[2016] FWCFB 5472
The attached document replaces previous issued with the above code on 26 August 2016.
A footnote has been inserted at paragraph 19.
Helen Hamberger
Associate to Vice President Hatcher
Dated 30 August 2016.
1
Fair Work Act 2009
s.604 - Appeal of decisions
Helena Miller
v
Allianz Insurance Australia Ltd t/a Allianz
(C2016/4331)
VICE PRESIDENT HATCHER
DEPUTY PRESIDENT WELLS
COMMISSIONER JOHNS SYDNEY, 26 AUGUST 2016
Permission to appeal against decision [2016] FWC 3835 of Deputy President Lawrence at
Sydney on 15 June 2016 in matter number C2016/3255.
Introduction
[1] This is an appeal, for which permission to appeal is required, against a decision and
order of Deputy President Lawrence issued on 15 June 20161 (Decision) in which he declined,
under s.366 of the Fair Work Act 2009 (FW Act), to extend time to the appellant, Ms Helena
Miller, to file a general protections dismissal application under s.365 of the FW Act.
[2] At the hearing of the appeal before us Ms Miller represented herself. Permission was
granted, under s.596 of the FW Act, for the respondent to be represented by Mr Ken
Brotherson.
[3] Ms Miller filed her general protections dismissal application in the Commission on 5
April 2016. In that application she identified the date of the dismissal the subject of the
application as being 20 January 2016.
[4] Section 366(1) requires a general protections dismissal application to be made within
21 days after the dismissal took effect or within such further period as the Commission allows
under s.366(2). The application was filed 55 days after the 21-day time period, and it was
therefore necessary for Ms Miller to obtain an extension of time under s.366(2) in order to
make her application.
Legislative provisions
[5] Section 366(2) sets out the circumstances in which the Commission may grant an
extension of time as follows:
1 [2016] FWC 3835
[2016] FWCFB 5472
DECISION
E AUSTRALIA FairWork Commission
[2016] FWCFB 5472
2
(2) The FWC may allow a further period if the FWC is satisfied that there are
exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) any action taken by the person to dispute the dismissal; and
(c) prejudice to the employer (including prejudice caused by the delay);
and
(d) the merits of the application; and
(e) fairness as between the person and other persons in a like position.”
[6] The test of “exceptional circumstances” establishes a “high hurdle” for an applicant
for an extension.2 A decision as to whether to extend time under s.366(2) involves the
exercise of a discretion.3
[7] An appeal under s.604 of the FW Act is an appeal by way of rehearing and the Fair
Work Commission’s (Commission) 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 and an appeal may only be
made with the permission of the Commission. Section 604 provides:
(1) A person who is aggrieved by a decision:
(a) made by the FWC (other than a decision of a Full Bench or an Expert
Panel); or
(b) made by the General Manager (including a delegate of the General
Manager) under the Registered Organisations Act;
may appeal the decision, with the permission of the FWC.
(2) Without limiting when the FWC may grant permission, the FWC must grant
permission if the FWC is satisfied that it is in the public interest to do so.
Note: Subsection (2) does not apply in relation to an application for an unfair dismissal
(see section 400). (2) A person may appeal the decision by applying to the FWC.
[8] Subsection 604(2) requires the Commission to grant permission to appeal if satisfied
that it is “in the public interest to do so”. The task of assessing whether the public interest test
is met is a discretionary one involving a broad value judgment.5 The public interest is not
satisfied simply by the identification of error6, or a preference for a different result.7 In
2 Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace
Relations [2014] FWCFB 2288 at [21]
3 Halls v McCardle and Ors [2014] FCCA 316
4 This is so because on appeal the Commission has power to receive further evidence, pursuant to s.607(2); see Coal and
Allied v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ
5 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 & Alllied Mining Services Pty
Ltd v Lawler and others (2011) 192 FCR 78 at [44]-[46]
6 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, 197 IR 266 at [24]-[27]
[2016] FWCFB 5472
3
GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of Fair Work Australia identified
some of the considerations that may attract the public interest:
“... the public interest might be attracted where a matter raises issue 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...”8
[9] Other than the special case in s.604(2), the grounds for granting permission to appeal
are not specified. Considerations which have traditionally been adopted in granting leave and
which would therefore usually be treated as justifying the grant of permission to appeal
include that the decision is attended with sufficient doubt to warrant its reconsideration and
that substantial injustice may result if leave is refused.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.10 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.11
The Decision
[10] In the Decision, the Deputy President described the sequence of events between the
dismissal and the filing of Ms Miller’s s.365 application in the Commission. These may
briefly be summarised as follows:
On 20 January 2016 the applicant’s employment was terminated (consequently she
had until 10 February 2016 to file an application under s.365 that was within time);
On 1 February 2016 the applicant filed an unfair dismissal application;
On 17 February 2016 the applicant participated in conciliation conference in the
Commission in relation to her unfair dismissal application12;
On 5 April 2016 the applicant filed the present application.
[11] In the Decision, the Deputy President gave consideration to each of the matters he was
required to take into account under s.366(2).
7 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, 197 IR 266 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;
Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 178; NSW Bar Association v Brett McAuliffe;
Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663, 241 IR 177 at [28]
8 [2010] FWAFB 5343, 197 IR 266 at [24] – [27]
9 Also see CFMEU v AIRC (1998) 89 FCR 200 at 220; and Wan v AIRC (2001) 116 FCR 481 at [26]
10 Wan v AIRC (2001) 116 FCR 481 at [30]
11 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, 241 IR 177 at [28]
12 This application was discontinued on 7 April 2016.
http://www.fwc.gov.au/decisionssigned/html/2010fwafb10089.htm
http://www.fwc.gov.au/decisionssigned/html/2010fwafb5343.htm
[2016] FWCFB 5472
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[12] In relation to s.366(2)(a), the reason for the delay, the Deputy President considered the
reasons for the delay advanced by Ms Miller. He summarised the reasons as follows:
“[14] … The Applicant decided that a General Protection application was more
appropriate and she lodged this application. The s.394 application was withdrawn.
[15] No other explanation for the delay in lodging the General protection
application 55 days out of time was made. The fact that an applicant decides belatedly
that an application under another section of the act would be better cannot constitute
exceptional circumstances.”
[13] The Deputy President then went on to consider and made findings about the remaining
matters specified in s.366(2) as follows:
s.366(2)(b) - action taken by the person to dispute the dismissal:
“[17] The Applicant took action to challenge the dismissal.”
s.366(2)(c) - prejudice to the employer (including prejudice caused by the delay):
“[19] Given the overall facts, the Respondent would be prejudiced by the time and
costs involved in further litigation.”
s.366(2)(d) - merits of the application:
“[20] Both the Applicant and the Respondent set out in detail the Applicant’s
employment and medical history. The Applicant had not been at work since December
2014. The Respondent says that it could not accommodate the Applicant’s senior case
manager role on a one day per week basis, which is what the Applicant sought.
[21] It appears that the Applicant currently has a workers compensation claim
pending. The basis of a General Protection claim, which has a chance of succeeding in
Court, is not obvious from the evidence that has been filed. Although the Applicant’s
medical and family circumstances have been difficult, the Respondent has attempted
to accommodate them for a number of years. It will rely on its operational
requirements, to resist a claim for General Protections discrimination.
[22] I do not consider the merits of the application give way to the existence of
exceptional circumstances.”
s.366(2)(e) – fairness as between the person and other persons in a like position:
“[23] This factor was not addressed and has not been taken into account.”
[14] The approach taken by the Deputy President was orthodox.
[15] The Deputy President’s overall conclusion was that on balance he was not persuaded
that there were exceptional circumstances justifying an extension of time.
[2016] FWCFB 5472
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Public interest and grounds of appeal
[16] In her Notice of Appeal the appellant contended that the Deputy President:
acted upon a wrong principle;
allowed extraneous or irrelevant matters to guide or affect him;
was guided by relevant factors;
mistook the facts; and
failed to take some material considerations into account.
[17] The appellant was particularly aggrieved that the Deputy President did not take into
account “2 affidavits and medical evidence to support the reason for delay [and] the verbal
evidence [that] confirmed this”. The alleged failure of the Deputy President to take into
account the appellant’s medical evidence was also the basis for her challenging the findings
made by the Deputy President in relation to s.366(2)(b), (c) and (d). In short the appellant
submitted that, had the Deputy President taken into account the medical evidence he would
have come to a different conclusion about whether exceptional circumstances existed so as to
justify an extension of time being granted.
[18] In the Notice of Appeal the appellant further contended that it was in the public
interest for the Commission to grant permission to appeal because:
“It is not fair to myself to not have the evidence before the Commission taken into
consideration, when others going through the same process have been afforded the
right that having all of the documented evidence considered. The public have the
expectation that all people who are involved in this process have an equal right to have
the facts in their case considered with appropriate decisions consequently being made.
Had the facts in this case been considered and mentioned in the Decision notice, both
parties-and others to follow-may better understand how and why a decision was made.
However facts were missing, they were interpreted incorrectly and decisions were
made that violated might basic workplace rights. Therefore, I believe the only fair
decision is to allow all of the presented fax to be considered in this matter, by way of
being reviewed in an appeal.
If a decision is made that can squash my workplace right, it does affect the public who
follow in my path as the decision made in my case would a affect the outcome of
decisions made in other cases. Having decision recorded that obviously manifests an
injustice and that the legal principles applied appear disharmonious when compared
with other recent decisions both affect the public interest.”
[2016] FWCFB 5472
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[19] Where there is a delay in the filing of an application it is necessary to consider whether
there is a credible reason for the whole of the period that the application was delayed.13 In the
present matter there are two relevant periods:
between 10 February 2016 (by which time the application should have been filed in
order for it to be within time) and 17 March 2016 (when the applicant was able to
participate in a conciliation conference in relation to her unfair dismissal application
(First Period); and
17 March 2016 (when the applicant was able to participate in a conciliation
conference in relation to her unfair dismissal application and 5 April 2016 (when the
present application was filed) (Second Period).
[20] In her evidence before the Deputy President the appellant submitted that:
“I suffer from Social Anxiety Disorder, Generalised Anxiety Disorder and depression.
This was exacerbated in the months leading up to my termination of employment
based on treatment by Allianz staff members. It is submitted that this is the main
reason for the delay in lodging my application within the timeframe outlined in the
Act, and this reason (and the fact I did lodge an incorrect claim within timeframes)
supports a finding that my circumstances were exceptional.
Despite Allianz being aware of my fragile mental health, they may be deal with 11
different people from 7 different departments. Following my termination of
employment particularly, these conditions became quite debilitating to the point where
I did not seek outside assistance and proceeded with an unfair dismissal claim because
this was all I was aware of, and did not have the mental capacity at the time to delve
any deeper into the legislation Accenture surrounding employee’s rights.
After hearing Allianz would have solicitors and barristers I made an appointment to
speak to my doctor to decide if I should pursue the claim. I then understood that I
should at least seek some basic legal advice, which I did over the phone. At this point I
was advised that a General Protections claim was and that this sounded more
appropriate based on what I told them about the history of my employment/dismissal
with Allianz. I finally felt able to deal with this issue and looked into what General
Protections was and subsequently made this application.”
[21] It is apparent from the Decision that the Deputy President did not directly address the
appellant’s submissions concerning her medical condition under the heading “reasons for
delay”. However, when reading the decision as a whole it is clear that Deputy President had
regard to the appellant’s medical history and as such the appellant has not identified any error
in the decision which would meet any of the criteria for appealable error in a discretionary
decision enunciated in House v The King.14
13 Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers [2010] FWAFB 7251, (2010) 197 IR 403 at [17]; Thiess
Services Pty Ltd v Stephens [2014] FWCFB 2426 at [37]. That is not to say that a credible explanation for the whole of the
delay is a necessary pre-condition for the grant of an extension of time, since the reason for the delay is but one of a number
of matters which are required to be considered under s.366(2) in determining whether exceptional circumstances exist. These
decisions concern s.394(3) but are equally applicable to s.366(2).
14 (1936) 55 CLR 499 at [504] – [505] per Dixon, Evatt and McTiernan JJ
[2016] FWCFB 5472
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[22] In any case we consider that there is no utility in granting permission to appeal
because, even if the appeal was successful, there is no reasonable prospect that an extension
of time would be granted in any re-determination of the matter. Taken at its highest, the
medical evidence advanced by the appellant cannot, we consider, satisfy the test of
exceptional circumstances. The appellant filed a medical report confirming her diagnosis.15
However, it did not identify any incapacity to file a General Protections claim within the
timeframe provided for in the FW Act, or explain why she was unable to do so in the First
Period or the Second Period. It is obvious from the facts in the matter that her medical
condition did not impede her ability to file an unfair dismissal remedy application or prevent
her from participating in a conciliation conference in relation to the same.
[23] Within the submission about her medical evidence the appellant states a further reason
for the delay, namely that she was unaware of the possibility of making a General Protections
claim. Before us, the appellant confirmed that part of the reason for the delay in the First
Period was that she did not know about General Protections.16 It is well accepted that
ignorance of the existence of a legal right or the timeframe for lodgement associated with that
right is not an exceptional circumstance.
[24] In relation to the Second Period the appellant relied upon her medical condition and
“the daily struggles that you have when you are suffering the mental health issues that I do.”17
This explanation does not demonstrate exceptional circumstances. In particular, it does not
explain why the appellant could not have lodged a General Protections claim having earlier
been able to file an unfair dismissal remedy application. We also note the appellant’s
subsequent ability to file a detailed and coherent appeal notice.
[25] Finally, the conclusion of the Deputy President that the circumstances attending a
delay of 55 days in filing the application did not meet the stringent criterion of “exceptional
circumstances” is not counter-intuitive and does not manifest any substantial injustice.
[26] We are not satisfied that any of the matters raised by Ms Miller justify the grant of
permission to appeal in the public interest or otherwise. Ms Miller’s appeal does not raise any
issue of law or policy which is novel and/or has broader implications. It is not inconsistent
with any other relevant Commission decision. The determination of her extension of time
application turned entirely on its particular facts.
Conclusion
[27] We are not satisfied that it is in the public interest to grant Ms Miller permission to
appeal. We are not satisfied that she has established an arguable case of appealable error.
[28] Accordingly permission to appeal is refused.
15 Annexure “M” to her submissions before the Deputy President
16 PNs 46-49
17 PNs 50-71
[2016] FWCFB 5472
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VICE PRESIDENT HATCHER
Appearances:
H. Miller on her own behalf.
K. Brotherson and S. Thomas solicitors for Allianz Insurance Australia Pty Ltd.
Hearing details:
2016.
Sydney:
9 August.
Printed by authority of the Commonwealth Government Printer
Price code C, PR583874
OF THE FAIR WORK MISSION THE
