PN1

VICE PRESIDENT CATANZARITI: Good morning. I have on the Bench with me this morning Deputy President Cross and Commissioner Ryan. I will take the appearances. Ms Harrison?

PN2

MS R. HARRISON: Yes, I'm Rachel Ann Harrison for the appellant - applicant.

PN3

VICE PRESIDENT CATANZARITI: Thank you, Ms Harrison. And for the employer, Mr Harden?

PN4

MR R. HARDEN: Yes, that's correct, Vice President. Harden, initial R, appearing for Recruitment Solutions.

PN5

VICE PRESIDENT CATANZARITI: Thank you. This matter is listed to deal with the issue of permission to appeal only. Ms Harrison, you have filed extensive written submissions and also the appeal book, which will be considered by the Full Bench.

PN6

Today is an opportunity, if you need to do so, to supplement your written material with anything you want to say to us. Otherwise, you can rely upon the written submissions. Are there matters that you want to draw to our attention? Ms Harrison?

PN7

MS HARRISON: Sorry, I thought Mr Harden was going first.

PN8

VICE PRESIDENT CATANZARITI: No, you're the appellant. You go first.

PN9

MS HARRISON: Right. So, yes, I rely on my submissions. I understand, yes, they were fairly extensive. I believe that this extension of time should be granted and I, with candour, request that the discretion of the Fair Work Commission - that it be granted, primarily on the (indistinct) that my partner ‑ ‑ ‑

PN10

VICE PRESIDENT CATANZARITI: Just one second, Ms Harrison. There's a bit of background noise. There are people who are not speaking who are not on mute.

PN11

MS HARRISON: Sure.

PN12

VICE PRESIDENT CATANZARITI: If you're not speaking, can you please go on mute so Ms Harrison can continue.

PN13

MS HARRISON: Given my highly meritorious section 365 application for unfair dismissal, there was a valid contract running, and in the appeal my argument is that the jurisdictional objection was overturned and vehemently denied, as there was a valid contact in place.

PN14

That aside, this is a bona fide case. Myself, the appellant, has had extensive mental health conditions throughout the relevant period which has rendered me incapable and prevented me - also being hospitalised involuntarily in a mental health institution, and has resulted in the conduct of that termination, which is why I am seeking an extension of time for discretion of the Fair Work Commission, which is provided in the Fair Work Act.

PN15

The (indistinct) my submissions today. I seek to rely on those submissions along with this material I've provided today to you. Thank you.

PN16

VICE PRESIDENT CATANZARITI: Thank you. Just before I go to Mr Harden, are there any questions you want to ask, Deputy President Cross?

PN17

DEPUTY PRESIDENT CROSS: No. No, thank you.

PN18

VICE PRESIDENT CATANZARITI: Anything from you, Commissioner Ryan?

PN19

COMMISSIONER RYAN: No, Vice President.

PN20

VICE PRESIDENT CATANZARITI: Thank you. Mr Harden, this matter is a permission to appeal only. The respondent was not required to put on any submissions or material, but as you are here, is there something you wish to say in relation to this appeal?

PN21

MR HARDEN: Yes, Vice President, if I may, I'd like to make just a short submission.

PN22

VICE PRESIDENT CATANZARITI: Yes, go ahead.

PN23

MR HARDEN: The applicant emailed the respondent on 15 November; that was the day that the decision by Deputy President Boyce was handed down, and then again a week later, on 22 November, and a week later again, on 29 November, and on each occasion she advised of her intention to file her appeal in the Federal Court within the deadline.

PN24

The appellant subsequently did file an appeal in the Federal Court on 5 December 2021. That was one day before the 21‑day deadline to file her appeal in the Fair Work Commission.

PN25

On 10 December 2021 the applicant was informed by the associate to Deputy President Boyce that an appeal should be lodged on form F7 within 21 days, noting that it was already 25 days since the decision was handed down.

PN26

The appellant subsequently filed her appeal on the form F7 with Deputy President Boyce on 15 December of 2021. That was 30 days after the decision was handed down.

PN27

Her illness doesn't appear to have been the cause of the reason for the appellant failing to file her appeal in the Fair Work Commission on time. Her medical certificate that she submitted was written on the day that her appeal was filed in the Fair Work Commission, and her doctor can't have known her capability prior to that. In any event, the medical certificate does not say what her incapacity was, and her illness obviously didn't prevent her from filing her appeal in the Federal Court within the 21‑day limit.

PN28

The real reason for the appellant failing to file her appeal on time appears to be that she either received poor advice about where to file her appeal or no advice at all, and she made an error.

PN29

She alleges that she's a fourth‑year law student, and if that's the case, she should be capable of working out the correct jurisdiction in which to file her appeal. The appellant appears to have a habit of filing materials out of time, and there's no convincing evidence that there was a medical reason for her filing her appeal in this instance out of time.

PN30

In her submission, in support of her out of time appeal, the appellant missed the point entirely. Throughout her submissions she argues the merits or the substance of her appeal dealing with her out of time application under section 365 and not in relation to her out of time appeal, as directed by yourself, the Vice President, on 20 December, when you said:

PN31

Rachel Harrison, the appellant, shall file in the Commission and serve on the other party an outline of her submissions not exceeding three A4 pages in length addressing the requirement for an extension of time to file the appeal and for permission to appeal in section 604 of the Fair Work Act 2009 only.

PN32

The appellant does not address the question of her reasons for filing her appeal out of time in her submission and she doesn't offer any reasons for her appeal being made out of time, however those emails that I referred to earlier - and I'm sorry the Bench doesn't have a copy of them before them.

PN33

VICE PRESIDENT CATANZARITI: Yes, well, I was coming to that point. I was going to let you go on for a bit, but you're seeking on the appeal for permission, in effect where we're just dealing with the permission point, we're not dealing at this stage - permission has not yet been granted, but you say it goes to the permission question that you have material that you'd like to tender some evidence on, namely emails and the fact that there was an appeal lodged within time in the Federal Court.

PN34

MR HARDEN: Correct. Would the ‑ ‑ ‑

PN35

VICE PRESIDENT CATANZARITI: Rather than whether we need to have an argument about whether material needs to be provided, let me ask Ms Harrison the question. Did you file, Ms Harrison, proceedings in the Federal Court, as Mr Harden has suggested?

PN36

MS HARRISON: The applicant at the time (indistinct) misunderstanding as to the ‑ ‑ ‑

PN37

VICE PRESIDENT CATANZARITI: No, I'm not asking you what your understanding is. I'm asking you as a question of fact do I need to get from Mr Harden proof that you did file or didn't you file in the Federal Court? Do you agree that you did file in the Federal Court?

PN38

MS HARRISON: Yes. I'm not sure if the application went through correctly or not, if it was filed correctly, but I attempted to file it at the Federal Court, yes.

PN39

VICE PRESIDENT CATANZARITI: Yes. All right, thank you. I think we can take it then, Mr Harden, that Ms Harrison agrees that what you've said about the fact that Federal Court proceedings were initially filed on the timeline you submitted is correct.

PN40

MR HARDEN: Yes. Is that a question for me, Vice President?

PN41

VICE PRESIDENT CATANZARITI: No, I'm telling you Ms Harrison has confirmed that, that there were proceedings filed in the Federal Court appealing the decision of the Deputy President, so you don't need to tender material given that there is acknowledgement that actually happened.

PN42

MR HARDEN: That's our case.

PN43

VICE PRESIDENT CATANZARITI: As I understand your argument, you're saying that because there's an out of time issue on the filing of the appeal as well as the substantive appeal, it being out of time in the initial proceedings, then you say that the out of time of filing the appeal should not be allowed to be filed.

PN44

MR HARDEN: Correct.

PN45

VICE PRESIDENT CATANZARITI: Yes. Keep going. What else do you want to say?

PN46

MR HARDEN: The emails that I referred to before - and again, I apologise that they're not before the Bench, but the appellant clearly knew that the date for lodgement of the appeal was 6 December. In the email she says - advice in relation to the lodgement of her appeal, and that was either not true or she received bad advice in relation to where to file her appeal.

PN47

On 5 December she filed her appeal in the Federal Court. As I said before, illness didn't prevent her from filing her appeal in the Federal Court within the time ‑ ‑ ‑

PN48

VICE PRESIDENT CATANZARITI: Mr Harden, are you seeking to tender those emails?

PN49

MR HARDEN: If the Bench would like me to, I could email them through to the parties.

PN50

VICE PRESIDENT CATANZARITI: Ms Harrison, is there any objection from your part that we see those emails? Ms Harrison?

PN51

MS HARRISON: Yes, I object (indistinct).

PN52

VICE PRESIDENT CATANZARITI: Ms Harrison, I just can't hear you very well. Can you get closer to the phone?

PN53

MS HARRISON: Is that better? Hello?

PN54

VICE PRESIDENT CATANZARITI: Yes, I can hear you now. Keep going.

PN55

MS HARRISON: Yes, I object. The Fair Work Commission, Deputy President and members ‑ ‑ ‑

PN56

VICE PRESIDENT CATANZARITI: Well, are they emails ‑ ‑ ‑

PN57

MS HARRISON: On a point of relevance.

PN58

VICE PRESIDENT CATANZARITI: Are they emails that you sent?

PN59

MS HARRISON: I'd have to have a look at them and see, but I've also received a number of emails, but I guess that time will come, from Mr Harden, which bear no relevance to this matter at all in relation to ‑ ‑ ‑

PN60

VICE PRESIDENT CATANZARITI: What I propose to do, Ms Harrison, is that if these are in fact emails that have emanated from you which indicate that - because this goes to the question of the out of time of filing of the appeal in the Commission - they are relevant to this Bench, because they are emails that occurred after the decision of the Deputy President which you are appealing and goes to the first part of whether your appeals themselves are within time.

PN61

So what I propose to do is we'll take a short adjournment. Mr Harden will send you that material by email, and to the Bench, and then we'll hear from you as to whether or not we should allow on the appeal today that material to be allowed. So the Commission will adjourn for about 10 minutes. Mr Harden, if you can make the appropriate arrangements.

PN62

MR HARDEN: Thank you.

PN63

VICE PRESIDENT CATANZARITI: Thank you. The Commission is adjourned.

SHORT ADJOURNMENT [11.17 AM]

RESUMED [11.26 AM]

PN64

VICE PRESIDENT CATANZARITI: Thank you. Ms Harrison, have you received a copy of the emails from Mr Harden?

PN65

MS HARRISON: No, I haven't, not as yet.

PN66

VICE PRESIDENT CATANZARITI: Mr Harden, the Full Bench has them. Have you sent them to Ms Harrison? Mr Harden? Mr Harden, are you there?

PN67

MS HARRISON: I'll just check again. No, I haven't received the Full Bench ‑ ‑ ‑

PN68

MR HARDEN: Sorry, Vice President.

PN69

VICE PRESIDENT CATANZARITI: Yes?

PN70

MR HARDEN: I had difficulty with my phone then. Yes, I did copy them to Ms Harrison. I copied them in the same email that I sent to your Chambers, and that was to the usual email address of Ms Harrison.

PN71

VICE PRESIDENT CATANZARITI: Ms Harrison, I will tell you what the four emails are, because they all come from you.

PN72

MS HARRISON: Okay.

PN73

VICE PRESIDENT CATANZARITI: And you can tell me whether you recollect these four emails. The first email is an email dated 15 November 2021. It's from you to Mr Harden and it indicates that you're going to appeal the judgment to the Federal Court of Australia. Do you recall that email?

PN74

MS HARRISON: Yes, I do.

PN75

VICE PRESIDENT CATANZARITI: The second email is 22 November 2021. You're writing to the registry of the Federal Court, copying in Mr Harden, and again you refer to the fact that you're going to be appealing and you want the correct form from the ACT court. Do you recall that email, Ms Harrison? Ms Harrison, can you hear me?

PN76

MS HARRISON: Yes, I do (indistinct).

PN77

VICE PRESIDENT CATANZARITI: And do you recall that email? Ms Harrison, is there somebody there with you at the moment? Ms Harrison, can you answer my question, please?

PN78

MS HARRISON: Can you hear me? Hello?

PN79

VICE PRESIDENT CATANZARITI: Yes, Ms Harrison, I asked you a question. Do you recall the email of 22 November 2021 that you sent?

PN80

MS HARRISON: (Indistinct).

PN81

VICE PRESIDENT CATANZARITI: We're just having some difficulty hearing you again. Can you speak closer to the phone line?

PN82

MS HARRISON: Can you hear?

PN83

VICE PRESIDENT CATANZARITI: Yes. You're breaking in and out, Ms Harrison. I've asked you a question about the 22 November 2021 email. Do you recall that email?

PN84

MS HARRISON: Sorry, it's breaking up, but, yes, I - yes.

PN85

VICE PRESIDENT CATANZARITI: Yes. And the third email is 29 November 2021, which is to the ACT Federal Court from you, and you copied in Mr Harden. Do you remember that email?

PN86

MS HARRISON: (Indistinct).

PN87

VICE PRESIDENT CATANZARITI: Sorry, the line is breaking up again. I couldn't hear your answer. Ms Harrison?

PN88

MS HARRISON: Yes. Yes, I do. Yes, I do.

PN89

VICE PRESIDENT CATANZARITI: Yes. And the final email ‑ ‑ ‑

PN90

MS HARRISON: (Indistinct) breaking up.

PN91

VICE PRESIDENT CATANZARITI: The final email is 5 December 2021. It's also from you to the ACT registry, and Mr Harden's copied in, which is the actual copy of the appeal.

PN92

MS HARRISON: (Indistinct).

PN93

VICE PRESIDENT CATANZARITI: Can you hear me, Ms Harrison?

PN94

MS HARRISON: Yes, I can. Can you hear me?

PN95

VICE PRESIDENT CATANZARITI: I can hear you now, yes. I can certainly hear you, Ms Harrison.

PN96

MS HARRISON: Okay, thank you.

PN97

VICE PRESIDENT CATANZARITI: So do you recall that Sunday, 5 December 2021 email?

PN98

MS HARRISON: Yes, I do.

PN99

VICE PRESIDENT CATANZARITI: I didn't hear your answer then, Ms Harrison?

PN100

MS HARRISON: Better? Yes, I do.

PN101

VICE PRESIDENT CATANZARITI: The respondent in the appeal wishes us to have that material. Do you still maintain your objection to us receiving that material?

PN102

MS HARRISON: Yes, I do.

PN103

VICE PRESIDENT CATANZARITI: What is the basis of your objection to that material being received by the Full Bench, as it is being put to us that we should consider it on the basis that it goes to the question of the lateness of your filing of the appeal before us.

PN104

MS HARRISON: There are (indistinct).

PN105

VICE PRESIDENT CATANZARITI: Sorry, you'll just have to - you're breaking in and out. I don't know what's happening with your phone line.

PN106

MS HARRISON: Is that better?

PN107

VICE PRESIDENT CATANZARITI: That is better when you're - whatever you're doing.

PN108

MS HARRISON: (Indistinct)

PN109

VICE PRESIDENT CATANZARITI: Yes, I can hear you now.

PN110

MS HARRISON: Okay. So there has been a history of my medical (indistinct) been documented by my GP and treating practitioner, medical practitioner, as well as psychiatrists, and the other point is that I was provided with the incorrect information, in fact, by the Fair Work Commission that I had to apply to the Federal Court jurisdiction.

PN111

So I followed (indistinct) and in which - I can hear a bit of background noise. (Indistinct) to file (indistinct) in which was the knowledge (indistinct) of the correct jurisdiction for filing (indistinct).

PN112

VICE PRESIDENT CATANZARITI: Yes, well ‑ ‑ ‑

PN113

MS HARRISON: (Indistinct)

PN114

VICE PRESIDENT CATANZARITI: Ms Harrison, the Bench proposes to accept this material and we'll mark it exhibit A.

EXHIBIT #A FOUR EMAILS FROM RACHEL HARRISON DATED RESPECTIVELY 15/11/2021, 22/11/2021, 29/11/2021 AND 05/12/2021

PN115

MS HARRISON: Thank you.

PN116

VICE PRESIDENT CATANZARITI: Mr Harden, are there any further submissions you wish to make?

PN117

MR HARDEN: Yes, if I could. Just continuing the points that I was making before, it appears that illness did not prevent the applicant from filing her appeal in the Federal Court within the 21‑day deadline.

PN118

She was subsequently advised, sometime after 5 December, that she'd filed her appeal in the wrong jurisdiction. She contacted Deputy President Boyce's Chambers on 10 December and was informed that she needed to file a form F7 in the Fair Work Commission, and she filed her appeal with Deputy President Boyce on 15 December. That was at that time 30 days past the date of the decision.

PN119

The reason the appellant filed her appeal out of time appears to be her own ignorance of the correct procedure, despite claiming that she'd received legal advice about how to file an appeal on the day that Deputy President Boyce handed down his decision.

PN120

Ignorance of the correct procedure is not an exceptional circumstance warranting the granting of an extension of time to file an appeal.

PN121

This is where I'm not clear, Vice President. Unlike late applications under section 365 and 394 of the Fair Work Act, the Commission is, to my understanding, anyway, not given any specific discretion to allow extensions of time to accept appeals lodged out of time, and there's no guidance in the Act about what criteria to apply in that instance.

PN122

VICE PRESIDENT CATANZARITI: Mr Harden, the Commission does have a discretion to accept appeals that are late.

PN123

MR HARDEN: Okay, I accept that.

PN124

VICE PRESIDENT CATANZARITI: So you've spent - your submissions in relation to dealing with why we should not accept it late, and then passing that to the second part of it, assuming we were to accept the late appeal, is there anything further you want to say on the actual permission to appeal in relation to the substantive matter, which is the original decision before Deputy President Boyce?

PN125

MR HARDEN: Not on the substantive matter, just on the matter of the lodgement of the late appeal, and in that respect I assume that the Commission would apply the same sort of criteria that they do in relation to late lodgement of unfair dismissal applications or general protections applications.

PN126

That is, you would look at the reason for the delay in filing the appeal, any other action taken by the person to dispute the decision, any prejudice to the employer and the merits of the appeal itself, and I'd like to just briefly deal with each of those matters, if I could.

PN127

The reason for filing the appeal late was that the applicant either didn't attempt to ‑ ‑ ‑

PN128

VICE PRESIDENT CATANZARITI: Wait on, Mr Harden. You're repeating the filing of the appeal late. We don't need to hear you three times on the same point. We understand your submissions on the appeal being late. As I indicated previously, on a permission to appeal only we don't even need to hear from a respondent.

PN129

You don't need to put in any submissions. I'm allowing you to put some on, but you have extensively dealt with the filing of the appeal late. We really should hear now whether you want to say anything additional on the actual decision of Deputy President Boyce which is being appealed, the lateness in relation to that issue, not the filing of a late appeal.

PN130

MR HARDEN: Look, in relation to the decision by Deputy President Boyce - and that actually goes to the merits of the appeal, I'd like to reserve my ‑ ‑ ‑

PN131

VICE PRESIDENT CATANZARITI: No, you're not reserving your right, Mr Harden. So that we're clear, this matter is for permission to appeal only. The directions, when they were issued, made it very clear the respondent is not required to do anything on permission. If permission were granted in this matter, then there would be a further hearing in relation to the merits of the matter.

PN132

So the only focus we're having today is permission to appeal. You've dealt extensively, as I've said, in relation to the appeal itself being filed late, and I've asked you to move on from that. Is there anything further you want to say in relation to the appeal proper, which is whether permission to appeal should be granted in the appeal proper?

PN133

MR HARDEN: At this stage, no.

PN134

VICE PRESIDENT CATANZARITI: It's not 'at this stage', Mr Harden. It's not a second bite of the cherry. We're here to deal with permission to appeal today. If permission to appeal is granted, as I've indicated more than once now, there would be a full appeal, and at that opportunity we would canvass the merits in full, but we're only dealing with permission to appeal. If there's nothing further for you to say, then you should say so, but you're not reserving your position.

PN135

MR HARDEN: Nothing further to say at this stage, Vice President.

PN136

VICE PRESIDENT CATANZARITI: Thank you. Ms Harrison, is there anything you want to say in reply in relation to this matter?

PN137

MS HARRISON: No.

PN138

VICE PRESIDENT CATANZARITI: Thank you. Deputy President Cross, are there any questions arising?

PN139

DEPUTY PRESIDENT CROSS: No, thank you.

PN140

VICE PRESIDENT CATANZARITI: Commissioner Ryan?

PN141

COMMISSIONER RYAN: No, Vice President.

PN142

VICE PRESIDENT CATANZARITI: Thank you. The decision is reserved and the Commission is adjourned.

PN143

MS HARRISON: Thank you.

ADJOURNED INDEFINITELY [11.39 AM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #A FOUR EMAILS FROM RACHEL HARRISON DATED RESPECTIVELY 15/11/2021, 22/11/2021, 29/11/2021 AND 05/12/2021.......................................... PN114