[2018] FWCFB 3815
FAIR WORK COMMISSION

DECISION



Fair Work Act 2009
s.604 - Appeal of decisions

Logan City Electrical Service Division Pty Ltd T/A Logan City Electrical
v
Mr Christopher Antonarakis
(C2018/2938)


JUSTICE ROSS, PRESIDENT
DEPUTY PRESIDENT MASSON
COMMISSIONER LEE

MELBOURNE, 14 AUGUST 2018

Appeal against decision [2017] FWC 3801 of Commissioner Simpson at Brisbane on 21 July 2017 in matter number U2017/918 – extension of time to file appeal – whether public interest enlivened – application for extension of time refused.

[1] Logan City Electrical Service Division Pty Ltd t/a Logan City Electrical (the Appellant) has applied for permission to appeal and has appealed against a decision1 made by Commissioner Simpson on 21 July 2017 (the Decision). In the Decision the Commissioner found that Mr Antonarakis had been unfairly dismissed from his employment with the Appellant and ordered that the Appellant pay Mr Antonarakis $19,640 compensation (the Order).

[2] Rule 56(2) of the Fair Work Commission Rules 2013 relevantly provides that a notice of appeal under s.604 must be filed within 21 calendar days after the date of the decision the subject of the appeal or within such further time allowed by the Commission on application by the Appellant. The Appellant lodged its notice of appeal on 31 May 2018, some 294 days after the expiry of the prescribed 21-day time period. Rule 56(2)(c) confers a discretion on the 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 2 indicate that the following matters are relevant in considering whether to exercise the Commission’s discretion to extend time under Rule 56(2)(c):

•  whether there is a satisfactory reason for the delay;

•  the length of the delay;

•  the nature of the grounds of appeal and the likelihood that one or more of those grounds being upheld if time was extended; and

•  any prejudice to the respondent if time were extended.

[5] As mentioned earlier, the Appellant seeks an extension of the time within which an appeal is to be filed. The matters relevant to such an application are those set out at [4] above. 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.

[6] The application to extend time was heard on 11 July 2018. At the conclusion of the hearing we informed the parties that we had decided to refuse the Appellant’s application to extend time and that we would issue our reasons in due course; these are those reasons.

[7] The relevant background may be shortly stated.

[8] Mr Antonarakis commenced employment with the Appellant on 6 March 2012 as an apprentice refrigeration mechanic and became a qualified tradesperson in 2014. He was dismissed by the Appellant for ‘unsatisfactory conduct’ on 17 January 2017. The alleged unsatisfactory conduct related to the Appellant’s belief that Mr Antonarakis had done a “cash job” which was regarded by the Appellant as stealing. Mr Antonarakis lodged an application for relief from unfair dismissal on 31 January 2017 (the Application).

[9] Following the filing of the Application the Commission attempted to communicate with the Appellant about the programming and conduct of the matter. The Commission’s Case Management System (CMS) records identify the following attempts to communicate with the Appellant:

[10] The Appellant failed to respond to numerous attempts by Commission staff to contact it by telephone, email and post. The correspondence included directions and notices of listing with respect to the matter. The Appellant failed to file any material in the proceedings, nor did it appear at any conferences or hearings conducted in relation to the matter.

[11] In the Decision the Commissioner makes the following observation in relation to the Appellants’ failure to respond to contact from the Commission or to participate in the proceedings:

[12] We propose to deal with each of the matters set out in [4] above, in turn.

Reason for the delay

[13] The Appellant’s explanation for the delay is set out in a witness statement filed by Mr Burnitt 3. Mr Burnitt is the sole director of Logan City Electrical. The relevant extract from Mr Burnitt’s witness statement is as follows:

[14] In explaining his out of office work commitments in the period of September 2017 to March 2018 4 Mr Burnitt’s evidence was that mail received by the Appellant’s office was personally delivered to him each day but in some circumstances he may not receive it until the following day due to the mail either not being picked up or his being out of the office at the end of the day5.

[15] In respect of email correspondence since identified as having been received by the Appellant Mr Burnitt stated that the email address service@lceqld.com.au was not his personal email address but was a general email address used for quoting and similar enquiries.

[16] As to his evidence about the contact from the Fair Work Ombudsman (FWO), Mr Burnitt was uncertain as to when he actually first spoke with the FWO 6. He claimed that when he did speak with the FWO it was in relation to a ‘possible order’ that was to be made7. He further claimed that as a consequence of the FWO phone call he understood he would have an opportunity to respond to it (the possible order) and was expecting further information to be sent to him by the FWO8.

[17] Mr Burnitt further stated during oral evidence that he had referred the matter of the FWO proceedings to his legal representatives in the wake of the FWO contacting him in September 2017 9, although when pressed Mr Burnitt confirmed that he didn’t meet with his solicitors until 27 March 2017 following receipt of the correspondence form the FWO dated 22 March 201810.

[18] As regards the delay in instructions to the Appellant’s lawyers for filing an appeal following the receipt of the FWO correspondence dated 22 March 2018, Mr Burnitt gave evidence that it took his lawyers ‘a little bit more time’ to find out about the Order and how it had come about 11. The Appellant also submitted that the delay in filing was explained by the Appellant’s legal representative’s review and preparation of the Appellant’s defence in the FWO proceedings launched against it.

[19] The following timeline of events may be discerned from Mr Burnitt’s evidence:

21 July 2017 Decision and Order issued.

October 2017 Staff member of FWO contacts and speaks directly with Mr Burnitt regarding the Order.

26 March 2018 Appellant served with proceedings by the Fair Work Ombudsman by way of correspondence dated 22 March 2018 in relation to the failure of the Appellant to comply with the Order.

27 March 2018 Appellant engages solicitors Simmons Crowley Galvin to represent them in matters relating to the Decision and Order and, Mr Burnitt meets with them in respect to the matter.

18 May 2018 Appellant instructs its solicitor to file an appeal against the Decision

31 May 2018 Appellant files appeal of Decision.

[20] Mr Burnitt was not a credible witness. His evidence was internally inconsistent 12 and he changed his evidence under questioning. For example, Mr Burnitt initially said that in early October 2017 he was contacted by someone from the Fair Work Ombudsman and that was when he became aware of the Order13.

[21] He later changed his evidence and asserted that the person from the FWO he spoke to in October 2017 only referred to a ‘Possible order getting made’. 14 Mr Burnitt’s evidence had the character of being crafted to best support the Appellant’s case. When it became apparent that an aspect of his evidence did not achieve that objective, he changed his evidence.

[22] We reject Mr Burnitt’s evidence as to the reasons for the delay in filing the appeal. In support of this conclusion we make three points, in addition to our general finding as to Mr Burnitt’s credit.

[23] First, Mr Burnitt claims that he was regularly out of the office on multiple projects with poor mobile coverage in the period June 2017 to March 2018 and advances this as an explanation for why he was personally unaware of the Decision and the contact from the FWO. For the Appellant’s explanation to be credible it would require us to accept that in working away from the office at times in areas with poor mobile phone coverage, that on return to the office or to areas with reasonable mobile phone coverage, no messages or correspondence were either passed on or received by the Appellant. This is patently implausible.

[24] Second, the Appellant’s explanation of his inaction in responding to contact from the FWO in October 2017 regarding the Order lacks credibility. While acknowledging that he received contact from the FWO in early October 2017 he claimed that he was told by the FWO staff member during that telephone conversation of a ‘possible order’ and believed as a consequence of that conversation that he would have an opportunity to challenge it.

[25] It is most unlikely that the FWO would take the time to contact the Appellant directly by phone in relation to an actual Order issued on 21 July 2017 and then describe the Order only as a ‘possible order’. The more likely explanation is that Mr Burnitt chose to simply ignore the FWO’s contact regarding the Order and its implications.

[26] In our view Mr Burnitt was on notice about the fact that an order had been made against the Appellant since at least in October 2017 and took no steps to inform himself of the implications of the Order or to seek legal advice. At the very least some enquiries by the Appellant ought to have been made; and none were.

[27] Third, even if we were to accept Mr Burnitt’s evidence that the first time at which he received a copy of the Order was on 26 March 2018, no adequate explanation was proffered as to why it then took a further two months for an appeal to be filed.

[28] The Appellant engaged legal representation on 27 March 2018 but only gave instructions to file an appeal on 18 May 2018, after which there was a further delay of almost two weeks before the appeal was lodged on 31 May 2018. Mr Burnitt’s suggestion that it took his lawyers ‘a little bit more time’ to review the origins and implications of the Order discloses a lack of urgency or diligence on the part of the Appellant in circumstances where the seriousness of the matter ought to have been abundantly clear from the correspondence from the FWO dated 22 March 2018.

[29] Finally, Mr Burnitt acknowledges that a search of the Appellant’s general email account, service@lceqld.com.au, conducted at the request of his solicitor revealed the receipt of several pieces of email correspondence from the FWO in the period October 2017 to March 2018. Mr Burnitt in his evidence claims that he was personally unaware of that correspondence at the time of its receipt but nonetheless acknowledges that he failed to action the matter as quickly as he should have.

[30] Mr Burnitt’s explanation of his inaction is not credible. Such an explanation requires us to accept that while mail collected by the Appellant’s staff is personally delivered to Mr Burnitt on an almost daily basis, all of the FWO correspondence now admitted as having been received in the Appellant’s general email account in the period October 2017 and March 2018 was either not reported to Mr Burnitt or simply ignored by the Appellant’s staff who were charged with the responsibility of managing the email account to which the correspondence was sent. Such a circumstance is entirely implausible. We reject this aspect of Mr Burnitt’s evidence.

[31] We are not satisfied that the Appellant has provided a satisfactory reason for the delay in filing the appeal. This is a factor which weighs against granting an extension of time.

Length of delay

[32] The length of the delay is substantial. The appeal was lodged some 294 days outside the prescribed 21 day period. This factor weighs against granting an extension of time within which to allow the Appellant to institute the appeal.

Prejudice to Respondent

[33] The Appellant concedes that Mr Antonarakis will suffer prejudice if an extension of time is granted as he will have to respond to the appeal and, if the appeal is successful, face a further hearing of his application. We agree; this weighs against granting an extension of time.

Prospects of appeal

[34] The Appellant presses only one ground of an appeal, that the Commissioner erred by deciding the Application was uncontested because the Appellant had not been served with the Application and had not received any written notification from the Commission of the Application or concerning the hearing of the Application.

[35] The Appellant led evidence from Mr Burnitt that while he recalled some contact from the Commission during the period leading up to hearing of Mr Antonarakis’ Application and issuing of the Decision he did not receive any material relevant to the Application. This included the Application filed by Mr Antonarakis and notices of hearing dates. 15

[36] Some specific contact from the Commission in respect to the Application was conceded by Mr Burnitt in his evidence and included that;

[37] We do not accept that correspondence from the Commission about the Application and the hearing were not received. We make three points in this regard.

[38] First, the correspondence sent by the Commission to the Appellant via email was sent to the same email address, service@lceqld.com.au, that the FWO correspondence was sent to. It is inexplicable that correspondence sent by the FWO was received by the Appellant yet correspondence sent from the Commission to that same email address was not received with the exception of the notice of conciliation conference of 27 February 2017.

[39] Second, the Commission’s records confirm that correspondence was sent to the Appellant via post, in addition to email, in respect of:

•  the notice of listing of the conciliation conference on 2 February 2017;

•  the notice of listing for arbitration hearing on 10 March 2017;

•  an amended notice of listing for arbitration hearing on 5 July 2017; and

•  the Decision and Order of 21 July 2017.

[40] The Appellant’s claim that the Commission correspondence sent by post to the Appellant was not received would require us to accept that the Appellant’s processes for handling and personal delivery of correspondence to Mr Burnitt on a daily basis failed to ensure that a single piece of the relevant correspondence was drawn to Mr Burnitt’s attention. Such a circumstance is simply implausible.

[41] Third, on Mr Burnitt’s own evidence attempted telephone contact by Commission staff with the Appellant was passed on to him on at least two occasions. His explanations as to why no action was taken by him in response to those messages were unconvincing.

[42] We do not accept that the Appellant was unaware of Mr Antonarakis’ Application and the subsequent proceedings. To the contrary, we are satisfied that the Appellant was aware of the Application and the proceedings but simply chose to ignore it.

[43] Consequently we have concluded that the Appeal has little prospect of success and this weighs against the granting of an extension of time.

[44] After considering all of the circumstances we are not persuaded that it is in the interests of justice to extend time to institute the appeal. Accordingly, the application to extend the time for the institution of the appeal was dismissed.

PRESIDENT

Appearances

J W Merrell (instructed by Simmonds Crowley & Galvin) on behalf of the appellant

Mr Antonarakis (respondent) appeared in person

Hearing details

2018.

Melbourne, VC to Brisbane.

11 July.

1 [2017] FWC 3801.

 2    See for example Fox v Kangan TAFE Print S0253, 25 October 1999 at [36]; Stevenson-Helmer v Epworth Hospital, Print T2277, 19 October 2000; Dundovich v P&O Ports, Print PR923358, 8 October 2002; SPC Ardmona Operations Ltd v Esam and Organ (2005) 141 IR 338; Jobs Australia v Eland [2014] FWCFB 4822; Farnhill v Australian Business Academy Pty Ltd [2016] FWFBC 3410.

 3   Exhibit A1, Witness Statement of Mr Peter Burnitt, dated 26 June 2018

 4   Ibid Paragraph [9]

 5   Transcript PN67 – PN77

 6   Transcript PN87 – PN91, PN118

 7   Transcript PN122 – PN130

 8   Transcript PN131

 9   Transcript PN 95-PN102

 10   Transcript PN106

 11   Transcript PN 110

 12   For example, see Transcript 11 July 2018 at [78] to [91]

 13   Ibid at [92] to [98] and [118] to [119]

 14   Ibid at [122] to [130]

 15   Exhibit A1, Paragraph [8j]-[8k]

 16   Ibid Paragraph 8[d]

 17   Ibid, Paragraph 8[e]

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