1
Fair Work Act 2009
s.604 - Appeal of decisions
C Ozsoy
v
Monstamac Industries Pty Ltd
(C2014/2942)
SENIOR DEPUTY PRESIDENT WATSON
DEPUTY PRESIDENT GOOLEY
COMMISSIONER BISSETT MELBOURNE, 1 APRIL 2014
Appeal against decision [[2014] FWC 479] and order [PR546978] of Deputy President
Gostencnik at Melbourne on 20 January 2014 in matter number U2013/10211—Permission
to appeal is refused—No public interest served by granting permission to appeal—Appeal is
dismissed.
[1] This is an appeal by Mr C H Ozsoy (Appellant) against a decision of Deputy President
Gostencnik1 in relation to an application2 made under s.394 of the Fair Work Act 2009 (the
Act).
[2] The Appellant’s employment with Monstamac Industries Pty Ltd (Respondent) was
terminated on 13 May 2013, on the basis of conduct said to constitute serious misconduct.
The Appellant filed an application for an unfair dismissal remedy with the Fair Work
Commission (the Commission) on 4 June 2013. At the time of the Appellant’s termination,
applications under s.394 of the Act were required to be filed within 21 days of the date the
dismissal took effect or within such further period as the Commission may allow.
Accordingly, the Appellant’s unfair dismissal remedy application was filed one day out of
time.
[3] In his decision, Deputy President Gostencnik declined to exercise his discretion to
extend the time for filing the application and it is against that decision that the Appellant has
filed this appeal.
Background
[4] The Appellant became aware of the termination of his employment by letter dated
13 May 2013. The letter advised that, following advice from the office of the Fair Work
Ombudsman (FWO), the Respondent considered the Appellant’s conduct to constitute serious
misconduct.
[5] The Appellant accessed the website of the FWO to make enquiries about his legal
entitlements, spoke to a person from the office of the FWO and lodged a complaint with the
FWO on 23 May 2013. He did not otherwise seek advice about his rights or entitlements.
[2014] FWCFB 2149
DECISION
E AUSTRALIA FairWork Commission
[2014] FWCFB 2149
2
[6] The Appellant received a written response to the complaint from the FWO on Friday,
31 May 2013. The FWO advised the Appellant that the complaint was out of its jurisdiction
and referred him to the Commission.3
[7] The Appellant took no further steps until Monday, 3 June 2013, at which time he went
onto the Commission’s website, obtained the proper information in regards to lodging a
complaint, downloaded and completed the form.4 Monday, 3 June 2013 was not a public
holiday in Victoria.5
[8] The Appellant lodged the application and paid the lodgement fee by email at 5:01 p.m.
on Tuesday, 4 June 2013, one day beyond the time period within s.394(2)(a) of the Act.6
The relevant statutory provision
[9] When considering whether to exercise his discretion to extend the time for filing the
s.394 application, Deputy President Gostencnik was required to take into account the factors
contained in s.394 of the Act. That section is in the following terms:
“394 Application for unfair dismissal remedy
(1) A person who has been dismissed may apply to the FWC for an order
under Division 4 granting a remedy.
(2) The application must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as FWC allows under subsection (3).
(3) FWA may allow a further period for the application to be made by a
person under subsection (1) if FWC 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
(f) fairness as between the person and other persons in a similar
position.”
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The decision of Deputy President Gostencnik
[10] Deputy President Gostencnik noted that the discretion to allow a further period may
only be exercised if the Commission is first satisfied that there are “exceptional
circumstances”, taking into account the matters in s.394(3) of the Act to which he was
required to have regard.7
[11] He then considered and made findings in relation to each of the matters within
s.394(3) of the Act.
[12] In relation to the reason for the delay,8 Deputy President Gostencnik noted:
the Appellant “may have been led into believing that the Fair Work Ombudsman
had power to deal with his unfair dismissal complaint because of reference to that
body” in the termination letter;
the Appellant lodged a complaint with the FWO on 23 May 2013;
the FWO advised the Appellant on 31 May 2013 that “it did not have jurisdiction to
deal with the Complaint and referred him to the Commission”, at which time “the
Applicant was still within time to lodge his unfair dismissal” application;
the Appellant waited until 3 June 2013 to consult the Commission’s website. He
“could have lodged his application on 3 June 2013 but did not do so”, lodging his
application shortly after 5.00 p.m. on 4 June 2013; and
the Appellant became “aware that the Commission was the appropriate body” to
deal with his complaint about his dismissal “within sufficient time to enable him to
lodge his application within the 21 day period”, but did not do so.
[13] Deputy President Gostencnik found that it is the delay that must be explained. He
found that the Appellant had not advanced any acceptable explanation for the delay and that
the absence of an acceptable explanation for the delay weighed against the Appellant.
[14] In relation to the Appellant’s awareness of the date the dismissal took effect, the
Deputy President found that the Appellant “was aware that the dismissal took effect on the
day that it took effect” and had the full 21 days within which to lodge an application in the
Commission, a consideration which weighed against the Appellant.9
[15] Deputy President Gostencnik accepted that the Appellant took action to dispute the
dismissal and found that this consideration weighed in favour of the Appellant.10
[16] The Deputy President found that the Respondent would not suffer any prejudice by
reason of the delay, finding this consideration to be neutral.11
[17] The Deputy President was satisfied, based on the material filed for the substantive
arbitration and “accepting that the material has not been tested by way of cross examination,
the application is not without merit”, a consideration weighing in favour of the Appellant.12
[2014] FWCFB 2149
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[18] In relation to the fairness as between the person and other persons in a like position,
Deputy President Gostencnik considered a submission by the Appellant, relying on a decision
of Deputy President McCarthy in Palmer v RCR Engineering Pty Ltd.13 Deputy President
Gostencnik distinguished the circumstances in a number of respects and found that this
consideration did not assist the Appellant.14
[19] Deputy President Gostencnik concluded:
“Applications seeking relief from unfair dismissal must be made within 21 days after
the dismissal takes effect. Only in exceptional circumstances should the Commission
consider allowing a further period. Whilst I accept that the application lodged by the
Applicant was late by only one day, that is not to the point. The length of the delay
says nothing or very little about whether there are exceptional circumstances.
Weighing all of the matters set out in s 394(3), there is nothing in the evidence before
me to establish that there are exceptional circumstances warranting consideration of
the exercise of my discretion to allow a further period within which the Applicant may
lodge an unfair dismissal remedy application.”15
Application to admit new evidence
[20] The Appellant applied to admit new evidence in the appeal, concerning his activities
on 3 June 2013. In the course of the appeal hearing the application to admit new evidence was
refused.
[21] The usual principles for the admission of new evidence in an appeal, set out in
numerous decisions of the Commission,16 apply the approach in Akins v National Australia
Bank.17 They are, in summary, that first it must be shown that the evidence could not have
been obtained with reasonable diligence for use at first instance; secondly, the evidence must
be such that there is a high degree of probability that there would have been a different
outcome; and, thirdly, the evidence must be credible.
[22] As noted by the Full Bench in Harvey v Australian Injecting & Illicit Drug Users’
League,18 an “appeal bench would not usually admit evidence which could have been called at
first instance. That approach is grounded in an important policy consideration, namely, that an
appeal should not be an opportunity for parties to remedy avoidable deficiencies in the
evidence” adduced in the proceedings.
[23] This Full Bench is not satisfied that the new evidence should be admitted in the
appeal. The evidence was clearly available to the Appellant at the time of the hearing at first
instance and there was little probability that it would have resulted in a different outcome. The
admission of the new evidence would not be consistent with the usual principles for the
admission of new evidence on appeal or the policy consideration underlying them.
[24] We note that a majority in J.J. Richards & Sons Pty Ltd v Transport Workers’ Union
of Australia19 departed from the strict application of the usual principles for the admission of
new evidence in an appeal concerning a protected action ballot, having regard to the statutory
requirement in s.441(1) of the Act, “as far as practical, to determine an application for [a]
protected action ballot order within two working days after the application” was made. The
majority found:
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“. . . in an appropriate case it will be a permissible exercise of the discretion in s.607(2)
to admit fresh evidence on an appeal against a protected action ballot order decision
notwithstanding that, strictly speaking, the evidence was available to be led at first
instance. In the exercise of our discretion we admit the further evidence in this case.” 20
[emphasis in original]
[25] The matter before this Full Bench does not involve a similar statutory requirement and
there are no other exceptional circumstances which would warrant a departure from the strict
application of the usual principles for the admission of new evidence in the circumstances of
the current matter.
Consideration
[26] In order to grant the Appellant permission to appeal, the Full Bench must be satisfied
that it is in the public interest to do so.21 In GlaxoSmithKline Australia Pty Ltd v Colin Makin
a Full Bench summarised the concept of public interest in the following terms:
“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 . . .” 22
[27] If the error of the decision maker relied upon by an appellant is an error of fact, then
the Full Bench must be satisfied it is a “significant error of fact”.23 It is not enough that the
Full Bench would have arrived at a different conclusion to that of the original decision maker;
the relevant question is whether the finding made by the decision maker was reasonably open
to him or her.
[28] The Appellant raised numerous grounds of appeal against the decision of Deputy
President Gostencnik, which we deal with in turn.
Grounds 1 to 3
[29] The Appellant contended that the Deputy President erred in focussing on part of the
period between the termination and the lodgement of the application in isolation: the days
between 31 May and 4 June 2013 (noting that two days fell on a weekend).
[30] There is no basis for these appeal grounds.
[31] Section 394(3)(a) of the Act requires regard to be had to the reason for the delay in
lodgement. The delay is the period beyond the 21 day period specified in s.394(2)(a) after
which the application was lodged—one day in the current case. The explanation for the delay
is the explanation as to why the application was lodged beyond the 21 day period and goes to
circumstances from the time of the dismissal until the lodgement explaining that delay. An
applicant needs to provide a credible reason for the whole of the period that the application
was delayed.24
[2014] FWCFB 2149
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[32] A fair reading of the Deputy President’s decision concerning the delay in lodgement
discloses that his focus was on whether there was an acceptable explanation for the delay. He
considered the explanation offered for the delay until 31 May 2013—that the Appellant was
acting on the basis gleaned from his termination letter—that his complaint about the dismissal
would be addressed by the FWO. Whilst the Deputy President found that the Appellant
consulted the FWO, lodged a complaint with that office and may have been led into believing
that the FWO was the appropriate body to deal with his complaint about the dismissal, he
made no finding in relation to the explanation for this period. It was unnecessary for him to do
so because he found that when the Appellant was advised by the FWO that it had no
jurisdiction to deal with his complaint in relation to the dismissal, the Appellant was still
within time to lodge his unfair dismissal remedy application and failed to do so. He found that
the Appellant waited until 3 June 2013 to access the Commission’s website and whilst he
completed his application on that day, the Appellant waited until shortly after 5.00 p.m. on
4 June 2013 to lodge his application. The Deputy President found that no explanation was
given for that delay.
[33] Whilst the misapprehension of the Appellant as to the power of the FWO to deal with
his complaint of unfair dismissal might have explained the non-lodgement of the application
up until 31 May 2013, the Deputy President was right to find that there was no explanation of
the failure of the Appellant to take any further action until 3 June 2013 and then, having
completed his application form on that date, the failure to lodge the application until 4 June
2013.
[34] The Appellant also contended that the Deputy President erred in not having taken
judicial notice of the calculation of time as per the Federal Court Rules 2011 (FC Rules)
(excluding non-business days from the calculation of time) and, had he done so, he would
have found that there was an acceptable explanation for the delay. This contention is
untenable. There was no evidence before Deputy President Gostencnik that the Appellant was
aware of the FC Rules, acted on the basis of them or that their existence otherwise explained
the delay in lodgement.
Grounds 4 and 5
[35] In grounds 4 and 5, the Appellant submitted that Deputy President Gostencnik erred in
not having regard to the termination letter, his complaint to the FWO and the actions of the
Appellant once he became aware that the FWO had no jurisdiction to deal with his complaint
about his dismissal. These grounds are without foundation. The Deputy President specifically
considered each of these matters. It was unnecessary for him to reach a conclusion about the
explanation up until 31 May 2013 in light of his finding that there was no explanation for the
delay in lodgement having regard to the evidence as to what occurred after 31 May 2013.
Grounds 6 and 7
[36] The Appellant submitted that the Deputy President erred by not having regard to his
evidence that he could not recall seeing information on the Commission’s website about a
time limit25 and impeaching that evidence by reference to information on the Commission’s
website. The evidence of the Appellant that he could not recall information on the
Commission’s website concerning time limits is of little evidentiary value. It was properly
considered against the information about time limits on the Commission’s website in the
section dealing with unfair dismissal and is found on the same page as the link to download
[2014] FWCFB 2149
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the application form, the information “About the F2 Application Form”, which attends the
Form F2 when downloaded and question 1.4 within the Form F2. In any case, “[m]ere
ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance”.26
Ground 8
[37] The Appellant submitted that there was a linkage between the action taken by the
Appellant to dispute his dismissal and the explanation for the delay that puts in question the
finding made that there was no explanation for the delay. There is no basis to this appeal
ground. The Deputy President considered the actions taken by the Appellant in bringing a
complaint to the FWO in his consideration of the Appellant’s actions up until 31 May 2013. It
was unnecessary for him to reach a conclusion in respect of those actions until that time in
light of his finding that there was no explanation for the delay in lodgement beyond that point.
Ground 9
[38] Ground 9 was an assertion that the absence of prejudice should have been found to be
a positive consideration and not a neutral one. It identifies no error. The absence of a
prejudice to the employer is usual in extension of time matters and does not provide a positive
basis for finding exceptional circumstances warranting an extension of time for lodgement.
Grounds 10, 11, 13 and 20
[39] The Appellant submitted that having found that a number of the factors in s.394(3) of
the Act would favour an extension of time, the Deputy President did not give those factors
weight or disclosed how they were weighed in determining that there were no exceptional
circumstances in the matter. In this regard, the Appellant contended that Deputy President
Gostencnik erred in not giving adequate reasons for his decision which disclosed his train of
reasoning.
[40] It is necessary for the Commission to provide adequate reasons for reaching
conclusions on matters that fall for determination.27 We are satisfied that Deputy President
Gostencnik has done so. His decision identifies the manner in which his decision was made
and discloses the steps involved in the reasoning which lead to his finding that there was
“nothing in the evidence . . . to establish that there are exceptional circumstances warranting
consideration of the exercise” of his discretion to “allow a further period within which the
Applicant may lodge an unfair dismissal remedy application”.28 The Deputy President
reached findings in relation to each of the matters in s.394(3) of the Act. It is evident that he
weighed the absence of an acceptable explanation for the delay and the absence of any lack of
awareness of the Appellant of his dismissal from the date it took effect (considerations against
the extension of time), neutral considerations in respect of ss.394(3)(d) and (f) and factors
which he found weighed in favour of the Appellant (action to dispute the dismissal and his
finding that, with the usual caveats as to evidence,29 the application was not without merit).
The balancing of those considerations undertaken by the Deputy President explains, and
supports, his ultimate conclusion that there was nothing in the evidence to establish that there
were exceptional circumstances warranting the extension of time.
[2014] FWCFB 2149
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Grounds 12 and 14
[41] The Appellant submitted that given the nature of the conduct of the Respondent, the
direction given to him as to where to air his grievances and the fact that an extension of one
day was required in the submission of the application leads to a conclusion that the decision
was manifestly unjust and counterintuitive.
[42] Each of these propositions was considered by the Deputy President in reaching his
decision. For the reasons explained in paragraphs [31]–[33] in this decision, the decision of
the Deputy President in relation to the Appellant’s actions prior to 31 May 2013 was
considered and his ultimate conclusion as to the absence of an explanation for the delay was
properly reached. The proposition that the application was lodged only one day late is, in
itself, not significant, in the circumstances in which there was no explanation for the delay.
There is no basis to find that the decision was manifestly unjust and counterintuitive.
Grounds 15 to 19
[43] In grounds 15 to 19, the Appellant submitted that Deputy President Gostencnik erred
in failing to have regard to findings of Commissioner Blair recorded in transcript30 that the
application was in time, and the order made by Commissioner Blair on 1 October 2013.31 The
Appellant contended that this raised “a number of important procedural and substantive
issues”. In this regard he raised the concepts of “res judicata” and “issue estoppel”. The
Appellant submitted that the Commission is “not at large to make decisions that are
inconsistent with or repugnant to decisions and orders made in the same matter” and that the
efficacy of the administration of justice requires a presumption that such orders and decisions
are regularly and appropriately made. The Appellant further submitted that these issues were
raised with Deputy President Gostencnik but were not addressed at all in the decision, the
subject of this appeal. The circumstances in relation to the involvement of Commissioner
Blair are as follows:
In its Employer’s Response to the application (Form F3), filed on 21 June 2013, the
Respondent objected to the application on the jurisdictional basis that:
(a) the “[a]pplication was not submitted within the timeframe set out in the Fair
Work Guidelines” (sic); and
(b) the “[e]mployee has not completed the minimum employment period of one
year as per the Fair Work Guidelines” (sic), raising the small business criterion in
respect of the minimum period.
The matter was listed for Conference/Hearing before “a Member of the
Commission” on 27 September 2013 “for Extension of time and Jurisidction
(Minimum Employment Period–Small Business).
That Conference/Hearing occurred before Commissioner Blair on 27 September
2013. The Appellant was represented. The Respondent did not attend:
At the commencement of the hearing, the Commissioner advised that “We’ve
received correspondence from them early this morning indicating that due to
[2014] FWCFB 2149
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personal matters and the inability to be able to instruct anyone else or to
arrange alternative representation they won’t be attending today”;32
The Commissioner then advised that “there were two issues initially. One
was an out of time issue and the second one goes to whether or not the
respondent has 15 or less employees”;33
The Commissioner then indicated on his calculation, the application was
made on the 21st day required by s.394(2)(a) of the Act, “[s]o the extension
of time issue goes away”,34 a proposition with which the Appellant’s
representative agreed.35
The Commissioner then proceeded to hear and determine the minimum
period of employment issue, which involved whether or not the Respondent
has 15 or more employees. In respect of that issue, the Commissioner
determined:
“I am satisfied that there are a number of associated entities with the
respondent in this particular matter and that, given that there are a
number of associated entities, that they employee [sic] more than the 15
required to not be deemed a small business. Therefore I would
determine that Mr Ozsoy is eligible to bring a claim within the Act.”36
[44] Commissioner Blair then published an order on 1 October 2013:
“[2] The Commission is satisfied that there are a number of associated entities with
the Respondent in this particular matter and, given that there are a number of
associated entities, they employ more than the 15 employees required not to be deemed
a small business.
[3] The Commission determines that Mr Ozsoy is eligible to bring a claim under
the Fair Work Act 2009.” 37
[45] Before proceeding to the next steps, it should be noted that the calculation of
Commissioner Blair that the application was made on the 21st day required by s.394(2)(a) and
in time was in error. The 21st day after the termination is Monday, 3 June 2013, not Tuesday,
4 June 2013, as calculated by Commissioner Blair.
[46] The next relevant step is that the file was allocated to Deputy President Gostencnik for
substantive arbitration. Deputy President Gostencnik came to the view that the application
was lodged beyond the period prescribed in s.394(2)(a), the time for the filing of the
application had not been extended pursuant to s.394(2)(b) of the Act and an application for an
extension of time needed to be granted. That view was expressed to the parties, but with
liberty for them to challenge it.38 As a result, he listed the matter for Jurisdiction (Extension of
Time) Conference/Hearing on 17 January 2014. The decision under appeal arose from those
proceedings.
[47] We note that no challenge to the proposition that the application was lodged out of
time was raised in the proceedings of 17 January 2014 before Deputy President Gostencnik.
The matter proceeded immediately to evidence addressed to the extension of time. The
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decision and order of Commissioner Blair were raised before Deputy President Gostencnik39
but not in terms of “res judicata or issue estoppel or any of those things”.40 Rather, they were
raised as an issue going to discretionary powers and the circumstances of the case in terms of
the equity and the justice of the situation.41
[48] The manner in which the Appellant’s argument was put on appeal, raising the concepts
of “res judicata” and “issue estoppel” and the submission that the decision was inconsistent
with or repugnant to a decision and order made in the same matter, against the presumption
that such orders and decisions are regularly and appropriately made, raises the proposition
that the Appellant should not be permitted to rely on an argument put on appeal which was
not put at first instance. However, it is unnecessary to consider and determine that issue in
light of the following conclusions in relation to this ground of appeal.
[49] A Full Bench in Mr Peter Mihajlovic v Lifeline Macarthur42 considered the operation
of s.394 of the Act in the context of an application made after notice of termination had been
given but prior to the termination having effect in accordance with the notice. It found that:
“[19] Section 394(2)(a) should not be read as itself establishing an anterior time
limitation for the filing of an application for an unfair dismissal remedy; rather, it
operates on the premise that s.394(1) requires that a person who may file such an
application is a person whose employment has come to end at the initiative of the
employer. On that premise, s.394(2)(a) requires that the application is to be filed
‘within’ – that is, inside the limit of - 21 days after the ‘dismissal took effect’. The use
of this latter expression in s.394(2)(a) only is potentially confusing, in that it invites the
proposition that the date of a dismissal and the date it takes effect may be two different
things. However, having regard to our earlier analysis above, we do not consider that
the expression refers to anything other than the time at which the applicant’s
employment relationship came to an end.
[20] Section 394(2)(b) confers a power on the Commission to extend the time for
the filing of an application beyond the 21-day time limit prescribed by s.394(2)(a) in
accordance with s.394(3). Section 394(3) requires that such an extension of time may
only be allowed if the Commission is satisfied that there are ‘exceptional
circumstances’ taking into account six specified matters. The specific nature of this
power and the highly prescriptive terms upon which it is conferred strongly indicate
that s.394(2)(b) is the only power to extend the time for the filing of an unfair
dismissal application and that it is not open to the Commission to extend time to lodge
an unfair dismissal application by use of any general power it may otherwise possess
under the Act.”43 [emphasis in original]
[50] That Full Bench found that the application in the case before it, being made prior to
the termination having effect “was not made in accordance with the Act because the condition
for the making of such an application specified in s.394(1) was not at that time yet satisfied”,
but found that the Act does not evince a purpose to render any such application automatically
invalid and of no effect. It found that premature filing of the application, in that case,
constituted an irregularity in the manner in which the application was made and was capable
of waiver under s.586(b) of the Act.44
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[51] The Full Bench, however, emphasised that the conclusions stated do not operate in
relation to an application sought to be filed after the time limit prescribed in s.394(2)(a) of the
Act:
“As earlier stated, the highly specific and prescriptive nature of the requirements in
s.394(3) applicable to the grant of an extension of time beyond the 21-day limit means
that the operation of any general procedural power in that area is excluded. That this is
the case is demonstrated by the Full Bench decision in ABC Transport Pty Ltd, in
which it was held that an application lodged after the 21-day limit in respect of which
no extension of time has been allowed under s.394(3) has not been ‘made’ at all. It
follows that s.587(1)(a) could not have any application in that circumstance.”45
[52] The decision in ABC Transport Pty Ltd46 cited by that Full Bench found that in
circumstances where an application was made outside of the time period prescribed in
s.394(2)(a) of the Act, no application had been made until allowed by the Commission under
s.394(2)(b).
[53] The circumstances of the current matter is that, as a matter of fact, the application was
made one day beyond the time period prescribed by s.394(2)(a) of the Act. This factual
proposition was not challenged by the Appellant in the proceedings before Deputy President
Gostencnik. It follows that no application was made by the Appellant unless the application
was accepted beyond the time prescribed by s.394(2)(a), pursuant to s.394(2)(b), on the basis
contained within s.394(3) of the Act.
[54] It also follows that at the time of the jurisdictional Conference/Hearing before
Commissioner Blair and the hearing before Deputy President Gostencnik there was no
application, unless the period for lodgement was extended. The error of Commissioner Blair
in calculating whether the application was in time (and made) does not alter the factual
position that the application was not made within the time allowed by s.394(2)(a) of the Act
nor accepted late. There was no application.
[55] Deputy President Gostencnik was required to raise and address the absence of an
application and proceeded to hear and determine an application for late lodgement pursuant to
ss.394(2)(b) and (3) of the Act. His decision was not inconsistent with or repugnant to a
decision and order. Commissioner Blair made no decision or order in relation to the extension
of time, necessary in the circumstances that the application was lodged beyond the time
period prescribed in s.394(2)(a) of the Act.
Ground 21
[56] The Appellant submitted that the construction given by Deputy President Gostencnik
to “exceptional circumstances” and the statutory criteria to determine whether there are
exceptional circumstances failed to take into account the object contained in s.381 of the Act
conferring on dismissed employees a right to challenge a termination of employment decision.
[57] The rights conferred by Part 3–2—Unfair dismissal, of the Act, reflected in the object
of the Part in s.381 are the rights specified in the Part and as constrained within the Part. The
object of the Act cannot be relied upon to negate the express terms of s.394. No basis was
advanced to suggest how Deputy President Gostencnik applied s.394(3) in a manner
inconsistent with the object of Part 3–2 of the Act.
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Grounds 22 and 23
[58] Grounds 22 and 23 relied on the additional evidence which the Appellant sought to
introduce on appeal. For the reasons reflected in paragraphs [20] to [25] of Deputy President
Gostencnik’s decision, that evidence was not admitted.
Significant errors of fact
[59] The Appellant also identified three alleged errors of fact which were described as
“significant errors of fact”.
(a) The finding “that the Appellant ‘may have been led into believing that the Fair Work
Ombudsman had power to deal with his unfair dismissal complaint because of
reference to that body in the letter of termination that he received from the Respondent
on 13 May 2013. [emphasis added] ”47
[60] This is not a finding at all and certainly not a significant error of fact. As we have
explained at paragraph [32] of this decision whilst the Deputy President found that the
Appellant consulted the FWO, lodged a complaint with that office and may have been led into
believing that the FWO was the appropriate body to deal with his complaint about the
dismissal, he made no finding in relation to the explanation for this period. It was unnecessary
for him to do so because he found that when the Appellant was advised by the FWO that it
had no jurisdiction to deal with the dismissal, the Appellant was still within time to lodge his
unfair dismissal application and failed to do so.
(b) The finding “that there is no acceptable explanation” for the delay,48 given the failure
of the Deputy President to have regard to the termination letter and his complaint to
the FWO.
[61] We have dealt with this proposition in paragraph [35] of this decision.
(c) The finding that the Appellant “became aware that the Fair Work Ombudsman did not
have jurisdiction several days before the time period had elapsed. [emphasis added]” 49
[62] The proposition that the description of the delay as “several days” is a significant error
of fact is preposterous. The proposition elevates the “fine tooth comb”50 approach to an appeal
to new levels. The expression “several days” is not even a verbal slip. It is an accurate short
hand description of the delay which is specified by the identification of the relevant days
earlier in the decision of Deputy President Gostencnik.51
Conclusion
[63] For the reasons stated above, we are not satisfied that the decision of Deputy President
Gostencnik reflects any errors of fact, significant or otherwise, or any error of law. Permission
to appeal is refused. No public interest would be served by granting permission to appeal. The
appeal is dismissed.
SENIOR DEPUTY PRESIDENT
[2014] FWCFB 2149
13
Appearances:
M McKenney of Counsel for the Appellant.
S Keating of Counsel for the Respondent.
Hearing details:
2014.
Melbourne:
March 14.
Printed by authority of the Commonwealth Government Printer
Price code C, PR549183
1 [2014] FWC 479.
2 U2013/10211.
3 Transcript at para 148 before Deputy President Gostencnik in U2013/10211.
4 ibid., at para 156.
5 The circumstances within s.36(2) of the Acts Interpretation Act 1901 (Cth) do not arise.
6 Transcript at para 148 before Deputy President Gostencnik in U2013/10211.
7 [2014] FWC 479 at paras 15–17.
8 ibid. at paras 18–21.
9 ibid. at para 22.
10 ibid. at para 23.
11 ibid. at para 24.
12 ibid. at para 25.
13 [2009] FWA 1439.
14 [2014] FWC 479 at paras 26–28.
15 ibid., at para 30.
16 Mermaid Marine Vessel Operations Pty Ltd v The Maritime Union of Australia, [2014] FWCFB 1317, at para 17; Supreme
Caravans Pty Ltd v H Pham, [2013] FWCFB 3016, at paras 10–11; and Power Projects International Pty Ltd v
“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian
Manufacturing Workers’ Union (AMWU) and The Australian Workers’ Union, [2011] FWAFB 1327 at paras 12–13.
17 (1994) 34 NSWLR 155 at 160.
18 [2007] AIRCFB 230 at para 18.
19 [2010] FWAFB 9963 at para 95.
20 ibid.
21 Section 400(1) of the Fair Work Act 2009 (the Act).
22 [2010] FWAFB 5343 at para 27.
23 Section 400(2) of the Act.
24 Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers (2010) 197 IR 403 at pp. 408�409. See also Ms Monica
Marschall v Home Care Plus [2013] FWC 5299 at para 29.
25 Transcript at paras 161–162 before Deputy President Gostencnik in U2013/10211.
26 Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1 at para 14.
[2014] FWCFB 2149
14
27 Edwards v Giudice and others [1999] FCA 1836; Tabro Meat Pty Ltd v Kevin Heffernan [2011] FWAFB 1080; and John
Pinawin T/A RoseVi.Hair.Face.Body v Mr Edwin Domingo [2012] FWAFB 1359 at para 21.
28 [2014] FWC 479, at para 30.
29 Kyvelos v Champion Socks Pty Limited, Print T2421 at para 14.
30 Transcript at paras 7–16 before Commissioner Blair in U2013/10211.
31 PR542744.
32 Transcript at para 5 before Commissioner Blair in U2013/10211.
33 ibid. at para 7.
34 ibid. at paras 9–11.
35 ibid. at para 12.
36 ibid. at para 108.
37 PR542744.
38 Transcript at para 118 before Deputy President Gostencnik in U2013/10211.
39 ibid. at paras 302–355.
40 ibid. at para 314.
41 ibid. at paras 326–330.
42 [2014] FWCFB 1070.
43 ibid.
44 ibid. at paras 21 and 42.
45 [2014] FWCFB 1070 at para 43.
46 [2012] FWAFB 3212 at para 11.
47 [2014] FWC 479 at para 18.
48 [2014] FWC 479 at para 20.
49 [2014] FWC 479 at para 26.
50 Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Others (1996) 185 CLR 259 per Brennan CJ, Toohey,
McHugh, Gummow and Kirby JJ, per Kirby J at p.291.
51 [2014] FWC 479 at paras 18–19.
