1
Fair Work Act 2009
s.604—Appeal of decision
Bokhee Becke
v
Edenvale Manor Aged Care
(C2014/5326)
JUSTICE ROSS, PRESIDENT
DEPUTY PRESIDNET GOSTENCNIK
COMMISSIONER WILSON
MELBOURNE, 9 OCTOBER 2014
Appeal against decision [Decision in Transcript] of Commissioner Lee at Melbourne on 20
June 2014 in matter number U2014/6782.
Introduction
[1] This is an edited version of a decision delivered in transcript on 18 September 2014.
Ms Bokhee Becke was dismissed from her employment with Edenvale Manor Aged Care on
or about 15 March 2014. We note that the question whether there was a dismissal at the
initiative of the employer remains in dispute and was not determined as part of the decision
that is the subject of this appeal.
[2] Ms Becke made an application under s. 394 of the Fair Work Act 2009 (Act) on
23 April 2014. Her application was made 16 days outside of the time prescribed in s. 394(2)
of the Act. Ms Becke’s application acknowledged that she was outside of the 21-day time
limit. Section 396(a) of the Act requires the Fair Work Commission (Commission) to decide
certain questions before the merits of an application are considered. One of those questions is
whether, in the case of a late application, a further period should be allowed in which the
application can be lodged.
[3] Accordingly, on 20 June 2014, Commissioner Lee conducted a determinative
conference under s. 398 of the Act to determine whether Ms Becke should be allowed a
further period within which to make her application for an unfair dismissal remedy.
Commissioner Lee was ultimately not satisfied that there were exceptional circumstances
warranting the exercise of his discretion to allow a further period. The Commissioner’s
decision and his reasons are recorded in the transcript of the conference held on 20 June 2014.
In the circumstances, the application was dismissed.
[4] Ms Becke lodged a notice of appeal against the Commissioner’s decision on 9 July
2014. The appeal requires permission. The notice of appeal does not, on its face, disclose any
ground on which an appellable error might be found. However, we are prepared to accept that
the grounds of appeal as set out in paragraph 2.1 of the notice of appeal are suggestive of
grounds which attack the Commissioner’s decision on the basis that he did not take into
[2014] FWCFB 6809
DECISION
E AUSTRALIA FairWork Commission
[2014] FWCFB 6809
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account Ms Becke’s explanation for the delay or that he failed to give sufficient weight to the
explanation resulting in a manifest injustice and accordingly, that he was in error.
[5] In her outline of submissions, Ms Becke submits that a reason for the delay in making
her application under s. 394 was that she was not able to function properly because of the
stress associated with bullying she had experienced at work and the stress associated with
losing her job. This explanation was not advanced during the conference before the
Commissioner. No medical evidence was sought to be adduced before us and Ms Becke
concedes that she did not consult a medical practitioner about her condition. During oral
submissions, Ms Becke also submitted that further reason for the delay was that she was
unaware of the existence of the Commission or of the right to make an unfair dismissal
remedy application. This reason was also not advanced before the Commissioner.
Admission of new material on appeal
[6] Turning first then to the question whether we should give consideration to the two
further reasons that are now advanced by Ms Becke as explanation for the delay. Section 607
sets out the circumstances in which on appeal the Commission may admit further evidence or
take into account any other information or material. Relevant material that comes to light
subsequent to the time of an initial hearing may be admitted if it bears upon an issue that
requires determination in an appeal.
[7] It is uncontroversial that the exercise of the discretion to admit new evidence or to
consider further material is to be governed by the principles that are set out in a decision of
Akins v National Australia Bank1. In Akins, the Court identified three conditions which must
be met before the discretion might be exercised to admit further evidence. These conditions
are as follows. First, it must be established that the evidence could not have been obtained or
adduced with reasonable diligence for use at first instance. Secondly, it must be evidence
which is of such a high degree of probative value that there is a probability that there would
be a different result than the first instance decision. Thirdly, the evidence that is sought to be
adduced must be credible.
[8] In considering whether to exercise the discretion, it is permissible for the Commission
to depart from the principles in Akins in an appropriate case, but we do not think that this is
such a case. The reasons for the delay that are now advanced by Ms Becke could have been
advanced before the Commissioner, but they were not. Furthermore, the additional reasons
now advanced, are not such as would result in a different conclusion.
[9] It is well established that ignorance of an available remedy or of the time limits which
attach to an application for a remedy will not provide an acceptable explanation for a delay.
Likewise, the stress that results from a loss of employment, without more, will not provide for
an acceptable explanation for delay. Medical evidence must be adduced which shows that the
stress or other condition adversely affected a person’s cognitive functioning and that this
caused, contributed, or at least explained the delay. In this appeal no medical evidence is
offered or available. In the circumstances, we are not persuaded to allow the additional
reasons to be advanced or to be relied upon, and we do not take them into account.
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Appeal Principles
[10] At the commencement of the hearing of this appeal, the President outlined the
principles that are to be applied in deciding whether permission to appeal should be granted.
Relevantly, an appeal under s.604 of the Act is an appeal by way of rehearing and the
Commission’s powers on appeal are only exercisable if there is error on the part of the
primary decision maker. There is no right to appeal. A party may only appeal a decision or
order made by a single member of the Commission with the permission of the
Commission. Unlike appeals against decisions made under most other provisions of the Act,
permission to appeal a decision made under the unfair dismissal regime in Part 3-2 will only
be granted if the Commission considers it to be in the public interest to do so. If an error of
fact is said to have been made by the first instance decision-maker in relation to a matter
arising under a Part 3-2 matter, an appeal will only be available if that error of fact is a
significant error of fact. More generally, other errors said to have been made by a first
instance decision-maker must be of a kind identified in House v King2.
[11] The legislative scheme for appeals in relation to and fair dismissal matters manifests
an intention that the threshold for a grant of permission to appeal is higher in respect of unfair
dismissal appeals than the threshold pertaining to appeals generally. The test for permission to
appeal is ‘a stringent one’. The provision dealing with appeals alleging factual errors operates
as a jurisdictional bar in relation to appeals on questions of fact.
[12] The question of when it would be in the ‘public interest’ to grant permission to appeal
in accordance with s.400 was considered by a Full Bench of Fair Work Australia in
GlaxoSmithKline Australia Pty Ltd v Makin3. There the Full Bench observed:
. . . 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
Consideration
[13] The Commissioner began his consideration of the question whether to allow a further
period by determining the date on which the dismissal took effect. His consideration of the
evidence is to be found at transcript PN393 to PN400. The Commissioner’s conclusion was
that on the evidence the dismissal took effect on 15 March 2014. During the appeal hearing,
Ms Becke accepted that 15 March 2014 was the date on which her dismissal took effect. We
consider that the finding made by the Commissioner was open to him on the evidence.
[14] The Commissioner then turned to consider the matters that he was required to consider
in determining whether there are exceptional circumstances which would warrant the exercise
of his discretion to extend time. The Commissioner’s analysis of the considerations and his
review of the legal principles, are to be found in the transcript at PN401 to PN404. That
analysis seems to us to be correct. The Commissioner then identified the reasons for the delay
that were advanced by Ms Becke during the conference. His summary is to be found at
transcript PN411. These are the same reasons that Ms Becke identifies in her notice of appeal,
although, as indicated above, Ms Becke sought to rely on some additional reasons during the
hearing before us.
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[15] The Commissioner next considers whether the reasons advanced by Ms Becke
amounted to an acceptable reason for the delay and he concludes that they did not. His
conclusion is to be found at transcript PN412. The conclusion that the Commissioner reached
was not only open to him, but is consistent with the authorities on the circumstances that
which will amount to an acceptable explanation for delay.
[16] The Commissioner considers the question of whether Ms Becke was notified of the
reason for her dismissal at transcript PN413. He concludes that on Ms Becke’s own evidence,
she became aware of the date on which her dismissal took effect on 15 March 2014. This
conclusion was reasonably open to the Commissioner. The Commissioner discusses the steps
that Ms Becke took to dispute her dismissal and he concludes that no steps were taken. Again,
on the evidence before him, that conclusion was reasonably open. The Commissioner finds, at
transcript PN414, that there was no evidence of prejudice to the employer and he ultimately
concludes that that consideration in the circumstances was neutral. Again, that conclusion was
reasonably open to him.
[17] The Commissioner discusses the merits of the application at transcript PN415. He
notes that there is a real contest about whether there was a dismissal at all. He concludes that
apart from the fact that there was a contest about whether there was a dismissal, there was no
other material before him upon which he could make a reasonable assessment about the
merits. In the circumstances, this approach was proper.
[18] The Commissioner notes at transcript PN415, that there are no factors which raise for
consideration fairness as between Ms Becke and other persons in a similar position. Again,
based on the material before him, this approach was proper.
Conclusion
[19] It seems to us apparent, on a review of the Commissioner’s decision, that he gave
consideration to the matters to which he was required to turn his mind. He applied the
evidence, such as it was, to those matters and he drew conclusions from the evidence which
were reasonably open to him. The Commissioner identified and applied the relevant legal
principles. Having done so, he reached the conclusion that he was not satisfied that there were
exceptional circumstances and so the occasion for consideration whether he should exercise
his discretion did not arise.
[20] We have been unable to identify any significant error of fact or any other appellable
error in the Commissioner’s decision or his reasoning. Nor are we persuaded that it would be
in the public interest to grant permission to appeal. In the circumstances, there is no proper
basis upon which permission to appeal might be granted. Accordingly, permission to appeal is
refused.
PRESIDENT
Appearances:
B. Becke on her own behalf
M. Rahilly for Edenvale Manor Aged Care
[2014] FWCFB 6809
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Hearing details:
Melbourne.
2014
18 September
Printed by authority of the Commonwealth Government Printer
Price code C, PR555991
1 (1994) 34 NSWLR 155
2 (1936) 55 CLR 499
3 [2010] FWAFB 5343
4 Ibid [27]
http://www.fwc.gov.au/decisionssigned/html/2010fwafb5343.htm
