1
Fair Work Act 2009
s.604 - Appeal of decisions
Underwood
v
Terra Firma Pty Ltd T/A Terra Firma Business Consulting
(C2015/1839)
VICE PRESIDENT CATANZARITI
VICE PRESIDENT WATSON
DEPUTY PRESIDENT GOSTENCNIK SYDNEY, 25 MAY 2015
Appeal against Order PR560721 of Deputy President Sams at Sydney on 4 February 2015 in
matter number U2014/13390.
[1] Mr Wayne Underwood (the Appellant) was dismissed from his employment with
Terra Firma Pty Ltd T/A Terra Firma Business Consulting (the Respondent) and subsequently
lodged an application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act
2009 (Cth) (the Act).
[2] The Appellant’s employment was terminated on 30 September 2014 and he lodged his
unfair dismissal application on 22 October 2014. Under s.394(2) of the Act, an application for
an unfair dismissal remedy must be made within 21 days after the dismissal took effect or
within such further time as the Commission allows under s.394(3). Section 394(3) provides
that the Commission may allow a further period for the application to be made where it is
satisfied that there are “exceptional circumstances” taking into account a number of specified
matters. The Appellant’s application was lodged 1 day outside the 21-day time limit, and
accordingly it was necessary for him to obtain an extension of time under s.394(3).
[3] On 4 February 2015 the Deputy President issued an order1 (Order) and on 4 March
2015 published a decision2 (Decision) dismissing the Appellant’s application for an extension
of time for the lodgement of his application. The Appellant seeks permission to appeal the
Decision and Order and that is the matter before us.
[4] At the commencement of the proceedings, the Appellant made an application to put
new material into evidence. The application was rejected on the basis that the material was
not relevant to the timeline by which the unfair dismissal application was considered as it
post-dated the application.
[5] The Appellant filed written submissions and made further oral submissions at the
hearing. Prior to the Appellant’s oral submissions, Mr Cochrane sought permission to appear
on behalf of the Respondent. We deferred consideration of this question until the Appellant
presented his submissions. At the conclusion of the Appellant’s oral submissions, the
[2015] FWCFB 3435
DECISION
AUSTRALIA FairWork Commission
[2015] FWCFB 3435
2
Commission decided that it did not need to hear from the Respondent, so there was no need to
deal with the issue of permission to appear.
[6] The decision subject to appeal was made under Part 3-2 – Unfair Dismissal – of the
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’.3 The Commission must not grant permission to
appeal unless it considers that it is ‘in the public interest to do so’.
[7] The task of assessing whether the public interest test is met is a discretionary one
involving a broad value judgment.4 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.”5
[8] 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 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.7
[9] As mentioned earlier, the Appellant’s unfair dismissal application was lodged 1 day
outside the statutory time limit.
[10] Subsection 394(3) of the Act 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.”
[2015] FWCFB 3435
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[11] The Deputy President considered each of the matters specified in s.394(3)(a) to (f) at
paragraphs [7]-[20] of the Decision and concluded that there were no exceptional
circumstances such as to warrant an extension of time to permit the Appellant to lodge his
application for relief.
[12] In accordance with the Commission’s directions, the Appellant filed written
submissions that advanced some broad lines of argument in support of his application for
permission to appeal. In summary form, the Appellant submitted that permission to appeal
should be granted for the following reasons:
(a) the significant facts in dispute regarding the dismissal and strong merits of his
application were not taken into account by the Deputy President;
(b) the Deputy President misinterpreted the evidence regarding the Appellant’s
medical condition to erroneously reach the conclusion that he was suffering
from everyday levels of high stress, when he was actually suffering from
anxiety and depression for which he was on medication;
(c) it is in the public interest for the Commission to have consistency in its
decision making. The Decision was disharmonious with the decision in Glyn
Roberts v Westech IT Solutions Pty Ltd8 (Roberts) where it was found that an
applicant’s depressive illness was a relevant factor in the consideration of
whether to grant an extension of time for the purposes of s.394(3) of the Act;
(d) the Deputy President incorrectly placed emphasis on the Appellant “shopping
around” as the reason for the late application when in truth the Appellant did
not understand the process and was not able to cope due to his aforementioned
mental health issues; and
(e) the fact that technical difficulties prevented the Appellant from lodging the
application on time was not taken into consideration by the Deputy President.
[13] The appeal process is not intended to provide an avenue for an unsuccessful party to
rerun their case, absent error on the part of the primary decision maker. Much of the
Appellant’s grounds take issue with the way in which the Deputy President dealt with the
considerations pursuant to s.394 of the Act and go to the merits of the case, which is not the
test for whether permission to appeal should be granted.
[14] The Deputy President, at paragraphs [18]-[19] of the Decision, appropriately
considered the merits of the application on a prima facie basis, as he was required to do in
dealing with an out of time application pursuant to s.394(3)(e) of the Act.
[15] Regarding the Appellant’s contentions surrounding his medical evidence, in Roberts
the Applicant’s unfair dismissal application was filed some 22 days out of time and there was
medical evidence which established the primary reason for the delay in filing the application
related to Mr Robert’s depressive illness. Senior Deputy President O’Callaghan found that the
circumstances were exceptional for the purpose of s.394(3) and on that basis his Honour made
an order extending the time within which the applicant could file his unfair dismissal
application. The facts in the matter before us are quite different and the circumstances of each
[2015] FWCFB 3435
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case must be considered in their own unique context. Roberts cannot be taken as authority for
the proposition that in every case where the applicant is suffering from depression,
exceptional circumstances will be found for the purposes of s.394(3) of the Act. At paragraph
[11] of the Decision, the Deputy President correctly observed:
“[11] I also note that Ms Cheung’s letter states that the applicant ‘indicated he was
unable to lodge the application within the required timeframe’. In other words, Ms
Cheung did not clinically diagnose the applicant as being unable to file his unfair
dismissal application. Rather, she simply repeated what the applicant told her about his
self assessment of his alleged psychological incapacity to lodge an unfair dismissal
application during the relevant 21 day period. I also observe that Ms Cheung stated
that the applicant only began psychological consultation on 20 November 2014; some
30 days after the statutory time limit for filing his application has expired.”
[16] We consider that the Deputy President properly considered the medical evidence at
paragraphs [7]-[12] of the Decision and found that it did not positively demonstrate that the
Appellant’s depressive illness had an impact on his mental capacity so as to prevent him from
lodging the application within the 21 day time frame. At best, the letter recited the Appellant’s
own assessment of his inability to have lodged the application within time.
[17] We do not consider that the Deputy President put any particular emphasis on the
Appellant “shopping around” as being the reason for his late application but rather properly
addressed all the relevant statutory criteria and reached a logical conclusion. Moreover, the
submission that the technical considerations were not taken into account cannot be
substantiated as the issue is noted in the extract at paragraph [8] of the Decision. The Deputy
President further noted at paragraph [14] that the Appellant received legal advice on 21
October 2014 yet failed to lodged his application until the following day. We consider that the
issue of experiencing technical difficulties was considered by the Deputy President and
viewed in a context which did not give rise to exceptional circumstances.
[18] We do not consider that the Appellant has advanced any arguable case of error in the
Decision. We consider that it was reasonably open to the Deputy President, on the basis of the
material before him, that the Appellant had not demonstrated exceptional circumstances such
as to permit the grant of an extension of time under s.394(3) of the Act. The Appellant’s
submissions amounted to an invitation for us to re-determine the extension of time application
rather than an attempt to identify error in the decision. In any event, we agree with the Deputy
President’s conclusion. The Decision was not counter-intuitive, did not manifest injustice, and
raised no wider issues of law or principle.
[19] As we have mentioned, s.400(1) of the Act 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.
[2015] FWCFB 3435
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VICE PRESIDENT
Appearances:
Mr Underwood in person.
Mr Cochrane for the Respondent.
Hearing details:
May 20
2015
Sydney via video-link to Melbourne.
Printed by authority of the Commonwealth Government Printer
Price code C, PR567570
1 PR560721.
2 Wayne Underwood v Terra Firma Pty Ltd t/as Terra Firma Business Consulting [2015] FWC 1387.
3 (2011) 192 FCR 78 at paragraph 43.
4 O’Sullivan v Farrer (1989) 168 CLR 210 at 216-7 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v
Hinch [2011] HCA 4 at [69] per Gummow, Hayne, Heydon, Crennon, Kiefel and Bell JJ; Coal & Allied Mining Services
Pty Ltd v Lawler [2011] FCAFC 54 at [44] -[46].
5 [2010] FWAFB 5343 at [27].
6 Wan v AIRC [2001] FCA 1803 at [30].
7 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].
8 [2014] FWC 4226.
THE FAIR WORK COMMISSION THE SEAA
