1
Fair Work Act 2009
s.604 - Appeal of decisions
XL Express (Personnel) Pty Ltd
v
Mr Steven Biffin
(C2017/4693)
DEPUTY PRESIDENT GOSTENCNIK
DEPUTY PRESIDENT COLMAN
COMMISSIONER MCKINNON
MELBOURNE, 22 NOVEMBER 2017
Appeal against order PR594541 of Deputy President Asbury at Brisbane on 31 July 2017 in
matter number U2016/14475; appeal instituted out of time allowed; whether pro-rata LSL to
be taken into account in assessing compensation; whether point taken at first instance; pro-
rata LSL entitlement is referable to past service; not a matter relevant for the purposes of
deductions made in assessing compensation order in lieu of reinstatement; not persuaded
arguable case of appellable error established; public interest not enlivened; permission to
appeal refused.
[1] XL Express (Personnel) Pty Ltd (Appellant) lodged a Notice of Appeal, for which
permission is necessary, against a decision1 (Decision) and order2 (Order) of Deputy President
Asbury in which the Deputy President dealt with an application for an unfair dismissal
remedy made under s.394 of the Fair Work Act 2009 (Act). The Deputy President determined
that the dismissal of Mr Steven Biffin (Respondent) by the Appellant was ‘harsh, unjust and
unreasonable’. The Respondent did not seek reinstatement and the Deputy President
determined that an order for reinstatement was not appropriate.3 The Deputy President
determined that an order for compensation was appropriate and in lieu of an order for
reinstatement, ordered the Appellant to pay to the Respondent compensation in the amount of
$48,432.69, less appropriate taxation, plus superannuation to the sum of $4,601.23.
[2] The Respondent had, until 23 November 2016, been employed by the Appellant as a
Depot Manager at its facility in Brisbane. The Respondent had commenced employment with
the Appellant on 6 May 2008. He was dismissed for reasons said to relate to conduct in which
he was alleged to have engaged, and which the Appellant considered to be serious
misconduct.
1 [2017] FWC 3702
2 PR594541
3 [2017] FWC 3702 at [95]
[2017] FWCFB 5441
DECISION
E AUSTRALIA FairWork Commission
[2017] FWCFB 5441
2
[3] Three issues require our consideration in respect of the Notice of Appeal. First,
whether we should exercise our discretion to allow the appeal to be instituted outside the 21
day period for which provision is made in the Fair Work Commission Rules 2013 (FWC
Rules). Secondly, if we allow the late lodgement of the Notice of Appeal, whether permission
to appeal should be granted. Thirdly, if permission is granted, whether the appeal should be
upheld and if so, the consequences which would follow the upholding of the appeal.
[4] On reviewing the Notice of Appeal it appeared to us that each of these matters could
be adequately determined without the parties making oral submissions and as the parties
consented to the appeal being conducted without a hearing, we decided to deal with each of
these matters on the papers taking into account the written submissions filed by the parties.
Extension of time
[5] The Appellant lodged its Notice of Appeal on 24 August 2017. The Order the subject
of that notice was made on 31 July 2017. Rule 56 of the FWC Rules deals with appeals and
the time period for instituting appeals. That rule relevantly provides that an appeal must be
instituted within 21 days after the date of the decision being appealed against or if the
decision was in the form of an order, within 21 calendar days after the date of the order. The
appeal was instituted 3 days outside of the time prescribed. Rule 56(2)(c) confers a discretion
on the Commission to extend the time within which the appeal is to be lodged.
[6] Time limits of the kind in rule 56 should not simply be extended as a matter of course.
There are sound reasons for setting a limit to the time for bringing an appeal. Time limits in
relation to the institution of appeals must be treated seriously and should only be extended
where there are good reasons for doing so.
[7] The authorities4 indicate that the following matters are relevant in considering whether
to exercise the Commission’s discretion under rule 56(2)(c):
whether there is a satisfactory reason for the delay;
the length of the delay;
the nature of the grounds of appeal and the likelihood of one or more of those
grounds being upheld if time was extended; and
any prejudice to the respondent if time were extended.
[8] In broad terms, the issue for the Commission is whether, in all the circumstances and
having regard to the matters set out above, the interests of justice favour an extension of the
time within which to lodge the appeal.5
[9] In support of its application to extend time for the institution of the appeal, the
Appellant says that an extension of time to file its appeal should be granted because the
appeal was lodged on 24 August 2017, only 3 days after the 21 day time frame had passed.
The Order issued by the Deputy President required the Appellant to make the compensation
4 See for example Fox v Kangan TAFE Print S0253, 25 October 1999 at [36];Stevenson-Helmer v Epworth Hospital, Print
T2277, 19 October 2000; Dundovich v P&O Ports, Print PR923358, 8 October 2002 per; SPC Ardmona Operations Ltd v
Esam and Organ (2005) 141 IR 338; Jobs Australia v Eland [2014] FWCFB 4822; Farnhill v Australian Business
Academy Pty Ltd [2016] FWFBC 3410.
5 Jobs Australia v Eland [2014] FWCFB 4822; Farnhill v Australian Business Academy Pty Ltd [2016] FWFBC 3410.
http://www.fwc.gov.au/decisionssigned/html/2014fwcfb4822.htm
http://www.fwc.gov.au/decisionssigned/html/2014fwcfb4822.htm
http://www.fwc.gov.au/alldocuments/PR923358.htm
[2017] FWCFB 5441
3
payment by 22 August 2017. On 22 August 2017, the Appellant complied with the Order by
paying the Respondent the compensation amount and confirming that payment had been made
in email correspondence to the Respondent at 4:35pm that day. At 5.33pm the Respondent
replied to the email correspondence inquiring when his long service leave entitlements would
be paid (LSL claim). The Appellant says that the nature of the error about which it complains
only became apparent to it, once the LSL claim was made. The Appellant says that it did not
otherwise intend to challenge the Deputy President’s Decision and Order. The Appellant
contends that it acted swiftly after receiving the LSL claim to lodge the appeal. We are
persuaded in the circumstances described above that there is a satisfactory explanation for the
delay.
[10] Additionally, the Appellant contends that the nature of the grounds of appeal are
strongly arguable in the public interest and that if the time to lodge the appeal is extended, the
appeal will be upheld. We do not share the Appellant’s optimistic view of its grounds of
appeal. For reasons that will become apparent, they, or it, as there is only one operative
ground, is weak.
[11] As to prejudice, the Appellant says that there have been no developments or
circumstances that would prejudice the Respondent if the extension were granted and the
Appellant would be prejudiced if an extension was not granted.6 The Respondent does not
point to any prejudice and we are persuaded that there will not be any real prejudice to the
Respondent, beyond that normally associated with litigation, if the appeal lodgement time
were extended.
[12] Self-evidently, the delay period (3 days) is short. Thus, although the merits of the
appeal appear weak, the other factors tend to weigh in favour of allowing the appeal to be
lodged outside of the time prescribed. There are no other matters about which we are aware
that would weigh against allowing the late lodgement of the appeal. In the circumstances, we
consider that the interests of justice favour the grant of an extension of time. We therefore
extend the time by which this Notice of Appeal may be lodged to 24 August 2017.
[13] We now turn to consider whether permission to appeal should be granted.
Consideration
The Deputy President’s Decision
[14] The Deputy President’s consideration of whether the dismissal of the Respondent was
harsh, unjust or unreasonable is relevantly set out at [63] – [93] of the Decision. At [94] the
Deputy President concludes, after weighing the matters set out in s.387 of the Act, that the
dismissal of the Respondent was harsh because it was disproportionate to the misconduct
found, unjust because there was no proper basis for the Appellant to conclude that the
Respondent had engaged in bullying conduct, and unreasonable because the conclusion that
the Respondent engaged in such conduct was based on inferences that could not reasonably be
drawn from the material that was before the Appellant.
[15] Neither this conclusion nor the factual findings earlier made by the Deputy President
upon which the conclusion is based are challenged by the Appellant.
6 Appellant’s Outline of Submissions on Extension of Time and Permission to Appeal, undated at [4].
[2017] FWCFB 5441
4
[16] In considering other relevant matters as required by s.387(h) of the Act, the Deputy
President identified as relevant and to be weighed in favour of a conclusion that the
Respondent’s dismissal was unfair, the uncontroversial fact that the Respondent was not paid
an amount representing pro-rata long service leave. This was because the Appellant had
dismissed the Respondent in the circumstances for which provision is made in s.95(4)(c) of
the Industrial Relations Act 2016 (Qld) (IR Act).7
[17] At [95] of the Decision, the Deputy President concludes that an order for reinstatement
is not appropriate but that a remedy in the form of an order for compensation is appropriate.
From [96] to [116] of the Decision, the Deputy President considers all the circumstances that
she identifies as relevant in determining an amount of compensation. During the proceedings
before the Deputy President it was uncontroversial that the Respondent was paid an amount of
$27,423.08 which was the equivalent of 12.4 weeks of wages at the time of, or shortly after,
the termination of the Respondent’s employment. The Deputy President deducted this amount
in the course of calculating the amount of compensation that would ultimately be the subject
of a compensation order. This appears to have been done on the basis that the sum paid was
an amount to which the Respondent was not otherwise entitled by reason of the circumstances
of his dismissal, and on the basis of the reason for that dismissal relied on by the Appellant at
the time it took effect.8 The Appellant does not challenge this aspect of the Deputy President’s
Decision and Order. The Appellant does not challenge any of the other matters that the
Deputy President took into account in assessing the compensation amount. As will be
apparent, the Appellant says that a deduction from the amount of compensation calculated by
the Deputy President, representing the pro-rata long service leave payment to which the
Respondent became entitled by reason of the Decision ought also to have been made.
Permission to appeal principles
[18] An appeal under s.604 of the 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.
[19] Section 400 of the Act applies to this appeal. 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.”
[20] 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 of the Act as “a
7 [2017] FWC 3702 at [93]
8 Ibid at [112] and [116]
9 Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; 99 IR 309 at [17]
per Gleeson CJ, Gaudron and Hayne JJ
[2017] FWCFB 5441
5
stringent one”.10 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 principles applied appear disharmonious when
compared with other recent decisions dealing with similar matters”
12
[21] 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 the Member at first instance made an error is not
necessarily a sufficient basis for the grant of permission to appeal.14
[22] In support of its application, the Appellant submits that it is in the public interest for us
to grant permission to appeal for the following reasons:
1. It is in the public interest that the provisions of s.392 which stipulate the matters that the
Commission must take into account be properly applied, and that the Deputy President
erred in:
(a) failing to take into account the material consideration of the pro-rata LSL the
Respondent became entitled to pursuant to s.95(4)(c)(ii) of the Industrial Relations
Act 2016 (Qld) (‘Qld IR Act’) as a direct result of her finding that the Respondent
was unfairly dismissed, as required by s.392(2); and
(b) failing to reduce the amount of compensation to be paid by the Appellant by an
amount equal to the pro-rata LSL entitlement of $16,365.40 gross.
2. It is in the public interest that permission to appeal be granted on the basis that the
question of the correct application of s.392(2) in the case of an employee who becomes
entitled to pro-rata LSL pursuant to s.95(4)(c)(ii) of the Qld IR Act as a direct result of a
finding by the Commission that the Respondent was unfairly dismissed should be
considered by a Full Bench in light of the diversity of treatments at first instance; and
3. It is in the public interest that permission to appeal be granted on the basis that a
substantial injustice will result if the Appellant, after having paid the Respondent the
ordered amount of compensation not reduced by the pro-rata LSL entitlement now
claimed by the Respondent, was to be required to pay a further amount of $16,365.40 on
10 (2011) 192 FCR 78; 207 IR 177 at [43]
11 O’Sullivan v Farrer (1989) 168 CLR 210 at 216-217 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v
Hinch (2011) 243 CLR 506 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; 207 IR 177 at [44] -[46]
12 [2010] FWAFB 5343; (2010) 197 IR 266 at [27]
13 Wan v Australian Industrial Relations Commission (2001) 116 FCR 481 at [30]
14 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343; (2001) 197 IR 266 at [26]-[27]; Lawrence v Coal &
Allied Mining Services Pty Ltd T/A Mt Thorley Operations/Warkworth [2010] FWAFB 10089; (2010) 202 IR 388 at [28],
affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78; 207 IR 177; New
South Wales Bar Association v McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office
[2014] FWCFB 1663; (2014) 241 IR 177 at [28]
https://www.fwc.gov.au/documents/decisionssigned/html/2014fwcfb1663.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2010fwafb10089.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2010fwafb5343.htm
http://www.fwc.gov.au/decisionssigned/html/2010fwafb5343.htm
[2017] FWCFB 5441
6
account of pro-rata LSL. We submit that this injustice can be averted if the Order is
reduced on appeal by the amount of the pro-rata LSL entitlement, such amount already
paid being a payment on account of pro-rata LSL.15
[23] For the reasons which follow, we are not persuaded that an arguable case of appellable
error has been established or that the public interest is enlivened.
Appeal grounds
[24] By its Notice of Appeal dated 24 August 2017, the Appellant appears to advance a
number of grounds of appeal. Appeal grounds 1 – 11 of the Notice of Appeal appear to be no
more than contentions of fact or law in support of the gravamen of the appeal contained in
ground 12.
[25] By appeal ground 12 the Appellant contends the Deputy President erred in failing to
take into account the pro-rata long service leave sum to which the Respondent became
entitled pursuant to s.95(4)(c)(ii) of the IR Act consequent on her decision that the
Respondent was unfairly dismissed. It contends that the Deputy President was required by
s.392(2) of the Act to do so, and in failing to reduce the amount of compensation to be paid
by the Appellant by an amount equal to the pro-rata long service leave entitlement of
$16,365.40 the Deputy President erred.
[26] In support of its appeal ground, the Appellant maintains that the pro-rata long service
leave amount to which the Respondent became entitled was a relevant matter which the
Deputy President should have taken into account in assessing the amount of compensation the
subject of the order made. In essence, by this submission, the Appellant contends that the
Deputy President failed to take into account a relevant consideration. The Appellant submits
that on 24 November 2016 it paid to the Respondent a “golden handshake” payment of 12.4
weeks’ amounting to 5 weeks’ pay in lieu of notice and 7.4 weeks’ pro-rata long service leave
that the Respondent would have been entitled to had he not been dismissed for serious
misconduct.16
[27] The Appellant submits that as the Respondent was dismissed for serious misconduct,
he was not entitled to pay in lieu of notice or pro-rata long service leave. It says that the pay
slip which was provided to the Respondent upon his termination described the “golden
handshake” severance payment as 480 hours in lieu of notice and 16 hours ordinary pay and
that the description per se does not alter the true nature of the payment or the fact that it
included an amount equivalent to pro-rata long service leave, but that it merely reflects the
choice of computer pay system coding to achieve the desired superannuation and tax
treatments of the payment.17 The Appellant contends that it is no coincidence that the “golden
handshake” payment to the Respondent, equated to the pay in lieu of notice and pro-rata long
service leave to which the Respondent would have been entitled to had he not been dismissed
for serious misconduct.18
15 Appellant’s Outline of Submissions on Extension of Time and Permission to Appeal, undated at [7] – [9]
16 Appellant’s Outline of Submissions in Reply, dated 11 October 2017 at [1] – [2]
17 Ibid at [3]
18 Ibid at [4]
[2017] FWCFB 5441
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[28] The Respondent contends that he did not raise the LSL claim with the Appellant when
his employment was terminated because, at that time, his employment ended as a result of
serious misconduct.19 He says that, the entitlement to be paid pro-rata long service leave did
not arise until the Deputy President found that his dismissal was unfair and when he received
his compensation from the Appellant which did not include his entitlement to pro-rata long
service leave, he raised it with the Appellant.20 The Respondent contends that his entitlement
to pro-rata long service leave is “over and above” the amount that was awarded by the Deputy
President.21
[29] Additionally, the Respondent also points to the fact that during the proceeding before
the Deputy President, the following exchange to took place:
PN52
You mentioned that you were not paid your long service leave on termination?---Correct.
PN53
And you say you were entitled to be paid that?---Yes.
PN54
The reason for not paying it was I take it because the respondent said you were dismissed
for serious misconduct?---Correct.
[30] The Respondent says that the extracted transcript above supports his contention that
the Appellant did not dispute the non-payment of the pro-rata long service leave, and
consequently, the Appellant’s acquiescence to dispute the non-payment, necessarily means
that it did not disagree.22
[31] Respectfully, none of the parties’ submissions summarised above grapple with the
central question raised by the Appellant’s appeal ground. That question is whether an amount
that is to be paid to the Respondent representing pro-rata long service leave to which he
became entitled once it was determined that his dismissal was unfair, was a matter that was
relevant to the assessment of an amount of compensation in lieu of reinstatement. The short
answer to the question is no.
[32] Before turning briefly to state our reasons for that conclusion we make the following
observation.
[33] The issue of the treatment of an entitlement to payment of pro-rata long service leave
in the assessment of compensation in lieu of reinstatement was not agitated before the Deputy
President. It was not put by the Appellant during the proceedings at first instance, that in the
event that the Deputy President concluded that the dismissal of the Respondent was unfair and
determined that compensation was appropriate, the Deputy President should make a deduction
or an allowance by reason of the Respondent then becoming entitled, under State law, to an
amount of pro-rata long service leave.
19 Respondent’s Outline of Submissions, dated 3 October 2017, at [9] where second appearing
20 Ibid at [10] where second appearing
21 Ibid
22 Ibid at [2] where second appearing
[2017] FWCFB 5441
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[34] The Deputy President cannot be fairly criticised for not taking into account a matter
which the Appellant did not ask her to take into account. Moreover, on appeal an Appellant
would not generally be permitted to raise a matter, which though available, it did not raise or
argue at first instance. This is so whether the failure to raise or argue the matter was by
omission or by design. The Appellant should be held to the case it ran at first instance. The
issue it now raises is not in the nature of a jurisdictional issue going to power. This is a
powerful reason alone for not granting permission to appeal. An appeal is not an opportunity
to run a better case than that advanced at first instance.
[35] As to the issue now raised, it must be remembered that the power to order
compensation is a power to order compensation in lieu of reinstatement. The assessment that
is undertaken in determining the amount of compensation is essentially an assessment of
income that an unfairly dismissed employee would have earned with the employer had the
employment continued for a period determined by the Commission, less income earned from
other sources, contingencies and other deductions. The assessment of compensation looks
forwards into a hypothetical future. Also relevant are non-monetary considerations such as
impact on viability of an employer’s enterprise, misconduct contributions and the statutory
cap.
[36] The pro-rata long service leave payment to which the Respondent became entitled
under the IR Act by reason of the determination that his dismissal was unfair, is an
entitlement derived from past eligible service rendered during a period of employment which
has ended. It is a payment that looks backwards. The amount the Appellant is now required
under the IR Act to pay to the Respondent does not bear any relationship to future service.
The pro-rata entitlement under the IR Act generally arises upon the happening of an event,
namely the termination of the employment after the completion of the qualifying period of
service and subject to some exceptions.
[37] In the instant case, the entitlement arose because the Respondent’s dismissal was
determined to be unfair. But for the Appellant’s view at the time it dismissed the Respondent
that he had engaged in serious misconduct, the Respondent would have been paid the pro-rata
long service leave entitlement when the employment ended. The amount of the pro-rata
entitlement under the IR Act that is now due is not compensatory in nature. It is not a
payment for the performance of work during the period over which a compensation order is
calculated, nor is it another source of income earned or paid by reference to that period.
There is no element of double dipping involved.
[38] Long service leave payments may be a relevant consideration in a particular
substantive case, for example, if the unfair dismissal of an employee results in the qualifying
period of service being cut just short of a long service leave entitlement or where the likely
period of assessed ongoing employment would crystallise an entitlement during that period.
However, it does not follow that an amount to which a dismissed employee subsequently
becomes entitled under the IR Act, by reason of a determination that the dismissal was unfair,
is to be deducted from an assessment of an amount of compensation in lieu of reinstatement
consequent upon a finding that an employee’s dismissal was unfair. We do not consider that
the pro-rata long service leave entitlement was relevant to the Deputy President’s assessment
of compensation and it follows that the Deputy President did not err as contended by the
Appellant. That the Appellant made another payment which appears to be equivalent to the
pro-rata long service leave amount does not change the relevance assessment. That payment
was not made to meet the entitlement under the IR Act and in any event, as we noted earlier,
[2017] FWCFB 5441
9
the Deputy President made an allowance for that amount in her assessment of the
compensation amount that ultimately became the subject of the Order.
[39] Consequently, we are not persuaded that the Appellant has made out an arguable case
of appellable error. We are also not persuaded that the public interest is enlivened. Contrary to
the Appellant’s submission we are not persuaded that:
(a) there is a diversity of decisions at first instance so that guidance from an
appellate body is required; or
(b) the appeal raises issues of importance or general application; or
(c) the Decision manifests an injustice, or the result is counter intuitive; or
(d) the legal principles applied by the Deputy President were disharmonious when
compared with other decisions dealing with similar matters.
[40] It follows that permission to appeal must be refused.
Conclusion
[41] For the reasons given we allow the Notice of Appeal to be lodged outside of the time
prescribed by rule 56 of the FWC Rules, but the application for permission to appeal is
refused.
DEPUTY PRESIDENT
Written submissions:
Appellant’s Outline of Submissions on Extension of Time and Permission to Appeal lodged
12 September 2017.
Appellant’s Outline of Submissions on the Merits of the Appeal dated 27 September 2017.
Respondent’s Outline of Submissions on Extension of Time, Permission to Appeal and Merits
of the Appeal dated 3 October 2017.
Appellant’s Outline of Submissions in Reply dated 11 October 2017.
Printed by authority of the Commonwealth Government Printer
Price code C, PR596977
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