DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Praveen Samuel
v
Ditec Automatic Entrance Specialists Pty Ltd t/a ABA Automatic Gates
(C2021/4478)

Appeal against decision [2021] FWC 4503 of Vice President Catanzariti at Sydney on 27 July 2021 in matter number U2021/5392.

[1] This decision reproduces in edited form the decision and reasons which were stated on transcript at the conclusion of the hearing conducted in relation to this matter earlier today.

[2] Mr Praveen Samuel has lodged an appeal, for which permission is required, against a decision made by Vice President Catanzariti on 27 July 2021 1 to dismiss his application for an unfair dismissal remedy under s 587(3)(a) of the Fair Work Act 2009 (FW Act) for want of prosecution.

[3] Mr Samuel lodged his application on 20 June 2021. In his application, he contended that he had been dismissed by his former employer, Ditec Automatic Entrance Specialists Pty Ltd (Ditec), effective from 20 May 2021. Under s 394(2) of the FW Act, an unfair dismissal remedy application must be lodged within 21 days after the dismissal took effect, or within such further time as the Commission may allow under s 394(3) upon being satisfied of the existence of exceptional circumstances. Mr Samuel’s application was lodged 10 days after the 21-day time limit. However, Mr Samuel did not acknowledge this in his application. In answer to the question “Are you making this application within 21 calendar days of your dismissal taking effect?” at [1.4] in his Form F2 application, Mr Samuel answered “Yes” rather than giving any explanation for the delay. Mr Samuel set out his contact details in his application, including his email address. Mr Samuel said in his application that he would prefer to receive documents from the Commission by email.

[4] On 22 June 2021, a staff member of the Commission telephoned Mr Samuel to confirm that his dismissal date was 20 May 2021. He confirmed this, and said he had answered “Yes” at [1.4] of his application because he thought it referred to business days (even though it actually says “21 calendar days”). On the same day, Mr Samuel was sent a standard form email acknowledging receipt of his application, identifying his case number and stating that his matter “has now been allocated to the relevant team and a case manager will be contact in coming business days”. Also on the same day, Mr Samuel rang the Commission to advise of a changed postal address.

[5] On 12 July 2021, a staff member in the chambers of the Vice President sent an email to both Mr Samuel and Ditec. In respect of Mr Samuel, the email (in summary) identified that his application was filed outside of the 21-day time limit, advised him that the time limit could only be extended if the Commission was satisfied under s 394(3) that there were exceptional circumstances, and required that he respond in writing by 5.00pm on 15 July 2021 “explaining why you consider your circumstances are exceptional and provide any supporting evidence”. In respect of Ditec, it required a Form F3 Employer Response to Unfair Dismissal Application to be completed and returned within 7 days.

[6] There was no “bounceback” message from this email stating that it had not reached Mr Samuel’s email address.

[7] Mr Samuel did not file any response by 15 July 2021, as directed. On 16 July 2021, the Vice President’s chambers sent Mr Samuel another email noting that no response had been received and directing him to respond by 4.00pm on 20 July 2021. The email then said: “If we do not receive a response by then, your application may be dismissed without further notice to you”. There was again no “bounceback” message from this email stating that it had not reached Mr Samuel’s email address.

[8] Ditec filed its completed Form F3 on 19 July 2021 in accordance with the direction in the 12 July 2021 email. In its response, Ditec contended (among other things) that Mr Samuel had not been dismissed but had resigned.

[9] No response was received from Mr Samuel by 20 July 2021, as directed, nor was there any communication from him seeking an extension of time.

[10] On 27 July 2021 (there still having been no response filed by Mr Samuel or any further communication from him), the Vice President issued his decision to dismiss Mr Samuel’s application for want of prosecution on the basis of Mr Samuel’s failure to comply with the directions in the emails of 12 and 16 July 2021.

[11] The decision was sent to Mr Samuel by email. On 30 July 2021, having received the decision by email, Mr Samuel telephoned the Vice President’s chambers and said, among other things, that he had not received any of the earlier emails. He also complained that he had not been telephoned.

[12] Mr Samuel lodged his appeal on 2 August 2021. His grounds of appeal are as follows:

“The [email correspondence of 16 July 2021] was sent to me which I never received by email, If I did receive it I would have sent whatever documents that it requested. Why would I pay $75 to lodge the appeal especially when I was not earning a salary from a full time job. Also it says the application may be dismissed not definitely will be dismissed. Also I thought that I maybe contacted by my Mobile Number which I believe I supplied when I originally sent the complaint in.”

[13] Mr Samuel states in his notice of appeal that the grant of permission to appeal would be in the public interest because of the following matters:

“It is in the Interest of the public as Peter Soos [Ditec’s Managing Director] has bullied numerous staff at the company and in the last 6 months he has had 6 people leave all who were bullied by Peter Soos or who were not paid correctly by Peter Soos.

Its is in the public Interest that Peter Soos know that he cant keep treating employees like garbage and that some responsibility for the high turnover of staff at the company.”

[14] On 9 August 2021, directions were issued in respect of the hearing of Mr Samuel’s appeal. Mr Samuel was directed to file an outline of submissions by 18 August 2021. The directions also contained a note to the effect that:

(1) Any failure to comply with the above directions and/or to attend the hearing date scheduled by either party may result in the matter being determined in the absence of submissions of that party.

(2) Mr Samuel, as the appellant, was required under rules 56(3) and 52 of the Fair Work Commission Rules 2013 to file and serve an appeal book within 7 calendar days after the lodgment of the appeal.

[15] Mr Samuel did not file any outline of submissions as directed, nor did he file an appeal book or seek any extension of time. On 23 August 2021, the presiding member’s chambers sent Mr Samuel an email noting his failure to file his outline of submissions and seeking advice from him about this. On 25 August 2021, Mr Samuel telephoned the presiding member’s chambers and sought advice as to what he was required to do, which was provided to him. Later the same day, he filed a document which apparently constituted his outline of submissions. The document, in its entirety, states:

“On 16 July 2021, further correspondence was sent to Mr Praveen directing him to provide a response by 4:00pm on 20 July 2021. He was advised that in the absence of a reply his application may be dismissed.

•  I never received the correspondence on the 12^th July and 16^th July as stated when I called up the fair work commission, I have checked my Inbox and even my Junk folder and I did not receive anything

•  I later found out that my emails were not working properly as I purchased items through click and collect for both Myer and Harvey Norman, I did not receive any emails from both those companies saying my order has been placed and that my order is ready

•  It is in the Interest of the community that the commission is made aware of Peter Soos bullying behaviour as he has bullied three other people in the last 4 months (Jonno, Grant & Patrick) forcing all of them to quit rather than continue to be bullied

•  Also for a company of ABA’s size they have had an incredibly high staff turnover with 6 people leaving in the space of 6 months with many more trying to leave

•  They also constantly struggle to find staff with industry experience as word has gotten out that Peter Soos is a bully and is difficult to work with or under.

•  With Covid 19 and my wife, toddler and myself working and staying home and working from home since June 16^th, it has thrown out my childs sleep routine, She is 21 months old and use to go to Childcare 5 days a week and in the beginning of July she had a positive case in her Childcare forcing the 3 of us to isolate for 14 days, We are now too scared to send her to Childcare so she has gone from sleeping at 7 – 8pm to now sleeping at 12 am as she does not run around with other kids and tire herself out, This has caused both my wife and myself to not have much time to do anything else besides watch my daughter.”

[16] An appeal against a decision to dismiss an unfair dismissal remedy application under s 587 of the FW Act is one to which s 400(1) of the FW Act applies. 2 Section 400(1) requires that permission to appeal must not be granted unless the Commission considers it is in the public interest to do so. This test is a stringent one.3 The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.⁴ Some of the considerations that may attract the public interest are where a matter raises issues of importance and general application, or there is a diversity of decisions at first instance so that appellate guidance is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters.5 It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated.⁶ 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.⁷

[17] We are not satisfied that the grant of permission to appeal in this case would be in the public interest. The appeal raises no questions of law or principle of broader application. Nor do we consider that the decision the subject of the appeal manifests any injustice or is counterintuitive. The Vice President adopted a procedurally fair process prior to dismissing Mr Samuel’s application, in particular by giving him a second opportunity to file a response concerning the extension of time issue after he had failed to comply with the first direction of 12 July 2021, by warning Mr Samuel that his application might be dismissed if he did not comply with the second direction of 16 July 2021, and by allowing a further week to pass without any communication from Mr Samuel before he acted to dismiss the application.

[18] Mr Samuel’s assertion that he did not receive the emails of 12 and 16 July 2021 lacks credibility. The emails were sent to the email address he nominated in his application, there was no “bounceback” email on either occasion, and he clearly received the email attaching the Vice President’s decision to dismiss his application which was sent to the same address. We consider it more likely than not that Mr Samuel simply chose to ignore the Vice President’s directions, as he did in relation to the directions made in relation to his appeal until personally contacted by email. We note that Mr Samuel says that childcare responsibilities prevented him from complying with the appeal directions, but this would not have prevented him from seeking an extension by telephone or email, and his explanation in this respect is not accepted. We are therefore not satisfied that Mr Samuel has advanced an arguable case of appealable error.

[19] We also consider that the grant of permission to appeal would be lacking in utility, since it is unlikely that Mr Samuel would be able to obtain the extension of time necessary under s 394(2) for him to proceed with his application. He was significantly late in filing his application, and neither in the application itself, in the proceedings before the Vice President or in his submissions before us has he provided any explanation as to why the application was filed late beyond saying that he thought he had 21 business days, not 21 calendar days, to file the application. This could not possibly constitute the requisite exceptional circumstances. We also note the contention in Ditec’s response to the application that Mr Samuel was not dismissed - a contention in relation to which Mr Samuel has not proffered any reply in his appeal submissions.

[20] Because we are not satisfied that the grant of permission to appeal would be in the public interest, permission to appeal must be refused in accordance with s 400(1).

VICE PRESIDENT

Appearances:

P Samuel on his own behalf.
P Soos on behalf of the respondent.

Hearing details:

2021.
Sydney, Melbourne and Brisbane (via video-link).
30 August.

Printed by authority of the Commonwealth Government Printer

<PR733288>

 1   [2021] FWC 4503

 2   Australian Postal Corporation v Gorman [2011] FCA 975, 196 FCR 126 at [37]

 3   Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54, 192 FCR 78, 207 IR 177 at [43] per Buchanan J (with whom Marshall and Cowdroy JJ agreed)

4 O’Sullivan v Farrer [1989] HCA 61, 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch [2011] HCA 4, 243 CLR 506 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54, 192 FCR 78, 207 IR 177 at [44]-[46]

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

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

7 Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089, 202 IR 388 at [28], 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]