1
Fair Work Act 2009
s.604 - Appeal of decisions
Ms Bronwyn Shields
v
The Trustee for the Jell Discretionary Trust t/as Frank Jell Commissioning
Services Pty Ltd
(C2015/257)
VICE PRESIDENT CATANZARITI
SENIOR DEPUTY PRESIDENT HARRISON
COMMISSIONER BULL
SYDNEY, 30 APRIL 2015
Appeal against decision [2015] FWC 923 - refusal to extend time for lodging an unfair
dismissal application - s.394(3) - application determined on the papers - contested factual
matter about a critical issue - s.397 - conference or hearing required - permission to appeal
granted; appeal upheld.
[1] This appeal concerns a decision of Deputy President Sams declining to extend the time
for filing an unfair dismissal application and was heard on 8 April 2015. At the conclusion of
the appeal hearing, the parties were notified that permission to appeal was granted and that the
appeal was upheld. These are the reasons for that conclusion.
[2] Ms Bronwyn Shields (the appellant) filed an unfair dismissal application on 23
October 2014, stating she was unfairly dismissed from her employment with her employer -
The Trustee for the Jell Discretionary Trust t/as Frank Jell Commissioning Services Pty Ltd
(the respondent).
[3] The appellant was represented by Mr J Merrell of counsel and the respondent by Mr R
Hassall, a solicitor. Permission for both parties to be represented by a lawyer was granted
under s.596(2)(a) on the basis that it would enable the matter to be dealt with more efficiently,
taking into account the complexity of the matter.
Background
[4] On 4 December 2014, the following advice and direction was sent by Senior Deputy
President Drake to the respondent (by email) with a copy to the appellant:
“Please file an Employer Response to this application as well as a response to the
application made by Ms shields (sic) for an extension of time for lodgement. Her
submission in this regard is attached.
[2015] FWCFB 2945
DECISION
E AUSTRALIA FairWork Commission
[2015] FWCFB 2945
2
Please provide your Employer Response and your submission in reply to her
application for an extension of time by close of business 10 December 2014
I will determine this application on the papers already before me after close of
business 11 December 2014, without further notice to you, unless I receive beforehand
a request to hear this application in person or by telephone or video link.”
[5] The matter was then allocated to Deputy President Sams, who proceeded to determine
the application “on the papers”. On 19 January 2015, the Deputy President issued an order
dismissing the appellant's application. He published the reasons for his decision on 6 February
2015 (the Decision).
[6] Ms Shields seeks permission to appeal the Deputy President's order and Decision.
[7] The grounds of appeal are listed as:
“1. The decision of the Deputy President relies on a significant error of fact and/or law;
and/or
2. The Deputy President failed to take a material consideration into account in his
decision and/or
3. The Deputy President took into account an irrelevant consideration or incorrect
principle.”
Permission to Appeal
[8] The Decision subject to appeal was made under Part 3-2 – Unfair Dismissal – of the
Fair Work Act 2009 (Cth) (the Act).
[9] Section 400(1) of the Act provides that permission to appeal must not be granted from
such a decision unless the Fair Work Commission (the Commission) considers that it is in the
public interest to do so. 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)).
[10] 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.1
[11] The task of assessing whether the public interest test is met is a discretionary one
involving a broad value judgment.2 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.”3
[2015] FWCFB 2945
3
[12] 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.4 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.5
Conclusion
[13] 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).
The appellant lodged her application for an unfair dismissal remedy pursuant to s.394 of the
Act on 23 October 2014.
[14] The appellant claimed she was not made aware of her dismissal until 15 October 2014,
when she asked for her Employment Separation Certificate. The respondent contests that the
appellant only became aware of her dismissal on this date.6
[15] The Deputy President found that, even giving the appellant the benefit of the doubt,
she first became aware that her employment with the respondent had ended on 22 August
2014. The Deputy President stated:
“[15] In my opinion, the applicant’s conduct was consistent with her having resigned
her position at least by 22 August 2014.”
[16] The appellant takes issue with this conclusion on the basis that the appellant did not
make contact with the respondent as she was on workers compensation and would not make
contact with the respondent until given a clearance by her doctor.
[17] 22 August 2014 is some two months beyond the 21-day period provided for filing an
unfair dismissal application. The Deputy President went on to conclude that he was not
satisfied that there were “exceptional circumstances” that would allow him to extend the time
for filing the unfair dismissal application under s.394(3) of the Act.
[18] A critical issue in the proceedings at first instance was the date on which the
appellant's dismissal took effect.
[19] During the hearing of the appeal, the relevance of s.397 of the Act to the manner in
which the Deputy President had heard the matter was raised. Section 397 provides:
“The FWC must conduct a conference or hold a hearing in relation to a matter arising
under this Part if, and to the extent that, the matter involves facts the existence of
which is in dispute.”
[20] It is apparent from the terms of s.397 that where a matter arising under Part 3-2
involves facts in dispute, the Commission must either hold a conference or conduct a hearing
in relation to the facts in dispute.
[21] Whether an application was made within the time period prescribed in s.394(2) is
clearly a “matter arising” under Part 3-2 of the Act. Section 396 is relevant in this regard. It
provides that:
[2015] FWCFB 2945
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“The FWC must decide the following matters relating to an application for an order
under Division 4 before considering the merits of the application:
(a) whether the application was made within the period required in subsection
394(2) ...”
[22] In the present matter, the Deputy President did not hold a conference or hearing in
relation to the date of termination, being the contested fact. It was submitted by the
appellant’s Counsel during the appeal hearing:
“As your Honours will see, this application by my client was made or was determined
by the Commission on the papers.”7
[23] The type of conference envisaged by s.397 is a conference at which the parties would
have an opportunity to make submissions and call evidence and respond to the evidence and
submissions of the other party in relation to the contested fact(s).8
[24] In summary, we reach the following conclusions:
(i) There was a dispute between the parties as to the date on which the appellant's
termination of employment took effect (the contested fact);
(ii) The resolution of the contested fact was a critical issue in determining whether the
application was made within the time period prescribed in s.394(2);
(iii) Whether an application was made within the time period prescribed in s.394(2) is
a “matter arising” under Part 3-2, within the meaning of that expression in s.397;
(iv) Section 397 provides that the Commission must conduct a conference or hold a
hearing in relation to a matter arising under Part 3-2, to the extent that the matter
involves contested facts; and
(v) The Deputy President did not conduct a conference or hold a hearing in relation to
the dispute about the date on which the appellant's termination of employment took
effect and hence did not comply with the requirements of s.397.
[25] The fact that neither party requested a conference or hearing cannot overcome the
requirements of s.397. A conference or hearing would have provided the Deputy President an
opportunity to ask questions of the witnesses and to assess their credibility and for the parties
to cross-examine each other on their evidence.
[26] The failure to comply with s.397 where the relevant contested fact was a critical issue
in the proceeding enlivens the public interest, and on that basis we are satisfied that it is in the
public interest to grant permission to appeal and permission is granted.9
[27] The failure to comply with s.397 in the context of this case was an error that warrants
correction on appeal. We uphold the appeal and quash the Deputy President's order dismissing
the appellant's application. The matter will be relisted before Vice President Catanzariti.
[2015] FWCFB 2945
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VICE PRESIDENT
Appearances:
The Appellant: Mr J Merrell of Counsel
The Respondent: Mr R Hassall, Solicitor.
Hearing details:
Sydney with video link to Brisbane
8 April 2015
Printed by authority of the Commonwealth Government Printer
Price code C, PR566588
1 [2011] FCAFC 54 at paragraph 43
2 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
3 (2010) 197 IR 266 at paragraph 27
4 Wan v AIRC [2001] FCA 1803 at [30]
5 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]
6 [2015] FWC 923 at [1]
7 PN9 and PN21
8 Mrs Renee Gutzeit v Liquorland (Qld) Pty Ltd T/A Spirit Hotels Liquorland (South East Queensland) [2015] FWCFB 1257
9Also see Tino v Regis Resources Ltd [2014] FWCFB 5358
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