[2018] FWCFB 2474
The attached document replaces the document previously issued with the above code on 21
May 2018.
The document has been edited to correct a typographical error in paragraph [12] by replacing
the date “23 December 2017” with the date “20 December 2017”.
Associate to Vice President Catanzariti
Dated 19 November 2018
1
Fair Work Act 2009
s.604—Appeal of decision
Inna Grabovsky
v
United Protestant Association of NSW Limited T/A UPA
(C2018/1708)
VICE PRESIDENT CATANZARITI
COMMISSIONER BISSETT
COMMISSIONER HUNT BRISBANE, 21 MAY 2018
Appeal against decision [2018] FWC 1549 of Deputy President Gooley at Melbourne on
15 March 2018 in matter number C2018/685.
[1] This is an appeal, for which permission is required, from a Decision of Deputy
President Gooley issued on 15 March 20181 in which the Deputy President found that
exceptional circumstances existed pursuant to s.366 of the Fair Work Act 2009 (Cth) (FW
Act) such that an extension of time should be granted within which Mrs Inna Grabovsky (the
Appellant) could make her application that the termination of her employment had been in
breach of the general protections provisions of the FW Act. The Appellant had been employed
by United Protestant Association of NSW Limited T/A UPA (the Respondent).
[2] In an unusual development, the Appellant, who was granted an extension of time, now
appeals that decision.
The decision on appeal
[3] In responding to some preliminary issues raised by the Appellant, the Deputy
President noted that:
The Commission is required to be satisfied that it has the jurisdiction to deal
with a matter. If the Commission forms the preliminary view that a matter has
not been lodged within time it is entitled to conduct a hearing and provide the
party making the application an opportunity to establish that the application was
lodged within time or that he or she should be granted an extension of time to
lodge the application. The Commission does not require a separate application
for an extension of time or an objection lodged by the respondent to deal with
such matters. The Commission is entitled to satisfy itself that it has the
jurisdiction to deal with an application.2
1 [2018] FWC 1549.
2 Ibid at [15].
[2018] FWCFB 2474
DECISION
E AUSTRALIA FairWork Commission
[2018] FWCFB 2474
2
UPA did not require permission for its lawyers to make the application for
representation or make submissions on behalf of UPA. It did require permission
to represent UPA at the hearing. Accordingly, Mrs Grabovsky’s submission that
no regard should be had to the material filed by UPA must be rejected.3
The dismissal of Mrs Grabovsky took effect on 20 December 20174 and the
existence of outstanding leave entitlements does not alter the date of termination.
[4] The Deputy President then considered each of the relevant matters pursuant to
s.366(2) of the FW Act. The Deputy President found that:
The reason for the delay in making the application was caused by an erroneous
link on the Fair Work Commission’s (the Commission) website to outdated
information that suggested an applicant had 60 days to make an application and
that this weighed in favour of finding exceptional circumstances;5
Mrs Grabovsky had taken no other action to dispute her dismissal. Whilst she
had other matters before the Commission none of these related to her dismissal
and this weighed against the finding of exceptional circumstances;6
Whilst UPA would suffer some prejudice by the delay this was not sufficient to
weigh against a finding of exceptional circumstances;7
Whilst UPA said it had dismissed Mrs Grabovsky because she could not fulfil
the inherent requirements of her job, Mrs Grabovsky submitted that this
circumstance had existed for some considerable period of time and the reason
for dismissal was because Mrs Grabovsky was opposing the application for
approval of a recently made enterprise agreement. The Deputy President found
that she was “unable to conclude…that Mrs Grabovsky’s case is unarguable.
Given the reverse onus of proof in these matters I am satisfied that the merits
weigh in favour of a finding of exceptional circumstances.”8
[5] Taking all of these matters into account, the Deputy President concluded that she was
satisfied exceptional circumstances existed warranting the grant of an extension of time. She
therefore exercised her discretion to grant the extension of time.9 An order10 to that effect was
issued with the decision.
Consideration
3 Ibid at [17].
4 Ibid at [26].
5 Ibid at [29].
6 Ibid at [30].
7 Ibid at [31].
8 Ibid at [34] and [37].
9 Ibid at [39].
10 PR601195.
[2018] FWCFB 2474
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[6] The Appellant posits five grounds of appeal although these, in effect, fall within two
areas, the application of wrong principles and an error of law.
The application of wrong principles
[7] The Appellant said that it is the role of the Commission to establish the legitimacy of
the dismissal and when it takes effect.
[8] The Appellant said that her dismissal was effected in breach of the requirements of
s.50 and s.117 of the FW Act and in breach of the provisions of the relevant enterprise
agreement. The letter of termination, she said, is therefore no more than evidence of an
offence by the Respondent. For this reason she submitted that her dismissal had no legal
effect as it was not done in accordance with the law. It was submitted that she therefore did
not require an extension of time within which to make her application or the Commission to
deal with a general protections dispute involving dismissal.
[9] For these reasons the Appellant said that the Deputy President was wrong in accepting
the letter of dismissal and determining a date of dismissal. Further, the Deputy President was
wrong in granting an extension of time when none was sought by the Appellant.
[10] We do not agree that the Deputy President was in error in determining the date of
dismissal. The Deputy President had before her an application by the Appellant to deal with a
general protections dispute involving dismissal. Whilst it was not subject to any submissions
by the Appellant we concur with the observations of the Deputy President that the
Commission, in receiving an application, must be satisfied as a first step that it has
jurisdiction to deal with the application made.11 In this case it was a general protections
application that was required to be filed within 21 days of the date of dismissal.12 To
determine if the application was made within the statutory time period and, therefore, if there
was a period of delay it was necessary of the Deputy President to determine the date of
dismissal. In this respect the Deputy President had regard to the relevant authorities for
guidance on this question. We see no error in her doing so.
[11] In her application to the Commission the Appellant, in response to the question “On
what date were you dismissed?” answered “The Notice of Termination of Employment is
dated 14 December 2017.”
[12] The Deputy President considered the date the letter of termination was received by the
Appellant and determined that the date of dismissal was 20 December 2017. The application
was made to the Commission on 9 February 2018 and therefore was outside the statutory time
limit prescribed in s.366 of the FW Act. She therefore proceeded to consider if an extension
of time within which to make the application should be granted. We observe no error in a very
orthodox approach to a matter that confronts the Commission on a regular basis.
Public interest considerations
11 See Deputy Commissioner of Patents v Board of Control of Michigan Technological University (1980) 28 ALR 551 at 562.
12 Fair Work Act 2009 (Cth) s 366.
[2018] FWCFB 2474
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[13] The Appellant said that the Deputy President made an error of law in relying on the
decision of the Full Bench in Metropolitan Fire and Emergency Services Board v Duggan13 to
support her finding that a notice of dismissal may have been properly given even when that
notice did not comply with the requirements of the FW Act. In particular the Appellant
submitted that the principles in Duggan are wrong and that the use of previous authority is not
fair to unrepresented parties and that all matters should be determined on their own merits and
not by reference to other decided matters that may have a different factual background and
may have been subject to the discretion of the member dealing with it.
[14] The Appellant argued that this point alone enlivened the public interest.
[15] We do not consider that the Deputy President’s reliance on the decision in Duggan
was an error of law. Whilst the Commission is not strictly bound by previous Full Bench
decisions (as a lower court is bound by decisions of a higher court), it is well established that
the interests of consistency and sound decision making dictate that a single member of the
Commission should not depart from relevant Full Bench authority.
[16] We see no reason to depart from this well established principle and, to the extent the
appellant submitted we should do so, we decline.
[17] The Appellant submitted that the matter of the erroneous use of authorities could be
dealt with by way of this appeal or by a referral of a question of law to the Federal Court by
this Full Bench pursuant to s.608 of the FW Act. As was explained to the Appellant’s
representative at the hearing of the appeal, the Full Bench has no power to refer a question of
law to the Federal Court and we have no intention of doing so. It was explained that this is a
power reserved to the President of the Commission only.
Permission to appeal
[18] An appeal under s.604 of the Act is an appeal by way of rehearing. The Commission’s
powers on appeal are only exercisable if there is an error on the part of the primary decision
maker.14 There is no right to appeal, and an appeal may only be made with the permission of
the Commission. Section 604(2) of the Act states:
“604 Appeal of decisions
(1) A person who is aggrieved by a decision:
(a) made by the FWC (other than a decision of a Full Bench or the Expert
Panel); or
(b) made under the Registered Organisations Act by:
(i) the General Manager (including a delegate of the General
Manager); or
13 [2017] FWCFB 4878.
14 Coal and Allied Operations Pty Limited Australian Industrial Relations Commission and others (2000) 203 CLR 194; 99
IR 309 at [17] per Gleeson CJ, Gaudron and Hayne JJ.
[2018] FWCFB 2474
5
(ii) the Registered Organisations Commissioner (including a
delegate of the Commissioner);
may appeal the decision, with the permission of the FWC.
(2) Without limiting when the FWC may grant permission, the FWC must grant
permission if the FWC is satisfied that it is in the public interest to do so.
Note: Subsection (2) does not apply in relation to an application for an unfair dismissal (see
section 400).
(3) A person may appeal the decision by applying to the FWC.”
[19] If we are satisfied that it is in the public interest to do so, we must grant permission to
appeal.
[20] The task of assessing whether the public interest test is met is a discretionary one
involving a broad value judgment.15 In GlaxoSmithKline Australia Pty Ltd v Makin16 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.17
[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.18 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.19
Consideration - Permission to appeal
[22] For the reasons given above, we are not persuaded that it is in the public interest to
grant permission to appeal. While it is open to the Commission in this matter to grant
permission where the public interest is not enlivened, we are not satisfied that the
15 O’Sullivan v Farrer and another (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; (2011) 207 IR 177 at [44]-[46].
16 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343; [(2010) 197 IR 266].
17 Ibid (Kaufman SDP, Ives DP, Spencer C, 23 July 2010) at [27].
18 Wan v Australian Industrial Relations Commission (2001) 116 FCR 481 at [30].
19 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].
[2018] FWCFB 2474
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circumstances of this case warrant the Commission doing so. More specifically, we do not
consider that an arguable case of appealable error has been identified.
[23] Further, we have decided not to exercise our discretion to grant permission to appeal
because we are not satisfied that:
There is a diversity of decisions at first instance so that guidance from an
appellate body is required of this kind;
The appeal raises issues of importance and/or general application;
The decision at first instance manifests an injustice, or the result is counter
intuitive; or
The legal principles applied by the Commissioner were disharmonious when
compared with other decisions dealing with similar matters.
[24] The appeal is, in any event, futile as the Appellant was granted an extension of time
within which to make her application and, that having been granted, the application is being
dealt with by a single member of the Commission. Regardless of any other consideration this
dictates a finding that this matter does not attract the public interest as it cannot be in the
public interest to pursue an appeal in circumstances where the standing of the Appellant
cannot improve should such an appeal be pursued to a conclusion.
[25] Permission to appeal is refused.
VICE PRESIDENT
Appearances:
Mr Igor Grabovsky for the Appellant.
S. Leverton for the Respondent.
Hearing details:
2018.
Sydney:
May 2.
Printed by authority of the Commonwealth Government Printer
PR606776
OMMISSION CO THE SEAA THE FAIR WORK
