1
Fair Work Act 2009
s.604 - Appeal of decisions
Mr Joseph Costelloe
v
Origin Energy Resources Limited T/A Origin Energy
(C2017/4764)
DEPUTY PRESIDENT GOSTENCNIK
DEPUTY PRESIDENT COLMAN
COMMISSIONER MCKINNON
MELBOURNE, 10 OCTOBER 2017
Appeal against decision in [2017] FWC 3946 and Order in PR595199 of Commissioner
Bissett at Melbourne on 8 August 2017 in matter number U2016/13231.
[1] Mr Joseph Costelloe has applied for permission to appeal a decision1 and order2 of
Commissioner Bissett issued on 8 August 2017 in which the Commissioner dismissed his
application for an extension of the statutory 21 day period prescribed by s.394(2) within
which to make an unfair dismissal application.
[2] Mr Costelloe resigned from his employment at Origin Energy Ltd (Origin) on 2
December 2015. Nearly one year later, on 2 November 2016, Mr Costelloe made an unfair
dismissal application under s.394 of the Fair Work Act 2009 (FW Act). Origin objected to the
application on the grounds that it was filed outside the 21 day limit.
[3] Mr Costelloe applied for an extension of the 21 day period, as contemplated by
s.394(2)(b), arguing that there were exceptional circumstances for the delay in his making the
unfair dismissal application, related among other things to psychological illness and
representational error.
[4] On 3 January 2017, Senior Deputy President Drake dismissed Mr Costelloe’s
application.3 However, that decision was overturned on appeal, on the basis that the
application had been determined without a hearing or a conference in circumstances where
there were contested facts, contrary to s.397 of the Act.4 The Full Bench remitted Mr
Costelloe’s application for an extension of time to Commissioner Bissett for determination.5
[5] Following a mention on 7 April 2017,6 the Commissioner heard the application on 5
and 6 June 2017. The Commissioner concluded that, having regard to the considerations set
out in s.394(2)(b) of the FW Act, there were no exceptional circumstances warranting an
extension of time. Mr Costelloe’s unfair dismissal application had therefore not been made
within the required statutory period, and his unfair dismissal application was dismissed.7
[2017] FWCFB 5241
DECISION
E AUSTRALIA FairWork Commission
[2017] FWCFB 5241
2
[6] Mr Costelloe’s application for permission to appeal was heard before us on 3 October
2017. Both parties filed written submissions and presented oral argument.
[7] Origin sought permission, pursuant to section 596 of the FW Act, to be represented by
counsel. Mr Costelloe opposed this application. Both parties filed written submissions and
made brief oral submissions on this question. We were satisfied that, taking into account the
complexity of the matter, granting the respondent’s counsel permission to appear would
enable the matter to be dealt with more efficiently.8
[8] On 4 October 2017, Mr Costelloe filed further written submissions, although the
parties had not been directed or granted leave to do so. Origin objected to the further
submission and contended that we should not take them into account, but provided its own
further submissions in reply, in the event that we decided to allow further submissions.
[9] We have decided to accept the further submissions and have taken them into account
in our consideration of the application for permission to appeal. Although the filing of
unsolicited further submissions is irregular, we consider that, as an unrepresented party, some
leeway should be afforded to Mr Costelloe. As Origin has filed a reply, which we have also
considered, the company suffers no prejudice.
Permission to appeal
[10] An appeal under s604 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.9 There is no right to appeal and an appeal may only be made with the
permission of the Commission.
[11] This appeal is one to which s400 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.
[12] In Coal & Allied Mining Services Pty Ltd v Lawler and others, the Federal Court
characterised the test under s400 as ‘stringent’.10
[13] The task of assessing whether the public interest test is met is a discretionary one
involving a broad value judgment.11 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
[2017] FWCFB 5241
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principles applied appear disharmonious when compared with other recent decisions
dealing with similar matters.”12
[14] 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.13 However, the fact that a member of the Commission at first instance
made an error is not necessarily a sufficient basis for the grant of permission to appeal.14
[15] 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.15
Relevant statutory provisions
[16] It is convenient to set out the statutory provisions that were at issue in the proceeding
before the Commissioner. Section 394 of the FW Act states:
(1) A person who has been dismissed may apply to the FWC for an order under
Division 4 granting a remedy.
Note 1: Division 4 sets out when the FWC may order a remedy for unfair
dismissal.
Note 2: For application fees, see section 395.
Note 3: Part 6-1 may prevent an application being made under this Part in
relation to a dismissal if an application or complaint has been made in relation
to the dismissal other than under this Part.
(2) The application must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (3).
(3) The FWC may allow a further period for the application to be made by a person
under subsection (1) if the FWC is satisfied that there are exceptional circumstances,
taking into account:
(a) the reason for the delay; and
(b) whether the person first became aware of the dismissal after it had taken
effect; and
(c) any action taken by the person to dispute the dismissal; and
(d) prejudice to the employer (including prejudice caused by the delay); and
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.
[2017] FWCFB 5241
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[17] Section 396 of the FW Act sets out those matters that must be determined prior to the
Commission considering the merits of an application. One such matter is whether the
application was made within the period required in subsection 394(2).
[18] The principles relevant to consideration of exceptional circumstances are well
established and are set out in the Commissioner’s decision.16 We do not repeat them.
Grounds of appeal
[19] Mr Costelloe’s notice of appeal set out two categories of appeal grounds. The first
concerned alleged errors of law and fact, and advanced eleven contentions. The second
concerns an alleged denial of natural justice, and advanced two contentions.
[20] Mr Costelloe filed a four page submission in support of his request for permission to
appeal. This document contends that the Commissioner’s decision was affected by four
significant errors. At the hearing of the application for permission to appeal, Mr Costelloe
advised the Bench that, for the purposes of permission to appeal, he relied on his written
submissions.17 We have considered both the notice of appeal and the four page submission. In
our view Mr Costelloe’s written submission conveys the essence of the contentions raised in
the notice of appeal.
[21] We deal first with the alleged ‘four significant errors’ referred to in Mr Costelloe’s
appeal submissions and then address some additional contentions in the notice of appeal.
‘Significant error 1’ – alleged representative error of Mr Cruz
[22] Mr Costelloe contended that he was unaware of the possibility of claiming, in an
unfair dismissal application, that he had been constructively dismissed, and that his legal
representatives did not properly advise him in this regard. He argued that representative error
contributed to his delay in filing his unfair dismissal application. Mr Costelloe sought to have
two previous legal advisors summonsed to give evidence at first instance. The Commissioner
ordered the attendance of one, Ms Thorley, but not the other, Mr Cruz.18
[23] Mr Costelloe raises several concerns in connection with the Commissioner’s decision
as it relates to Mr Cruz.
[24] First, Mr Costelloe appears to contest the Commissioner’s decision not to issue an
order for Mr Cruz to attend the Commission to give evidence about what advice he gave or
did not give to Mr Costelloe about constructive dismissal. However, Mr Costelloe did not
seek to appeal that decision when it was made, as he could have done. The decision not to
order Mr Cruz to attend and give evidence is not properly the subject of the present
application for permission to appeal. However, we have considered whether this earlier
decision might have affected the fairness of the Commissioner’s hearing of Mr Costelloe’s
application for an extension of time. We return to this below.
[25] Mr Costelloe challenges the Commissioner’s conclusion that the advice provided (or
not provided) by Mr Cruz did not constitute an acceptable reason for Mr Costelloe’s delay in
making his application.19 The Commissioner states that there was no suggestion that Mr
Costelloe sought advice on matters relating to constructive dismissal or that Mr Cruz withheld
information about what remedies might be available if Mr Costelloe resigned.20
[2017] FWCFB 5241
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[26] At the hearing before Commissioner Bissett, Mr Costelloe stated:
‘… I was not aware of possibility of a constructive dismissal, which I thought I had
been seeking advice for and had been told that there wasn’t – I’d previously been told
that there was no remedy by Mr Cruz, and then when directed to the actual words,
‘constructive dismissal, by Ms Thorley there was no – no intellect – there was no
advice around that and I was persuaded to take a different course of action.’21
[27] Whilst somewhat equivocal, this passage suggests that Mr Costelloe may have asked
Mr Cruz about constructive dismissal and been told there was ‘no remedy’. However, when
later asked by the Commissioner whether Ms Thorley or Mr Cruz had advised him that he
could not make an application for unfair dismissal, Mr Costelloe replied no.22
[28] As the Commissioner noted in her decision, Mr Costelloe consulted Mr Cruz well
before his resignation and subsequently obtained advice from Ms Thorley that dealt with the
question of constructive dismissal.23 Ms Thorley’s advice was more recent and more relevant
than that of Mr Cruz and would logically appear to be the appropriate focus of any inquiry
into allegations of representative error.
[29] In our view, the Commissioner’s findings concerning, and consideration of, the role of
Mr Cruz do not disclose an arguable case of appellable error. Nor do we consider the earlier
decision of the Commissioner not to order the attendance of Mr Cruz to give evidence to have
affected the fairness of the hearing.
‘Significant error 2’ – alleged representative error of Ms Thorley
[30] Mr Costelloe submitted that the Commissioner erred in her conclusion that the advice
provided by Ms Thorley did not provide an acceptable reason for the delay in Mr Costelloe
bringing his claim for unfair dismissal.
[31] Mr Costelloe contended that the Commissioner did not accord him procedural fairness
by permitting the order of witnesses to be changed, such that Ms Thorley, an important
witness, gave evidence on the first rather than the second day of the hearing. However, it is
not apparent to us that Mr Costelloe was disadvantaged by Ms Thorley giving evidence on the
first day. Mr Costelloe did not object to Ms Thorley giving evidence on that day.24
[32] Mr Costelloe also raised a concern about Ms Thorley’s file note of a discussion she
had had with him on 29 October 2015. The file note records that Mr Costelloe had wanted to
‘know the issues behind constructive dismissal’ and that Ms Thorley had ‘walked him through
the unfair dismissal application forms and the cost of a fixed fee of $1,500.’25 Mr Costelloe
submitted that he only became aware of the existence of this file note during his examination
of Ms Thorley at the hearing.26
[33] Again it is not apparent that Mr Costelloe suffered any prejudice in this regard. Mr
Costelloe was able to respond to this evidence, and advance his own position that his
telephone records did not show a lengthy telephone discussion with Ms Thorley on that day.
He could have recalled Ms Thorley on the second day of the hearing but declined an
invitation to do so.27
[2017] FWCFB 5241
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[34] The Commissioner found Ms Thorley to be a witness of credit28 and was satisfied that
she did ‘take Mr Costelloe through’ unfair dismissal matters.29 The Commissioner also noted
that Mr Costelloe conceded during his evidence that he raised the issue of constructive
dismissal with Ms Thorley around 29 October and that the expression ‘forced resignation’ had
been used;30 and that Ms Thorley had raised in an email to Mr Costelloe of 9 November 2015
the possibility of him bringing a ‘dismissal dispute’ if he resigned.31 The Commissioner
concluded that Ms Thorley responded to matters raised by Mr Costelloe, gave appropriate
advice on those matters,32 and had not misdirected him.33
[35] It is well established that findings of fact at first instance, based on the credibility of a
witness, will only be set aside on appeal where incontrovertible facts or uncontested
testimony show that the decision-maker’s conclusions are erroneous, or where the conclusions
drawn are clearly improbable or contrary to compelling inferences.34 It does not appear to us
Mr Costelloe’s contentions establish any arguable case that the Commissioner’s conclusions
can be described in any of these ways.
‘Significant error 3’ – the decision in Bidinost v Orica
[36] Mr Costelloe contends that the Commissioner erred by not taking into account the
decision in Bidinost v Orica.35 This contention is misconceived. As the Commissioner noted,
in that case the applicant had provided clear instructions to the representative to file an unfair
dismissal application, which the representative did not do. There was a finding that the
applicant in that case had been misled. Bidinost is plainly distinguishable from the present
matter. In any event, as a decision of a single member, it was not binding on the
Commissioner.
[37] In connection with the representative error discussed in Bidinost, the member in that
case made some passing observations about the provisions in the FW Act that may have been
applicable in relation to paid agents who cause costs to be incurred because of an
unreasonable act or omission. Mr Costelloe appears to invite the Full Bench to make similar
observations in the present matter however there is simply no basis to do so. We do not
discern an arguable case of appellable error in relation to the Commissioner’s findings
concerning the question of representative error, must less an argument that costs might be
awardable against the representatives.
‘Significant error 4’ – reasons for the delay
[38] Mr Costelloe’s fourth category of error contends that, under the heading ‘Reasons for
Delay’, and in connection with [27] to [116] of the decision, the Commissioner mistook the
facts and failed to take into account material considerations, or failed to attribute them correct
weight.
[39] Mr Costelloe then revisits the reasons for his delay in filing his unfair dismissal
application. One major factor is said to have been his ignorance of what constituted a forced
resignation or constructive dismissal and whether that applied to his situation.36 In his notice
of appeal, Mr Costelloe states that he became ‘aware of the dismissal’ (by which he appears to
mean the idea of arguing he was constructively dismissed) on 28 October 2016, and that he
filed his application within 5 days.37 The Commissioner does not accept this, and cites a draft
submission he prepared for his worker’ compensation claim from April 2016, where he states
that ‘such remedy (unfair dismissal / constructive dismissal) was not available to me as I was
[2017] FWCFB 5241
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in the first 6 months of employment’.38 The Commissioner states that this evidence suggested
Mr Costelloe was at least aware of the possibility of dismissal in April.39 We do not identify
any apparent error in this analysis.
[40] In his further submissions filed after the hearing of the application for permission to
appeal, Mr Costelloe strongly contested that he had drawn a link between constructive
dismissal and unfair dismissal. However, even if this be accepted, ignorance of the law is not
a sufficient reason for delay.40 The FW Act is very clear that the application is to be made
within 21 days of the dismissal taking effect, not from the date a person realises they might be
able to bring an application.
[41] In this regard, information is available on the Commission’s website about unfair
dismissal applications. This material covers eligibility for unfair dismissal, procedure, and
information about previous decisions of the Commission. The Commission’s unfair dismissal
benchbook is a 208 page document containing an entire part headed ‘What is dismissal’,
including a section on ‘forced resignation’.41 It also deals with the statutory requirement to
lodge applications within 21 days.42 Mr Costelloe noted in his submissions that he found the
benchbook very helpful and that it contained exactly what he needed to know,43 but suggested
it could be placed in a more prominent position.44 However, if Mr Costelloe was able to find
and make use of the benchbook in October 2016, we fail to see why he could not have done
so in December 2015.
[42] A further contention advanced by Mr Costelloe is that the Commissioner should have
taken into account that Ms Thorley initially advised him not to resign, whereas he had not
sought this advice and it was contrary to his medical advice; and that Ms Thorley later
advised him to do something different, namely to make a ‘general protections’ claim and
negotiate a paid exit.45
[43] The argument seems to be that Ms Thorley should have advised him to resign and
claim constructive dismissal, instead of considering a general protections claim. This
submission does not travel any further than the contentions referred to above concerning
alleged representative error. The Commissioner considered Ms Thorley’s advice in relation to
general protections and the question of resignation as part of her analysis of Mr Costelloe’s
claims about Ms Thorley’s advice and does not find there to have been any representational
error.46 In this connection there is nothing that suggests to us an arguable case of appellable
error on the part of the Commissioner.
Other contentions in the notice of appeal
[44] We have considered the contention in the notice of appeal challenging the
Commissioner’s finding that Mr Costelloe did not appear to have actively sought to dispute
the reason for his resignation (or notional dismissal) beyond his workers compensation
claim.47 We do not see merit in it. Mr Costelloe appears to have had many grievances with his
former employer, and during the hearing on 3 October 2017 explained that for a period of
time, he was “consumed” by the workers compensation claim. . But it is not explained how
Mr Costelloe prosecuted any belief that he had been forced to resign.
[45] We have also considered Mr Costelloe’s argument that he was unfairly dissuaded
from advancing the merits of his application, and that the merits could be found to favour the
granting of an extension.48 However, the Commissioner does consider the merits of his
[2017] FWCFB 5241
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application and concludes that it is not possible in the circumstances to draw any conclusions
about them.49 We do not perceive an arguable appellable error in the Commissioner’s analysis
or conclusions.
[46] Mr Costelloe stated in his notice of appeal that he was denied natural justice at the
hearing before the Commissioner. In addition to the issue concerning his application to
summons Mr Cruz, and the fact Ms Thorley gave evidence on the first day and not the second
of the hearing (dealt with above), Mr Costelloe raised a concern about the use of the file
material concerning his interaction with Ms Thorley. He submitted that he received these
materials a week before the hearing, but that the respondent did not seek to obtain access to it
until after the commencement of the hearing. The contention appears to be that he was taken
by surprise in this regard. However, it does not appear to us that this adversely affected Mr
Costelloe’s ability to run his case.
[47] There is also a contention that Ms Thorley did not produce Mr Costelloe’s full legal
file until the morning of the hearing. But again, it is not apparent that Mr Costelloe suffered
any prejudice. He could have sought an adjournment if he needed one. We do not consider
this matter points to an arguable case of a denial of natural justice.
Conclusion
[48] We are not persuaded that Mr Costelloe has made out an arguable case that the
Commissioner’s decision was affected by error. Further, he has not identified matters of
general application or importance, a diversity of decisions at first instance, a denial of natural
justice, a manifest injustice or other matters that would enliven the public interest for
permission to appeal being granted.
[49] We do not consider that it is in the public interest to grant permission to appeal.
Section 400(1) of the FW Act requires that in such circumstances the Commission must not
grant permission to appeal. Permission to appeal is therefore refused.
DEPUTY PRESIDENT
Appearances:
Mr Costelloe appeared for himself
Mr Mentiplay, solicitor, appeared for Origin Energy
THE FAIR WORK COMMISSION SEAL OF
[2017] FWCFB 5241
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Hearing details:
2017
Melbourne
Brisbane
3 October
Printed by authority of the Commonwealth Government Printer
Price code C, PR596698
1 [2017] FWC 3946
2 PR595199
3 PR589048
4 [2017] FWCFB 2023 at [24]
5 Ibid at [27]
6 The Notice of Appeal alleges at 1(a) that the respondent’s lawyer did not seek permission to
appear at the mention, however this is not correct. The audio recording confirms that the
Commissioner granted permission to appear at the commencement of the hearing. It is also
alleged that a communication from the respondent to the Commission two hours before the
mention may give rise to apprehended bias. However, this message was sent by the
respondent to Mr Costelloe, and copied to the Commissioner. It addressed the directions
that the respondent would seek at the mention. There is nothing unusual or inappropriate
about this correspondence.
7 [2017] FWC 3946 at [144]
8 Transcript of proceedings before the Full Bench at PN22
9 This is so because on appeal the Commission has power to receive further evidence,
pursuant to s607(2); see Coal and Allied v AIRC (2000) 203 CLR 194 at [17] per Gleeson
CJ, Gaudron and Hayne JJ
10 (2011) 192 FCR 78 at [43] per Buchanan J (with whose judgment Marshall and Cowdroy JJ
agreed)
11 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 & Allied Mining Services Pty Ltd v Lawler and others
(2011) 192 FCR 78 at [44] -[46]
12 [2010] FWAFB 5343, 197 IR 266 at [27]
13 Wan v AIRC (2001) 116 FCR 481 at [30]
14 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 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 at [28]
[2017] FWCFB 5241
10
15 Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]
16 Paragraphs 14 to 23 of the decision
17 Transcript of proceedings before the Full Bench at PN31
18 Order dated 29 May 2017
19 Ibid at [82]
20 [2017] FWC 3946 at [55] – [57]
21 Transcript of proceeding before Commissioner Bissett at PN1509
22 Transcript of proceedings before Commissioner Bissett on 6 June 2017 at [PN1516]
23 See paragraphs 32-54 of the decision, particularly 37 and 46.
24 PN43-47 of transcript dated 5 June 2017.
25 Paragraph 34 of the decision,
26 PN823-826 of transcript dated 5 June 2017.
27 PN1133-1134 transcript of 6 June 2017
28 Paragraph 48 of the decision
29 Paragraph 51 of the decision
30 PN1483, 1568, paragraph 46 of the decision
31 Paragraph 53 of the decision
32 Paragraph 87 of the decision
33 Paragraph 94 of the decision
34 Short v Ambulance Victoria [2015] FCAFC 55
35 [2013] FWC 2089
36 Paragraph 39 of the Appellant’s submissions on appeal
37 See ground 1(f) of the Notice of Appeal
38 Paragraph 120 and 121 of the decision
39 Paragraph 123 of the decision
40 Paragraph 17 of the decision; Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1 paragraph 14
41 Benchbook on Unfair Dismissal – https://www.fwc.gov.au/resources/benchbooks/unfair-
dismissals-benchbook; see Part 4, and specifically page 62
42 Page 131 of the benchbook
43 PN105, transcript of 3 October 2017
44 Paragraph 46 of the Appellant’s submissions on appeal
45 Paragraph 41 of the Appellant’s submissions on appeal
46 Paragraphs 38 to 51 of the decision
47 See paragraph 128 of the decision; Notice of Appeal ground 1(g)
[2017] FWCFB 5241
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48 Paragraph 1(h) of the Notice of Appeal
49 Paragraphs 132 to 137 of the decision
