1
Fair Work Act 2009
s.604—Appeal of decision
Jonathan Hart
(C2014/4000)
VICE PRESIDENT WATSON
DEPUTY PRESIDENT KOVACIC
COMMISSIONER BLAIR
MELBOURNE, 30 MAY 2014
Appeal against decision PR548642 of Commissioner Gregory Appeal against decision [2014]
FWC 1744 of Commissioner Gregory 20/3/2014 in matter number C214/3001 - permission to
appeal - whether grounds of appeal attract public interest - Permission to appeal not granted
- Fair Work Act 2009 ss.366, 604.
Introduction
[1] This decision concerns an application for permission to appeal against a decision of
Commissioner Gregory handed down on 20 March 2014. The decision of the Commissioner
concerned an application for an extension of time to make a General protections application
by Mr. Hart made on 7 February 2014 pursuant to s.365 of the Fair Work Act 2009 (the Act).
The application was received one day after the expiry of the 21 day period set down under
s.366 of the Act.
[2] At the hearing of the application for permission to appeal Mr. Hart appeared on his
own behalf and Mr. A. Cameron appeared as agent on behalf of Damien Pedder & Kirsty
Pedder as Trustees of the Plumbing Solutions Trust (PST). The parties relied on written
submissions filed in support of their respective positions and made supplementary oral
submissions at the hearing of the application on 16 May 2014.
The Decision under Appeal
[3] Section 366 of the Act requires an application made under s.365 of the Act to be made
within 21 days after the dismissal that gave rise to the action took effect or within such further
period as the Commission allows under s.366(2). That subsection is as follows:
“(2) The FWC may allow a further period if the FWC 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
[2014] FWCFB 3270
DECISION
E AUSTRALIA FairWork Commission
[2014] FWCFB 3270
2
(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.”
[4] Commissioner Gregory heard the application for an extension of time and after
discussing each of the factors in s.366(2) by reference to the facts in this case concluded as
follows:
“Conclusion
[22] I am not satisfied that “exceptional circumstances” exist in this matter to warrant
an exercise of the discretion to extend the time in which to make application. The
apparent lack of merit in terms of an application pursuant to s.365 is one significant
factor in coming to this conclusion. However, I have also had particular regard to the
reasons for the delay. I don’t restate my conclusions in response to those matters at
this point. Mr Hart had both reason and ability to lodge his application within the 21
day period following his dismissal. There were no “exceptional circumstances” as
required by s.366(2) to prevent him from doing so. The application is dismissed.”
Grounds of Appeal
[5] Mr Hart contends that his application filed on 7 February 2014 was within 3 weeks of
the termination of his employment on 16 January 2014, he was confused about the calculation
of the time limit, his contracts of employment were altered unilaterally and the impact of his
termination has been severe. In his written and oral submissions he reiterated a number of
allegations about the circumstances of his employment and the termination of his employment
contract.
[6] PST submits that the discretion vested in Commissioner Gregory was properly
exercised and a number of aspects of Mr Hart’s submissions are irrelevant to the matters that
can legitimately arise on appeal.
Permission to Appeal
[7] Permission to appeal may be granted if there is sufficient doubt to warrant its
reconsideration or an injustice my result if permission is not granted1. If the Commission
considers that it is in the public interest to grant permission to appeal, it is required to grant
permission2.
[8] The decision under appeal is a discretionary one. Such a decision can be successfully
challenged on appeal only if it is shown that the discretion was not exercised correctly3. It is
not open to an appeal bench to substitute its view on the matters that fell for determination
before the Commissioner in the absence of error of an appealable nature in the decision at first
instance. As the High Court said in House v The King4:
[2014] FWCFB 3270
3
“The manner in which an appeal against an exercise of discretion should be determined
is governed by established principles. It is not enough that the judges composing the
appellate court consider that, if they had been in the position of the primary judge, they
would have taken a different course. It must appear that some error has been made in
exercising the discretion. 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. It may not appear how the primary judge has
reached the result embodied in his order, but, if upon the facts it is unreasonable or
plainly unjust, the appellate court may infer that in some way there has been a failure
properly to exercise the discretion which the law reposes in the court of first instance.
In such a case, although the nature of the error may not be discoverable, the exercise of
the discretion is reviewed on the ground that a substantial wrong has in fact occurred.”
[9] We have considered the grounds of appeal advanced by Mr Hart. In our view his
application was filed late, and by virtue of the provisions of the Act, Mr Hart required the
Commission to grant him an extension of time for filing his application. An extension of time
can only be granted in exceptional circumstances. The Commissioner considered the required
factors in the Act concerning exceptional circumstances and properly applied the statutory
test. His decision was of a discretionary nature and cannot be lightly overturned on appeal.
We are not satisfied that any error in the decision-making process or otherwise has been
established. Further, we do not believe that the decision gives rise to any public interest
considerations sufficient to warrant granting permission to appeal.
Conclusion
[10] For the above reasons, we do not consider that Mr Hart has established a basis for
granting permission to appeal. We dismiss the application for permission to appeal.
VICE PRESIDENT
Appearances:
Mr. J. Hart appeared on his own behalf.
Mr. A. Cameron, agent, appeared on behalf of Damien John Pedder & Kirsty Michelle
Pedder as Trustees of the Plumbing Solutions Trust
Hearing details:
2014
Melbourne
Video Link to Launceston
16 May.
[2014] FWCFB 3270
4
Printed by authority of the Commonwealth Government Printer
Price code A, PR550672
1 Wan v AIRC 116 FCR 481.
2 Fair Work Act 2009 s 604.
3 House v The King (1936) 55 CLR 499 at [504]-[505] per Dixon, Evatt and McTiernan JJ.
4 Ibid.
