[2017] FWCFB 2023
The attached document wholly replaces the document previously issued with the codes [2017]
FWCFB 1405 and PR590902 published on 10 April 2017.
The correct codes are “[2017] FWCFB 2023” and “PR591746”.
Associate to Vice President Catanzariti
Dated 11 April 2017
1
Fair Work Act 2009
s.604—Appeal of decision
Joseph Costelloe
v
Origin Energy Resources Limited T/A Origin Energy
(C2017/439)
VICE PRESIDENT CATANZARITI
DEPUTY PRESIDENT GOOLEY
COMMISSIONER BISSETT
SYDNEY, 10 APRIL 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 (“the Appellant”) has appealed against a Decision and subsequent
Order of Senior Deputy President Drake issued on 3 January 2017 and 12 January 2017
respectively in which the Senior Deputy President refused an extension of time within which
the Appellant could make his application for unfair dismissal.
[2] The Appellant’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] Senior Deputy President Drake considered each of those matters in section 394(3) of
the Fair Work Act 2009 (Cth) (hereafter “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
the Appellant 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 was 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.
[2017] FWCFB 2023
DECISION
E AUSTRALIA FairWork Commission
[2017] FWCFB 2023
2
[5] The Senior Deputy President found that, while she was sympathetic to these
circumstances she “was not persuaded that the Appellant’s difficulties were out of the
ordinary, unusual or uncommon.”1
[6] The Senior Deputy President also concluded that:
The Appellant became aware of the end of his relationship with the Respondent
on 8 December 2015;2
The Appellant disputed his dismissal by seeking legal advice and by lodging this
application.3
She was satisfied there would be no greater prejudice to the Respondent caused by
the Appellant’s application being listed now than there would have been had it
been lodged in time. Prejudice to the Respondent was a neutral consideration.4
Merit was a neutral issue in her consideration of the application.5
There was no issue of fairness in relation to any other person in a similar
position.6
[7] The Senior Deputy President concluded that, having considered all of the matters to
which her attention is directed by the Act, she was “not satisfied that there were exceptional
circumstances which would warrant … granting an exception to the statutory time limit” and
on that basis, dismissed the application. The Senior Deputy President found that the
Appellant’s circumstances were not out of the ordinary course, unusual, special or
uncommon.7
[8] On 6 March 2017, we heard the Appellant’s application for permission to appeal
against the Decision of the Senior Deputy President and, on 15 March 2017, the Full Bench
issued a Decision8 in which permission to appeal was granted.
[9] The appeal against the Decision of the Senior Deputy President was heard on 5 April
2017. At the hearing, the Appellant appeared for himself and Ms A. De Wit appeared for the
Origin Energy Resources Limited (“the Respondent”). Permission for the Respondent to be
legally represented was not granted pursuant to section 596 of the Act as the matter was not
sufficiently complex. At the conclusion of that hearing, we advised the parties that the appeal
was granted, the application of an extension of time by the Appellant would be referred to
Commissioner Bissett to hear and that we would issue our reasons in due course. These are
our reasons for granting the appeal.
1 Joseph Costelloe v Origin Energy Resources Limited T/A Origin Energy [2017] FWC 214 at [9].
2 Ibid at [10].
3 Ibid at [11].
4 Ibid at [12].
5 Ibid at [13].
6 Ibid at [14].
7 Ibid at [15].
8 Joseph Costelloe v Origin Energy Resources Limited T/A Origin Energy [2017] FWCFB 1405.
[2017] FWCFB 2023
3
Grounds of Appeal
[10] The Appellant advances a number of grounds of appeal:
1. He was denied the right to place relevant material before the Commission in
the hearing of his application for an extension of time;
2. He was denied the opportunity to advance his arguments as to the merits of his
application; and
3. The findings of the Senior Deputy President were not reasonably open to her
on the material before her.
[11] During the appeal, the Appellant advanced a further ground of appeal:
4. He had been denied a hearing of his application for an extension of time where
there were contested issues.
[12] The Appellant expanded on these grounds of appeal in his submissions.
Submissions
[13] The Appellant submitted that, in considering the reasons for the delay, the Senior
Deputy President should have acknowledged, on the material before her, that he had sought
legal advice from over 15 lawyers. Whilst he followed the advice given to him, it was “simply
wrong”. In this respect, the statement that one of the reasons for the delay was the “ill judged
and misleading legal advice” does not properly reflect the situation. The proper effect of the
legal advice, in conjunction with the other matters being dealt with by him adequately
explains the reasons for the delay and indicates the “extraordinary nature” of the
circumstances.
[14] The Appellant also submitted that there was no basis for the Senior Deputy President
to find that the merits of the case was a neutral consideration. He submitted that, had the
substantiated facts been accepted, then it was reasonably open for the Senior Deputy President
to find that this was a favourable consideration in granting the extension of time. Further, he
contended that he was not given an opportunity to put submissions on the merits of his case to
the Senior Deputy President in circumstances where there were contested issues and that this
was a breach of the requirements of section 397 of the Act.
[15] The Respondent submitted that it was not necessary for the Senior Deputy President to
hold a conference or hearing pursuant to section 397 of the Act in circumstances where the
dispute in question (whether the Appellant had resigned or was dismissed) did not need to be
decided in order to determine the extension of time and where such a dispute was a dispute as
to the characterisation of circumstances rather than the existence of facts directly. The
Respondent asserted that, in raising its jurisdictional objection (application out of time), it
“assumed the correctness of the facts” set out by the Appellant and why they did not
overcome the jurisdictional objection.
[16] The Respondent did agree, however, that in the circumstances it puts forward, it was
not open to the Senior Deputy President to conclude that the merits of the application was a
[2017] FWCFB 2023
4
neutral consideration in deciding if exceptional circumstances existed. However, the
Respondent submitted that, even if this was the case, there are still no grounds on which it
could be found that exceptional circumstances would exist such that an extension of time
should be granted.
Consideration
[17] In our Decision to grant permission to appeal, we found that “the failure to comply
with the requirements of section 397 in circumstances where the contested fact is a critical
issue enlivens the public interest. It is in the public interest that applications to the Fair Work
Commission (Commission) are dealt with in accordance with the Act.”9
[18] We are satisfied that there were matters of fact in dispute at the time the application
for an extension of time was determined by the Senior Deputy President. In completing its
Form F3 – Employer Response to Unfair Dismissal Application and outlining its objections to
the Appellant’s application, the Respondent claimed that “[t]he facts alleged by the Applicant
in his Form F2 do not, taken at their highest, sustain a claim for dismissal within the meaning
of section 386(1)(b) of the FW Act” and that “there is nothing on the facts alleged to suggest
that the Applicant had no option but to resign.”
[19] The Form F3 was the only material from the Respondent before the Senior Deputy
President (it was not invited to make any further submissions) at the time of the Decision. The
circumstances surrounding the Appellant leaving his employment with the Respondent and
the conclusions that could be drawn from this was clearly put in dispute by the Respondent.
Whilst no definitive finding was necessarily required to be made by the Senior Deputy
President as to whether or not the Appellant had been dismissed, there clearly were facts, on
which findings would be required to be made, that were in dispute.
[20] Section 397 of the Act does not limit the facts in dispute to those that must be
determined to resolve the subject matter of the immediate proceedings as opposed to the final
determination of the claim.
[21] The failure to comply with the requirements of section 397 of the Act warrants
correction on appeal. For this reason we would grant the appeal.
[22] If it is that there were no contested facts because the Respondent, at that time, did not
contextualise the Appellant’s version of events leading up to leaving the Respondent, then the
decision that merits was a neutral consideration was not a conclusion reasonably open to the
Senior Deputy President and for this reason we would grant the appeal.
[23] In circumstances where the merits of the case, as put by the Appellant, must be
accepted as put because of no contradictory position put by the Respondent in the matter, the
only finding that can reasonably be made is that the merits of the case are favourable to the
finding of exceptional circumstances (unless, of course, the Appellant submits that there are
no merits to the case – an unlikely possibility). This did not occur in this instance. The Senior
Deputy President concluded that the merits “was a neutral issue”, but indicated no basis on
which this conclusion was reached. With no indication as to a dispute of the facts, she was
obliged to find, on the merits, in favour of the application for an extension of time.
9 Joseph Costelloe v Origin Energy Resources Limited T/A Origin Energy [2017] FWCFB 1405 at [25].
[2017] FWCFB 2023
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[24] To the extent that this conclusion was reached because of the existence of a
contradictory version of the merits of the case, the Senior Deputy President was obliged to
hold a hearing or conference in accordance with section 397 of the FW Act, however, she did
not do so.
Conclusion
[25] Accordingly, permission to appeal is granted.
[26] The Decision and Order of Senior Deputy President Drake are quashed.
[27] The application for an extension of time is referred to Commission Bissett for
rehearing.
VICE PRESIDENT
Appearances:
J. Costelloe for himself.
A. De Wit for the Respondent.
Hearing details:
2017
Melbourne via video link to Brisbane:
5 April.
Printed by authority of the Commonwealth Government Printer
Price code C, PR591746
OMMISSION CO THE SEAA THE FAIR WORK
