1
Fair Work Act 2009
s.604 - Appeal of decisions
Ms Sarina Galati
v
Veneto Club
(C2014/8162)
JUSTICE ROSS, PRESIDENT
VICE PRESIDENT HATCHER
COMMISSIONER CARGILL
MELBOURNE, 30 JANUARY 2015
Appeal against decision [[2014] FWC 7947] of Commissioner Johns at Melbourne on
18 November 2014 in matter number C2014/6091- denial of procedural fairness - permission
to appeal granted - appeal listed for hearing.
[1] On 27 August 2014 Ms Galati (the appellant) lodged a general protections application
pursuant to s.365 of the Fair Work Act 2009 (Cth) (the FW Act) alleging that she had been
dismissed from her employment with the Veneto Club (the respondent) in breach of Part 3-1
of the FW Act.
[2] The appellant’s employment was terminated on 25 July 2014 and she lodged her s.365
application on 27 August 2014. Section 366(1) of the FW Act provides that such applications
must be made within 21 days after the dismissal took effect or within such further period as
the Commission allows under s.366(2). The appellant’s application was lodged 12 days
outside the statutory time limit.
[3] On 18 November 2014 Commissioner Johns dismissed the appellant’s application for
an extension of time for the lodgement of her application. Ms Galati seeks permission to
appeal the Commissioner’s decision and that is the matter before us.
[4] An appeal under s.604 of the FW Act is an appeal by way of rehearing and the Fair
Work Commission’s (FWC) 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 and an appeal may only be made
with the permission of the FWC. Section 604 provides:
(1) A person who is aggrieved by a decision:
(a) made by the FWC (other than a decision of a Full Bench or an Expert Panel); or
[2015] FWCFB 521
DECISION
AUSTRALIA FairWork Commission
[2015] FWCFB 521
2
(b) made by the General Manager (including a delegate of the General Manager)
under the Registered Organisations Act;
may appeal the decision, with the permission of the FWC.
(2) Without limiting when the FWC may grant permission, the FWC must grant permission if
the FWC is satisfied that it is in the public interest to do so.
Note: Subsection (2) does not apply in relation to an application for an unfair dismissal (see
section 400).
(3) A person may appeal the decision by applying to the FWC.
[5] Subsection 604(2) requires the FWC to grant permission to appeal if satisfied that it is
‘in the public interest to do so’. The task of assessing whether the public interest test is met is
a discretionary one involving a broad value judgment.2 The public interest is not satisfied
simply by the identification of error, or a preference for a different result.3 In
GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of Fair Work Australia identified
some of the considerations that may attract the public interest:
“... the public interest might be attracted where a matter raises issue 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...”4
[6] Other than the special case in s.604(2), the grounds for granting permission to appeal
are not specified. Considerations which have traditionally been adopted in granting leave and
which would therefore usually be treated as justifying the grant of permission to appeal
include that the decision is attended with sufficient doubt to warrant its reconsideration and
that substantial injustice may result if leave is refused.”5 It will rarely be appropriate to grant
permission to appeal unless an arguable case of appealable error is demonstrated. This is so
because an appeal cannot succeed in the absence of appealable error.6
[7] As we have mentioned s.366(2) provides that the Commission may extend the time
within which a s.365 application may be lodged provided it is satisfied that there are
‘exceptional circumstances’, as follows:
366 Time for application
...
(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.
[8] In the decision subject to appeal the Commissioner considered each of the matters
specified in s.366(2)(a) to (e) and concluded that there were no exceptional circumstances
such as to warrant an extension of time and accordingly the application was dismissed.
[2015] FWCFB 521
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[9] The appellant advances a number of submissions in support of her application for
permission to appeal but for reasons which will become apparent, we need only deal with one
of the grounds advanced, namely the alleged denial of procedural fairness.
[10] In the proceedings at first instance the appellant and respondent filed written
submissions and the Commissioner determined the application to extend time ‘on the papers’.
However due to an oversight by the respondent its submissions were not served on the
appellant and as a consequence the appellant was denied the opportunity to comment on the
respondent’s submissions. It is apparent from the Commissioner’s decision that he had regard
to the respondent’s submissions, indeed he quotes part of those submissions at paragraph [11]
of his decision and refers to them in summary terms at paragraph [21]. In these circumstances
we accept that the appellant has been denied procedural fairness.
[11] We reject the respondent’s contention that an email sent by the Commissioner’s
associate to both parties on 12 November 2014 - which referred to ‘the material filed by both
sides’ - should have alerted the appellant to the fact that the respondent had filed a
submission. The email does not refer to submissions being filed by the parties and the
reference to ‘the material filed’ may well have been understood by the appellant to be a
reference to the F8A filed by the respondent in response to the appellant’s general protections
application.
[12] We are satisfied that the appellant has established an arguable case of error in relation
to the decision subject to appeal and on that basis we grant permission to appeal. Directions in
relation to the hearing of the appeal will be issued later today.
PRESIDENT
Appearances:
The Appellant: Ms Galati in person
The Respondent: Ms S. Cook & Mr C. Sier
Hearing details:
Sydney with video link to Melbourne
21 January 2015
Printed by authority of the Commonwealth Government Printer
Price code A, PR560276
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 O’Sullivan v Farrer (1989) 168 CLR 210; Coal & Alllied v Lawler [2011] FCAFC 54 at [44]-[46].
[2015] FWCFB 521
4
3 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343 at [26]-[27]; Lawrence v Coal & Allied Mining Services
Pty Ltd t/as Mt Thorley Operations/ Warkworth [2010] FWAFB 10089 at [28], affirmed on judicial review; Coal &
Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54; Ferrymen Pty Ltd v Maritime Union of Australia [2013]
FWCFB 8025; and NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian
Taxation Office [2014] FWCFB 1663
4 (2010) 197 IR 266 at [27]
5 Also see CFMEU v AIRC (1998) 89 FCR 200; and Wan v AIRC (2001) 116 FCR 481
6 Wan v AIRC [2001] FCA 1803 at [30]
