1
Fair Work Act 2009
s.604—Appeal of decision
A
v
Commonwealth of Australia as represented by the Australian Bureau of
Statistics
(C2016/2767)
SENIOR DEPUTY PRESIDENT HAMBERGER
DEPUTY PRESIDENT HAMILTON
COMMISSIONER SAUNDERS SYDNEY, 2 MAY 2016
Appeal against decision [2016] FWC 979 of Deputy President Kovacic at Canberra on 12
February 2016 in matter number U2015/11625 – permission to appeal granted.
[1] Mrs A has applied to the Fair Work Commission (the Commission) for permission to
appeal a decision issued by Deputy President Kovacic on 21 February 20161 (the Decision).
The Deputy President refused to grant Mrs A an extension of time in which to lodge an unfair
dismissal remedy application under s.394 of the Fair Work Act 2009 (the FW Act).
[2] Mrs A contended before the Deputy President that she was forced to resign due to her
former employer’s failure to respond to her reports of bullying by colleagues. Mrs A filed her
unfair dismissal application on 4 September 2015. She submitted that the Australian Bureau
of Statistics (the ABS) had constructively dismissed her on 22 May 2015, while the ABS
stated that her resignation took effect on 18 May 2015. The application was therefore either
84 or 88 days late.
[3] The Deputy President considered the factors set out in s.394(3) of the FW Act. He
found that Mrs A’s mental illness accounted for part, but not all, of the delay. He further
found there was no evidence to support her submission that she was constructively dismissed,
and therefore the merits of her application ‘appear[ed] particularly poor’2. On balance, he
found that Mrs A’s situation did not disclose such ‘exceptional circumstances’3 as to warrant
granting an extension of time.
[4] With both parties’ consent, the Deputy President dealt with Mrs A’s application ‘on
the papers’, that is, based on the parties’ written submissions only, without holding a
conference or hearing.
[2016] FWCFB 2634
DECISION
E AUSTRALIA FairWork Commission
[2016] FWCFB 2634
2
Consideration
[5] An appeal under s.604 of the FW Act is an appeal by way of rehearing. The
Commission’s powers on appeal are only exercisable if there is error on the part of the
primary decision-maker.4 There is no right to appeal; an appeal may only be made with the
permission of the Commission.
[6] This appeal is one to which s.400 of the FW Act applies. Section 400 provides:
‘400 Appeal rights
(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.’
[7] In the Full Federal 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”.5 The task of assessing whether the public interest test is met
is a discretionary one involving a broad value judgment.6 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.’7
[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.8 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.9
[9] In light of the information contained in the witness statements filed and served on
behalf of Mrs A in support of her application for an extension of time, together with the letter
from Mrs A’s treating doctor dated 16 September 2015 (which was also filed and served), we
are of the view that there is an arguable case that the Deputy President erred in making the
following findings:
(a) ‘In this case no evidence has been provided to substantiate Mrs A’s contention that
she was unable to lodge her application prior to 4 August 2015 due to her medical
condition’;10
[2016] FWCFB 2634
3
(b) ‘While I accept that Mrs A’s illness was unlikely to have somehow just manifested
on or around 4 August 2015, there is no medical evidence before the Commission
which indicates that she was incapacitated during this period to such an extent that
she was unable to lodge her application’;11 and
(c) ‘Mrs A provided no evidence to support her submission that she was forced to
resign by ABS’.12
[10] Further, as indicated above, the Deputy President did not hold a conference or hearing
in respect of Mrs A’s unfair dismissal application. There is an arguable case that his failure to
do so constitutes appealable error. This is because s.397 of the FW Act provides:
‘397 Matters involving contested facts
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.’
[11] In this case, we consider that there were contested facts within the material before the
Deputy President, including:
whether Mrs A resigned of her own volition or was constructively dismissed; and
the date that her employment terminated.
[12] We do note that both parties agreed to the matter being heard ‘on the papers’.13
However, the terms of s.397 of the FW Act do not allow the requirement to hold a hearing to
be waived by consent. It was not open to the Deputy President to waive this requirement, even
if the parties had no objection.
[13] The way the Decision was reached is inconsistent with the requirements of s.397. The
contested facts that were not tested in a conference or hearing are significant to the
application. We therefore adopt the view of the Full Bench in Shields v The Trustee for the
Jell Discretionary Trust t/as Frank Jell Commissioning Services Pty Ltd14 that this enlivens
the public interest. It is in the public interest that applications to the Commission are dealt
with in accordance with the Act.
Conclusion
[14] Permission to appeal is granted. The appeal will be listed for hearing before a Full
Bench in due course.
SENIOR DEPUTY PRESIDENT
OF THE FAIR WORK THE COMMISSION THE SEAL
[2016] FWCFB 2634
4
Appearances:
B and C for A.
C Mann, solicitor, for the Commonwealth of Australia as represented by the Australian
Bureau of Statistics.
Hearing details:
Sydney with video link to Canberra.
2016.
April 12.
Printed by authority of the Commonwealth Government Printer
Price code A, PR579482
1 [2016] FWC 979.
2 Ibid [30].
3 Fair Work Act 2009 s.394(3).
4 Coal and Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 [17] per Gleeson CJ, Gaudron and Hayne JJ.
5 (2011) 192 FCR 78 [43].
6 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 [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty
Ltd v Lawler and others (2011) 192 FCR 78 [44]-[46].
7 [2010] FWAFB 5343 [27].
8 Wan v AIRC (2001) 116 FCR 481 [30].
9 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343 [26]-[27], 197 IR 266; Lawrence v Coal & Allied
Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089 [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 [28].
10 [2016] FWC 979 [16].
11 Ibid.
12 Ibid [29].
13 PN24-PN25.
14 [2015] FWCFB 2945 [23]-[26].
