1
Fair Work Act 2009
s.604 - Appeal of decisions
Miss Katarina Lesic
v
No 1 Riverside Quay Pty Ltd T/A BP Australia
(C2014/8372)
JUSTICE ROSS, PRESIDENT
VICE PRESIDENT HATCHER
COMMISSOINER CARGILL
MELBOURNE, 29 JANUARY 2015
Appeal against decision [2014] FWC 6647 of Deputy President McCarthy at Perth on 6
October 2014 in matter number U2014/9753 - appeal out of time - application to extend time
dismissed.
[1] Miss Katarina Lesic (the appellant) was dismissed from her employment with No 1
Riverside Quay Pty Ltd T/A BP Australia (the respondent) on 8 March 2013 and lodged an
application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Cth)
(the FW Act) on 4 June 2014. On 6 October 2014 Deputy President McCarthy dismissed the
appellant’s application for an extension of time for the lodgement of her application.1 The
appellant has sought permission to appeal the Deputy President’s decision and that is the
matter before us.
[2] The decision subject to appeal was made under Part 3-2 – Unfair Dismissal – of the
FW Act. Section 400(1) provides that permission to appeal must not be granted from such a
decision unless the Commission considers that it is in the public interest to do so. Further, in
such matters appeals on a question of fact may only be made on the ground that the decision
involved a ‘significant error of fact’ (s.400(2)). In Coal & Allied Mining Services Pty Ltd v
Lawler and others, Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised
the test under s.400 as ‘a stringent one’.2 The Commission must not grant permission to
appeal unless it considers that it is ‘in the public interest to do so’.
[3] The appellant’s employment was terminated on 8 March 2013 and she lodged her
unfair dismissal application on 4 June 2014. Section 394(2) 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.394(3). It follows that the appellant’s unfair
dismissal application was lodged some 15 months outside the statutory time limit.
[2015] FWCFB 395
DECISION
AUSTRALIA FairWork Commission
[2015] FWCFB 395
2
[4] Subsection 394(3) deals with applications to extend time, it provides:
The FWC may allow a further period for the application to be made by a person under
subsection (1) if the 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.
[5] In the decision subject to appeal the Deputy President considered each of the matters
specified in s.394(3)(a) to (f) and concluded that there were no exceptional circumstances
such as to warrant an extension of time to permit Miss Lesic to lodge her application for
relief.
[6] The Deputy President’s decision and consequent order were issued on 6 October 2014
and the appeal was lodged on 20 December 2014. Rule 56(2) of the Fair Work Commission
Rules 2013 deals with the time period for lodging appeals. That rule relevantly provides that
an appeal must be lodged within 21 calendar days after the date of the decision appealed
against. It follows that the appeal was lodged almost 8 weeks outside the prescribed time
limit. Rule 56(2)(c) confers a discretion on the Commission to extend the time within which
an appeal is to be lodged and Miss Lesic has made such an application.
[7] Time limits of the kind in Rule 56 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 authorities3 indicate that the following matters are relevant to the exercise of the
Commission’s discretion to extend the prescribed time for the lodging of an appeal:
whether there is a satisfactory reason for the delay;
the length of the delay;
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.
[8] In broad terms the issue for the Commission 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.
[9] The delay in lodging the appeal in this matter is significant and the appellant has not
advanced a satisfactory reason for that delay. We have considered the grounds of appeal and
the submissions advanced in support of those grounds. In our view it is highly unlikely that
permission to appeal would be granted in this case.
[2015] FWCFB 395
3
[10] Having regard to all of the relevant considerations we are not persuaded that it is in the
interests of justice to extend time to file the appeal. Accordingly we dismiss Miss Lesic’s
application to extend time to file the appeal.
PRESIDENT
Appearances:
The Appellant: Miss K Lesic in person
The Respondent: Mr S. Harben
Hearing details:
Sydney with video link to Perth
21 January 2015
Printed by authority of the Commonwealth Government Printer
Price code A, PR560121
1 [2014] FWC 6647
2 (2011) 192 FCR 78 at paragraph 43
3 Stevenson-Helmer v Epworth Hospital, Print T2277, 19 October 2000 per Ross VP, Acton SDP and Simmonds C;
Dundovich v P&O Ports, Print PR923358, 8 October 2002 per Ross VP, Hamilton DP and Eaves C; SPC Ardmona
Operations Ltd v Esam and Organ (2005) 141 IR 338; Ropafadzo Tokoda v Westoac Banking Corporation T/A Westpac
[2012] FWAFB 3995
