1
Fair Work Act 2009
s.604 - Appeal of decisions
Ceres Agricultural Company Pty Ltd t/a Ceres Agricultural Company
v
Joshua Regan
(C2015/8223)
VICE PRESIDENT HATCHER
SENIOR DEPUTY PRESIDENT HAMBERGER
COMMISSIONER SAUNDERS SYDNEY, 11 FEBRUARY 2016
Permission to appeal against decision [2015] FWC 8451 of Senior Deputy President Drake
at Sydney on 7 December 2015 in matter number U2015/11690.
Introduction
[1] Ceres Agricultural Company Pty Ltd (Ceres) has applied for permission to appeal a
decision issued by Senior Deputy President Drake on 7 December 20151 (Decision). The
effect of the Decision was to grant Mr Regan an extension of time to lodge an unfair dismissal
remedy application under s.394 of the Fair Work Act 2009 (FW Act) and to allow the
application that had been received by the Commission to proceed.
[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 8451
[2016] FWCFB 371
DECISION
E AUSTRALIA FairWork Commission
[2016] FWCFB 371
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(f) fairness as between the person and other persons in a similar position.
[3] Mr Regan lodged his unfair dismissal remedy application on 8 September 2015. That
application identified the date of his dismissal as being 8 July 2015. Mr Regan’s unfair
dismissal remedy application was therefore lodged 42 days outside the statutory time limit
prescribed by s.394(2) of the FW Act.
[4] The reasons for the delay advanced by Mr Regan 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:
“[3] When determining this application I had before me the Application for Unfair
Dismissal lodged by Mr Regan. The explanation provided by him for late lodgement of
his application at paragraph 1.4 is set out below:
"I originally posted a copy of my application on the 22-07-2015 and have been
waiting to hear back from someone. After over a month I realised something
must have been wrong and tried contacting the FWC by phone with no luck, as
it continued saying that all lines to this area were busy. I then sent an email to
see if I could find out some information. I was later contacted by the FWC
Registry Office (Melissa Rees) telling me they didn't have my application and
told me to resubmit it. I have contacted Australia Post and it can't be found. I
am happy to sign a stat declaration saying this."
[4] Johns C wrote to Mr Regan on 17 September 2015 outlining the matters the
Commission required to consider by the Act and asked him to provide a statement
addressing these matters within 14 days. Mr Regan provided a comprehensive
statement on 29 September 2015. This is extracted below:
"Hi I am replying to your message about my unfair dismissal claim. As I stated
in my form I don't have an excuse or made up explanation for my lodgement
being late as I my first claim within the 21 day period. As I have never made a
claim I was unsure on how long it would take for the FWC to get back to me.
When I realised there was something wrong and I hadn't heard from anyone
there I called and emailed the FWC. I was then told that they hadn't received
my claim as yet and that I was to fill another claim out and send it in stating
what had happened. I contacted the Australia Post in person to see if there was
anyway of recovering the original form, they informed me that as it was not
registered there would not be able to recover it. I am happy to do whatever it
takes to get this processed. Please let me know if there is anything else you
may need that can help as I don't want this company doing this to anyone else,
as I know they have done it to people in the past. Thank you Josh Regan."
[5] Further enquiries as to the posting of the application resulted in further
correspondence from Mr Regan on 29 October 2015 extracted below:
"Hi how would you like me to do so I've been to the post office and they can't
find it. But will try again."
[2016] FWCFB 371
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[6] I wrote to the respondent on 20 November 2015 as follows:
"A search of the records of the Fair Work Commission has revealed that Mr
Regan is likely to have lodged his application by post on 22 July 2015. It did
not arrive but Mr Regan checked upon its arrival by email on 1 September
2015.
In the circumstances I am inclined to extend the time for lodgement of Mr
Regan's application. If you are opposed to the extension of time please file a
submission in opposition within 7 days.
In the absence of a submission in opposition I will determine this application
on the papers already before me, without notice to the respondent."
[7] The respondent provided a detailed submission on 27 November 2015 setting out
its objection to an extension of time for lodgement providing references to previous
decisions of the Commission where difficulties with postage had resulted in a refusal
to exercise the Commission's discretion to extend the time for lodgement.”
[5] In considering the other matters required to be taken into account under s.394(3) of the
FW Act, the Senior Deputy President concluded that:
Mr Regan became aware of the end of his relationship with the respondent on 8 July
2015;
Mr Regan disputed his dismissal by lodging his application;
prejudice to Ceres was a neutral consideration;
merit was a neutral consideration;
there was no issue of fairness in relation to any other person in a similar position; and
based on the above criteria, there was a proper basis to grant an extension of time for
lodgement of the application.
Consideration
[6] 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.
[7] 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.
2 Coal and Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ
[2016] FWCFB 371
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[8] 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
applied appear disharmonious when compared with other recent decisions dealing with
similar matters.”5
[9] 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
[10] 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.
[11] The appellant contends that the Senior Deputy President erred in finding that delays
associated with postal problems amounted to exceptional circumstances in Mr Regan’s case.
Problems arising from postal arrangements do not, so it is contended by the appellant, amount
to exceptional circumstances, especially when the sender has not taken postal options that
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]
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
[2016] FWCFB 371
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provide guarantee of delivery, such as Express Post or Registered Post. We disagree with that
general proposition. The particular facts of the case need to be examined to determine whether
exceptional circumstances exist.
[12] In circumstances where the Fair Work Commission Rules 201310 expressly permit
applications to be lodged by ordinary post, it is open to an applicant to use that method, in
which event the applicant can reasonably expect Australia Post to deliver their mail by
ordinary post in accordance with Australia Post’s standard timeframes. There are obvious
evidentiary advantages and certainty of timing benefits associated with using Registered Post,
Express Post, email, fax or electronic lodgement to lodge an application with the
Commission, however it is not essential that one of these methods be used to lodge an
application with the Commission.
[13] In this case, the Senior Deputy President accepted Mr Regan’s factual assertion that he
posted his unfair dismissal application to the Commission on 22 July 2015 and he did not
contact the Commission to follow up on his application until 1 September 2015 because he
had not made an unfair dismissal claim before and “was unsure on how long it would take for
the FWC to get back to me”.11 We do not consider that the Senior Deputy President erred in
doing so.
[14] Having regard to the fact that Mr Regan was dismissed on 8 July 2015, there was
plenty of time for Mr Regan’s application posted on 22 July 2015 to reach the Commission
within the 21 day time limit.
[15] The appellant also contends that the Decision is inconsistent with other decisions12 in
which it has been held that delays caused by postal arrangements were not exceptional
circumstances. There is, however, a material distinction between the facts in Mr Regan’s case
and the facts in the two decisions to which the appellant referred.13 In particular, Mr Regan
posted his unfair dismissal application to the Commission with plenty of time for it to arrive
at the Commission within Australia Post’s standard timeframes, whereas the applicants in the
other cases to which the appellant referred did not leave sufficient time between the posting of
their application to the Commission and its arrival at the Commission within Australia Post’s
standard timeframes. We agree with the proposition that a failure to post an application to the
Commission in sufficient time for it to arrive within Australia Post’s standard timeframes is
not, of itself, an exceptional circumstance. Accordingly, there is no disharmony between the
Decision and the other cases to which the appellant referred.14
[16] The appellant submits that the Senior Deputy President erred in not considering the
absence of explanation from Mr Regan as to the additional 6 days’ delay between the time he
became aware that the Registry had not received his application (2 September 2015) and the
time he lodged his application on 8 September 2015. In that regard, her Honour’s Decision
refers to the following evidence given by Mr Regan:15
10 Rule 13(2)(b)
11 Decision at [4]
12 Porscha Juwa v Blue Cross Animals Society of Victoria [2015] FWC 5476; Cuthbert v PRD Nationwide Werribee Real
Estate [2014] FWC 675
13 Ibid
14 Ibid
15 Decision at [4]
[2016] FWCFB 371
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“…When I realised there was something wrong and I hadn’t heard from anyone there I
called and emailed the FWC. I was then told that they hadn’t received my claim as yet
and that I was to fill another claim out and send it in stating what had happened. I
contacted the Australia Post in person to see if there was anyway of recovering the
original form, they informed me that as it was not registered there [sic] would not be
able to recover it…” (emphasis added)
[17] The application lodged by Mr Regan is dated 3 September 2015, which was a
Thursday. It was posted by him to the Commission and arrived on Tuesday, 8 September
2015. Having regard to the steps taken by Mr Regan to contact Australia Post in person on 2
or 3 September 2015, complete another application on 3 September 2015 and then post it
from Inverell, New South Wales to the Commission, we are of the view that there was no
absence of explanation from Mr Regan as to the additional 6 days’ delay between 2
September and 8 September 2015, and that her Honour had regard to this explanation, as is
evident from paragraphs [4] and [5] of the Decision.
[18] In the circumstances of this case it may have been appropriate to hold a hearing or
conference to determine the extension of time application. However, we consider that it was
open to the Senior Deputy President to conclude that there were exceptional circumstances to
justify the exercise of discretion to grant an extension of time under s.394(3) of the FW Act.
The result was not counter-intuitive and did not manifest any injustice. The Senior Deputy
President took into account all relevant considerations, did not take into account an irrelevant
consideration, did not act on a wrong principle, and did not mistake the facts. The Decision
turned on its own facts and raised no broader issue of law or policy.
[19] We are not satisfied that it is in the public interest to grant permission to appeal. We
therefore refuse permission to appeal.
VICE PRESIDENT
Appearances:
G. Kusuma from NSW Farmers’ (Industrial) Association on behalf of the appellant.
No appearance for the respondent.
Hearing details:
2016.
Sydney:
20 January.
OF THE FAIR WORK MISSION THE
[2016] FWCFB 371
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