1
Fair Work Act 2009
s.604—Appeal of decision
Peter Elliott
v
LEAP Legal Software Pty Limited T/A LEAP Legal Software
(C2018/1056)
VICE PRESIDENT CATANZARITI
DEPUTY PRESIDENT COLMAN
COMMISSIONER BISSETT
SYDNEY, 6 JUNE 2018
Appeal against decision [2018] FWC 627 of Commissioner Saunders at Newcastle on 6
February 2018 in matter number U2017/7240.
[1] On 8 November 2017, Mr Peter Elliott (Appellant) was dismissed from his
employment with LEAP Legal Software (Respondent). On 30 December 2017, the Appellant
filed his general protections dismissal application under s.365 of the Fair Work Act 2009
(Cth) (Act) in the Fair Work Commission (Commission). That application was filed 31 days
outside of the statutorily prescribed 21-day period,1 and therefore the application could only
be made if an extension of time was granted under s.366(2) of the Act.
[2] On 29 January 2018, Commissioner Saunders heard the Appellant’s extension of time
application by way of a telephone hearing. In that hearing, the Appellant gave evidence on his
own behalf and Ms Fiona Crawford, General Manager Human Resources, gave evidence on
behalf of the Respondent.
[3] On 6 February 2018, Commissioner Saunders issued his Decision2 in which he
declined to grant the Appellant an extension of time to file his general protections dismissal
application under s.366(2) of the Act. That Decision is now the subject of this appeal.
[4] On 5 April 2018, we heard the parties in respect of both permission to appeal and the
merits of the appeal. Mr Elliott appeared on his own behalf and Mr S. Meehan, of counsel,
was granted permission to appear on behalf of the Respondent pursuant to s.596(2)(a) of the
Act.
Appeal Principles
[5] An appeal under s.604 of the Act is 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.3
1 Fair Work Act 2009 (Cth) s.366(1)(a).
2 [2018] FWC 627.
[2018] FWCFB 3288
DECISION
E AUSTRALIA FairWork Commission
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There is no right to appeal and an appeal may only be made with the permission of the
Commission.
[6] 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.4 The public interest is not
satisfied simply by the identification of error,5 or a preference for a different result.6
[7] 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...’7
[8] Other than the special case in s.604(2) of the Act, 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.8 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.9 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.10
Consideration
[9] The legislative scheme in which s.366 of the Act operates, was comprehensively
considered by a Full Bench of the Commission in Periklis Stogiannidis v Victorian Frozen
Foods Distributors Pty Ltd t/as Richmond Oysters (Stogiannidis).11
[10] Relevantly, in Stogiannidis, it was found that the Commissioner at first instance had
erred by elevating a relevant factor (that is, the reason for delay) under s.366(2)(a) of the Act,
3 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.
4 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].
5 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, 197 IR 266 at [24]-[27].
6 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], affirmed on judicial review;
Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 178; NSW Bar Association v Brett McAuliffe;
Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663, 241 IR 177 at [28].
7 [2010] FWAFB 5343, 197 IR 266 at [24] – [27].
8 Also see CFMEU v AIRC (1998) 89 FCR 200 at 220; and Wan v AIRC (2001) 116 FCR 481 at [26].
9 Wan v AIRC (2001) 116 FCR 481 at [30].
10 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 (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].
11 [2018] FWCFB 901 at [11]-[19].
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into a “decision rule so as to allow the automatic production of a solution”.12 This was, in the
Full Bench’s view, the result of the Commissioner erroneously relying upon Cheval
Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers (Cheval)13 as authority for the
proposition that an applicant “needs to provide a credible explanation for the entire period of
the delay”14 in order to support an extension of time application being granted under s.366(2)
of the Act.
[11] In this appeal, it is clear to us that Commissioner Saunders has fallen into the same
error.
[12] At paragraph [11] of the Decision, Commissioner Saunders cites the case of Cheval
and sets out the following proposition:
“The applicant must provide a credible reason for the whole of the period that the
application was delayed.” (Emphasis added).
[13] The Commissioner then detailed a timeline of events from which the Appellant’s
dismissal took effect on 8 November 2017, to the date in which the general protections
application was lodged on 30 December 2017.15 Based on those events, the Commissioner
accepted that the Appellant had provided an adequate explanation for not filing his application
in the period from 10 November 2017 to 8 December 2017.16 However, in respect of the
period from 9 December 2017 to 30 December 2017, the Commissioner was not satisfied that
the Appellant had provided an adequate explanation for the delay, as the Commissioner was
of the view that the Appellant was not “incapacitated or otherwise unable to file” his
application for the “whole” of this period.17 On that basis, the Commissioner determined that
s.366(2)(a) was a factor which weighed against granting an extension of time.
[14] Having considered the remaining factors under s.366(2)(b)-(e), the Commissioner
concluded that, on balance, he was not satisfied that there were exceptional circumstances
which warranted an extension of time. More specifically, the Commissioner stated that:
‘Although I have sympathy for [the Appellant], he has not, on the evidence before me,
provided an acceptable reason for the whole of the delay in making his
Application. My evaluative judgment is that [the Appellant’s] circumstances were
not, either viewed in isolation or considered together, out of the ordinary course,
unusual, special or uncommon.’18 (Emphasis added).
[15] Based on these aspects of the Decision, it is apparent that the Commissioner adopted
and applied a decision rule of the kind identified as an error of law in Stogiannidis. Namely,
the Commissioner erroneously adopted Cheval as authority for the proposition that a credible
reason must be provided for the whole period of delay in supporting a finding that exceptional
12 Ibid at [42].
13 (2010) 197 IR 403.
14 [2018] FWCFB 901 at [40].
15 Decision at [13]-[16].
16 Ibid at [18].
17 Ibid.
18 Ibid at [31].
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circumstances existed. According to the Full Bench’s reasons in Stogiannidis,19 Cheval did
not stand for such proposition because the relevant error that was identified in that case was
not that a credible explanation must be provided for the whole of the delay, but rather it was
that the Member at first instance had failed to take into account the fact that part of the delay
was unexplained.
[16] As such in following Stogiannidis, we find that the Commissioner’s adoption of a
decision rule at [11] of the Decision amounted to an error of law. This, in our view, plainly
influenced the Commissioner’s ultimate conclusion that the circumstances of the Appellant’s
case could not be regarded as exceptional such as to enliven the discretion to extend time
under s.366(2) of the Act. On that basis, we find that the Decision is attended with error and
sufficient doubt as to warrant its reconsideration on appeal.
[17] In those circumstances, it is unnecessary to give further consideration to the other
grounds of appeal.
[18] We would note however, that Commissioner Saunders did not have the benefit of
Stogiannidis at the time he issued his Decision, and particularly given the ambiguity in
Cheval, we imply no criticism of him in our decision.
Conclusion
[19] Permission to appeal is granted.
[20] The appeal is upheld.
[21] The Decision ([2018] FWC 627) is quashed.
[22] The Appellant’s application for an extension of time is remitted to Commissioner
Saunders for rehearing.
VICE PRESIDENT
Appearances:
Mr P. Elliott, Appellant, appeared on his own behalf.
Mr S. Meehan, of counsel, appeared on behalf of the Respondent.
Hearing details:
19 [2018] FWCFB 901 at [32]-[35].
OMMISSION CO THE SEAA THE FAIR WORK
5
9.30am
5 April 2018
Melbourne, with video link to Sydney and Brisbane
Printed by authority of the Commonwealth Government Printer
PR607851
