1
[2013] FWCFB 4098
DECISION
Fair Work Act 2009
s.604—Appeal of decision
G & S Fortunato Group Pty Ltd
v
J. Stranieri
(C2013/4090)
JUSTICE ROSS, PRESIDENT
DEPUTY PRESIDENT GOOLEY
COMMISSIONER WILSON MELBOURNE, 26 JUNE 2013
Unfair dismissal appeal - s.604 Fair Work Act 2009 (Cth) - appeal from an order to grant an
extension of time to bring an application under s.394 of the Fair Work Act 2009 - permission
to be represented by a legal practitioner denied.
[1] This appeal is in respect of an order made by Commissioner Blair on 16 April 2013
granting an extension of time for Mr Jake Stranieri to lodge his application for an unfair
dismissal remedy.
[2] The Commissioner found that Mr Stranieri was dismissed from his employment with
the appellant, G & S Fortunato Group Pty Ltd (the Fortunato Group) on 2 November 2012
and that his application for an unfair dismissal remedy was lodged on 23 November 2012. At
that time s.394(2) of the Fair Work Act 2009 (the Act) provided that an application for an
unfair dismissal remedy had to be made within 14 days after the dismissal took effect or
within such further period as the Commission allows. It follows that Mr Stranieri’s
application was some 7 days out of time.
[3] Subsection 394(3) provides that the Commission may extend the time within which an
application for an unfair dismissal remedy is to be made if the Commission is satisfied that
there are ‘exceptional circumstances’, taking into account:
(a) the reason for the delay; and
(b) whether the person first became aware of the dismissal after it had taken effect;
and
(c) any action taken by the person to dispute the dismissal; and
(d) prejudice to the employer (including prejudice caused by the delay); and
(e) the merits of the application; and
AUSTRALIA FAIR WORK COMMISSION
[2013] FWCFB 4098
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(f) fairness as between the person and other persons in a similar position.
[4] In the decision subject to appeal the Commissioner addressed the matters set out in
s.394(3)(a) to (f) and concluded that there were exceptional circumstances which warranted
the grant of an extension of time. The essence of the Commissioner’s decision is set out at
paragraph 443 of the transcript:
“Taking all that into account, and I understand the reasons that the court says that there
are to be exceptional circumstances, and the clarification as identified by numberous
benches of this Commission and its predecessors, I’m inclined to come down on the
side of the Mr Stranieri, or the applicant Mr Stranieri, and say that given the complete
misunderstanding and the confusion that reigned supreme as to what was occurring
between the registry and the applicant Mr Stranieri, in my view, warrants the granting
of an extension of time in order for the application to be brought. I’m satisfied that
falls within the definition of exceptional circumstances.”
[5] The Commissioner’s reference to the ‘complete misunderstanding and confusion’
between the registry and the applicant is explained earlier in his decision, at paragraphs 435 -
437 of the transcript:
“It is alleged that Mr Stranieri was terminated on 2 November 2012. Mr Stranieri says
he was terminated on 7 November 2012. The documents, F2, were lodged with the
Commission on 23 November 2012. If Mr Stranieri was terminated on the 2nd, his
application is seven days out of time. If he was terminated on the 7th, his application
is still one day out of time. What was put to the Commission by the Stranieri family
was that there appeared to be a large amount of confusion. Firstly, Mr Stranieri lodged
two applications: one, under section 394; and one under section 365. Mr Stranieri
advised the Commission this morning that the Canberra Registry of the Commission
advised him that he could not make two applications.
Therefore, one of them had to be withdrawn and that was section 365 application. A
notice of discontinuance was sent to Mr Stranieri to fill that in and send that back to
close the file on the application under section 365. There still appeared to be some
amount of confusion between the Stranieri family and the registry based in Canberra.
Mr Stranieri's application filed the form F2, was dated 21 November, obviously, did
not arrive in the registry in Canberra until the 23rd. The Stranieri family indicated that
they, in fact, had faxed from an Australia Post outlet the form F2 to the Canberra
office and then sent the original form by express post, and a receipt for the express
was provided or shown to the Commission but there was no receipt in terms of the
alleged fax being sent to the Commission.
There was also correspondence from the registry to Mr Stranieri, the applicant, and
that referred to a response within 14 days from the date of issue of the latter. It
appears to the Commission that some confusion arose regarding whether the 14 days
was for Mr Stranieri to actually lodge his application or whether it was simply to
respond to the correspondence within 14 days. ‘(b) whether the person first became
aware of his dismissal after it had taken effect.’ There's no doubt, Mr Stranieri
understood that he had been terminated. The question is whether he understood on the
2nd or whether he understood on the 7 November that he was terminated. Mr
Stranieri, I am going to explain to you how we operate.”
[2013] FWCFB 4098
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[6] The Fortunato Group has appealed the Commissioner’s decision.
[7] At the commencement of the appeal proceedings, Ms A. Forsyth of counsel sought
permission to appear for the appellant. Subsection 596(2) of the Fair Work Act 2009 (Cth)
(the Act) provides that the Commission may grant permission for a person to be represented
by a lawyer or paid agent in a matter only if one or more of the requirements in paragraphs
596(2)(a)(b) or (c) are met. Even if one or more of these requirements is satisfied that does
not dictate that the discretion should automatically be exercised in favour of granting
permission to appear.1 Subsection 596(2) states:
“(2) FWC may grant permission for a person to be represented by a lawyer or paid
agent in a matter before FWC only if:
(a) it would enable the matter to be dealt with more efficiently, taking into
account the complexity of the matter; or
(b) it would be unfair not to allow the person to be represented because the
person is unable to represent himself, herself or itself effectively; or
(c) it would be unfair not to allow the person to be represented taking into
account fairness between the person and other persons in the same matter.”
[8] In support of her application for permission to appear, Ms Forsyth relied on s.596(2)(a)
and submitted that the grant of permission to appear would enable the matter to be dealt with
more efficiently. It was conceded that there was no particular complexity about the appeal
and that the matters in paragraphs 596(2)(b) and (c) did not arise in the circumstances of this
matter.
[9] We declined to grant permission to appear. There is no particular complexity about
the appeal and we were not persuaded that granting permission ‘would enable the matter to be
dealt with more efficiently, taking into account the complexity of the matter’. Nor are the
matters in s.596(2)(b) and (c) enlivened in the circumstances of this matter.
[10] We also observe that just because the proceeding is an appeal it ought not be assumed
that the Commission will permit a party to be represented by a lawyer or paid agent. As Flick
J observed in Warrell v Fair Work Australia:
“The appearance of lawyers to represent the interests of parties to a hearing runs the
very real risk that what was intended by the legislature to be an informal procedure
will be burdened by unnecessary formality.”2
[11] After declining permission to appear we granted the appellant a short adjournment to
brief one of its managers to represent the appellant. We now turn to deal with the appeal.
[12] An appeal under s.604 of the Act is an appeal by way of rehearing and the Tribunal’s
powers on appeal are only exercisable if there is error on the part of the primary decision
maker.1 There is no right to appeal, rather an appeal may only be made with the permission of
the Tribunal.
1 Warrell v Fair Work Australia [2013] FCA 291 (4 April 201) per Flick J at [24].
2 [2013] FCA 291 (4 April) at [25].
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[13] The decision subject to appeal was made under Part 3.2 - Unfair Dismissal - of the Act.
Section 400(1) of the Act provides that permission to appeal must not be granted from a
decision made under Part 3.2 unless the Tribunal considers that it is in the public interest to do
so. Further, in such matters, appeals on a question of fact can only be made on the ground that
the decision involved a ‘significant error of fact’ (s.400(2)). Section 400 of the Act manifests
an intention that the threshold for a grant of permission to appeal is higher in respect of unfair
dismissal appeals than the threshold pertaining to appeals generally (compare s.604(2) and
s.400).
[14] The basis for the exercise of the Commissioner’s discretion was what was described as
the ‘complete misunderstanding and confusion’ between the registry and Mr Stranieri. The
misunderstanding and ‘confusion’ referred to is a reference to a letter sent by the Commission
to Mr Stranieri. The letter in question is dated 23 November 2012 and states:
“Dear Mr Stranieri
Applications to Fair Work Australia
Fair Work Australia received the following applications from you in relation to the
termination of your employment by John Fortunato.
U2012/15883- application for an alleged unfair dismissal under s.394 of the Fair Work
Act 2009;
and
C2012/6121 - application to Fair Work Australia to deal with an alleged contravention
dispute involving dismissal under s.365 of the Fair Work Act 2009.
Fair Work Australia is unable to proceed with both applications as the Fair Work Act
2009 prevents a person from simultaneously making multiple applications relating to
their dismissal from employment.
As a result, it will be necessary for you to decide which of the above applications
you intend to proceed with, and to notify Fair Work Australia within 14 days
from the day of this letter, of your decision. Please note if you wish to proceed with
C2012/6121 you must send a signed copy of the application form as the application
form you sent was not signed.
If you have not provided a response to Fair Work Australia by that date, it will be
assumed that you wish to proceed with the unfair dismissal application (s.394) and the
other application will be taken to have been withdrawn. If the application fee of
$64.20 has been paid for the matter withdrawn, you will be refunded.
If you require further assistance, please contact Fair Work Australia on (02) 6209 2400
or go to the Fair Work Australia website at www.fwa.gov.au.
Yours sincerely,
Fair Work Australia”
[15] It appears from the transcript of the proceedings at first instance that Mr Stranieri
sought to rely on the above letter to argue that he had 14 days from the date of the letter to
[2013] FWCFB 4098
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make his application for an unfair dismissal remedy.2 This was confirmed by Mr Stranieri
during the appeal hearing.
[16] It is apparent from the Commissioner’s decision that he relied on the letter of 23
November 2012, and the ‘misunderstanding and confusion’ it created in the applicant’s mind,
to ground his conclusion that there were exceptional circumstances warranting the grant of an
extension of time.
[17] Two things may be said about this. First, the letter of 23 November 2012 says nothing
about the time period applicable to the making of an unfair dismissal application. The letter
only deals with the time period within which Mr Stranieri was to make an election between
the two applications he had already made.
[18] The second point is that the letter from the Commission to Mr Stranieri was sent after
the application for an unfair dismissal remedy was lodged. As such, the letter cannot logically
provide a reasonable explanation for the applicant’s failure to make his application within
time.
[19] It follows from all of this that the Commission relied on an irrelevant consideration and
his discretion miscarried as a consequence. Other than the ‘misunderstanding and confusion’
arising from the letter of 23 November 2012, no other reason was advanced for the delay in
making the application. In the circumstances it would be unjust to allow the decision to stand.
We are satisfied that it is in the public interest to grant permission to appeal. We grant
permission to appeal, uphold the appeal and quash the decision and order subject to appeal.
[20] As we have indicated, an appeal under s.604 is an appeal by rehearing. Section 607(3)
of the Act provides, relevantly, that having upheld an appeal the Full Bench may make a
further decision in relation to the matter that is the subject of the appeal or refer that matter to
a Member of the Commission to deal with the matter.
[21] We have decided to remit Mr Stranieri’s extension of time application to a Member for
determination. We have taken this course because the determination of the application will
require the determination of two contested factual issues, the date of Mr Stranieri’s dismissal;
and whether the applicant made his application by facsimile message within the prescribed
time.
[22] Mr Stranieri’s application for an extension of time will be remitted to Commissioner
Wilson for hearing and determination. The hearing will take place on Friday 9 August 2013.
At that rehearing the parties will be able to rely on the transcript of the proceedings before
Commissioner Blair and any other relevant evidence they wish to submit. The parties will be
sent a notice of the time the matter will be heard on that day.
PRESIDENT
Appearances:
R. Cappola on behalf of G & S Fortunato Group Pty Ltd.
J. Stranieri on his own behalf.
[2013] FWCFB 4098
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Hearing details:
2013.
Melbourne:
June 25.
Printed by authority of the Commonwealth Government Printer
Price code C, PR538193
1 This is so because on appeal FWC 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.
2 Transcript at PN 101 - 114.
