1 Fair Work Act 2009 s.604 - Appeal of decisions Ms Rita Collins v Bunnings Group Limited T/A Bunnings Warehouse (C2016/6294) VICE PRESIDENT CATANZARITI SENIOR DEPUTY PRESIDENT DRAKE COMMISSIONER SAUNDERS SYDNEY, 18 NOVEMBER 2016 Appeal against decision [2016] FWC 7080 of Deputy President Clancy at Melbourne on 3 October 2016 in matter number U2016/8139. [1] Ms Rita Collins (‘the Appellant’) has applied for permission to appeal and appealed against a decision1 issued by Deputy President Clancy on 3 October 2016 (‘Decision’). In that Decision, the Deputy President was not satisfied that there were exceptional circumstances warranting an extension of time for the Appellant’s application for unfair dismissal. Accordingly, the Deputy President made an order2 dismissing the application for relief from unfair dismissal raised by the Appellant. [2] The matter was listed for hearing of the Appellant’s application for permission to appeal on 8 November 2016. At that time, Mr P Mullally sought permission to appear for the Appellant and Mr N Barkatsas sought permission to appear for Bunnings Warehouse (‘the Respondent’). Given the complexity of the matter, and having regard to s.596 of the Fair Work Act 2009 (Cth) (‘the Act’), permission was granted to both parties to be represented. Decision [3] The principal findings made by Deputy President Clancy in his Decision were as follows: (a) The Appellant was employed by the Respondent and there was no dispute that the date of termination was 1 June 2016, or that the Appellant was notified on that day of her termination; (b) The appellant filed her application for unfair dismissal on 1 July 2016. Therefore, the application was not made within 21 days pursuant to s.394(2)(a) of the Act; 1 [2016] FWC 7080. 2 Ibid [60]. [2016] FWCFB 8212 DECISION [2016] FWCFB 8212 2 (c) The evidence did not establish that the Shop, Distributive & Allied Employees’ Association (‘SDA’) gave the Appellant incorrect advice or failed to act in accordance with her instructions; (d) The technical issues raised by the Appellant could not be regarded as acceptable reasons or as exceptional circumstances for the delay in lodging her application; and (e) The medical evidence did not establish that the Appellant was incapacitated such that she was unable to lodge or pursue the application for unfair dismissal at all. Permission to Appeal Principles [4] Section 400 (1) provides that permission to appeal must not be granted from such a decision unless the Commission considers that it is in the public interest to do so. Further, in such matters, appeals on a question of fact may only be made on the ground that the decision involved a ‘significant error of fact’ (s.400(2)). In Coal & Allied Mining Services Pty Ltd v Lawler and others, Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s.400 as ‘a stringent one’.3 The Commission must not grant permission to appeal unless it considers that it is ‘in the public interest to do so’. [5] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.4 In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of the Commission 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.’5 [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.6 As we have mentioned, s.400(1) provides that permission to appeal must not be granted unless the Commission considers that it is in the public interest to do so. Ground of Appeal [7] The Appellant relies on three grounds in contending that an extension of time should have been granted by the Deputy President: 3 (2011) 192 FCR 78 [43]. 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, [69] per Gummow, Hayne, Heydon, Crennon, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54, [44]-[46]. 5 (2010) 197 IR 266 [27]. 6 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, [26]-[27]; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089, [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler; [2011] FCAFC 54; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663, [28]. [2016] FWCFB 8212 3 (a) Representative error occurred due to the omission of the SDA to advise the Appellant about the 21 day time limit for lodging an unfair dismissal application; (b) The Deputy President ought to have found the mental illness of the Appellant as a reason for the delay; and (c) Due to the Appellant’s mental health issues, a finding was open that the application ‘was not without merit’7 pursuant to s.394(3)(e) of the Act, rather than neutral. Consideration [8] The question of whether the Appellant should be granted an extension of time had to be determined in accordance with the relevant provisions of the Act. The Commissioner applied those principles in an orthodox manner. We are not satisfied that there is an arguable case of error in relation to this part of the Decision. [9] Many of the submissions relied upon by the Appellant relate to the Commissioner’s findings, which led to the conclusion that there were no exceptional circumstances warranting an extension of time for the Appellant’s application for unfair dismissal. We are not satisfied that there is an arguable case of error in relation to those findings. [10] The Appellant was informed by the SDA that her prospects of success were unlikely and the Appellant did not become aware of the time limit until 21 days after her termination. The Appellant alleges that this delay was a result of a representative error. However, a representative error of the kind alleged by the Appellant cannot be regarded as an acceptable reason or exceptional circumstance for the delay in lodging the unfair dismissal application. The Deputy President’s finding at paragraph [30] of the Decision is consistent with this. Accordingly, we are not satisfied that there is an arguable case of error in relation to this part of the Decision. [11] Regarding the Appellant’s grounds of appeal and, in particular, the mental health issues raised, the Deputy President took those matters into account in making the Decision and squarely dealt with each matter in accordance with his discretion. We are not satisfied that there is an arguable case of error in relation to those findings. [12] We are not satisfied that there is an arguable case of error in relation to any other aspect of the Decision. [13] Further, we have considered whether this appeal attracts the public interest, and we are not satisfied that: (a) There is a diversity of decisions at first instance so that guidance from an appellate body is required of this kind; (b) The appeal raises issues of importance and/or general application; 7 Appellant’s Submissions, paragraph 21. [2016] FWCFB 8212 4 (c) The decision at first instance manifests an injustice, or the result is counter intuitive; or (d) The legal principles applied by the Commissioner were disharmonious when compared with other decisions dealing with similar matters. [14] For the reasons set out above, we are not satisfied, for the purpose of s.400(1) of the Act, that it would be in the public interest to grant permission to appeal. Conclusion [15] Permission to appeal is not granted. [16] The appeal is dismissed. VICE PRESIDENT Appearances: Mr P Mullally appeared for the Appellant; Mr N Barkatsas appeared for the Respondent. Hearing details: 2016. Sydney: November, 8. Printed by authority of the Commonwealth Government Printer <Price code A, PR587572>