| FWCFB 901|
|FAIR WORK COMMISSION|
Fair Work Act 2009
s.604 - Appeal of decisions
Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters
JUSTICE ROSS, PRESIDENT
MELBOURNE, 16 FEBRUARY 2018
Permission to appeal against a decision [ FWC 7013] of Commissioner Platt at Adelaide on 22 December 2017 in matter C2017/6538 – adoption of a ‘decision rule’ that an applicant for an extension of time must provide a credible explanation for the entire period of the delay – error of law – permission to appeal granted – appeal upheld – matter referred for rehearing.
 Mr Periklis Stogiannidis has applied for permission to appeal and appealed a decision (the Decision) 1 and order2 of Commissioner Platt issued on 22 December 2017 in which the Commissioner declined to grant Mr Stogiannidis an extension of time to file a general protections dismissal application under s.365 of the Fair Work Act 2009 (Cth) (FW Act). The matter was listed for hearing in respect of both permission to appeal and the merits of the appeal.
 Mr Stogiannidis filed his general protections dismissal application in the Commission on 24 November 2017. In that application he identified the date of the dismissal which was the subject of the application as 21 September 2017. The Commissioner found that the application was filed 45 days after the 21-day time period and that it was therefore necessary for Mr Stogiannidis to obtain an extension of time under s.366(2) in order to make his application. The Commissioner conducted a telephone hearing in relation to Mr Stogiannidis’s application for an extension of time on 22 December 2017.
 A chronology of the relevant events is set out below:
21 September 2017: date of Mr Stogiannidis’s dismissal.
8 October 2017: Mr Stogiannidis lodges unfair dismissal application (U2017/10867).
21 November 2017: Mr Stogiannidis lodges Form F1 application seeking to substitute his unfair dismissal claim for a general protections claim.
23 November 2017: Commissioner Bissett writes to Mr Stogiannidis’s legal representative drawing his attention to the Full Bench decision in Peter Ioannou v Northern Belting Services Pty Ltd (Ioannou).
24 November 2017: Mr Stogiannidis lodges a general protections application and files a Form F50 Notice of Discontinuance in respect of his unfair dismissal application.
5 December 2017: Respondent filed a Form F8A Employer Response.
8 December 2017: Commissioner Platt corresponds with the parties and advises them of the hearing on 22 December 2017. Directions issued for the Respondent and Mr Stogiannidis to file an outline of submissions by 15 December 2017.
14 December 2017: Mr Stogiannidis files outline of submissions.
15 December 2017: Respondent files outline of submissions.
 The reference to Ioannou in Commissioner Bissett’s correspondence to Mr Stogiannidis’s legal representative is to a decision in which the Full Bench considered whether an application for unfair dismissal could be amended, utilising the power under s.586 of the FW Act, to a general protections application. The Full Bench determined:
‘…we have serious reservations whether the power in s.586 of the Act can be relied upon to convert an unfair dismissal application into a general protections application. Section 586 does not provide a source of power to revoke or set aside an application. Neither does it, in our view, enable the Commission to “correct” or “amend” an application made under one type of statutory provision so that it becomes an application under a fundamentally different provision. 3
The appropriate course for the applicant… to take if [they seek] to pursue an application under s 365 of the Act in relation to [their] dismissal in lieu of the unfair dismissal application, is to withdraw the s 394 application and to file a s 365 application. In such circumstances, the appropriate procedural and other requirements under the Act for the making of the s 365 application will need to be met and an extension of time sought in accordance with s 366 of the Act.’ 4
 The Appellant made an application pursuant to s.366 to extend the time within which he could make his general protections application. The application was heard on 22 December 2017 and the Decision published on the same day. The Commissioner refused the extension of time because he was ‘not satisfied that Mr Stogiannidis’s circumstances can be regarded as exceptional so as to support an extension of time’. 5
 An appeal under s.604 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.
 Subsection 604(2) requires the Commission to grant permission to appeal if 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. 7 The public interest is not satisfied simply by the identification of error8, 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 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...’ 10
 Other than the special case in s.604(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 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 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.13
 It is first necessary to say something about s.366, before turning to the grounds of appeal.
 Section 366(1) provides that an application under s.365 (a general protections 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 (2).
 Section 366(1)(a) provides that a general protections application must be made ‘within 21 days after the dismissal took effect’. The 21 day period prescribed in s.366(1)(a) does not include the day on which the dismissal took effect. If the final day of the 21 day period falls on a weekend or on a public holiday the prescribed time will be extended until the next business day. 14 The date of Mr Stogiannidis’s dismissal was 21 September 2017 and the 21 day period expired on 12 October 2017. Mr Stogiannidis’s general protections application was lodged on 24 November 2017, 43 days outside of the prescribed time.
 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.’
 The test of ‘exceptional circumstances’ establishes a ‘high hurdle’ for an applicant for an extension. 15 A decision whether to extend time under s.366(2) involves the exercise of a discretion.16
 The meaning of ‘exceptional circumstances’ in s.366(1) was considered by a Full Bench of the then Fair Work Australia in Nulty v Blue Star Group Pty Ltd 17 (Nulty) as follows:
‘ In summary, the expression “exceptional circumstances” has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.
 Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance.’ (emphasis added)
 The Full Bench in Nulty relied on the following observations of Rares J in Ho v Professional Services Review Committee No 295: 18
‘26. Exceptional circumstances…can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. Thus, the sun and moon appear in the sky everyday and there is nothing exceptional about seeing them both simultaneously during day time. But an eclipse, whether lunar or solar, is exceptional, even though it can be predicted, because it is outside the usual course of events.
27. It is not correct to construe ‘exceptional circumstances’ as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural ‘circumstances’ as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of ‘exceptional circumstances’ in s 106KA(2) includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon. And, the section is directed to the circumstances of the actual practitioner, not a hypothetical being, when he or she initiates or renders the services.’ (emphasis added)
 Generally, the assessment of whether exceptional circumstances exist will require consideration of all the relevant circumstances, because even though no one factor may be exceptional, in combination the circumstances may be such as reasonably to be regarded as exceptional. 19
 In deciding whether there are exceptional circumstances such as to enliven the discretion to extend time the Commission must take into account the matters specified in s.366(2)(a)-(e).
 To take a matter into account means that the matter is a ‘relevant consideration’ in the Peko-Wallsend 20sense of matters which the decision maker is bound to take into account. The obligation to take into account the matters set out at s.366(2)(a)-(e) means that each of these matters, insofar as they are relevant, must be treated as a matter of significance in the decision making process.21 As Wilcox J said in Nestle Australia Ltd v Federal Commissioner of Taxation:22
‘To take a matter into account means to evaluate it and give it due weight, having regard to all other relevant factors. A matter is not taken into account by being noticed and erroneously discarded as irrelevant’.
 We now turn to the grounds of appeal.
 The first broad ground of appeal contends, in essence, that the Commissioner focussed on one relevant factor - the reason for the delay - to the exclusion of all other relevant factors.
 As mentioned earlier, s.366(2)(a) requires the Commission to take into account ‘the reason for the delay’ in deciding whether there are ‘exceptional circumstances’. 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. 23 The delay in this case was 43 days.
 At - of the Decision the Commissioner refers to the reason for delay and says:
‘ I accept that Mr Stogiannidis pursued his claim that he was improperly dismissed by his employer. I accept that the distinctions between an unfair dismissal application and a general protections application for an unrepresented employee can be difficult to understand.
 I accept that by the 21 November 2017 Mr Stogiannidis had determined to pursue his concerns as a general protections application, albeit his lawyer did not appear to appreciate that the Commission cannot amend an unfair dismissal application to become a general protections application but in any event this defect was remedied the day after Commissioner Bissett drew the parties attention to the matter.
 The difficulty for Mr Stogiannidis is that having had the benefit of legal advice on 10 November 2017, he did nothing for 11 days and by this time 50 days had elapsed since his dismissal. Whilst I do not dispute the explanation he has given, in my view it is not an exceptional circumstance.
 The applicant needs to provide a credible explanation for the entire period of the delay, but has not done so.’
 Contrary to the Appellant’s contention, the Decision appears to address the other factors mentioned in s.366(2), rather than exclusively focussing on the reason for the delay.
 As to the action taken to dispute the dismissal, (s.366(2)(b)), the Commissioner does not directly refer to this consideration, but does make reference to the fact that Mr Stogiannidis filed an unfair dismissal application (within the prescribed time) and hence can be said to have disputed his dismissal:
‘ I accept that Mr Stogiannidis pursued his claim that he was improperly dismissed by his employer. I accept that the distinctions between an unfair dismissal application and a general protections application for an unrepresented employee can be difficult to understand.
 I accept that by the 21 November 2017 Mr Stogiannidis had determined to pursue his concerns as a general protections application, albeit his lawyer did not appear to appreciate that the Commission cannot amend an unfair dismissal application to become a general protections application but in any event this defect was remedied the day after Commissioner Bissett drew the parties attention to the matter.’ 24
 As to prejudice to the employer (s.366(2)(c)) the Commissioner says at :
‘The delay in this matter is considerable, however whilst I accept it presents prejudice to Richmond Oysters, it is not determinative in this matter.’
 The Commissioner refers to the merits of the application (s.366(2)(d)) at  and says:
‘In terms of the merits of the application, there is insufficient evidence before me to make an assessment and accordingly I have regarded the merits as a neutral factor.’
 Finally, in relation to fairness as between the Applicant and other persons (s.366(2)(e)) the Commissioner says at :
‘Consideration of fairness relative to other persons in similar positions is a neutral factor.’
 We are not persuaded that the Appellant has established an arguable case that the Commissioner erred in not giving consideration to the other matters set out in s.366(2). We return to the Commissioner’s consideration of the reason for the delay.
 As noted above, at  of the Decision the Commissioner says:
‘The applicant needs to provide a credible explanation for the entire period of the delay, but has not done so.’ [Emphasis added]
 The authority cited by the Commissioner in support of the proposition put at  is Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers (‘Cheval Properties’). 25
 We would observe at the outset that, properly understood, we doubt that Cheval Properties is authority for the proposition put by the Commissioner.
 The respondent in Cheval Properties made an application to the then Fair Work Australia, out of time, for an unfair dismissal remedy in respect of the termination of her employment by the appellant. At first instance, the respondent explained her delay by reference to the following matters: the expectation that she would receive a letter from the appellant advising her of the reasons for her dismissal, although the respondent had been told by the appellant on the day of her dismissal that such a letter would not be provided; the hospitalisation of the respondent’s mother; and the incorrect filing of an unfair dismissal application in the jurisdiction of New South Wales, several weeks after the lapse of the statutory period for the filing of such a claim under State legislation. The Commissioner granted the extension of time, accepting the latter two matters as relevant to a finding that exceptional circumstances existed in relation to the application. The employer appealed against the decision to grant the extension of time.
 The appeal was upheld on the basis that the Commissioner erred in not considering the applicant’s failure to provide a credible reason for part of the delay in making her unfair dismissal decision:
‘Ms Smithers does not advance any reason for her delay between 8 January and 21 January 2010 in making her unfair dismissal remedy application to FWA, other than her expectation that there would be something else from Cheval about her dismissal after being told of it by them on 18 December 2009. However, her evidence that she held such an expectation is not credible given that on 18 December 2009 she asked Cheval for a letter stating the reasons for her dismissal and was told by them then that it would not be provided.
It is apparent from the Commissioner’s decision that in being satisfied there were exceptional circumstances, the Commissioner does not consider Ms Smithers’ failure to provide a credible reason for her delay between 8 and 21 January 2010 in making her unfair dismissal remedy application to FWA.
The Commissioner’s failure to take into account such a matter is an appealable error of the type set out in House v The King. 26 Such a matter should have been a material consideration in the Commissioner’s decision as to Ms Smithers’ reasons for delay and whether she was satisfied there were exceptional circumstances.’27
 Notably, the error identified on appeal was not that a credible explanation must be provided for the whole of the delay; rather it was that the Member at first instance had not taken into account the fact that part of the delay was unexplained.
 The Full Bench granted permission to appeal and reheard the applicant’s application for an extension of time. In rehearing that application the Full Bench said:
‘We are not satisfied our findings in respect of the matters in s.394(3)(a) to (f) of the FW Act constitute exceptional circumstances. Ms Smithers’ reasons for her delay in making her unfair dismissal remedy application cannot be regarded as unusual or extraordinary in circumstances where she advanced no credible reason for her failure to make her unfair dismissal remedy application to FWA between 8 and 21 January 2010. Nor is there anything in our findings in respect of the matters in s.394(3)(b) to (f) that is unusual or extraordinary.’ 28 (emphasis added)
 We acknowledge that the underlined words may suggest that absent a credible explanation for the entirety of the delay there could be no finding of exceptional circumstances. But to the extent that Cheval Properties may be said to be authority for such a proposition, it is, with respect, plainly wrong.
 As we have mentioned, the assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional.
 So much is clear from the structure of s.366(2), each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary to consider the matters collectively and to ask whether collectively the matters disclose exceptional circumstances. The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly a credible explanation for the entirety of the delay, will usually weigh in the applicant’s favour, though, as we mention later, it is a question of degree and insight. However the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the relevant matters and the assignment of appropriate weight to each.
 To the extent that the proposition at  of the Decision is to be understood as suggesting that an applicant seeking an extension of time ‘needs to provide a credible explanation for the entire period’, it is, with respect, erroneous. It is not a pre-condition to the grant of an extension of time that the applicant provide a credible explanation for the entire period of the delay. Indeed, depending on the circumstances, an extension of time may be granted where the application has not provided any explanation for any part of the delay.
 The ‘reason for the delay’ is a factor that the Commission must take into account in deciding whether there are exceptional circumstances. A distinction may be drawn between the matters relevant to the determination of whether the circumstances can be properly characterised as exceptional (i.e. s.366(2)(a)-(e)) and the elevation of a particular matter into a condition precedent to a finding of exceptional circumstances. 29
 If we have correctly interpreted what is being said at  of the Decision, then the Commissioner has elevated what is merely a relevant factor into a decision rule so as to allow the automatic production of a solution. In deciding whether there are exceptional circumstances, thus enlivening the discretion to extend time, s.366(2) provides that the Commission must take into account certain matters (at s.366(2)(a)-(e)); but it is not for the Commission to impose an arbitrary limitation not expressed in the words of the Act.
 We acknowledge that there is a degree of ambiguity as to what is being said at  of the Decision. We note that the statement is made in the course of the Commissioner’s consideration of s.366(2)(a) and it may be read as saying that a credible explanation for the whole of the delay is necessary in order to conclude that s.366(2)(a) is to be treated as a factor weighing in favour of a finding of exceptional circumstances. But, with respect, that proposition is also incorrect.
 As mentioned earlier, the ‘reasons for the delay’ is a factor to be taken into account in deciding whether there are exceptional circumstances. There is no statutory basis for the adoption of a decision rule whereby if the applicant does not provide a credible explanation for the entire period of the delay then the matter in s.366(2)(a) tells against the finding of exceptional circumstances. Common sense would suggest otherwise, it is plainly a question of degree and weight.
 What if the period of the delay was 30 days and the applicant had a credible explanation for 29 of those days? It seems to us that such circumstances may weigh in favour of a finding of exceptional circumstances. Of course, as mentioned earlier if there was a credible explanation for the entirety of the delay that would weigh more heavily in favour of such a finding. Conversely, if the applicant failed to provide a credible explanation for any part of the delay that would tend to weigh against a finding of exceptional circumstances.
 It follows that, however understood, the proposition advanced at  of the Decision is erroneous. We would note, however, that the error was understandable given the ambiguity in Cheval Properties and does not imply any criticism of the Commissioner.
 Given the error in  we have concluded that the Decision is attended with sufficient doubt as to warrant its reconsideration on appeal. On that basis we grant permission to appeal. The adoption of the decision rule in  (however construed) amounts to an error of law and one that plainly influenced the Commissioner’s ultimate conclusion that Mr Stogiannidis’s circumstances cannot be regarded as exceptional, such as to enliven the discretion to extend time. We uphold the appeal on that basis. In the circumstances it is unnecessary to give further consideration to the other grounds of appeal.
 For the reasons given, we grant permission to appeal, uphold the appeal and quash the Decision and Order. Mr Stogiannidis’s application for an extension of time will be referred to Commissioner Harper-Greenwell for rehearing.
Mr Papaspryopoulos for the Appellant.
Mr Bromley for the Respondent
1  FWC 7013
3  FWCFB 6660 at .
4 Ibid at .
5  FWC 7013 at .
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  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  per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Alllied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at -
8 GlaxoSmithKline Australia Pty Ltd v Makin  FWAFB 5343, 197 IR 266 at -
9 GlaxoSmithKline Australia Pty Ltd v Makin  FWAFB 5343, 197 IR 266 at -, Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/ Warkworth  FWAFB 10089 at , 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  FWCFB 1663, 241 IR 177 at 
10  FWAFB 5343, 197 IR 266 at  – 
11 Also see CFMEU v AIRC (1998) 89 FCR 200 at 220; and Wan v AIRC (2001) 116 FCR 481 at 
12 Wan v AIRC (2001) 116 FCR 481 at 
13 Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth  FWAFB 10089 at , 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  FWCFB 1663, 241 IR 177 at 
14 See Acts Interpretation Act 1901 (Cth) s.36 as in force on 25 June 2009 see s.40A of the FW Act; Kristia Cahill v Bstore Pty Ltd T/A Bstore for Birkenstock  FWCFB 103; Stedman v Transdev NSW Pty Ltd T/A Transdev Buses  FWCFB 1877; Hemi v BMD Constructions Pty Ltd  FWC 3593.
15 Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations  FWCFB 2288 at 
16 Halls v McCardle and Ors  FCCA 316
17  FWAFB 975.
18  FCA 388 (27 March 2007); Also see Hatcher v Cohn  FCA 1548 at - per Keifel J; An v Minister for Immigration and Citizenship  FCAFC 97; Maan v Minister for Immigration and Citizenship  FCAFC 150 at .
19 (Also see Griffiths v The Queen (1989) 167 CLR 372 at 379 (Brennan and Dawson JJ); Ho v Professional Services Review Committee No 295  FCA 388 at - (Rares J); Hasim v Attorney-General of the Commonwealth  FCA 1433, (2013) 218 FCR 25 at  (Greenwood J)).
20 Minister for Aboriginal Affairs v Pelco-Wallsend (1986) 162 CLR 24.
21 Friends of Hinchinbrook Society Inc v Minister for Environment (No 3) (1997) 77 FCR 153; Australian Competition and Consumer Commission v Leclee Pty Ltd (1999] FCA 1121; Edwards v Giudice  FCA 1836; National Retail Association v Fair Work Commission  FCAFC 118
22 (1987) 16 FCR 167 at 184; cited with approval by Hely J in Elias v Federal Commissioner of Taxation (2002) 123 FCR 499 at  and by Katzmann J in CFMEU v FWA (2011) 195 FCR 74 at .
23 Shaw v Australia and New Zealand Banking Group Limited T/A Anz Bank  FWCFB 287.
24  FWC 7013 at -
25 (2010) 197 IR 403.
26 (1936) 55 CLR 499.
27 Ibid at -.
28 Ibid at .
29 Evans v Bartlam  AC 473; Kostokanellis v Allen  VR 596; Leighton Contractors Pty Ltd v Kilpatrick Green Pty Ltd  2 VR 505; Dix v Gims Compensation Tribunal  1 VR 297 at 301-302 per Brooking J (with whom Fullager and Tadgell JJ agreed); Esso Australia Pty Ltd v AMWU  FWCFB 210 at -.
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