1
Fair Work Act 2009
s.604—Appeal of decision
Fair Work Australia Rules 2010
Rule 12.3(b)—Extension of time
Asia Pacific Cleaning Services Pty Ltd
v
Janice Cook
(C2013/4875)
JUSTICE BOULTON, SENIOR DEPUTY PRESIDENT
DEPUTY PRESIDENT GOOLEY
COMMISSIONER HAMPTON
SYDNEY, 13 AUGUST 2013
Appeal against decision - appeal lodged out of time - non-compliance with procedural rules -
long delay - no adequate reason for delay - no reasonable prospects of success.
[1] This is an application by Asia Pacific Cleaning Services Pty Ltd (the Company) for an
extension of time to appeal pursuant to Rule 12.3(b) of the Fair Work Australia Rules 2010
(the Rules),1 permission to appeal and, if both the extension and permission are granted, an
appeal pursuant to s.604 of the Fair Work Act 2009 (the Act) against two decisions and an
order made by Senior Deputy President O’Callaghan.
[2] In a decision dated 18 March 20132 (the First Decision) the Senior Deputy President
dismissed a number of jurisdictional objections lodged by the Applicant against an application
by Ms Janice Cook for an unfair dismissal remedy pursuant to s.394 of the Act. In a decision
dated 15 May 20133 (the Second Decision) the Senior Deputy President determined that the
Company’s dismissal of Ms Cook was unfair and awarded $4000 compensation. The Senior
Deputy President issued an order giving effect to the Second Decision on the same day.4
[3] The background to the appeal can be briefly set out as follows. In February 2011 Ms
Cook was engaged by Blue Hygiene Pty Ltd (Blue Hygiene), which ceased trading on 30 July
2011. Subsequently Ms Cook acted as a representative of the Company. Ms Cook performed
sales functions for both Blue Hygiene and the Company. The relationship between Blue
1 In this decision, any reference to a “Rule” is a reference to the relevant part of the Rules. Despite the change of name from
Fair Work Australia (FWA) to the Fair Work Commission (the Commission) on 1 January 2013, the Rules continue in
force until they are replaced. Pursuant to s.25B(1)(b) of the Acts Interpretation Act 1901, references in the Rules to FWA
are construed as references to the Commission.
2 [2013] FWC 1641.
3 [2013] FWC 3027.
4 PR536653.
[2013] FWCFB 5320
DECISION
E AUSTRALIA FairWork Commission
[2013] FWCFB 5320
2
Hygiene and the Company, and the nature of Ms Cook’s engagement with them, were matters
in dispute in the proceedings before the Senior Deputy President.
[4] Ms Cook’s engagement with the Company was terminated by email dated 20
September 2012. The email makes a number of statements regarding Ms Cook’s performance,
including the number of inspections that she conducted and her failure to meet budgets. The
email also refers to an explicit video sent by Ms Cook to the partner of the Company’s
Managing Director, Mr Darryl James.
[5] No grounds of appeal are set out in the Notice of Appeal lodged by the Company.
However it is clear that the Company contends that the Senior Deputy President’s finding that
Ms Cook was an employee was wrong. It also seems from the Notice and the Company’s
written submissions that it objects to the Senior Deputy President having conducted the
hearing that led to the Second Decision in its absence.
[6] On 28 June 2013 the Full Bench issued directions as to the filing of the following:
Written submissions in relation to the application for an extension of time to appeal;
The parties’ views as to whether the question of the extension of time could be dealt
with on the basis of written submissions only; and
Written outlines of submissions in relation to the merits of the appeal.
[7] The directions noted that if the matter required a hearing, it would be listed for 2
August 2013. The Commission received advice from the Company to the effect that it wished
to make oral submissions in relation to the application for an extension of time. The matter
was therefore listed to be heard before the Full Bench on 2 August 2013 in Adelaide. The
listing was advised to the parties on 10 July 2013. A video link was arranged so that Mr
James could appear on behalf of the Company from Sydney.
[8] The Company was advised as to various deficiencies in the documentation filed with
its Notice of Appeal. On 25 June 2013 the Commission’s South Australian Registry Team
Manager wrote the Company, noting that its Notice of Appeal was incomplete, and that an
appeal book had not been filed as required by Rule 12.2. On 11 July 2013, Justice Boulton’s
chambers wrote to the Company noting again that no appeal book had been filed and that the
Company should comply with Rule 12.2 as soon as possible. The Company has still not filed
an appeal book.
[9] On 1 August 2013 at approximately 6:55 pm, an email message was sent by Mr James
to the Commission, requesting an adjournment of the hearing listed for 2 August, on the basis
of his “current illness”. Mr James offered to provide a medical certificate in relation to his
inability to attend. A response was sent at to Mr James approximately 8:35 pm the same
evening, to the effect that the matter remained listed for hearing on the next day.
[10] The Company did not appear at the hearing on 2 August. The Full Bench proceeded
with the hearing and Ms Cook appeared in person in the proceedings in Adelaide. Ms Cook
submitted that the hearing should not be adjourned, and that the extension of time for the
lodgement of the appeal should be refused.
[2013] FWCFB 5320
3
[11] On 2 August the Full Bench issued further directions in the following terms:
“[1] Asia Pacific Cleaning Services Pty Ltd (the Company) is directed to provide to
the Full Bench a medical certificate relating to its Managing Director’s inability to
attend the hearing of this matter on 2 August 2013. The medical certificate is to be
provided to the chambers of Justice Boulton (chambers.boulton.j@fwc.gov.au) by
close of business, Wednesday 7 August 2013.
[2] The proceedings on 2 August 2013 went ahead in the absence of the Company.
A copy of the transcript of the hearing will be provided to the Company in the week
beginning 5 August 2013.”
[12] The transcript of the 2 August hearing was sent to the Company by email on Tuesday
6 August. The Company has not provided a medical certificate as directed, and has made no
further contact with the Commission.
Principles in considering an application for an extension of time
[13] Rule 12.3 provides that:
“12.3 An appeal must be instituted:
(a) within 21 days after the date of the award, order or decision appealed against;
or
(b) on application to FWA — within such further time as is allowed.”
[14] The Company lodged its Notice of Appeal against the Senior Deputy President’s
decisions and order on 25 June 2013, i.e. 99 days after the date of the First Decision and 41
days after the date of the Second Decision and the order. The appeal was therefore instituted
78 days outside the usual limit imposed by Rule 12.3(a) with respect to the First Decision, and
20 days out of time with respect to the Second Decision and the order. The Company
therefore seeks an extension of time to institute its appeal pursuant to Rule 12.3(b).
[15] The principles to be taken into account in determining whether to grant an extension of
time pursuant to Rule 12.3(b) were considered by a Full Bench of FWA in Tokoda v Westpac
Banking Corporation.5 The Full Bench said that:
“[3] Time limits of the kind in Rule 12 should not simply be extended as a matter of
course. There are sound administrative and industrial reasons for setting a limit to the time for
bringing an appeal and it should only be extended where there are good reasons for doing so.
The authorities indicate that the following matters are relevant to the exercise of the Tribunal’s
discretion under Rule 12.3(b):
whether there is a satisfactory reason for the delay;
the length of the delay;
5 [2012] FWAFB 3995.
[2013] FWCFB 5320
4
the nature of the grounds of appeal and the likelihood that one or more of those
grounds being upheld if time was extended; and
any prejudice to the respondent if time were extended.
[4] In broad terms the issue for the Tribunal is whether, in all the circumstances and
having regard to the matters set out above, the interests of justice favour an extension of the
time within which to lodge the appeal.”6
[16] In accordance with directions issued on 28 June 2013, the Company and Ms Cook
made written submissions in relation to the application for an extension of time. The
Company also requested that it be given the opportunity to make oral submissions. The matter
was therefore listed for hearing of both the application for an extension of time and, if the
extension was granted, the application for permission to appeal and the appeal.
[17] In its written submissions to the Full Bench, the Company submitted that its failure to
attend the hearings before the Senior Deputy President was a result of a medical condition
suffered by its Managing Director. An Attending Doctor’s Statement verifying the existence
of this condition was provided to the Full Bench. The Company requested an extension of
time in relation to the lodgement of the appeal so that the matter could be heard fairly and
with all of the relevant facts set out.
[18] Ms Cook opposed the application for an extension of time. She submitted that the
Company had the same opportunity that she did to put evidence and submissions to the
Commission, and had failed to do so. Ms Cook also explained that she suffers from two
medical conditions but had still participated in the Commission proceedings. She said that she
would like the proceedings to be concluded in the interests of her health and because of the
considerable delays already experienced. Ms Cook also suggested that Mr James’s reliance on
medical reasons was merely a tactic he has followed in various proceedings, including this
matter, in order to attempt to delay and frustrate the hearing process.
[19] The circumstances of the present matter include the following:
The failure of the Company to file appeal books as required by the Rules and as
requested by the Full Bench;
The failure of the Company to appear in the appeal proceedings on 2 August and the
late notice to the Commission that it would not be able to appear;
The absence in the Notice of Appeal lodged by the Company of grounds of appeal or
grounds upon which it is said that there is public interest in granting permission to
appeal;
The failure of the Company to comply with the order made by Senior Deputy
President O’Callaghan on 15 May 2013 to pay compensation to Ms Cook or to seek
an order from the Full Bench for a stay of the Senior Deputy President’s decision;7
6 Citations omitted. See Stevenson-Helmer v Epworth Hospital, AIRC Print T2277 (19 October 2000); Dundovich v P&O
Ports, AIRC Print PR923358 (8 October 2002); SPC Ardmona Operations Ltd v Esam (2005) 141 IR 338.
7 Transcript of 2 August 2013, PN13-PN14.
[2013] FWCFB 5320
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The very considerable efforts (set out below) made by the Senior Deputy President
to provide additional opportunities for the Company to present submissions and
materials in the proceedings before him, even after the Company had failed to appear
in the proceedings, and the Company responses to these efforts;
The failure of the Company to provide medical evidence relating to its inability to
appear at the 2 August hearing, even when specifically directed to do so by the Full
Bench; and
The impact on Ms Cook of the actions of the Company in failing to prosecute its
appeal in accordance with the Rules and directions issued by the Full Bench.
[20] Having regard to the history of the matter, including the above circumstances, we have
decided that it is appropriate to determine the applications before us on the basis of the
material and submissions which have been filed by the parties, together with the additional
material provided by Ms Cook. We have taken this view even though, in the light of the
conduct of the Company in not complying with directions and the Rules, we consider that
there might be proper grounds for dismissing the appeal for want of prosecution.
Extension of time: the First Decision
[21] In the appeal, the Company primarily seeks to challenge the finding in the First
Decision that Ms Cook was an employee rather than a contractor. In relation to this aspect of
the appeal, the Notice of Appeal was lodged 78 days outside the usual time limit imposed by
Rule 12.3(a).
[22] A delay of 78 days in lodging an appeal is significant. It is much longer than the
delays of 33 and 48 days described by Full Benches of the Australian Industrial Relations
Commission (AIRC) as “considerable” and “significant” respectively.8
[23] We do not consider that the Company has provided a satisfactory explanation for a
delay of this length in filing the appeal. The Company’s submissions in relation to the issue
refer to a medical condition suffered by Mr James. The submissions, however, only refer to
the medical condition as a reason that Mr James was unable to attend the hearings before the
Senior Deputy President, and are more in the nature of a ground of appeal than an explanation
for the delay in lodging the appeal. The Company has not explained how Mr James’s medical
condition caused a delay of 78 days in appealing the decision. Compounding this failure is
that when Mr James wrote to the Senior Deputy President to protest that the First Decision
was wrong, he was directed to sources of information regarding appealing Commission
decisions.
[24] In relation to the prospects of permission to appeal being granted and the appeal
succeeding, we note that the First Decision is not a discretionary decision, but relates to the
jurisdictional fact of whether Ms Cook was an employee of the Company.9 The Company
would therefore not have to establish error in the reasoning process, but only that the Senior
8 Stevenson-Helmer v Epworth Hospital, AIRC Print T2277 (19 October 2000) at [14]; SPC Ardmona Operations Ltd v Esam
(2005) 141 IR 338 at 348-9.
9 See e.g. Sammartino v Commissioner Foggo [1999] FCA 1231 at [8].
[2013] FWCFB 5320
6
Deputy President’s conclusion was wrong.10 We also note authority with respect to the appeal
provisions in the Workplace Relations Act 1996 to the effect that where an arguable case of
error is made out in relation to jurisdictional fact, the AIRC was ordinarily disposed to grant
leave to appeal,11 although the granting of leave was not automatic.12
[25] An appeal under s.604 of the Act may only be pursued with the permission of the
Commission. This would normally require an applicant to demonstrate an arguable case of
appealable error and to refer to other considerations which would justify the granting of
permission to appeal. Section 400 of the Act varies the general approach to granting
permission to appeal against decisions relating to unfair dismissal. Significantly, permission
to appeal may only be granted where the Commission considers it is in the public interest to
do so (s.400(1)). The Company has not made any submissions in relation to the public interest
in hearing its appeal.
[26] There are also a number of other problems for the Company’s appeal. The Company
has not complied with the requirement to lodge an appeal book (see Rule 12.2) either at the
time of lodgement or subsequently. The Company has filed a large number of documents in
support of its appeal, only some of which were in evidence before the Senior Deputy
President. In relation to the remainder of the documents, the Full Bench would need to give
permission for the introduction of new evidence pursuant to s.607(2) of the Act.
[27] Most significantly, the Notice of Appeal does not contain grounds of appeal, and the
Company has not in its written outline of submissions put any substantial argument based on
legal principles. The argument, such as it is, essentially amounts to a bald assertion that the
Senior Deputy President’s decision is wrong.
[28] For all of the above reasons, we do not consider that there is a realistic prospect that
the Company would be granted permission to appeal, or that an appeal would be successful.
[29] Although submissions were made in relation to Ms Cook’s health, it does not seem
that extending the time to appeal would cause her any prejudice beyond the normal
difficulties associated with an appeal against a favourable decision.
[30] In all of the circumstances and having regard to all of the above matters, we conclude
that we should not extend the time for the lodgement of the appeal insofar as it relates to the
First Decision.
Extension of time: the Second Decision
[31] The same considerations set out above in relation to the explanation for the delay and
the potential prejudice to Ms Cook apply equally to the Second Decision. In relation to the
length of the delay, the appeal was lodged 41 days after the date of the Second Decision, or 20
days out of time. Although the delay is substantially shorter than that in relation to the First
Decision, there was still a significant delay.
10 McKewin v Lend Lease Project Management & Construction (Australia) Pty Ltd [2013] FWCFB 2568.
11 Staff Aid Services v Bianchi, AIRC Print PR945924 (5 May 2004) at [17].
12 See e.g. Sammartino v Mayne Nickless (2000) 98 IR 168 at 176 [20].
[2013] FWCFB 5320
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[32] In relation to the nature of the appeal grounds and the prospect of the appeal’s success,
the Company has made few submissions with respect to the Second Decision. What
comments it has made seem to relate primarily to the inability of the Company’s Managing
Director to attend the hearing of the matter. There are circumstances in which the inability of
a party to attend a hearing that leads to a decision adverse to its interests will constitute a
denial of fairness. However in the present case this is not what occurred.
[33] Subsequent to the First Decision, the matter before the Senior Deputy President was
listed for hearing on 1 May 2013 in Adelaide to consider the merits of the application. The
Notice of Listing and directions were sent to the parties on 21 March 2013. The directions
stated, in part, that:
“[5] Compliance with these directions is mandatory and a failure to do so, or to
participate in the hearing... may disadvantage the party concerned. Any enquiries with
respect to these directions should be addressed to my office...
[34] The hearing was to be held in Adelaide and a video link was arranged in order for the
Company to appear from Sydney. The parties were reminded of the hearing by a text message
sent on the day before the hearing.
[35] The Company did not appear at the hearing, without giving any prior notice to the
Commission or Ms Cook. The Senior Deputy President issued directions on 1 May 2013
requiring the Company to provide by 8 May evidence of its reason for failing to appear at the
hearing. The directions stated, in part:
“[5] Unless Mr James provides evidence of why he could not attend this hearing or
could not advise the Commission of his inability to attend this hearing, I will reach a
conclusion relative to this application on the material before me. Any evidence relative
to Mr James’ non-attendance must be received by my office by close of business 8
May 2013...”
[36] On 3 May 2013 Mr James wrote to the Senior Deputy President and advised that he
was unable to attend the hearing due to ongoing illness. He requested that the matter be re-
listed. The Senior Deputy President issued further directions on the same day as follows:
“[1] I refer to my directions of 1 May 2013 and note that I have received the
attached advice from Mr James.
[2] This advice does not meet the requirements of my directions
[3] Evidence addressing Mr James’ position is to be provided to me by close of
business 8 May 2013.
[4] In the event that Mr James relies on a medical certificate, that certificate must
specifically state that Mr James was unfit to both attend the hearing on 1 May 2013
and was unable to advise the Commission of his inability to do so.
[5] Unless satisfactory evidence of this nature is provided to me by the nominated
date, I will determine the matter on the material before me.”
[2013] FWCFB 5320
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[37] No further communication was received from the Company, and the Senior Deputy
President determined the matter on the material before him. In the circumstances of the case,
we therefore do not consider that the failure of the Company to appear at the hearing on 1
May 2013 and the subsequent determination of the matter by the Senior Deputy President
represents a denial of procedural fairness. The Company was given ample opportunity to
make submissions and present evidence in relation to the matter but did not do so. It did not
provide adequate reasons for its failure to appear at the 1 May hearing, and provided no
response when the Senior Deputy President explicitly set out the nature of the medical
evidence that would be required.
[38] As noted above, the Company would need to demonstrate public interest before
permission to appeal would be granted. It has not made submissions in relation to this matter.
[39] It is unclear whether error is alleged by the Company in relation to the substance of the
Second Decision. The Company did not make submissions in this regard. When the
Commission determines the merits of an unfair dismissal decision, as the Senior Deputy
President did in the Second Decision, “no one [consideration] and no combination of
[considerations] is necessarily determinative of the result” and the decision-maker is “allowed
some latitude as to the choice of the decision to be made”.13 The Second Decision is therefore
a discretionary decision. To succeed in an appeal against a discretionary decision, the
Company would have to demonstrate error in the decision-making process itself.14 If the error
alleged were an error of fact, it would have to be a significant error of fact (s.400(2) of the
Act).
[40] For all of the above reasons we consider that there is no realistic prospect that the
Company will be successful in seeking permission to appeal the Second Decision, or that an
appeal would succeed.
[41] Having regard to these matters and all of the circumstances of the case, we conclude
that we should not extend the time for the lodgement of an appeal against the Second
Decision.
Conclusion
[42] For all of the above reasons, we decline to extend the time for the Company to appeal
pursuant to Rule 12.3(b). The appeal is dismissed.
SENIOR DEPUTY PRESIDENT
13 Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at 205 [19].
14 Ibid at 205 [21].
[2013] FWCFB 5320
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Appearances:
J Cook on her own behalf.
Hearing details:
2013.
Adelaide:
August 2.
Printed by authority of the Commonwealth Government Printer
Price code C, PR539724
