1
Fair Work Act 2009
s.604 - Appeal of decisions
Ms Jacqueline Schneider
v
Apollo Motorhome Holidays Pty Ltd
(C2015/1610)
JUSTICE ROSS, PRESIDENT
SENIOR DEPUTY PRESIDENT ACTON
DEPUTY PRESIDENT GOSTENCNIK
MELBOURNE, 24 MARCH 2015
Appeal against decision PR560230 of Vice President Hatcher at Sydney on 19 January 2015
in matter number U2014/13150 - public interest not enlivened - permission to appeal refused.
[1] Ms Jacqueline Schneider (the appellant) was dismissed from her employment with
Apollo Motorhome Holidays Pty Ltd (the respondent, Apollo Motorhomes) on 5 September
2014 and subsequently lodged an application for an unfair dismissal remedy pursuant to s.394
of the Fair Work Act 2009 (Cth) (the FW Act). The application was lodged on 9 October
2014.
[2] An unfair dismissal remedy application must be made within 21 days after the
dismissal took effect or within such further time as the Commission allows under s.394(3).
The appellant’s application was lodged 13 days outside the 21-day time limit and so it was
necessary for her to obtain an extension of time under s.394(3).
[3] On 27 October 2014 the Commission caused a letter to be sent to the appellant
informing her of the requirement to seek an extension of time if the application was to
proceed; listing the matters which, under s.394(3), the Commission is required to take into
account in determining any such application; and seeking a written statement within 14 days
explaining why an extension of time should be granted and addressing the criteria in
s.394(3)(a) to (f). The appellant provided such a statement on 7 November 2014. The
appellant’s extension of time application was the subject of a hearing before Vice President
Hatcher on 15 January 2015.
[4] On 19 January 2015 the Vice President issued a decision refusing to grant the
appellant an extension of time and dismissing the appellant’s application on that basis1 (the
Decision). Ms Schneider seeks permission to appeal the Vice President’s decision and that is
the matter before us.
[2015] FWCFB 1259
DECISION
AUSTRALIA FairWork Commission
[2015] FWCFB 1259
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[5] 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’.
[6] The task of assessing whether the public interest test is met is a discretionary one
involving a broad value judgment.3 In GlaxoSmithKline Australia Pty Ltd v Makin a Full
Bench of the Commission identified some of the considerations that may attract the public
interest:
“... 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.”4
[7] 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.5 However, the fact that the Member at first instance made an error is not
necessarily a sufficient basis for the grant of permission to appeal.6
[8] The appellant’s employment was terminated on 5 September 2014 and she lodged her
unfair dismissal application on 9 October 2014. As mentioned earlier, the appellant’s unfair
dismissal application was lodged 13 days outside the statutory time limit.
[9] 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.
[10] The nature of the decision making exercise in relation to an extension of time
application pursuant to s.394(3) was described by the Full Bench in Lombardo v
Commonwealth of Australia7 in the following terms:
“The test for granting an extension of time involves both a broad discretion and a high
hurdle of exceptional circumstances.”
[2015] FWCFB 1259
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[11] The power to extend time pursuant to s.394(3) can only exercised if the FWC is
satisfied that there are ‘exceptional circumstances’. The FWC may be satisfied that the
circumstances are exceptional if they are out of the ordinary course, unusual, special or
uncommon.8 In deciding whether there are exceptional circumstances the FWC must take into
account each of the matters specified in s.394(3)(a) to (f), insofar as those matters arise in a
particular case. To take a matter into account means that the matter is a ‘relevant
consideration’ in the Peko-Wallsend9 sense of matters which the decision maker is bound to
take into account.
[12] Importantly, in s.394(3)(a) to (f) it is not necessary to find that the circumstances
pertaining to any of the identified criteria are exceptional, rather the test posited by s.394(3) is
whether taking into account all of the relevant specified criteria, there are ‘exceptional
circumstances’.
[13] If the FWC is satisfied that there are ‘exceptional circumstances’ then the discretion to
extend time is enlivened. It does not necessarily follow from a finding of exceptional
circumstances that an application to extend time will be granted, it will always be a matter of
discretion.
[14] In the decision subject to appeal the Vice President considered each of the matters
specified in s.394(3)(a) to (f). At paragraph [7] of the decision his Honour set out the reasons
advanced by Ms Schneider for the delay in lodging her unfair dismissal application:
“[7] Ms Schneider relied upon three matters together as the reason for the delay: that Apollo
had “kept her dangling” by indicating that there might be alternative work without actually
offering anything; the receipt of information on 7 October 2014 that indicated her redundancy
might not be genuine; and her suffering depression after having been dismissed.”
[15] Paragraphs [8]-[10] of the Decision set out the Vice President’s assessment of the
reasons advanced by Ms Schneider for the delay in lodging her application:
“[8] I do not consider that the first and third matters either singly or cumulatively with other
matters constitute a satisfactory explanation for the delay. On the issue of alternative work, it
is reasonably apparent that Ms Schneider was only interested in casual work. Ms Schneider’s
disappointment at not being given the casual role which was raised with her on 5 September
2014 is understandable, and some criticism might reasonably be directed at Apollo on that
score. However, it was clear by 9 September 2014 that the role was not available. While
beyond that point Ms Schneider may have hoped to be offered casual alternative work, there
was no evidence that Apollo had any such work to offer her. The position which Ms Schneider
saw advertised on 22 September 2014 turned out to be a full-time position, and Ms Schneider
clearly expressed a lack of interest in it. Nothing occurred thereafter which could reasonably
have indicated to Ms Schneider that she should delay taking action about her dismissal
because of the prospect of alternative work.
[9] The medical diagnosis of depression post-dated the making of the application. It refers to
the depression being caused by “unfair dismissal”. On Ms Schneider’s evidence, she did not
consider her dismissal to be unfair until she saw the email on 7 October 2014. That makes it
difficult to attribute the depression as a cause of delay before that time. There is no indication
in the evidence that the depression was such as to disable Ms Schneider from making an
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application; indeed once she saw the email on 7 October 2014 she proved herself able to act
promptly and effectively by lodging her application two days later.
[10] The principal matter relied upon by Ms Schneider is the email which she saw on 7
October 2014. From a subjective perspective, it is understandable that the email caused Ms
Schneider to conclude that her position had not in fact been abolished and her redundancy was
therefore not genuine. She had not been told her job was, effectively, being outsourced to a
Filipino call centre, and the reference in her termination letter to her job no longer being
required “in Australia” was not sufficiently clear to allow a reasonable inference to that effect.
Insofar as Ms Schneider contends that her dismissal was unfair because it was not a genuine
redundancy in that her position appeared to still be required to be performed by Apollo, then
she had a reasonable explanation for her delay in filing the application. However, insofar as
Ms Schneider contends that the other aspects of the genuine redundancy definition in s.389
concerning consultation and redeployment were not satisfied and her dismissal was unfair on
that basis also, she has no reasonable explanation for the delay, since the facts relevant to
those matters were known to her well before the 21-day period expired.”
[16] At paragraphs [11] to [15] of the Decision the Vice President dealt with other matters
which he was required to take into account and made the following findings:
Ms Schneider became aware of her dismissal at the same time it took effect, on
5 September 2014 (s.394(3)(b));
Ms Schneider disputed her dismissal by lodging her unfair dismissal application
(s.394(3)(c));
there was no identifiable prejudice to the employer (including prejudice caused by the
delay)(s.394(3)(d));
the application was not devoid of merit and was arguable, but did not have good
prospects of success in all the circumstances (s.394(3)(e)); and
fairness in relation to any other person in a similar position was not relevant in this
particular case (s.394(3)(f)).
[17] The Vice President concluded that having regard to all of the matters which he was
required to take into account he was satisfied that there were ‘exceptional circumstances’
within the meaning of s.394(3). In particular, the Vice President observed (at [19]) that,
‘the discovery by Ms Schneider on 7 October 2014 of information relevant to her
dismissal on the grounds of redundancy which caused her to doubt the genuineness of
that redundancy was sufficiently unusual to constitute exceptional circumstances’
[18] The Vice President went on to consider whether to exercise the discretion to extend
time and concluded that ‘it would not be fair or equitable to grant an extension of time’. In
reaching that conclusion the Vice President placed particular weight on three matters (set out
at [20] of the Decision),:
[2015] FWCFB 1259
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“(1) Ms Schneider took no action whatsoever to contest or even question her
dismissal within the 21-day period or before she filed her application on
9 October 2014.
(2) Subjectively speaking, it is reasonable that Ms Schneider, having seen
the email on 7 October 2014, only formed the view at that time that
Apollo had filled her position rather than abolishing it and that her
dismissal was therefore not a genuine redundancy and was unfair.
Objectively however, this principal aspect of Ms Schneider’s case is
without merit. It is clear that Apollo outsourced to an independent
business in the Philippines the main functions of Ms Schneider’s former
position.
(3) Insofar as I have assessed other aspects of Ms Schneider’s case as having
some merit and being arguable, they related to matters which were fully
known to her well prior to the expiry of the 21-day lodgement period.
She has no reasonable excuse for not filing an application in time in
relation to those matters.”
[19] Ms Schneider’s submission in support of her application for permission to appeal may
be distilled into five points:
(i) In finding that she took no action to contest or question her dismissal within the
prescribed 21 day period the Vice President did not give sufficient weight to the
fact that she had been misled about the circumstances surrounding her
redundancy.
(ii) The Vice President’s findings in relation to the merits of the substantive
application are contradictory as he finds that the claim is ‘arguable’ and ‘not
devoid of merit’ on the one hand and yet concludes that the substantive
application ‘cannot be assessed as having good prospects of success in all the
circumstances’.
(iii) It is in the public interest that time be extended as the failure to do so will be seen
as condoning a practice whereby an employer fails to consult and misleads
employees,”
“If the Decision is upheld and my late application is not accepted, this condones
deception and non compliance with the Act on the part of employers who seek to
protect themselves from an unfair dismissal action.”
(iv) The appellant was told, and accepted, that the business was not viable yet it
continues to operate,:
“Apollo Motorhomes states that they have reduced my salary costs by hiring someone
via Beepoo in The Philippines, and they have also reduced paid advertising
significantly. But this will not make the business viable, contrary to point [16] of the
Decision, that “The business circumstances of Salamanda Travel … provided a
legitimate reason for Ms Schneider’s dismissal.” With reduced paid advertising, the
[2015] FWCFB 1259
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sales will be correspondingly lower, which would logically mean that any savings
achieved by outsourcing my role and reducing paid advertising will be negated by
lower sales. This begs the question, why is this non-viable business being continued
when it is clear it will continue to make a significant loss based on the figures
provided?”
(v) The Vice President found that during a discussion between the appellant and
Sandra Foerster on 9 September 2014 the appellant had ‘expressed a preference
for casual work’.
[20] It is convenient to deal with the last point first. The finding referred to is set out at
paragraph [5] of the Decision,:
“The facts relevant to the extension of time application were as follows:
... (4) During the weekend, Ms Schneider sent text messages to her former Manager
Mr Craig Spencer expressing an interest in the casual position, and on 9 September
2014 contacted Ms Foerster to confirm her interest. However, she was told that the
position had already been filled. Unbeknownst to Ms Foerster as at 5 September 2014,
the position had in fact been offered to another person that day. In the course of their
discussion on 9 September 2014, Ms Foerster mentioned the possibility that another
position might become vacant. During the conversation, Ms Schneider expressed a
preference for casual work.
[21] The Vice President’s finding is based on evidence given by Ms Foerster during the
proceedings, particularly at paragraphs 208-212 in the course of her evidence in chief:
“On 5 September when Ms Schneider was advised of her redundancy, was she also advised
that there was an alternative casual position available that she may have been able to fill?---
Correct, at the time during that redundancy meeting, it was mentioned to Ms Schneider that
there was a casual role advertised. It was also mentioned that the role had been advertised for
some time, and that interviews have taken place for that position, and that if she was
interested, she would need to indicate fairly quickly or immediately if she wanted to be
considered.
What was her response?---At the time, she said she wasn't really interested, but she would
consider it over the weekend or she would think about it. I think that's what she said, that's
what her words were.
What subsequently happened to that particular vacancy?---Unbeknown to myself, the position
actually was offered to an applicant on 5 September on the same day that the meeting actually
took place.
So, in effect, there was no alternative position that was available for Ms Schneider to take on?-
--I cannot exactly determine what time of day the offer was made, but it could be possible that
the position was actually already gone.
There's been some mention also of a second position that Ms Schneider became aware of on
approximately 23 September. Could you tell us something about that vacancy?---That vacancy
became available due to the retirement of one of our full-time permanent GSOs, guest service
officer, sorry, and that position was advertised. I did not contact Ms Schneider at the time
because she had indicated during the conversation on 9 September, which was the Tuesday
following her redundancy, that she wasn't interested - that she was interested in bringing up
her own business, which is a translation business, that she was working on that business and
[2015] FWCFB 1259
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that it would have been perfect to have a casual role to supplement her income while she was
working on her own business. So she indicated to me in a phone conversation that she wasn't
interested in a full-time permanent role, especially one that required overtime and weekend
work, and work on public holidays, that she wanted to work on her own business and bring
that business back up to working at full speed, so to speak, and while this business was getting
back up to running, to just supplement her income with some casual hours up to 20 hours a
week. At that time, I didn't contact her about the full-time role because she had already
indicated to me that she wasn't interested in that. When she called me about the role and we
spoke about it, and I clarified to her that it was a full-time role replacing a full-time member,
she again indicated to me that she wasn't interested in a full-time role, and that she wouldn't
really want to take that.”
[22] Ms Foerster was cross-examined generally about other available positions,10 but there
was no challenge to Ms Foerster’s evidence that the appellant had expressed a preference for a
casual, as opposed to a full time, position. The Vice President’s finding was plainly open on
the evidence.
[23] As to point (i), we are not persuaded that the Vice President had given insufficient
weight to the fact that Ms Schneider had not been told that her job had been outsourced to an
entity in the Phillipines. It is apparent from the Decision (at [5] (part (8)), [10] and [19]) that
the Vice President did take this matter into account, indeed it was this matter which led the
Vice President to conclude that there were ‘exceptional circumstances’.
[24] As to point (ii) the Vice President deals with the merits of Ms Schneider’s substantive
application at [14]-[17],:
“[14] The evidence and other material currently before me is relatively extensive, and it is
unlikely that there would be any significant additional material placed before the Commission
were Ms Schneider’s application to go to hearing. The main facts are either not in dispute or
clearly established by the evidence. It is therefore possible to make a realistic assessment of
the merits of the application.
[15] The application of the definition of genuine redundancy in s.386 looms large in relation to
this application. That definition has three limbs. The first is a requirement that “the person’s
employer no longer required the person’s job to be performed by anyone because of changes
in the operational requirements of the employer’s enterprise”. That requirement is clearly
satisfied here, in that Apollo no longer employs anyone to perform the principal function of
Ms Schneider’s role, and has outsourced that function to another employer overseas.
Although, subjectively speaking, the email which Ms Schneider saw on 7 October 2014 may
have given a different impression, the objective position is quite clear.
[16] It is reasonably arguable however that the second and third limbs of the genuine
redundancy definition - that is, the consultation (in this case, as required by the Clerks -
Private Sector Award 2010) and redeployment elements - may not have been satisfied in this
case. However, it does not necessarily follow from a conclusion that a dismissal on
redundancy grounds was not a genuine redundancy under s.386 that the dismissal was unfair.
Ms Schneider’s primary contention was that her dismissal was unfair because Apollo had
replaced her. The evidence demonstrates that she was not replaced by Apollo and that her
work was outsourced, as earlier explained. She could not therefore obtain a finding of
unfairness on that score. The business circumstances of Salamanda Travel, and Apollo’s
[2015] FWCFB 1259
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decision to restructure that business, provided a legitimate reason for Ms Schneider’s
dismissal.
[17] It would therefore be necessary for Ms Schneider to argue that her dismissal was unfair
because of insufficient consultation and a failure to redeploy her to the alternative casual
position identified to her on 5 September 2014. That position is not devoid of merit and is
arguable, but it cannot be assessed as having good prospects of success in all the
circumstances.”
[25] The Vice President placed particular weight on the merits in reaching his conclusion
that it would not be fair or equitable to grant an extension of time (see paragraph [18] above).
[26] Contrary to Ms Schneider’s submission we are not persuaded that the Vice President’s
observations about the merits of her substantive application are contradictory.
[27] We agree with the Vice President’s assessment that the respondent no longer employs
anyone to perform the principal function of Ms Schneider’s former role and accordingly her
position has been made redundant. Section 385(d) of the FW Act provides that a person has
been ‘unfairly dismissed’ if, among other things, the Commission is satisfied that the
dismissal was not a case of ‘genuine redundancy’. The expression ‘genuine redundancy’ is
defined in s.389 :
“389 Meaning of genuine redundancy
(1) A person’s dismissal was a case of genuine redundancy if:
(a) the person’s employer no longer required the person’s job to be performed by
anyone because of changes in the operational requirements of the employer’s
enterprise; and
(b) the employer has complied with any obligation in a modern award or enterprise
agreement that applied to the employment to consult about the redundancy.
(2) A person’s dismissal was not a case of genuine redundancy if it would have been
reasonable in all the circumstances for the person to be redeployed within:
(a) the employer’s enterprise; or
(b) the enterprise of an associated entity of the employer.”
[28] In determining whether a dismissal is a ‘genuine redundancy’ the Commission is
concerned with whether the employer no longer required the person’s job to be performed by
anyone ‘because of changes in the operational requirements of the employer’s enterprise’. A
decision by an employer to outsource all of an employee’s duties is clearly a redundancy.
[29] The Vice President also observed (at [16] of the Decision) that it was reasonably
arguable that the respondent had not consulted with the appellant about the redundancy and
had made no effort to redeploy her. In this context the Vice President was referring to two of
the elements of the definition of genuine redundancy in s.389. However, the Vice President
goes on to say:
“[16] It is reasonably arguable however that the second and third limbs of the genuine
redundancy definition - that is, the consultation (in this case, as required by the Clerks -
[2015] FWCFB 1259
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Private Sector Award 2010) and redeployment elements - may not have been satisfied in this
case. However, it does not necessarily follow from a conclusion that a dismissal on
redundancy grounds was not a genuine redundancy under s.386 that the dismissal was unfair.
Ms Schneider’s primary contention was that her dismissal was unfair because Apollo had
replaced her. The evidence demonstrates that she was not replaced by Apollo and that her
work was outsourced, as earlier explained. She could not therefore obtain a finding of
unfairness on that score. The business circumstances of Salamanda Travel, and Apollo’s
decision to restructure that business, provided a legitimate reason for Ms Schneider’s
dismissal.”
[30] The Vice President then states that if the substantive application proceeded Ms
Schneider would need to persuade the FWC ‘that her dismissal was unfair because of
insufficient consultation and a failure to deploy her to the alternative casual position identified
to her on 5 September 2014’. The Vice President characterised such a submission as ‘not
devoid of merit ... but it cannot be assessed as having good prospects of success’.
[31] There is no inherent contradiction in the Vice President’s observations. The first set of
observations are directed at whether the dismissal would be regarded as a ‘genuine
redundancy’ within the meaning of s.389 and the second are concerned with something quite
different - whether the dismissal would be considered to be ‘unfair’ within the meaning of
s.387. Nor is there any contradiction in assessing an application as ‘not devoid of merit’ but
‘not having good prospects of success’.
[32] As to point (iii), we are not persuaded that refusing to grant permission to appeal
would be contrary to the public interest. The Decision involved the exercise of a discretion
based upon a consideration of specified statutory criteria. We are not persuaded that the
discretion miscarried or that there was any error in the Vice President’s reasoning. Refusing to
grant permission to appeal is based on those considerations and does not, in any way, condone
a failure to consult an employee about an impending redundancy. We also note that it would
still be open to Ms Schneider to institute proceedings against the respondent for breach of the
consultation provisions in the relevant modern award.
[33] As to point (iv), we are not persuaded that this matter is relevant to our consideration
of whether to grant permission to appeal.
[34] We are not persuaded that Ms Schneider has established that it is in the public interest
to grant permission to appeal. The Vice President addressed the relevant statutory criteria and
we are not persuaded that the decision subject to appeal discloses any error of principle or any
significant error of fact. Nor are we persuaded that the appellant has established an arguable
case of error in relation to any aspect of the decision subject to appeal.
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[35] As we have mentioned, s.400(1) provides that permission to appeal must not be
granted unless the Commission considers that it is in the public interest to do so. We do not
consider that it is in the public interest to grant permission to appeal and accordingly we
refuse permission to appeal.
PRESIDENT
Appearances:
The Appellant: Mrs Schneider on her own behalf
The Respondent: Mr T. Kowalski
Hearing details:
Melbourne with video link to Brisbane
18 March 2015
Printed by authority of the Commonwealth Government Printer
Price code C, PR561304
1 [2015] FWC 482
2 (2011) 192 FCR 78 at paragraph 43
3 O’Sullivan v Farrer (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch
(2011) 85 ALJR 398 at paragraph 69 per Gummow, Hayne, Heydon, Crennon, Kiefel and Bell JJ; Coal & Allied Mining
Services Pty Ltd v Lawler and others [2011] FCAFC 54 at paragraphs 44 - 46.
4 (2010) 197 IR 266 at paragraph 27
5 Wan v AIRC [2001] FCA 1803 at [30]
6 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 in Coal &
Allied Mining Services Pty Ltd v Lawler; [2011] FCAFC 54; NSW Bar Association v Brett McAuliffe; Commonwealth of
Australia represented by the Australian Taxation Office [2014] FWCFB 1663 at [28]
7 [2014] FWCFB 2288 at [21]
8 Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [13]
9 Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24
10 See Transcript at paragraphs 238-265
