the Commission does not constitute grounds for a claim of apprehended bias absent any other relevant matters. 20 No other matters were put by Mr Menzies in his further submissions to the Commission.
[26] To the extent that Mr Menzies did make such an application it is rejected.
[27] The question of whether the Commission should grant additional time in which Mr Menzies could make his application was required to be determined in accordance with the relevant provisions contained in s.366(2) of the Act. The Decision at first instance indicates that Commissioner Johns had due regard to each of the requirements set out under that provision, and had dealt with them in an orthodox way. More relevantly, as per paragraphs [14]-[26] of the Decision, the Commissioner had regard to the evidence raised before him concerning Mr Menzies’ reasons for delay. The Commissioner considered those materials and determined that no exceptional circumstances existed. The Commissioner weighed up that finding against the factors under s.366(2)(b)-(e) and he exercised his discretion to refuse an extension of time. In our view, this approach was orthodox and does not disclose any significant error of fact.
[28] Further, having considered the matters raised by the Appellant with respect to permission to appeal, we are not persuaded that the public interest is enlivened. More specifically, we are not satisfied that:
• There is a diversity of decisions at first instance so that guidance from an appellate body is required of this kind;
• The appeal raises issues of importance and/or general application;
• The decision at first instance manifests an injustice, or the result is counter intuitive; or
• The legal principles applied by the Commissioner were disharmonious when compared with other decisions dealing with similar matters.
[29] The Respondent’s representatives had notified of its appearance when it commenced to act on 4 December 2017. As per rule 12(1)(a)-(b) of the Fair Work Commission Rules 2013 a party can be represented by an external legal practitioner, without permission, for the purposes of preparing and lodging written materials in connection with proceedings. Indeed this was expressed by the Full Bench in the decision of Fitzgerald v Woolworths cited by the Appellant:
“[45]… notwithstanding that representation has commenced in relation to the application, permission under s.596(2) for any representational activities undertaken prior to or outside of a conciliation conference, determinative conference, or interlocutory or final hearing will generally not be required because rule 12(1) exempts, subject to any contrary direction made under rule 12(2), the making of written applications and written submissions, the lodgment of documents with the Commission and correspondence with the Commission from the general prohibition in s.596(1). If a party considers themselves to be prejudiced by such representational activity on behalf of the opposing party, the remedy is to apply for a direction under rule 12(2) which, if granted, would require the opposing party to seek permission for representation to the necessary extent under s.596(2).” 21 (Emphasis added).
[30] In the matter before Commissioner Johns no contrary direction was made under rule 12(2). Therefore on that basis, we reject the Appellant’s assertion that s.596 of the Act had purportedly been “misused”.
[31] Moreover, Mr Menzies submitted that Commissioner Johns ought not to have reheard the matter as he was a Member of the Full Bench which had ruled against him on grounds 1 and 2 of that appeal. We note that this issue was not raised before the Commissioner at the rehearing of matter, and to the extent that it is raised here, that submission is rejected. Section 607(3) of the Act provides that:
“(3) The FWC may do any of the following in relation to the appeal or review:
(c) refer the matter that is the subject of the appeal or review to an FWC Member (other than an Expert Panel Member) and:
(i) require the FWC Member to deal with the subject matter of the decision; or
(ii) require the FWC Member to act in accordance with the directions of the FWC.”
[32] The rehearing before Commissioner Johns was conducted in accordance, and under the direction of this provision. The Act does not preclude a Member from rehearing a matter for the reasons referred to and relied on by Mr Menzies.
[33] In respect of the Appellant’s claim that the Respondent ought not to be allowed to “get away” with failing to supply a Fair Work Information Statement (Statement), we reject that submission. The Commissioner did not allow the Respondent to ‘get away’ with its apparent failure to provide a Statement, but in fact, recognised that this was the case. The Commissioner took that matter into account and determined that notwithstanding, it did not make ‘the absence of [Mr Menzies’] knowledge’ of the 21 day limit ‘any more exceptional’ because ‘[i]gnorance of the time limit is something that is regularly, routinely or normally encountered. It is not exceptional.’ 22 In our view, this disclosed no significant error of fact or approach.
[34] We note that while it is open to the Commission to grant permission to appeal where the public interest is not enlivened, for the reasons set out above, we are not satisfied that Mr Menzies has established that there is an arguable case of error in relation to any aspect of the Decision or that the conclusion reached by the Commissioner was attended with sufficient doubt to warrant its reconsideration.
[35] Accordingly, permission to appeal is refused.
VICE PRESIDENT
Appearances:
Mr Menzies appeared on his own behalf.
Ms K Southworth appeared for the Respondent.
Hearing details:
2.00pm
2 May 2018
Sydney, with video link to Brisbane
Printed by authority of the Commonwealth Government Printer
<PR607142>
3 Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288 at [21].
4 Halls v McCardle and Ors [2014] FCCA 316.
5 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.
6 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].
7 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, 197 IR 266 at [24]-[27].
8 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 78.
9 [2010] FWAFB 5343, 197 IR 266 at [24]-[27].
10 Also see CFMEU v AIRC (1998) 89 FCR 200 at 220; and Wan v AIRC (2001) 116 FCR 481 at [26].
11 Wan v AIRC (2001) 116 FCR 481 at [30].
12 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].
13 [2018] FWC 1850 at [27].
14 Ibid.
15 Ibid at [30]-[31].
16 Ibid at [32]-[33].
17 Ibid at [40].
20 Re Polites; Ex parte Hoyts Corporation Pty Ltd (1991) 173 CLR 78, 87‒88.
22 [2018] FWC 1850 at [27].