[2011] FWAFB 6729 [2011] FWAFB 6729 Download Word Document FAIR WORK AUSTRALIA DECISION Fair Work Act 2009 s.604—Appeal of decision Jo-Anne Finch v The Heat Group Pty Ltd (C2011/5343) SENIOR DEPUTY PRESIDENT O’CALLAGHAN DEPUTY PRESIDENT IVES COMMISSIONER GAY ADELAIDE, 29 SEPTEMBER 2011 Appeal against decision [ [2011] FWA 4462 ] of Commissioner Gooley at Melbourne on 13 July 2011 in matter number C2011/4436. [1] This is an appeal, by Miss Finch, for which permission is required, against a decision 1 issued by Commissioner Gooley on 13 July 2011. [2] On 16 May 2011, Miss Finch filed an application pursuant to s.365 of the Fair Work Act 2009 (the FW Act). The application was filed with Fair Work Australia more than 60 days after Miss Finch was dismissed by The Heat Group Pty Ltd (Heat Group). Section 366(2) of the FW Act provides for the extension of the 60-day time frame within which to file such an application if Fair Work Australia is satisfied that there are exceptional circumstances. [3] Commissioner Gooley, in dismissing the application for an extension of time within which to file this application, was not satisfied that there were exceptional circumstances in this matter that warranted the granting of such an extension of time. Miss Finch asserts that this decision was affected by factual and jurisdictional errors and that the matter raised significant issues of public interest such that her appeal application should be granted. [4] Section 366 states: “366 Time for application (1) An application under section 365 must be made: (a) within 60 days after the dismissal took effect; or (b) within such further period as FWA allows under subsection (2). (2) FWA may allow a further period if FWA is satisfied that there are exceptional circumstances, taking into account: (a) the reason for the delay; and (b) any action taken by the person to dispute the dismissal; and (c) prejudice to the employer (including prejudice caused by the delay); and (d) the merits of the application; and (e) fairness as between the person and other persons in a like position.” [5] Pursuant to s.368 Miss Finch’s application was initially listed for a conciliation conference on 29 June 2011. This conference was cancelled after Heat Group objected on the basis that the application was out of time. The matter was then the subject of a hearing on 26 June 2011. Miss Finch and Heat Group were both represented at this hearing by counsel. [6] In her decision, Commissioner Gooley summarised the evidence before her. The Commissioner noted the evidence was that Heat Group sent Miss Finch a letter on 7 December 2010 which advised that she had last worked on 11 October 2006, that she had no work capacity or reasonable prospect of returning to work and that Heat Group was considering the termination of her employment. Miss Finch was invited to provide information relevant to this consideration. [7] On 20 January 2011 Heat Group forwarded a letter of termination to Miss Finch with effect from 8 January 2011. On 28 January 2011 Ms Finch questioned her entitlements and how the termination could have an effect before the date of this letter. [8] On 3 February 2011 Heat Group provided a further letter of termination effective from the 3 March 2011. [9] The Commissioner noted the evidence provided by Heat Group in the following terms: “Evidence was given about litigation between Ms Finch and the Respondent: 1. On 1 December 2006 Ms Finch lodged an application pursuant to the Equal Opportunity Act 1995 (Vic). On 29 June 2010 Her Honour Judge Harbison dismissed the Applicant’s claim. (the VCAT decision) 2. On 12 July 2010 the Respondent applied for costs order in respect of the application. On 31 January 2011 Ms Finch was ordered to pay two thirds of the Respondents costs. (the costs order) 3. On 27 July 2010 Ms Finch sought leave to appeal the VCAT decision. The Court of Appeal dismissed the application. (the Court of Appeal decision) 4. On 28 February 2011 Ms Finch sought leave to appeal the costs order. The Court of Appeal dismissed the application. (the Court of Appeal costs decision) 5. On 4 March 2011 Ms Finch sought special leave of the High Court to appeal the Court of Appeal decision. This application was dismissed. 6. On 20 April 2011 Ms Finch applied to have the stay on the costs order to the High Court. The application was dismissed. 7. On 6 May 2011 Ms Finch sought special leave to appeal the Court of Appeal costs decision to the High Court.” 2 [10] The Commissioner addressed and reached conclusions on each of the criteria set out in s 366(2). Having reviewed the evidence and submissions put to her, the Commissioner concluded that the initial listing of the matter for a conference did not constitute the granting of an extension of time. She addressed at length the actions taken by Ms Finch following the termination of her employment and Ms Finch’s circumstances. She concluded that Miss Finch’s explanation of the delay was not convincing and that her actions in disputing the termination of her employment did not support the granting of an extension of time. With respect to the question of prejudice to the employer, the Commissioner concluded that Ms Finch’s application sought to re-litigate matters considered by VCAT, the Victorian Court of Appeal and the High Court and that this involved prejudice to Heat Group. [11] In terms of the merits of the application, the Commissioner determined that Miss Finch had not been able to articulate how her application could be considered as a general protections application. The Commissioner concluded that: “[69] All of the conduct she complains of, apart from the termination of her employment, predates the enactment of the FW Act. When invited to explain how she, even in the most general way, puts her case she was unable to do so. The merits of this application, as articulated by Ms Finch, do not weigh in favour of granting the application.” [12] The extension of time application was dismissed for these reasons. The Appeal Submissions [13] Miss Finch has put to us a very broad range of complaints about the Commissioner’s decision. Whilst she has classified these complaints under a range of headings and we have reviewed all of her complaints, we have summarised these in the following paragraphs. [14] Miss Finch asserts that Commissioner Gooley determined the matter contrary to the jurisdiction established by s.366. She asserts that the Commissioner misapplied the factors set out in s.366 or failed to take other factors into account. Miss Finch’s complaints in this respect are numerous. Without being exhaustive these complaints go to the characterisation of the reasons for the delay and the actions taken by Miss Finch subsequent to the termination of her employment and to the Commissioner’s characterisation of the merits of her case. They also go to the Commissioner’s references to decisions of other tribunals which have dealt with Miss Finch’s claims. [15] Additionally, Miss Finch asserts that the hearing process represented a denial of natural justice principles such that it was inherently unfair. [16] Miss Finch asserts that granting permission to appeal is in the public interest in that her claim raises issues associated with an employer’s duty of care, matters associated with depression and mental and physical illness and recently enacted Victorian legislation dealing with bullying in the workplace. [17] Heat Group asserts that the Commissioner’s decision is not affected by error, that the matter does not raise issues of public interest and that the appeal should be dismissed. [18] Section 604 states: “604 Appeal of decisions (1) A person who is aggrieved by a decision: (a) made by FWA (other than a decision of a Full Bench or the Minimum Wage Panel); or (b) made by the General Manager (including a delegate of the General Manager) under the Fair Work (Registered Organisations) Act 2009; may appeal the decision, with the permission of FWA. (2) Without limiting when FWA may grant permission, FWA must grant permission if FWA is satisfied that it is in the public interest to do so. Note: Subsection (2) does not apply in relation to an application for an unfair dismissal (see section 400). (3) A person may appeal the decision by applying to FWA.” [19] We are satisfied that the Commissioner acted within jurisdiction and took account of each of the criteria in section 366(2) in order to reach a conclusion about whether there were exceptional circumstances warranting the ground of an extension of time. [20] In considering the factors in s.366 the Commissioner’s decision involved the exercise of discretion. In Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission , 3 the High Court confirmed that the correctness of such a discretionary decision can only be challenged by showing error in the decision-making process. The High Court stated: “21 Because a decision-maker charged with the making of a discretionary decision has some latitude as to the decision to be made, the correctness of the decision can only be challenged by showing error in the decision-making process. And unless the relevant statute directs otherwise, it is only if there is error in that process that a discretionary decision can be set aside by an appellate tribunal. The errors that might be made in the decision-making process were identified, in relation to judicial discretions, in House v The King in these terms: "If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so."” (references removed) [21] Section 604(2) requires that FWA must be satisfied that the granting of permission to appeal is in the public interest. In GlaxoSmithKline Australia Pty Ltd v Colin Makin , 4 a Full Bench summarised the public interest considerations in the following terms: “[26] Appeals have lain on the ground that it is in the public interest that leave should be granted in the predecessors to the Act for decades. It has not been considered useful or appropriate to define the concept in other than the most general terms and we do not intend to do so. The expression ‘in the public interest’, when used in a statute, classically imports a discretionary value judgment to be made to be made by reference to undefined factual matters, confined only by the objects of the legislation in question. [27] Although 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, it seems to us that none of those elements is present in this case.” (reference removed) [22] We have reviewed each of the matters which Miss Finch asserts are errors in the Commissioner’s decision. We are satisfied that the Commissioner was entitled to reach those conclusions on the evidence before her. Ms Finch has not established to us that Commissioner Gooley’s conduct of the hearing was such that it constituted a miscarriage of justice. Miss Finch was legally represented at that hearing and we are satisfied that the hearing provided her and her representative with a fair opportunity to demonstrate that her circumstances were exceptional consistent with the factors in s.368. [23] Despite Miss Finch’s concern over references to proceedings in other courts, we see no impropriety in these references. [24] Having considered all of Ms Finch’s submissions we are not satisfied that the public interest is enlivened. [25] Accordingly, permission to appeal is refused and the appeal is dismissed. SENIOR DEPUTY PRESIDENT Appearances : J Finch on her own behalf. R West of Counsel for The Heat Group Pty Ltd. Hearing details: 2011. Melbourne: September 20. 1 [2011] FWA 4462 2 Ibid, para.18 3 [2000] HCA 47 4 [2010] FWAFB 5343 Printed by authority of the Commonwealth Government Printer <Price code C, PR515160>