1
Fair Work Act 2009
s.604 - Appeal of decisions
Kylie Annear
v
Centaurus Investments Pty Ltd t/a Bayside Day Procedure Centre
(C2015/4563)
VICE PRESIDENT HATCHER
DEPUTY PRESIDENT KOVACIC
COMMISSIONER BISSETT SYDNEY, 9 SEPTEMBER 2015
Permission to appeal sought against decision [[2015] FWC 3994] of Senior Deputy President
Watson at Melbourne on 15 June 2015 in matter number U2015/4951.
Introduction
[1] Ms Kylie Annear has applied for permission to appeal a decision issued by Senior
Deputy President Watson on 15 June 20151 (Decision). The effect of the Decision was to
refuse Ms Annear an extension of time to lodge an unfair dismissal remedy application under
s.394 of the Fair Work Act 2009 (FW Act) and to dismiss the application that had been
received by the Commission.
[2] Section 394(2) of the FW Act requires an unfair dismissal remedy application to be
lodged within 21 days after the dismissal took effect or within such further period as the
Commission allows under s.394(3). Section 394(3) provides:
(3) 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
1 [2015] FWC 3994
[2015] FWCFB 5263
DECISION
AUSTRALIA FairWork Commission
[2015] FWCFB 5263
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(f) fairness as between the person and other persons in a similar position.
[3] Ms Annear filed her unfair dismissal remedy application on 17 April 2015. That
application identified the date of the dismissal as being 26 March 2015. At the hearing before
the Senior Deputy President there was some dispute about the date the dismissal took effect.
The Senior Deputy President found in the Decision that the effective date of the dismissal was
26 March 2015. There was no challenge to that finding in Ms Annear’s notice of appeal. Ms
Annear’s unfair dismissal remedy application was therefore filed one day beyond the 21-day
time limit in s.394(2).
[4] The reasons for the delay advanced by Ms Annear at first instance, and the Senior
Deputy President’s consideration of those reasons pursuant to s.394(3)(a), are set out in the
Decision as follows:
“[7] The Applicant’s explanation for the delay in her written materials related to a delay
in providing information in relation to the incomplete application lodged by her (on 17
April 2015) and not to the failure to lodge that incomplete application on time. The
delay in lodgement, however, relates to the date of lodgement of the incomplete
application – 26 March 2015 – not the date on which the missing information was
provided to the Commission in an amended application of 28 April 2015.
[8] No explanation was offered by the Applicant to explain the failure to file the
incomplete application by 16 April 2015, as required by s.394(2)(a) of the Act, other
than that the Applicant was not the type to cause trouble and she was motivated to
make an application in part because of the manner in which she was treated by Ms
Benett in respect of the provision of a separation certificate, which came to a head on
17 April 2015.
[9] I am not satisfied that this satisfactorily explains the failure to lodge the application
in time nor that the explanation establishes exceptional circumstances for the late
lodgement.
[10] The reasons relied on do not support a finding of exceptional circumstances.”
[5] In considering the other matters required to be taken into account under s.394(3), the
Senior Deputy President concluded that:
Ms Annear became aware of her dismissal on 26 March 2015, which lent no
support to a finding of exceptional circumstances;
Ms Annear took no action to dispute the dismissal other than to lodge her unfair
dismissal remedy application, which did not establish exceptional circumstances;
there would be no prejudice to the respondent caused by the acceptance of Ms
Annear’s late application, and this was therefore a neutral consideration in the
matter;
because there was a factual dispute about the circumstances relied upon by the
respondent to justify the dismissal requiring resolution at a full hearing, it was not
[2015] FWCFB 5263
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possible to conclude that Ms Annear’s application was devoid of merit, and this
was therefore a neutral consideration; and
no issue about fairness to other persons had been raised, and this was therefore a
neutral consideration.
[6] The Senior Deputy President’s overall conclusion was that he was not satisfied that
there were exceptional circumstances that would permit the grant of an extension of time.
[7] Ms Annear’s notice of appeal and her written and oral submissions in support of her
application for permission to appeal raised a number of matters, but in only one instance was
there an assertion of appealable error on the part of the Senior Deputy President. Ms Annear
contended that the Senior Deputy President erred in concluding, for the purposes of
s.394(3)(c), that she took no action to contest her dismissal other than lodging her application.
She submitted that the position, as conveyed at the hearing before the Senior Deputy
President, was that she had been informed of her dismissal on 26 March 2015 during the day,
had then contested the dismissal by asking the respondent’s manager to reconsider the
decision, but then had been informed later that evening that the decision was confirmed.
[8] The primary matter raised by Ms Annear on appeal was her allegation that the
respondent had not provided her with a copy of the Fair Work Information Statement (FWIS)
at the commencement of her employment in accordance with s.125 of the FW Act. Section
125 provides:
125 Giving new employees the Fair Work Information Statement
(1) An employer must give each employee the Fair Work Information Statement
before, or as soon as practicable after, the employee starts employment.
(2) Subsection (1) does not require the employer to give the employee the Statement
more than once in any 12 months.
Note: This is relevant if the employer employs the employee more than once in the 12
months.
[9] The FWIS provides information about, among other things, unfair dismissal rights. It
relevantly states:
“Your employer should not dismiss you in a manner that is ‘harsh, unjust or
unreasonable’. If this occurs, this may constitute unfair dismissal and you may be
eligible to make an application to the Fair Work Commission for assistance. It is
important to note that applications must be lodged within 21 days of dismissal. Special
provisions apply to small businesses, including the Small Business Fair Dismissal
Code. For further information on this code, please visit www.fairwork.gov.au.”
[10] Ms Annear contended that if she had been supplied with this statement, she would
have known about the existence of unfair dismissal rights, the Fair Work Commission and the
21-day time limit for lodging applications and therefore would have lodged her application in
time. She said that she did not know about any of these things at the time of her dismissal and
it was only when she told her mother about her dismissal on 17 April 2015 that she was made
[2015] FWCFB 5263
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aware that she had the capacity to contest it in this Commission. She lodged her application
later the same day. Ms Annear submitted that this issue was one of general importance which
attracted the public interest, because the FW Act requirement to issue the FWIS was intended
to be the means by which employees were made aware of their rights and consequently any
breach of that requirement was to be treated as a matter of significance.
[11] This issue concerning the alleged failure to issue the FWIS was not raised in the
hearing before the Senior Deputy President. Ms Annear submitted that this was because she
only became aware of the requirement to issue the FWIS and the existence of the FWIS itself
after the Decision was issued.
[12] Ms Annear’s notice of appeal raised a number of other issues, most of which
concerned the way in which the hearing before the Senior Deputy President proceeded. It was
not submitted that any of these matters would require the grant of permission to appeal in the
public interest.
Consideration
[13] An appeal under s.604 of the FW 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.2 There is no right to appeal and an appeal may only be made with the
permission of the Commission.
[14] This appeal is one to which s.400 of the FW Act applies. Section 400 provides:
(1) Despite subsection 604(2), the FWC must not grant permission to appeal from a
decision made by the FWC under this Part unless the FWC considers that it is in the
public interest to do so.
(2) Despite subsection 604(1), an appeal from a decision made by the FWC in relation
to a matter arising under this Part can only, to the extent that it is an appeal on a
question of fact, be made on the ground that the decision involved a significant error
of fact.
[15] In the Federal Court Full Court decision 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 task of assessing whether the public interest test
is met is a discretionary one involving a broad value judgment4. 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
2 Coal and Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ
3 (2011) 192 FCR 78 at [43]
4 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 [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty
Ltd v Lawler and others (2011) 192 FCR 78 at [44] -[46]
[2015] FWCFB 5263
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applied appear disharmonious when compared with other recent decisions dealing with
similar matters.”5
[16] 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
[17] In relation to extensions of time to lodge applications under s.394(3), the test of
“exceptional circumstances” establishes a “high hurdle” for an applicant for an extension, and
a decision as to whether to extend time under s.394(3) involves the exercise of a broad
discretion.8 Therefore it will be necessary, in an application for permission to appeal against a
decision made under s.394(3) to demonstrate that there is an arguable case that there was
appealable error in the exercise of the discretion. This will require the identification of error
of the type described in House v The King9 - that is, that the decision-maker has acted on a
wrong principle, has mistaken the facts, has taken into account an irrelevant consideration or
failed to take into account a relevant consideration, or has made a decision which is
unreasonable or manifestly unjust. Additionally, where an error of fact is alleged, s.400(2)
requires that it must be a significant error of fact. The overriding public interest requirement
of s.400(1) remains.
[18] We are not satisfied that the Senior Deputy President made the error of fact alleged in
Ms Annear’s notice of appeal. The Senior Deputy President was fully alive to the fact that Ms
Annear had asked her employer to reconsider the decision to dismiss her, since he expressly
referred to it in his consideration as to when the dismissal took effect as follows (emphasis
added):
“[4] … The Applicant was advised of her termination during the day of 26 March 2015
by Ms L Benett (the Respondent’s CEO) but asked by the Applicant to reconsider her
decision. Ms Benett agreed to do so, did so and communicated with the Applicant at
7.00 p.m. on 26 March 2015, confirming to the Applicant that she no longer had a
position with the Respondent. I find that the termination had effect on 26 March 2015.
[5] Whilst the separation certificate provided to the Applicant by her employer on
20 April 2015, stated that the termination had effect on 2 April 2015, the termination
was communicated to the Applicant by Ms Benett on the evening of 26 March
2015.”
[19] It is clear from the above passage, in particular taking into account the emphasised
portion of it, that the Senior Deputy President treated the dismissal as having taken effect
when it was confirmed that it would proceed - that is, after the reconsideration of the decision
5 [2010] FWAFB 5343 at [27], 197 IR 266
6 Wan v AIRC (2001) 116 FCR 481 at [30]
7 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343 at [26]-[27], 197 IR 266; Lawrence v Coal & Allied
Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089 at [28], 202 IR 288, affirmed on
judicial review in Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78; NSW Bar Association v Brett
McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663 at [28]
8 Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace
Relations [2014] FWCFB 2288 at [21]
9 (1936) 55 CLR 499
[2015] FWCFB 5263
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had taken place. This finding was not challenged in the appeal. Accordingly, the requirement
in s.394(3)(c) to take into account “any action taken by the person to dispute the dismissal”
was to be considered by reference to the period after the dismissal was finally communicated
and took effect. Ms Annear’s request for reconsideration took place before this, and
consequently did not arise for consideration under s.394(3)(c).
[20] In relation to the allegation concerning the respondent’s non-compliance with the
requirement to issue the FWIS (which was not conceded by the respondent), we consider that
this allegation, even if made out, could not have led to the conclusion that there existed
exceptional circumstances permitting and justifying the grant of an extension of time. There
was no evidence that Ms Annear took any step whatsoever, prior to the expiry of the 21-day
time limit, to ascertain what course she could take to legally challenge what she perceived to
be an unfair dismissal. We consider that we are entitled to take judicial notice of the fact that,
in the age of the internet, even the most basic search will very quickly draw one’s attention to
relevant information concerning unfair dismissal rights.
[21] Ms Annear’s explanation for her lack of action to seek any information about her
rights concerning her dismissal was that she was in “shock and denial” in the wake of her
dismissal and, as was stated in the Decision, she “was not the type to cause trouble”. In that
context, the proposition that, if Ms Annear had been provided with the FWIS at the
commencement of her employment (some two and a half years earlier), she would have
lodged her unfair dismissal remedy application within the 21-day time limit is both entirely
speculative and counter-intuitive. We do not consider that, had this matter been raised before
the Senior Deputy President, there is any serious possibility that it may have altered the
outcome. The position remains that Ms Annear did not have a reasonable explanation for her
delay in filing her application, and in the absence of any such explanation and having regard
to the Senior Deputy President’s findings concerning the other s.394(3) matters she did not
have an arguable case that exceptional circumstances existed.
[22] That is not to say that any failure on the part of the respondent to issue the FWIS to its
employees is not a serious matter (although s.125 is not a provision contravention of which is
liable to the imposition of a monetary penalty under the FW Act). Ms Annear has brought the
matter to the attention of the Fair Work Ombudsman, whom we trust will appropriately deal
with her allegation. But we do not consider that, in the context of Ms Annear’s application for
permission to appeal, the issue is one that attracts the public interest.
[23] We have considered the other matters raised in Ms Annear’s notice of appeal. It is
sufficient to say that none of them causes us to consider that the Decision was attended by any
doubt.
[24] We are not satisfied that it would be in the public interest to grant permission to
appeal. Therefore, as required by s.400(1), permission to appeal is refused.
VICE PRESIDENT
OF THE FAIR WORK MISSION THE
[2015] FWCFB 5263
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Appearances:
V. Skeen on behalf of Kylie Annear
N. Howells-Schramm with N. Barkatsas of the Victorian Employers’ Chamber of Commerce
and Industry for Centaurus Investments Pty Ltd t/a Bayside Day Procedure Centre
Hearing details:
2015.
Melbourne:
25 August.
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