DECISION

Fair Work Act 2009
s 604 - Appeal of decisions

George Ittyerah
v
Coles Supermarkets (Australia) Pty Ltd
(C2019/7398)

Appeal against decision [2019] FWC 7404 of Deputy President Dean at Sydney on 14 November 2019 in matter number U2019/8982 – permission to appeal - whether public interest in appeal or arguable case – public interest not enlivened – application for permission to appeal refused.

Introduction and background

[1] Mr George Ittyerah has applied for permission to appeal against a decision of Deputy President Dean issued on 14 November 2019 1 (the Decision) in which she declined, under s.394(3) of the Fair Work Act 2009 (FW Act), to extend time under s.394(2) to allow Mr Ittyerah to file his application for an unfair dismissal remedy outside the 21-day statutory time limit.

[2] Mr Ittyerah was dismissed from his employment with Coles Supermarkets Australia Pty Ltd (the respondent) on 22 July 2019, to take effect on 23 July 2019. He filed his unfair dismissal application in the Fair Work Commission (the Commission) on 14 August 2019, being a period of 22 days after the dismissal took effect.

[3] The time frame for filing an unfair dismissal application, and the ability for the Commission to extend the time for filing, are set out at ss.394(2) and (3) of the FW Act as follows:

“394(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).

394(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.”

[4] The 21-day time limit that applies to the exercise of an employee’s right to bring an unfair dismissal application reflects the Parliament’s intention that this right be exercised promptly. Only where exceptional circumstances can be demonstrated can the Commission exercise its discretion to accept an application out of time.

The Decision

[5] In the Decision, the Deputy President addressed each of the matters she was required to take into account under s 394(3) of the FW Act in considering whether exceptional circumstances had been established.

(a) The reason for the delay

[6] In relation to the reason for the delay, Mr Ittyerah submitted that the delay was the result of him having to take two certain examinations scheduled to be held on 2 and 4 September 2019 and also the complexity of his unfair dismissal application. The Deputy President noted the examinations were scheduled to take place more than two weeks after the 21-day period provided to file the application and that the unfair dismissal application was not in any way complex. The Deputy President concluded that she was not satisfied Mr Ittyerah had demonstrated an acceptable explanation for his delay, and this weighed against a finding that there were exceptional circumstances.

(b) Whether the applicant first became aware of the dismissal after it had taken effect

[7] In relation to when Mr Ittyerah became aware of his dismissal, the Deputy President found that Mr Ittyerah became aware of his dismissal as soon as it took effect and accordingly had the full period of 21 days to file his application. Therefore, this did not weigh in favour of an extension of time.

(c) Action taken to dispute the dismissal

[8] The Deputy President found that Mr Ittyerah did not take any action to dispute his dismissal until the application was lodged. This did not support a finding of exceptional circumstances.

(d) Prejudice to the employer

[9] The Deputy President found that, given the short delay (one day), granting an extension of time would not prejudice the respondent and that this was a neutral consideration.

(e) Merits of the application

[10] The Deputy President held that she was unable to make an assessment of the merits of the application in the absence of tested evidence and considered this to be a neutral consideration.

(f) Fairness as between the applicant and other persons in a similar position

[11] The Deputy President found that this was a neutral consideration, as there were no other relevant persons in a similar position.

[12] On the basis of the above findings, the Deputy President was not persuaded that there were exceptional circumstances and the application to extend time for filing of Mr Ittyerah’s unfair dismissal application was dismissed.

Grounds of Appeal

[13] Mr Ittyerah’s notice of appeal raises numerous appeal grounds which may be summarised as follows:

1. The reasons for the delay in filing the application, stated by the Deputy President, were not the reasons put forward by him. This reflects actual or apprehended bias of the Deputy President.

2. The Deputy President’s finding that Mr Ittyerah was aware of his dismissal at the time of the dismissal, weighing against a finding of exceptional circumstances, was an error of law.

3. The Deputy President’s finding that Mr Ittyerah did not take any action to dispute his dismissal until he lodged his application, weighing against a finding of exceptional circumstances, was an error of law.

4. The Deputy President’s finding that there was no prejudice to the respondent in the late filing, being a neutral consideration, was an error of law.

5. The Deputy President’s finding that the merits of the application were a neutral consideration in the absence of tested evidence, was a significant evidentiary error.

6. The Deputy President’s finding that there being no relevant person in a similar position, being a neutral consideration, was an error of law.

7. The Deputy President made significant errors of fact concerning the reasons for the delay, by failing to take into account factors relevant to the dismissal.

Permission to Appeal

[14] Mr Ittyerah submitted that the grant of permission to appeal would be in the public interest because the Decision contained a number of errors of law as to the interpretation of s.394(3) of the FW Act, the reconsideration of which, on appeal, is a matter of importance and general application. Mr Ittyerah further submitted that there were conflicting decisions concerning the interpretation of s.394(3) and that a number of decisions of the Commission concerning s.394(3), contain errors of law when weighing the factors set out in s.394(3) requiring “guidance from an appellate court”.

[15] Mr Ittyerah further submitted that the Decision manifests an injustice, as the Deputy President failed to take into account the merits of the application, and that there was a substantial lack of legal and/or factual reasons in the Decision which was apprehended bias based on erroneous facts and errors of law.

Consideration

[16] An appeal under s.604 of the FW 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. 2 There is no right to appeal and an appeal may only be made with the permission of the Commission.

[17] This appeal is one to which s.400 of the FW Act applies. Section 400 provides as follows:

“(1) Despite subsection 604(2), the FWC must not grant permission to appeal from a decision made by the FWC under this Part 3 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.”

[18] In the Federal Full Court decision in Coal & Allied Mining Services Pty Ltd v Lawler and others, 4 Buchanan J (with whom Marshall and Cowdroy JJ agreed) described the test under s.400 of the FW Act as “a stringent one”. The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.5 A Full Bench of this Commission in GlaxoSmithKline Australia Pty Ltd v Makin 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.” 6

[19] 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. 7 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.8

[20] It is important to note that an application for permission to appeal is not a de facto or preliminary hearing of the appeal. In determining whether permission to appeal should be granted, it is unnecessary and inappropriate for the Full Bench to conduct a detailed examination of the grounds of appeal. 9 However, it is necessary to engage with those grounds to consider whether they raise an arguable case of appealable error.

[21] The test of “exceptional circumstances”, in relation to extensions of time to lodge applications under s.394(3) has been held to establish a “high hurdle” for an application for an extension, and a decision as to whether to extend time involves the exercise of a broad discretion. 10 It is necessary, in an application for permission to appeal against a decision made under s 394(3) to demonstrate that there is an arguable case and that there was appealable error in the exercise of the member’s discretion. This will require the identification of error of the type described in House v The King,11 being that the decision-maker has acted on a wrong principle, has mistaken the facts, has taken into account an irrelevant consideration or failed to take into account a relevant consideration; or has made a decision which is unreasonable or manifestly unjust.

[22] Together with the public interest test, where an error of fact is alleged, s.400(2) as extracted above, requires that it must be a significant error of fact.

Grounds of Appeal

[23] Regarding the reasons for delay, we do not accept, as was put by Mr Ittyerah, that there is any arguable case of appealable error, let alone significant factual error, that the Deputy President misconstrued the applicant’s reasons for the delay. Mr Ittyerah’s prime reasons for his delay were said to be due to his forthcoming examinations 12 and the complexity of his unfair dismissal application. These reasons were addressed by the Deputy President and were found not to favour a finding of exceptional circumstances.

[24] The reference at [13] of the Deputy President’s Decision to Mr Ittyerah’s contention that his delay was in part due to a psychiatric injury is said by Mr Ittyerah to misstate his submissions. His raising of his psychiatric injury is said to have been in the context of why he placed his studies over and above the filing of his unfair dismissal application. As stated by Mr Ittyerah in his written submissions of 6 January 2020:

“… the Appellant has relied upon his compulsion to complete his studies since he has no employability due to denial of medical treatment for symptoms of psychiatric injury as part of the Human Rights Breaches. Further the Appellant has relied on the fact that he has a debilitating set of symptoms of psychiatric injury and that the Respondent’s employees have targeted his symptoms and affected his ability to study during the term of employment with the Respondent.”

[25] This characterisation of the relevance of raising his psychiatric injury before the Deputy President is misplaced. The Deputy President simply stated that Mr Ittyerah had contended that his delay “was in part” due to a psychiatric injury, which is confirmed in his written appeal submissions as extracted above. The Deputy President then noted that he did not produce any medical evidence to support his assertion of suffering from a psychiatric injury. This is not disputed.

[26] In any event, we consider the issues that Mr Ittyerah does rely upon for the delay in filing his application were properly addressed and considered in the Decision by the Deputy President.

[27] In regard to the alleged complexity of the application, the Deputy President did not find the application as filed was in any way complex. Mr Ittyerah points to the detailed materials placed before the Commission and his 13-page summary of facts. The volume of material filed is not a substitute for complexity of a matter and this appeal ground does not identify any issues of complexity, other than he needed to navigate through numerous documents.

[28] In relation to when Mr Ittyerah became aware of his dismissal, the Deputy President found that Mr Ittyerah became aware of his dismissal as soon as it took effect and that this did not weigh in favour of an extension of time. The Deputy President relied on the Full Bench decision of Woolworths Limited v Lin 13 (Woolworths) in arriving at this conclusion. Mr Ittyerah submits that the Full Bench decision in Woolworths was wrongly decided.

[29] At paragraph [68] the Full Bench in Woolworths stated:

“On the facts before the Commissioner, Ms Lin became aware of the dismissal the day after it took effect. Ms Lin therefore had a full 20 days within which she could have lodged her application before time to do so would elapse. Just as learning of one’s dismissal shortly before time elapses or at a time after it has elapsed will usually weigh in favour of an applicant for an extension of time, the consideration will likely weigh against an applicant if the applicant learns of the dismissal a time proximate to the date on which it took effect. This is because an applicant would not be deprived of the opportunity to lodge an application within time because of an absence of knowledge that the dismissal had taken effect.”

[30] In pursing this appeal Mr Ittyerah relies extensively on the 1984 decision of the Federal Court in Hunter Valley Developments Pty Ltd v Cohen 14 (Hunter Valley), where Wilcox J considered the grounds upon which an application made under the Administrative Decisions (Judicial Review) Act 1977 (the ADJR Act) could be accepted outside the prescribed time. As the ADJR Act did not set out any criteria by reference to which the Federal Court’s decision to extend time is to be exercised, Wilcox J distilled a number of guiding principles gleaned from previous decisions of the Federal Court. As it happens, a number of those principles are also reflected in s.394(3) of the FW Act.15

[31] This Commission, however, must relevantly apply the tests imposed by the FW Act and, importantly, the Commission must be satisfied that there are “exceptional circumstances” taking into account the factors listed in s.394(3) to allow a further period for the application to be made. Further, where an error of fact is demonstrated it must be a significant error of fact. The statutory imperative of exceptional circumstances did not exist under the ADJR Act and as Wilcox J stated, “special circumstances” need not be shown for an application to extend time under the ADJR Act. Mr Ittyerah’s reliance on the Hunter Valley decision to impugn the Full Bench decision in Woolworths and therefore the Decision of the Deputy President is misplaced, and does not support an arguable case of appealable error.

[32] Further, the assertion that there are conflicting decisions of the Commission was not substantiated and the only decision referred to by Mr Ittyerah in his written submissions was that of a single Commission member where the decision was confined to its own circumstances. It does not disclose any divergence from the decision in Woolworths 16 and Mr Ittyerah could not point to any other decision to support his argument in this respect.

[33] The Deputy President concluded that as no action to dispute his dismissal was taken by Mr Ittyerah until the unfair dismissal application was lodged, it did not support a finding of exceptional circumstances. Mr Ittyerah submits this was an error of law, as the conclusion is not consistent with s.394(3) or the principles governing extensions of time.

[34] It was contended by Mr Ittyerah that where no action is taken to dispute the dismissal this can only lead to a conclusion that the factor was irrelevant or neutral. This submission was not supported by any relevant authority or contention that the conclusion he submits that should have been made, is a neutral factor which would have contributed to a finding of exceptional circumstances. In any event, it is difficult to see how a factor, which is neutral, tells either in favour or against a finding of “exceptional circumstances”.

[35] Mr Ittyerah submits that a finding under s.394(3)(d) that there is no prejudice to the employer must always weigh in favour of the applicant for an extension of time and need not be considered a neutral factor as the Deputy President found.

[36] This issue was considered by the Full Bench in Gail Miller v DPV Health Ltd (Hume) 17 (DVP Health) where the Full Bench made the following observations at [21]:

“[21] … However, bearing in mind that the relevant task is to consider whether the requisite exceptional circumstances exist, whether a lack of prejudice to the employer weighs in favour of such a conclusion or not will vary depending on the circumstances of the case. There is no necessary single conclusion which will apply in that respect. Where the delay involved is very short, as here, it will usually be entirely unsurprising that there is a lack of prejudice to the employer, and thus this will likely not weigh in favour of a finding of exceptional circumstances. As was stated by the Full Bench in Ozsoy v Monstamac Industries Pty Ltd, a case likewise involving a delay of one day:

“[38] Ground 9 was an assertion that the absence of prejudice should have been found to be a positive consideration and not a neutral one. It identifies no error. The absence of a prejudice to the employer is usual in extension of time matters and does not provide a positive basis for finding exceptional circumstances warranting an extension of time for lodgement.”

[22] However in other circumstances, such as where the delay is a long one and the case will require multiple witnesses to be called to resolve contested factual issues, a conclusion that the delay would not cause prejudice to the employer might well weigh in favour of a finding of exceptional circumstances. It will all depend on the facts of the case. That different conclusions on this score have been reached in different decisions is not demonstrative of any disharmony on a question of principle. No arguable case of error in respect of the Deputy President’s conclusion as to s 394(3)(d) is discernible.”

[37] Nothing put by Mr Ittyerah supports any arguable case that the Deputy President’s conclusion concerning this statutory criterion involved an error of law. To the contrary, it is consistent with the Full Bench authority in DVP Health and that of the Full Bench in Ozsoy v Monstamac Industries Pty Ltd 18 as set out above, and we see no reason why this Full Bench would take a contrary view.  

[38] Further, the guiding principles set out in Hunter Valley relied upon by Mr Ittyerah are not authority for the proposition that no prejudice to the employer must weigh in favour of an applicant for an unfair dismissal remedy.

[39] There is no arguable contention of error concerning the Deputy President’s conclusion pursuant to s.394(3)(e) of the FW Act that the merits of Mr Ittyerah’s application was a neutral consideration in the Deputy President’s assessment of exceptional circumstances. Mr Ittyerah denied the allegations concerning performance and conduct issues for which he was dismissed. This is hardly surprising, but not to the point. He outlined the evidence he would give in this respect if his application was received and heard. The respondent submitted that it had a meritorious defence to the application, including that Mr Ittyerah had accepted in cross-examination at the hearing before the Deputy President on 28 October 2019 that he called a store manager a “f..king c..t”. 19 He does not resile from this evidence.

[40] The Deputy President concluded that much the same could be said about Mr Ittyerah’s application as was said by Colman DP in Miller v DPV Health Ltd 20 at [27]:

“[27] The merits of the application turn significantly on contested points of evidence that would need to be tested in cross-examination if an extension of time were granted and the matter were to proceed. Much would depend on findings of fact and assessments of witness credibility. It is not possible to make any firm or detailed assessment of the merits. However, my preliminary view is that Ms Miller’s application is not without merit. She has at least an arguable case that her misconduct was not substantiated and that her dismissal was not for a valid reason and unfair. Equally however, the company has a reasonable prima facie defence to the claim, namely that the misconduct was established to the requisite standard of proof and that the dismissal was not unfair in all the circumstances. Given the interlocutory nature of an application to extend time, and mindful that the material has not been fully explored or tested, I do not consider the merits of the case to tell for or against an extension of time. I consider the merits to be a neutral consideration.”

[41] The Deputy President’s conclusion that she was unable to make an assessment of the merits in the absence of tested evidence and that she consequently considered the merits of the application to be a neutral consideration, was unremarkable, and we agree with her conclusion. Further, this Commission has consistently held that evidence on the merits is rarely considered, let alone tested, in applications of this kind. There are sound reasons why the Commission should not embark on a detailed examination of the substantial case in considering an extension of time application. 21 There is no arguable appealable error in the Deputy President’s findings on this factor.

[42] Having found that there was no relevant person in a similar position to the appellant, Mr Ittyerah argues that it was an error of law for the Deputy President to consider this a neutral factor as it should have been considered favourable to him. The logic of this submission is not immediately apparent, and the contention was not otherwise well-developed in the proceeding before us. In any event, Mr Ittyerah cited no authority on this appeal ground and we are not satisfied it raises any arguable point of contention or that there being no relevant person in a similar position to the applicant contributes favourably towards the existence of exceptional circumstances. We note the comment of the Full Bench in Perry v Rio Tinto Shipping Pty Ltd t/a Rio Tinto Marine 22 as to this criterion. At [41] the Full Bench said:

“Finally, we turn to consider fairness as between the Appellant and other persons in a similar position. Cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the Appellant and other persons in a similar position. This consideration may relate to matters currently before the Commission or matters previously decided by the Commission.”

[43] Finally, Mr Ittyerah submits that the Deputy President’s decision reflects actual or apprehended bias. We consider that the Deputy President properly considered the arguments put by the parties. None of the factors relied upon by Mr Ittyerah exposes anything other than the Deputy President making various findings considered to be warranted by the facts presented and by the application of accepted legal principles to those facts. The fact that the Deputy President’s decision was adverse to Mr Ittyerah and he does not agree with it does not demonstrate actual or apprehended bias.

[44] Having regard to what Mr Ittyerah has put regarding the public interest of his appeal, we do not consider that permission to appeal in this matter should be granted. This is because the grounds of appeal are not sufficiently arguable. We do not consider that his appeal raises any issue of importance or general application, or that there is any relevant disharmony in first instance decisions that requires resolution at the appellate level. Nor are we persuaded that a substantial injustice may result if permission to appeal is refused.

[45] For the above reasons, permission to appeal is refused. We order accordingly.

DEPUTY PRESIDENT

Appearances:

Mr G Ittyerah, Appellant.
Mr W Spargo, Solicitor, Lander and Rogers for the Respondent.

Hearing details:

2020.
Sydney:
13 January.

Printed by authority of the Commonwealth Government Printer

<PR716190>

 1   Ittyerah v Coles Supermarkets Australia Pty Ltd [2019] FWC 7404.

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

 3   Sections 394 and 400 of the FW Act are both contained under Part 3-2 Unfair Dismissal of the FW Act.

 4   (2011) 192 FCR 78 at [43].

 5   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].

 6   See GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, 197 IR 266 at [27].

 7   Wan v AIRC [2001] FCA 1803, 116 FCR 481 at [30].

 8   Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089, , 202 IR 388 at [28], 202 IR 388, affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54, 192 FCR 78, 207 IR 177; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663, 241 IR 177 at [28].

 9   Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82].

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

 11   [1936] HCA 40, 55 CLR 499.

 12   PN135.

 13   [2018] FWCFB 1643.

 14   3 F.C.R. 344 (1984).

 15   The Fair Work Bill 2008 - Explanatory Memorandum at Item 1573 states that the factors in s.394(3) of the FW Act are based on the principles in Brodie-Hans v MTV Publishing (1995) 67 IR 298.

 16   Arpita Das v Prestigous Services (Aust) Pty Ltd t/a Mac-Field Medical Practice [2019] FWC 7628.

 17   [2019] FWCFB 6890.

 18   [2014] FWCFB 2149.

 19   PN109, 159, 161.

 20   [2019] FWC 3979.

 21   Kyvelos v Champion Socks Pty Ltd AIRCFB 10 November 2010 Print T2421 at [14].

 22   [2016] FWCFB 6963.