1
Fair Work Act 2009
s.604 - Appeal of decisions
Jeremy Halls
v
KR and KM McCardle and Sons Pty t/a McCardle and Sons Pty Ltd
Glen Cameron Nominees Pty Ltd
Woolworths Limited
(C2014/6623)
VICE PRESIDENT HATCHER
DEPUTY PRESIDENT SMITH
COMMISSIONER ROE SYDNEY, 15 DECEMBER 2014
Appeal against decision [2014] FWC 5666 of Commissioner Hampton at Adelaide on 23
September 2014 in matter number C2014/450.
[1] This decision reproduces in edited form the decision and reasons which were stated on
transcript at the conclusion of the hearing conducted in relation to this matter on 12 December
2014.
[2] This is an appeal, for which permission to appeal is required, against a decision of
Commissioner Hampton issued on 23 September 20141 (Decision) in which he declined under
s.366 of the Fair Work Act 2009 (Act) to extend time to the appellant, Mr Jeremy Halls, to
file a general protections dismissal application under s.365 of the Act. The Commissioner
issued a separate order on the same date giving effect to the Decision.2
[3] Mr Halls filed his general protections dismissal application in the Commission on 24
March 2014. In that application he identified the date of the dismissal the subject of the
application as being 19 October 2013. Section 366(1) requires a general protections dismissal
application to be made within 21 days after the dismissal took effect or within such further
period as the Commission allows under s.366(2). The application was filed over four months
after the 21-day time period, and it was therefore necessary for Mr Halls to obtain an
extension of time under s.366(2) in order to make his application.
[4] Section 366(2) sets out the circumstances in which the Commission may grant an
extension of time as follows:
366 Time for application
1 [2014] FWC 5666
2 PR555576
[2014] FWCFB 9020
DECISION
E AUSTRALIA FairWork Commission
[2014] FWCFB 9020
2
...
(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
(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] The test of “exceptional circumstances” establishes a “high hurdle” for an applicant
for an extension.3 A decision as to whether to extend time under s.366(2) involves the
exercise of a discretion.4
[6] In the Decision, the Commissioner described the sequence of events between the
alleged dismissal and the filing of Mr Halls’ application in the Commission. These may
briefly be summarised as follows:
Mr Halls sought a review of the decision to dismiss him, but the decision was not
overturned.
He filed a general protections court application in the Federal Circuit Court on 11
November 2013.
At least one of the respondents to the court application raised a threshold jurisdictional
point on 9 December 2013 that Mr Halls had failed to make the necessary prior step
under the Act of making an application under s.365 and obtaining a certificate from
the Commission under s.368.
The Court struck out Mr Halls’ application on 25 February 2014.5
When Mr Halls made his application on 24 March 2014 to the Commission, it was 27
days after the dismissal of Mr Halls’ court application.
[7] In the Decision, the Commissioner gave extensive consideration to each of the matters
he was required to take into account under s.366(2). In relation to s.366(2)(a), the reason for
the delay, the Commissioner found there was a reasonable explanation for the delay up until
the Court judgment was issued on 25 February 2014.6 The Commissioner then considered the
various reasons for the delay beyond that point advanced by Mr Halls, which he placed in
three broad categories:
(1) the consequences of a vehicle accident that occurred in late January 2014;
(2) other litigation and business dealings; and
(3) factors associated with the filing of the general protections court application.
3 Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace
Relations [2014] FWCFB 2288 at [21]
4 Hart v Damien John Pedder & Kirsty Michelle Pedder as Trustees of the Plumbing Solutions Trust [2014] FWCFB 3270 at
[8]
5 Halls v McCardle and Ors [2014] FCCA 316
6 Decision at [55]
http://www5.austlii.edu.au/au/legis/cth/consol_act/fwa2009114/s791.html#employer
http://www5.austlii.edu.au/au/legis/cth/consol_act/fwa2009114/s12.html#action
[2014] FWCFB 9020
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[8] In relation to these matters, the Commissioner concluded that while there was “some
reasonable explanation” for the further delay, some of the delay after the Court decision was
not satisfactorily explained.7 The Commissioner went on to consider in detail each of the
remaining matters specified in s.366(2). In summary he found:
Mr Halls took action to dispute his dismissal.
There was no specific prejudice caused to the employer.
On a preliminary review, the application had little merit.
The issue of fairness between Mr Halls and other persons in a similar position was not
relevant.
[9] The Commissioner’s overall conclusion was that on balance he was not persuaded that
there were exceptional circumstances justifying an extension of time.8
[10] Mr Halls’ appeal has raised a large number of issues. The grounds of the appeal,
which were amply supplemented by Mr Halls’ written and oral submissions, were as follows:
His application for an extension of time was not heard and determined in accordance
with ss.576, 577, 578 and 590 of the Act.
The Commissioner erred by not taking into account reasons for the delay advanced by
him, namely that he had been given wrong advice by the Federal Circuit Court
registry, and the car crash and medical issues.
Other factors causing the delay included “three Tax Audits, a Magistrates Court Case
and Changing Orders, medical tests, and doctor audits” were “disbelieved” by the
Commissioner and not accepted as relevant factors explaining the delay.
The Commissioner erred in “not fully appreciating the adverse action and the denial of
Mr Halls workplace rights”, and his application did have substantial merit.
[11] Mr Halls advanced a number of reasons why permission to appeal should be granted in
the public interest, including that his matter was not decided in accordance with ss.577 and
578, that the alleged adverse action was significant and would affect other workers at the
worksite at which he was formerly employed, and the Decision was “immoral, against natural
justice and prejudiced the Appellant as he was not well”.
[12] Having considered all the matters put by Mr Halls, he has not identified any error in
the decision which would meet any of the criteria for appellable error in a discretionary
decision enunciated in House v The King.9 We reject the submission that the Commissioner
failed to take into account all the reasons advanced by Mr Halls for the delay. A perusal of the
Decision shows that all the matters referred to by Mr Halls in this connection were in fact
referred to and given proper consideration. No error in any finding of fact has been alleged.
That the Commissioner concluded that there had not been a satisfactory explanation for the
whole of the delay does not mean that Mr Halls’ explanations were “disbelieved” in a factual
sense, but rather that they did not account for the whole of the time period involved - in
particular that time period between the decision of the Federal Circuit Court and the filing of
7 Decision at [68]-[69]
8 Decision at [92]
9 (1936) 55 CLR 499 at [504]- [505] per Dixon, Evatt and McTiernan JJ.
http://www.austlii.edu.au/au/cases/cth/HCA/1936/40.html#para505
http://www.austlii.edu.au/au/cases/cth/HCA/1936/40.html#para504
http://www.austlii.edu.au/cgi-bin/LawCite?cit=%281936%29%2055%20CLR%20499?stem=0&synonyms=0&query=cth%20consol_act%20fwa2009114%20s366
[2014] FWCFB 9020
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the application. That was a conclusion that we consider to have been reasonably open to the
Commissioner.
[13] We likewise consider that the Commissioner’s preliminary assessment that Mr Halls’
general protections application had little substantive merit was reasonably available even
taking Mr Halls’ case at its highest, and we agree with it. Further there is no proper basis for
the contention that Mr Halls was denied natural justice by the Commissioner. The record of
the proceedings demonstrates that Mr Halls was given a proper opportunity to put to the
Commissioner all the matters he wished to rely upon in seeking an extension of time, and
those matters as earlier stated were properly considered by the Commissioner in the Decision.
[14] Finally, the conclusion that the circumstances attending a delay of over four months in
filing the application did not meet the stringent criterion of “exceptional circumstances” is not
counter-intuitive and does not manifest any substantial injustice.
[15] We are not satisfied that any of the matters raised by Mr Halls justify the grant of
permission to appeal in the public interest or otherwise. Mr Halls’ appeal does not raise any
issue of law or policy which is novel and/or has broader implications. It is not inconsistent
with any other relevant Commission decision. The determination of his extension of time
application turned entirely on its particular facts.
[16] Accordingly permission to appeal is refused.
VICE PRESIDENT
Appearances:
J. Halls on his own behalf
A. Manos of counsel for Glen Cameron Nominees Pty Ltd
S. Jauncey with T. Reaburn for Woolworths Limited
R. Martin for KR and KM McCardle and Sons t/a McCardle and Sons Pty Ltd
Hearing details:
2014.
Adelaide:
12 December.
Printed by authority of the Commonwealth Government Printer
Price code A, PR558969
OF THE FAIR WORK MISSION THE
