1 Fair Work Act 2009 s.604—Appeal of decision Peter Elliott v LEAP Legal Software Pty Limited T/A LEAP Legal Software (C2018/1056) VICE PRESIDENT CATANZARITI DEPUTY PRESIDENT COLMAN COMMISSIONER BISSETT SYDNEY, 6 JUNE 2018 Appeal against decision [2018] FWC 627 of Commissioner Saunders at Newcastle on 6 February 2018 in matter number U2017/7240. [1] On 8 November 2017, Mr Peter Elliott (Appellant) was dismissed from his employment with LEAP Legal Software (Respondent). On 30 December 2017, the Appellant filed his general protections dismissal application under s.365 of the Fair Work Act 2009 (Cth) (Act) in the Fair Work Commission (Commission). That application was filed 31 days outside of the statutorily prescribed 21-day period,1 and therefore the application could only be made if an extension of time was granted under s.366(2) of the Act. [2] On 29 January 2018, Commissioner Saunders heard the Appellant’s extension of time application by way of a telephone hearing. In that hearing, the Appellant gave evidence on his own behalf and Ms Fiona Crawford, General Manager Human Resources, gave evidence on behalf of the Respondent. [3] On 6 February 2018, Commissioner Saunders issued his Decision2 in which he declined to grant the Appellant an extension of time to file his general protections dismissal application under s.366(2) of the Act. That Decision is now the subject of this appeal. [4] On 5 April 2018, we heard the parties in respect of both permission to appeal and the merits of the appeal. Mr Elliott appeared on his own behalf and Mr S. Meehan, of counsel, was granted permission to appear on behalf of the Respondent pursuant to s.596(2)(a) of the Act. Appeal Principles [5] An appeal under s.604 of the Act 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.3 1 Fair Work Act 2009 (Cth) s.366(1)(a). 2 [2018] FWC 627. [2018] FWCFB 3288 DECISION 2 There is no right to appeal and an appeal may only be made with the permission of the Commission. [6] 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.4 The public interest is not satisfied simply by the identification of error,5 or a preference for a different result.6 [7] 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...’7 [8] Other than the special case in s.604(2) of the Act, 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.8 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.9 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.10 Consideration [9] The legislative scheme in which s.366 of the Act operates, was comprehensively considered by a Full Bench of the Commission in Periklis Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters (Stogiannidis).11 [10] Relevantly, in Stogiannidis, it was found that the Commissioner at first instance had erred by elevating a relevant factor (that is, the reason for delay) under s.366(2)(a) of the Act, 3This 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 [17] per Gleeson CJ, Gaudron and Hayne JJ. 4 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 & Alllied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [44]-[46]. 5 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, 197 IR 266 at [24]-[27]. 6GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, 197 IR 266 at [26]-[27], Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/ Warkworth [2010] FWAFB 10089 at [28], 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 [2014] FWCFB 1663, 241 IR 177 at [28]. 7 [2010] FWAFB 5343, 197 IR 266 at [24] – [27]. 8 Also see CFMEU v AIRC (1998) 89 FCR 200 at 220; and Wan v AIRC (2001) 116 FCR 481 at [26]. 9 Wan v AIRC (2001) 116 FCR 481 at [30]. 10 Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089 at [28], 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 [2014] FWCFB 1663, 241 IR 177 at [28]. 11 [2018] FWCFB 901 at [11]-[19]. 3 into a “decision rule so as to allow the automatic production of a solution”.12 This was, in the Full Bench’s view, the result of the Commissioner erroneously relying upon Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers (Cheval)13 as authority for the proposition that an applicant “needs to provide a credible explanation for the entire period of the delay”14 in order to support an extension of time application being granted under s.366(2) of the Act. [11] In this appeal, it is clear to us that Commissioner Saunders has fallen into the same error. [12] At paragraph [11] of the Decision, Commissioner Saunders cites the case of Cheval and sets out the following proposition: “The applicant must provide a credible reason for the whole of the period that the application was delayed.” (Emphasis added). [13] The Commissioner then detailed a timeline of events from which the Appellant’s dismissal took effect on 8 November 2017, to the date in which the general protections application was lodged on 30 December 2017.15 Based on those events, the Commissioner accepted that the Appellant had provided an adequate explanation for not filing his application in the period from 10 November 2017 to 8 December 2017.16 However, in respect of the period from 9 December 2017 to 30 December 2017, the Commissioner was not satisfied that the Appellant had provided an adequate explanation for the delay, as the Commissioner was of the view that the Appellant was not “incapacitated or otherwise unable to file” his application for the “whole” of this period.17 On that basis, the Commissioner determined that s.366(2)(a) was a factor which weighed against granting an extension of time. [14] Having considered the remaining factors under s.366(2)(b)-(e), the Commissioner concluded that, on balance, he was not satisfied that there were exceptional circumstances which warranted an extension of time. More specifically, the Commissioner stated that: ‘Although I have sympathy for [the Appellant], he has not, on the evidence before me, provided an acceptable reason for the whole of the delay in making his Application. My evaluative judgment is that [the Appellant’s] circumstances were not, either viewed in isolation or considered together, out of the ordinary course, unusual, special or uncommon.’18 (Emphasis added). [15] Based on these aspects of the Decision, it is apparent that the Commissioner adopted and applied a decision rule of the kind identified as an error of law in Stogiannidis. Namely, the Commissioner erroneously adopted Cheval as authority for the proposition that a credible reason must be provided for the whole period of delay in supporting a finding that exceptional 12 Ibid at [42]. 13 (2010) 197 IR 403. 14 [2018] FWCFB 901 at [40]. 15 Decision at [13]-[16]. 16 Ibid at [18]. 17 Ibid. 18 Ibid at [31]. 4 circumstances existed. According to the Full Bench’s reasons in Stogiannidis,19 Cheval did not stand for such proposition because the relevant error that was identified in that case was not that a credible explanation must be provided for the whole of the delay, but rather it was that the Member at first instance had failed to take into account the fact that part of the delay was unexplained. [16] As such in following Stogiannidis, we find that the Commissioner’s adoption of a decision rule at [11] of the Decision amounted to an error of law. This, in our view, plainly influenced the Commissioner’s ultimate conclusion that the circumstances of the Appellant’s case could not be regarded as exceptional such as to enliven the discretion to extend time under s.366(2) of the Act. On that basis, we find that the Decision is attended with error and sufficient doubt as to warrant its reconsideration on appeal. [17] In those circumstances, it is unnecessary to give further consideration to the other grounds of appeal. [18] We would note however, that Commissioner Saunders did not have the benefit of Stogiannidis at the time he issued his Decision, and particularly given the ambiguity in Cheval, we imply no criticism of him in our decision. Conclusion [19] Permission to appeal is granted. [20] The appeal is upheld. [21] The Decision ([2018] FWC 627) is quashed. [22] The Appellant’s application for an extension of time is remitted to Commissioner Saunders for rehearing. VICE PRESIDENT Appearances: Mr P. Elliott, Appellant, appeared on his own behalf. Mr S. Meehan, of counsel, appeared on behalf of the Respondent. Hearing details: 19 [2018] FWCFB 901 at [32]-[35]. 5 9.30am 5 April 2018 Melbourne, with video link to Sydney and Brisbane Printed by authority of the Commonwealth Government Printer <PR607851>