[2017] FWCFB 1405
The attached document replaces the document previously issued with the above code on 15
March 2017.
The summary catchwords of this Decision have been amended to state: “Appeal against
decision [2017] FWC 214 of Senior Deputy President Drake at Sydney on 3 January 2017 in
matter number U2016/13231”.
Associate to Vice President Catanzariti
Dated 15 March 2017
1
Fair Work Act 2009
s.604 - Appeal of decisions
Mr Joseph Costelloe
v
Origin Energy Resources Limited T/A Origin Energy
(C2017/439)
VICE PRESIDENT CATANZARITI
DEPUTY PRESIDENT GOOLEY
COMMISSIONER BISSETT
SYDNEY, 15 MARCH 2017
Appeal against decision [2017] FWC 214 of Senior Deputy President Drake at Sydney on 3
January 2017 in matter number U2016/13231.
[1] Mr Joseph Costelloe has appealed against a Decision1 and subsequent Order2 of Senior
Deputy President Drake issued on 12 January 2017 in which her Honour refused an extension
of time within which Mr Costelloe could make his application of unfair dismissal.
[2] Mr Costelloe’s employment ended on 8 December 2015. He made his application for
unfair dismissal on 2 November 2016. His application was therefore made 307 days outside
the statutory time period of 21 days within which such an application should be made.3
[3] Senior Deputy President Drake considered each of those matters in s.394(3) of the
Fair Work Act 2009 (Cth) (“the Act”) relevant to the determination of whether an extension of
time should be granted for making the application.
[4] In reaching her decision, the Senior Deputy President considered the reasons given by
Mr Costelloe for the delay in making his application. These were:
1. Ill-judged and misleading legal advice;
2. The complicated, multifaceted nature of the specific course of conduct undertaken by
others that were not within his control;
3. Psychological and financial impacts resulting from the two previous reasons for delay;
4. He was juggling two jobs from December 2015 to April 2016, his wife’s miscarriage
in June 2015 and time spent supporting her with the birth of their first child in the first
seven months of 2016.4
1 [2017] FWC 214.
2 PR589048.
3 Fair Work Act 2009 s.394(2).
[2017] FWCFB 1405
DECISION
E AUSTRALIA FairWork Commission
[2017] FWCFB 1405
2
[5] Senior Deputy President Drake, whilst sympathetic to the circumstances, did not
consider the reasons given by Mr Costello to be “out of the ordinary, unusual or uncommon.”5
[6] The Senior Deputy President also found that Mr Costelloe became aware of the end of
the employment relationship on 8 December 2015; that Mr Costelloe had disputed his
dismissal by seeking legal advice; that prejudice was a neutral matter; that the merits of the
claim were a neutral consideration and that there were no issues in relation to fairness. She
concluded that she was not satisfied exceptional circumstances existed that would warrant the
grant of an extension of time.6
Legislative provisions
[7] 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.7 There is no right to appeal and an appeal may only be made with the
permission of the Commission.
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.”
[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”.8 The task of assessing whether the public interest test
is met is a discretionary one involving a broad value judgment.9 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.”10
4 Joseph Costelloe v Origin Energy Resources Limited T/A Origin Energy at [8].
5 Ibid at [9].
6 Ibid at [10] - [15].
7 Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission and Others (2000) 203 CLR 194 at
[17] per Gleeson CJ, Gaudron and Hayne JJ.
8 (2011) 192 FCR 78 at [43].
9 O’Sullivan v Farrer and Another (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].
10 [2010] FWAFB 5343 at [27], 197 IR 266.
[2017] FWCFB 1405
3
[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.11 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.12
Grounds of Appeal and Submissions
[10] Mr Costelloe appeals on three grounds, namely, that:
1. He was denied procedural fairness in that when he advised the Commission that he
had more material to file, he was advised by the associate to the Senior Deputy
President that “Her Honour is only considering the extension of time issue at this
stage. No further documentation is required.”
2. He was denied procedural fairness in that the reasons for decision state that merit
was a neutral consideration yet he was denied every opportunity to advance the
merits of the unfair dismissal application by being instructed not to send more
documentation.
3. The findings in the decision at paragraphs [8], [9], [11] and [13] were not
reasonably open to the Senior Deputy President.13
[11] In his oral submissions Mr Costelloe advanced a fourth ground of appeal:
4. That the matter involved a contested finding of fact and should, therefore, have
been subject to a hearing.
[12] Mr Costelloe expanded on the grounds of appeal in his written and oral submissions to
the Commission. He submitted that:
The matter involved a contested finding of fact between the parties and, for this
reason, a hearing was necessary14 but was not held;
He had taken a variety of actions to dispute the dismissal including through
internal processes (to the Respondent); legal advice which, in one case was ill-
judged and wrong and including from 15 other law firms, none of whom advised
of the possibility of an application for unfair dismissal;
He was denied the opportunity to fully advance material relevant to the
consideration of an extension of time because of the advice received from the
associate to the Senior Deputy President. For this reason, he was not given the
opportunity to avail the Senior Deputy President of all of the facts necessary for
her to make an informed decision;
11 Wan v Australian Industrial Relations Commission (2001) 116 FCR 481 at [30].
12 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 and Others (2011) 192 FCR 78; New South Wales Bar
Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB
1663 at [28].
13 Form F7 at 2.1.
14 A v Commonwealth of Australia as represented by the Australian Bureau of Statistics [2016] FWCFB 2634.
[2017] FWCFB 1405
4
In finding that the reasons for delay were not out of the ordinary, unusual or
uncommon, the Senior Deputy President failed to take into account the
compounding effect of the matters he raised and, further, the inadequate reference
to the medical reports detailing his psychological conditions causing his
misunderstanding of the courses of remedy available to him. This failure is
indicative of the general misunderstanding within the community more broadly of
psychological issues;
He was not given the opportunity to fully advance his arguments as to why
exceptional circumstances existed because of the advice given by the associate;
and
The Senior Deputy President failed to properly find that the merits of the case
weighed in favour of finding that exceptional circumstances existed.
[13] Mr Costelloe said that “public interest” should be given a broad and flexible remit in
this matter. He put to the Full Bench a range of matters particular to the Respondent
(including bullying, repudiation of contract etc.) which he said demonstrated that what he was
subject to by the Respondent was widespread. A number of matters in relation to other
employees or past employees of the Respondent were also raised by Mr Costelloe (not
repeated here) which he said demonstrated that it was in the public interest for his appeal to be
heard.
[14] The Respondent submitted that the matters raised by Mr Costelloe with respect to the
public interest do not relate to the proceedings before the Full Bench and hence should not be
given any weight.
[15] As to the particular grounds of appeal, the Respondent submitted that it was
Mr Costelloe’s error, and not the Senior Deputy President’s, that he failed to put to the
Commission all of the material he believed should be considered by the Commission in
reaching a decision. Further, the Respondent submitted that her Honour weighed all of the
factors appropriately and she was not required to consider the full merits of the application for
unfair dismissal in deciding the extension of time issue.
Consideration
[16] We have carefully considered all of the submissions put by Mr Costelloe.
[17] On receipt of the file, her Honour wrote to Mr Costelloe and sought submissions from
him as to why she should grant an extension of time. That letter set out the matters for
consideration under s.394(3) of the Act and invited Mr Costelloe to address each of these. It
then said:
“If your statement persuades me that there might be exceptional circumstances
justifying an extension of time for the lodgement of your application I will give your
former employer an opportunity to be heard, either in writing or in person. They may
make an application to me, or another member of the Fair Work Commission, if
appropriate, regarding how they should be heard.
[2017] FWCFB 1405
5
If you prefer to make your statement in person I might hear the application myself or it
may be listed before another member of the Fair Work Commission. Your former
employer will be asked to attend on the same day and put their opposition, if any, to
the extension of time. They may seek to oppose your application in writing.
Consideration will be given to that request and, if granted, you will be able to respond.
If you do not understand any of the process set out in this correspondence you may
telephone my associate, Dean Superina on 02 9308 1911 to make enquiries.”
[18] In response, Mr Costelloe filed submissions and over 100 pages of supporting
materials (provided in the Appeal Book filed by him). He did not seek to be heard.
[19] No materials were invited from or filed by the Respondent beyond its Form F3
response to Mr Costelloe’s application. In the Form F3 response, the Respondent gave notice
of its jurisdictional objections on the grounds that the application was made out of time and
also that Mr Costelloe had resigned.
[20] A critical issue in the unfair dismissal application is whether or not Mr Costelloe had
resigned from his employment or was forced to resign because of conduct or a course of
conduct engaged in by the Respondent. He said he was forced to resign, the Respondent says
he was not. This was clearly a contested fact.
[21] In not holding a hearing in relation to the extension of time application – which
necessarily involved some consideration of whether or not Mr Costelloe resigned – it is
arguable that the Senior Deputy President fell into error.
[22] Section 397 of the Act states:
“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.”
[23] In Shields v The Trustee for the Jell Discretionary Trust t/as Frank Jell
Commissioning Services Pty Ltd15 (hereafter “Shields”) the Full Bench of the Commission
said:
“[20] It is apparent from the terms of s.397 that where a matter arising under Part 3-2
involves facts in dispute, the Commission must either hold a conference or conduct a
hearing in relation to the facts in dispute.
[21] Whether an application was made within the time period prescribed in s.394(2)
is clearly a ‘matter arising’ under Part 3-2 of the Act. Section 396 is relevant in this
regard. It provides that:
‘The FWC must decide the following matters relating to an application for an
order under Division 4 before considering the merits of the application:
15 [2015] FWCFB 2945.
[2017] FWCFB 1405
6
(a) whether the application was made within the period required in
subsection 394(2) …’
…”
[24] It is apparent that the Senior Deputy President did not hold a conference or hearing in
relation to the matter. The contested facts were not considered in such a process.
[25] In Shields, the Full Bench found that the failure to comply with the requirements of
s.397 in circumstances where the contested fact is a critical issue enlivens the public
interest.16 It is in the public interest that applications to the Commission are dealt with in
accordance with the Act.
Conclusion
[26] Permission to appeal is granted.
[27] The appeal is listed for hearing pursuant to directions made by the Commission.
VICE PRESIDENT
Appearances:
J. Costello on his own behalf.
E. Mentiplay and A. de Wit for Origin Energy Resources Limited T/A Origin Energy
Hearing details:
2017.
Melbourne:
March 6.
Printed by authority of the Commonwealth Government Printer
Price code C, PR590902
16 [2015] FWCFB 2945, [26].
OMMISSION CO THE SEAA THE FAIR WORK
