1
Fair Work Act 2009
s.604 - Appeal of decisions
Robert Weir
v
Hydro-Chem Pty Ltd
(C2017/84)
VICE PRESIDENT HATCHER
DEPUTY PRESIDENT SAMS
COMMISSIONER HUNT SYDNEY, 13 FEBRUARY 2017
Permission to appeal against decision [2016] FWC 9095 of Deputy President Lawrence at
Sydney on 19 December 2016 in matter number C2016/5745.
Introduction
[1] This is an appeal, for which permission to appeal is required, against a decision and
order of Deputy President Lawrence issued on 19 December 20161 (Decision) in which he
declined, under s.366 of the Fair Work Act 2009 (FW Act) to extend time to the appellant, Mr
Robert Weir, to file a general protections dismissal application under s.365 of the FW Act.
[2] At the hearing of the appeal before us Mr Weir represented himself. Permission was
granted, under s.596 of the FW Act, for the respondent to be represented by Mr Ian
Heathwood, solicitor.
[3] Mr Weir filed his general protections dismissal application in the Commission on 23
September 2016. In that application he identified the date of the dismissal the subject of the
application as being 28 July 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 36 days after the 21-day time period, and it was
therefore necessary for Mr Weir to obtain an extension of time under s.366(2) in order to
make his application.
[5] Section 366(2) sets out the circumstances in which the Commission may grant an
extension of time as follows:
(2) The FWC may allow a further period if the FWC is satisfied that there are
exceptional circumstances, taking into account:
1 [2016] FWC 9095
[2017] FWCFB 758
DECISION
E AUSTRALIA FairWork Commission
[2017] FWCFB 758
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(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] In the Decision, the Deputy President addressed each of the matters he was required to
take into account under s.366(2).
The Decision
[7] In relation to s.366(2)(a), the reason for the delay, the Deputy President considered the
reasons for the delay advanced by Mr Weir. He summarised the reasons as follows:
“[14] The primary reason for the delay in filing, given by the Applicant, is his
medical condition and he does provide some medical evidence. However, the main
explanation appears to be difficulty in getting an appointment with his psychologist.
[15] The Respondent points out that the Applicant did not attend his doctor until 25
August. The Respondent also relies on the decision of WorkCover Queensland with
respect to the Applicant’s workers compensation claim. It is noted that he was
declared fit to return to work in mid-July. There is no evidence that the Applicant was
incapacitated such that he could not file the application in time.
[16] Accordingly, the reasons for delay cited by the Applicant fall short of
establishing exceptional circumstances.”
[8] 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] There is no evidence that the Applicant separately disputed his dismissal.”
s.366(2)(c) - prejudice to the employer (including prejudice caused by the delay):
“[18] 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:
“[19] The Applicant makes a number of assertions of manufactured allegations
against him. It is difficult to discern a workplace right which would be held to be
breached.
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[20] On the other hand, the Respondent provides a lot of convincing detail about the
warnings given to the Applicant about his conduct and performance. This is
particularly the case with respect to the incident at Arnotts. It is very likely, in my
view, that the Applicant’s performance problems would be considered to be the
operative reasons for his dismissal.”
s.366(2)(e) – fairness as between the person and other persons in a like position:
“[21] This factor was not addressed and has not been taken into account.”
[9] The Deputy President’s overall conclusion was that having considered the factors set
out in s.366(2), he was not persuaded that there were exceptional circumstances justifying an
extension of time.
Grounds of appeal
[10] In his Notice of Appeal Mr Weir contended that the Decision was subject to
appealable error in the following respects:
He wasn’t aware that in consideration of the out of time jurisdictional issue, issues of merit
would have been taken into consideration
[11] Mr Weir contends that because he has declared within a statutory declaration a number
of stated breaches by the respondent or anomalies, evidence exists to support the allegations
and they are not “made up”. Mr Weir expressed that he stands punishable by imprisonment if
he has made false declarations.
The Deputy President had regard to significant errors of fact
[12] Mr Weir’s submissions detail why he should not have been dismissed. He submitted
that a complaint made about him was false and procured, and other than this complaint, there
were no performance deficiencies that had been brought to his attention before the dismissal.
Further, he submitted that there had not been significant loss to the respondent’s client as a
result of Mr Weir’s performance of work.
The Deputy President erred in finding Mr Weir could not make an appointment with his
psychologist
[13] Mr Weir takes exception to the Deputy President’s use of the word “some” when he
stated that Mr Weir had provided “some medical evidence” as to his medical condition being
a suitable reason for the delay in filing the application. Mr Weir contends this implies that the
medical evidence was insufficient.
[14] Mr Weir stated he was unable to provide any other medical evidence as his
psychologist had moved to Melbourne on 1 July 2016. Mr Weir does not accept that the
reason for his delay in bringing his application was because of his psychologist’s relocation to
Melbourne; the main explanation is the recurrence of an Adjustment Disorder, together with
the condition of Severe Airways Disease which occurred at around the time of dismissal.
[2017] FWCFB 758
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[15] It was Mr Weir’s evidence that he could not see Dr Lister, his General Practitioner
until 25 August 2016 due to Dr Lister himself being unwell. It is Mr Weir’s submission that
Dr Lister’s letter of 21 October 2016 explains the difficulty he had in obtaining medical
assistance at the relevant time.
[16] It is Mr Weir’s contention that these elements above did constitute exceptional
circumstances, and were out of the ordinary course, unusual, special or uncommon.
The Deputy President erred in in failing to recognise breaches of workplace rights
[17] Mr Weir relies on his purported statutory declaration alleging breaches of workplace
rights. He alleges that he was subject to bullying and unfair treatment, including coercion,
public humiliation and denial of natural justice.
[18] With respect to the Deputy President’s finding that the respondent provided a lot of
convincing detail as to poor performance and conduct, it is Mr Weir’s contention that the
Deputy President did not properly take into consideration that the allegations (other than the
matter referred to in paragraph [12]) were not provided to Mr Weir until after the dismissal. It
is Mr Weir’s contention that the Deputy President favoured the respondent’s submissions. On
a pure word count only, Mr Weir contends that his application contained 2,850 words, and the
respondent’s dismissal letter only 1,946 words, and therefore he provided more “detail”.
Public interest considerations
[19] It is understood Mr Weir has in place a supported care plan to assist him with his
condition of Adjustment Disorder with depressed and anxious mood. It is his contention that
because he has medical certificates providing for this support through the Department of
Human Services, and the disorder being a recognised and well-documented medical
condition, the public interest test is met.
[20] Mr Weir’s contention is that the condition can affect a person’s ability to work, and
therefore the Deputy President failed to recognise that the condition causes sufficient
impairment to delay the bringing of an application to the Commission within the statutory
time limit.
[21] It is Mr Weir’s contention that if the Commission fails to recognise this condition and
the ability of sufferers to function appropriately, the Commission might be “out of step” with
other government departments, resulting in incoherent governance.
[22] Mr Weir’s submissions address his acknowledgement that it is appropriate for there to
be a time limit for the bringing of applications; however he considers that the enforcement of
a 21-day statutory time limit where the person is suffering from a diagnosis of Adjustment
Disorder is an unrealistic expectation of the person. Mr Weir contends that dogmatic
adherence to time limits may inadvertently exacerbate the condition for a person with the
condition due to having to relive their experiences in completing the application form.
[23] It is submitted that there is no superior authority than a patient’s own general
practitioner to determine a patient’s health. The Commission is not qualified to make an
assessment on matters of health and psychology, and accordingly the Commission should rely
[2017] FWCFB 758
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on the statements of suitably qualified professionals and accept those statements unless there
is a valid reason not to.
Submissions at hearing
[24] During the hearing, Mr Weir contended that he was aware that he needed to do
something to challenge his dismissal, however it wasn’t until he spoke with Legal Aid that he
became aware of a time limit to file an application. His first appointment with a legal adviser
was on 7 September 2016, however he had to cancel the appointment as he was too unwell to
attend. The next available appointment was 21 September 2016, and he filed the application
on 23 September 2016.
[25] Mr Weir further stated that the Commission is not qualified to assess the medical
position of applicants and it is a problem with the FW Act. It is Mr Weir’s submission that
this appeal will not “fix it”.
[26] It is Mr Weir’s contention that following the dismissal he required medication and
once the medication was working he was then ready to tackle the next chapter, the bringing of
the application. It was Mr Weir’s preference to see Dr Lister, and with Dr Lister being unwell,
he did not have another GP to visit.
[27] It is evident that Mr Weir did visit another GP, Dr Bisshop, who declared Mr Weir fit
to return to work in early July 2016. It is apparent that Mr Weir did not return to Dr Bisshop
following the dismissal, and he was not seen by Dr Lister until 25 August 2016, a period of 28
days following the dismissal.
Consideration
[28] 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.2 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.
2 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
[2017] FWCFB 758
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[29] 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.3 The public interest is not
satisfied simply by the identification of error4, or a preference for a different result.5 In
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...”6
[30] 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.7 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
[31] The test of “exceptional circumstances” establishes a “high hurdle” for an applicant
for an extension.10 A decision as to whether to extend time under s.366(2) involves the
exercise of a discretion.11 Usually such a decision can only be successfully challenged on
appeal if it is shown that the discretion was not exercised correctly.12
[32] An application for permission to appeal is not a de facto or preliminary hearing of the
appeal. In determining whether permission to appeal should be granted, it is unnecessary and
inappropriate for the Full Bench to conduct a detailed examination of the grounds of appeal.13
3 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]
4 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, 197 IR 266 at [24]-[27]
5 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], 202 IR 388, affirmed on
judicial review; 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]
6 [2010] FWAFB 5343, 197 IR 266 at [27]
7 Also see CFMEU v AIRC (1998) 89 FCR 200 at 220; and Wan v AIRC (2001) 116 FCR 481 at [26]
8 Wan v AIRC (2001) 116 FCR 481 at [30]
9 Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089 at [28],
202 IR 388, 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]
10 Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace
Relations [2014] FWCFB 2288 at [21]
11 Halls v McCardle and Ors [2014] FCCA 316
12 House v The King (1936) 55 CLR 499 at [504]- [505] per Dixon, Evatt and McTiernan JJ
13 Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]
http://www.fwc.gov.au/decisionssigned/html/2010fwafb10089.htm
http://www.fwc.gov.au/decisionssigned/html/2010fwafb5343.htm
[2017] FWCFB 758
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[33] Noting the test for public interest, it is not immediately apparent to us how the matters
submitted by the appellant raise any issue of wider relevance beyond his immediate interests.
Any applicant who comes before the Commission claiming that a medical condition has
contributed to a delay in bringing an application within a statutory time limit is entitled to
expect that reason will be considered by the Commission.
[34] It does not correlate that because one Commonwealth Department has in place
procedures for how a medical care plan operates, it obviates the functions of the Commission,
or puts the Commission at odds with the Department of Human Services. As we understand it,
Mr Weir held long-term medical certificates for the purposes of eligibility to the care plan.
One of those certificates covered Mr Weir for the care plan up until 31 July 2016. At the same
time in early July 2016, Mr Weir obtained from Dr Bisshop a medical clearance declaring him
fit for work. The medical certificates Mr Weir obtained from Dr Bisshop serve distinct
purposes. Mr Weir’s argument cannot be accepted when it was he who obtained the medical
clearance declaring him fit for work.
[35] It matters not that a further medical certificate for the care plan was issued, and on Mr
Weir’s submissions was back-dated covering the period between the dismissal and the
application being lodged. The evidence before the Commission is that following the dismissal
on 28 July 2016, Mr Weir did not attend a medical practitioner until 25 August 2016. There is
no evidence that Mr Weir was incapacitated to the extent that he could not complete the
application and lodge it.
[36] Individuals suffering with Adjustment Disorder with depressed and anxious moods
will have varying degrees of capacity to undertake daily tasks, work obligations, family
commitments and the like. We reject Mr Weir’s submission that adherence to the statutory
time limit is unrealistic for each person who suffers from the condition. Each case will turn on
its own facts and the medical information available for consideration.
[37] Mr Weir is correct that the Commission must have regard for the medical opinion of a
person’s practitioner. It is not correct, however, to conclude that simply because a medical
practitioner declares a person to be suffering from a relevant condition it renders the person
incapable of completing and lodging an application under the FW Act in the required time. It
is a relevant consideration to be taken into account by the member of the Commission hearing
the application for an extension of time together with all the other available information
before the member.
[38] We do not have any difficulty with the Deputy President’s determination that there
was insufficient medical evidence provided by Mr Weir to support his claim that he was
incapacitated such that he could not file the application in time. Mr Weir’s submission that he
did not have another GP that he could visit at the time of Dr Lister’s own illness is not sound,
given he had earlier seen Dr Bisshop at the same medical practice. There was no evidence
before the Deputy President that Mr Weir was unable to attend on Dr Bisshop or any other
doctor within the practice.
[39] Mr Weir asserts that the Deputy President did not have sufficient regard to the
workplace rights claimed by him to have been breached by the respondent when consideration
was had as to the merit of the application. In our view, it is not appropriate to analyse the
[2017] FWCFB 758
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detail of each of the competing claims by a contest of word count in submissions of the
parties.
[40] Evidence on the merits is rarely called at an extension of time hearing. As a result, the
Commission “should not embark on a detailed consideration of the substantive case”14 for the
purpose of determining whether to grant an extension of time to an applicant to make their
application.
[41] In the matter of Kornicki v Telstra-Network Technology Group15 the Commission
considered the principles applicable to the extension of time discretion under subsection
170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Full Bench said:
“If the application has no merit then it would not be unfair to refuse to extend the time
period for lodgement. However we wish to emphasise that a consideration of the
merits of the substantive application for relief in the context of an extension of time
application does not require a detailed analysis of the substantive merits. It would be
sufficient for the applicant to establish that the substantive application was not without
merit.”
[42] To require an applicant to establish more than that the substantive application was not
without merit would, as noted by the Full Bench in Kyvelos v Champion Socks Pty Ltd16:
“… serve as an encouragement to other applicants for late acceptance pursuant to
subsection 170CE(8) to put the whole of their evidentiary case and seek to cross
examine the respondent’s witnesses to reduce the possibility of an adverse finding on
the merits. This would lead to unjustifiable delay and expense.”
[43] Having considered all the matters put by Mr Weir we are not satisfied that Mr Weir
has identified any arguable case of appealable error in the decision which would meet any of
the criteria for appealable error in a discretionary decision enunciated in House v The King.17
Conclusion
[44] We are not satisfied that any of the matters raised by Mr Weir justify the grant of
permission to appeal in the public interest or on discretionary grounds. Mr Weir’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 decisions. The determination of his
extension of time application turned entirely on its particular facts.
[45] We are not satisfied that it is in the public interest to grant Mr Weir permission to
appeal. Nor are not satisfied that he has established an arguable case of appealable error to
justify the grant of permission to appeal on discretionary grounds.
[46] Accordingly permission to appeal is refused.
14 Kyvelos v Champion Socks Pty Ltd , Print T2421 (10 November 2000) at [14]
15 Kornicki v Telstra Network Technology Group , Print P3168 (22 July 1997)
16 Kyvelos v Champion Socks Pty Ltd , Print T2421 (10 November 2000) at [15]
17 (1936) 55 CLR 499
[2017] FWCFB 758
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VICE PRESIDENT
Appearances:
R. Weir on his own behalf.
I. Heathwood solicitor for Hydro-Chem Pty Ltd.
Hearing details:
2017.
Sydney:
7 February.
Printed by authority of the Commonwealth Government Printer
Price code C, PR590020
OF THE FAIR WORK MISSION THE
