1
Fair Work Act 2009
s.604—Appeal of decision
Jeremy Snyder
v
Helena College Council, Inc. T/A Helena College
(C2018/4170)
DEPUTY PRESIDENT CLANCY
DEPUTY PRESIDENT MASSON
COMMISSIONER LEE
MELBOURNE, 20 DECEMBER 2018
Appeal against decision [2018] of Commissioner Gregory at Melbourne on 27 July 2018 in
matter number U2018/3043.
Introduction
[1] On 27 July 2018, Commissioner Gregory issued a decision1 (the Decision) in which he
refused the application of Mr Jeremy Snyder (Mr Snyder) for an extension of time within
which to lodge his application for an unfair dismissal remedy.
[2] Mr Snyder seeks permission to appeal the Decision.
[3] An appeal under s.604 of the Fair Work Act 2009 (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.2 There is no right to appeal and an appeal may only be
made with the permission of the Commission. The matter was listed for hearing in respect of
both permission to appeal and the merits of the appeal.
Extension of Time
[4] It is necessary to say something about s.394 of the Act first, before turning to the
Decision and the grounds of appeal.
[5] Section 394(2) of the Act provides that an application for an unfair dismissal remedy
(an unfair dismissal 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).
1 [2018] FWC 4432.
2 This is so because on appeal the Commission has power to receive further evidence, pursuant to s.607(2); see Coal and
Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.
[2018] FWCFB 4734
DECISION
E AUSTRALIA FairWork Commission
[2018] FWCFB 4734
2
[6] Section 394(3) sets out the circumstances in which the Commission may grant an
extension of time, as follows:
“(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.”
[7] A decision whether to extend time under s.394(3) of the Act involves the exercise of a
discretion, so much is clear from the use of the word “may” in s.394(3) of the Act. The
discretion is only enlivened if the Commission is satisfied “that there are exceptional
circumstances”. The test of “exceptional circumstances” establishes a “high hurdle” for an
applicant seeking an extension of time.3
[8] In determining whether there are “exceptional circumstances” the Commission is
required to “take into account” the matters set out in ss.394(3)(a)-(f) of the Act. To take a
matter into account means that the matter is a “relevant consideration” in the Peko-Wallsend4
sense of matters which the decision maker is bound to take into account. The obligation to
take into account the matters set out at s.394(3)(a)-(f) of the Act means that each of these
matters, insofar as they are relevant, must be treated as a matter of significance in the decision
making process.5 As Wilcox J said in Nestle Australia Ltd v Federal Commissioner of
Taxation:6
“To take a matter into account means to evaluate it and give it due weight, having
regard to all other relevant factors. A matter is not taken into account by being noticed
and erroneously discarded as irrelevant.”
3 Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace
Relations [2014] FWCFB 2288 at [21].
4 Minister for Aboriginal Affairs v Pelco-Wallsend (1986) 162 CLR 24.
5 Friends of Hinchinbrook Society Inc v Minister for Environment (No 3) (1997) 77 FCR 153; Australian Competition and
Consumer Commission v Leclee Pty Ltd (1999] FCA 1121; Edwards v Giudice [1999] FCA 1836; National Retail
Association v Fair Work Commission [2014] FCAFC 118.
6 Minister for Aboriginal Affairs v Pelco-Wallsend (1986) 162 CLR 24.
https://www.fwc.gov.au/documents/decisionssigned/html/2014fwcfb2288.htm
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[9] Section 394(3) of the Act is in substantially the same terms as s.366(2) (save for the
additional consideration in s.394(3)(b), which is absent from s.366(2)). The meaning of
“exceptional circumstances” in s.366(1) of the Act was considered by a Full Bench of the
then Fair Work Australia in Nulty v Blue Star Group Pty Ltd as follows:
“[13] In summary, the expression “exceptional circumstances” has its ordinary meaning
and requires consideration of all the circumstances. To be exceptional, circumstances
must be out of the ordinary course, or unusual, or special, or uncommon but need not
be unique, or unprecedented, or very rare. Circumstances will not be exceptional if
they are regularly, or routinely, or normally encountered. Exceptional circumstances
can include a single exceptional matter, a combination of exceptional factors or a
combination of ordinary factors which, although individually of no particular
significance, when taken together are seen as exceptional. It is not correct to construe
“exceptional circumstances” as being only some unexpected occurrence, although
frequently it will be. Nor is it correct to construe the plural “circumstances” as if it
were only a singular occurrence, even though it can be a one off situation. The
ordinary and natural meaning of “exceptional circumstances” includes a combination
of factors which, when viewed together, may reasonably be seen as producing a
situation which is out of the ordinary course, unusual, special or uncommon.
[14] Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional
circumstance……..”7
[10] Generally speaking, the assessment of whether exceptional circumstances exist
requires a consideration of all the relevant circumstances, because even though no one factor
may be exceptional, in combination the circumstances may be regarded as exceptional.8
[11] We now turn to the Decision which is the subject of the appeal.
The Decision
[12] We note at the outset that, while not contested before the Full Bench, it was a matter
of dispute in the proceedings at first instance as to whether the date of dismissal was 25
January 2018. The Commissioner set out the evidence and submissions at [7] to [19] of the
Decision before concluding:
“I am satisfied in response that it was originally intended when the letter of 23 January
was sent to Mr Snyder that he would work out the notice period associated with him
being made redundant. However, it was subsequently decided, and confirmed, in the
letter of 25 January, that he would no longer be required to work out that notice period,
and he would instead receive a lump sum payment in lieu of notice. I am satisfied that,
as a consequence, Mr Snyder’s employment was terminated with effect from 25
January 2018. He was not required at work after that time and received a payment in
lieu of notice at that time. His employment accordingly ended on that date.”9
7 [2011] FWAFB 975.
8 See Griffiths v The Queen (1989) 167 CLR 372 at 379 (Brennan and Dawson JJ); Ho v Professional Services Review
Committee No 295 [2007] FCA 388 at [23]-[26] (Rares J); Hasim v Attorney-General of the Commonwealth [2013] FCA
1433, (2013) 218 FCR 25 at [65] (Greenwood J).
9 Decision at [24].
http://www.fwc.gov.au/decisionssigned/html/2011fwafb975.htm
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[13] Having reached the conclusion that Mr Snyder’s employment was terminated with
effect from 25 January 2018, the Commissioner found that his unfair dismissal application
was lodged well outside of the 21 day time period. The application for an unfair dismissal
remedy was lodged on 22 March 2018, some five weeks late.
[14] The Commissioner then turned to consider each of the matters specified in s.394(3)(a)
to (f) of the Act. At paragraphs [30] to [41], the Commissioner dealt with the reasons
advanced by Mr Snyder for the delay in lodging his unfair dismissal application. Mr Snyder
had submitted that the reason for the delay was because he initially made an application on 10
February 2018 to the Western Australian Industrial Relations Commission (WAIRC) as he
believed the State Tribunal was the appropriate body. He said this was because he understood
the College was covered by a State-based enterprise agreement. The College subsequently
raised a jurisdictional objection to his application, which is indicated to have been received by
the WAIRC on 9 March 2018.
[15] Mr Snyder also contended that the process of dealing with his application in the
WAIRC was delayed because of the College’s tardiness in providing a response to the
WAIRC and due to the advice of his Union representation to allow the matter to be dealt with
by the WAIRC.
[16] As to the reasons for the delay, the Commissioner ultimately concluded, at [41] of the
Decision:
“[41] I am satisfied in response that it would have been prudent, and perhaps expected,
that Mr Snyder would have made application to the Federal Commission as soon as he
became aware that the College was taking issue with his ability to pursue the
application in the WAIRC. However, Mr Snyder agreed to let that process play out,
despite being aware that the College had raised a jurisdictional objection to the State
Commission’s ability to deal with his application. If he had made application to the
Federal Commission as soon as he became aware of the jurisdictional objection his
application would still have been lodged out of time. However, that situation would
have been more akin to the circumstances involved in the matter of RCR Engineering
that he seeks to rely upon.”
[17] The Commissioner then dealt with the other relevant considerations and made the
following findings:
While Mr Snyder had suggested there was some doubt about when his dismissal
took effect, the Commissioner was satisfied that date of his termination was 25
January 2018. The Commissioner found that while Mr Snyder might contend that
there was some doubt about what the date of his termination was, the fact he lodged
an unfair dismissal application with the WAIRC on 10 February 2018 suggested he
was aware his employment had been terminated at that point in time (s.394(3)(b)).
Mr Snyder took steps to dispute his dismissal by the application he first made to the
WAIRC and the subsequent application he made to the Commission (s.394(3)(c)).
The Commission was in no position to express any concluded view about the
respective merits, given the submissions and evidence then before it. The
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Commissioner noted at paragraph [47] of the Decision that it was difficult to
conclude, based on the materials then before the Commission, that Mr Snyder’s case
had significant merit (s.394(3)(e)).
[18] The Commissioner’s conclusion is set out at paragraphs [49]-[51] of the Decision:
“[49] I have had regard to all of the circumstances involved in this matter, together with
the considerations in s.394 that I must take account of. In conclusion, I am not satisfied
that “exceptional circumstances” exist to warrant an extension of time being granted to
Mr Snyder in which to make application. It is acknowledged that he made application
to the WAIRC on the basis of a mistaken belief that it was the appropriate jurisdiction
in which to pursue his unfair dismissal claim. However, I am also satisfied that he
should have been alerted to the fact he may have made application in the wrong
jurisdiction when the jurisdictional objection was made to his application by the
College on 9 March of this year. However, he decided to let that process play out, and
only made the present application when the processes before the State Commission
had been exhausted. It also appears that nothing prevented him from making
application to the Fair Work Commission at any time, including immediately after 10
March of this year. I have also had regard to the decisions of McCarthy DP that had
been referred to which involve circumstances that are not dissimilar to those involved
in the present matter.
[50] I am also satisfied for the reasons indicated that the date of Mr Snyder’s
termination was 25 January 2018, and there cannot be said to be any genuine
confusion about that date. Mr Snyder also proceeded to lodge his unfair dismissal
application after that time suggesting he was also aware at that point that his
employment had been terminated.
[51] I am satisfied, firstly, that Mr Snyder’s application was lodged outside of the 21
day time period. However, I am not satisfied in all the circumstances, and after having
regard to the matters in s.394(3) that I must take into account, that exceptional
circumstances exist to warrant the Commission exercising its discretion to extend time
in which to make application. In coming to this decision I have had particular regard to
the reasons for the delay and the merits of the application. The application is
accordingly dismissed.” (Footnotes omitted)
Utility of Appeal
[19] The Full Bench raised with the parties a question as to the utility of the appeal; that of
the implications of the timing of Mr Snyder’s filing of his application for an unfair dismissal
remedy with the Commission on 22 March 2018 before the withdrawal of his application
made for an unfair dismissal remedy in the WAIRC on 23 March 2018.
[20] Attention of the parties was drawn to ss.725, 729 and 732 of the Act which deal with
multiple applications and the issue of whether the operation of those provisions in the present
matter raised a question as to the utility of the appeal was put to them. Specifically, we asked
the parties to address whether Mr Snyder’s unfair dismissal application made in the WAIRC,
which was formally withdrawn on 23 March 2018, acted as a bar to Mr Snyder’s unfair
dismissal application filed in the Commission on 22 March 2018 by reason of the operation of
these sections of the Act and if so, whether the application in the Commission was or would
[2018] FWCFB 4734
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be invalid if the appeal were successful, thus rendering the present appeal of the Decision
futile.
[21] Directions were subsequently issued allowing for a further exchange of submissions
by the parties in respect of the question of the utility of the appeal. Both parties filed
submissions but we will firstly deal with the substantive grounds of appeal.
Grounds of appeal
[22] Notwithstanding his assertion that there were significant errors of fact, we discern
from the grounds of appeal in Mr Snyder’s Notice of Appeal that his complaint is that the
Commissioner failed to take material considerations into account, namely:
1) that he did not consider the question of the Respondent’s continued misrepresentation
as to the applicable industrial instrument, based upon which Mr Snyder believed the
Respondent was not a National System Employer, which was a significant factor in
relation to both the reason for the delay (s.394((3)(a)) and the merits of the application
(s.394((3)(e)); and
2) that having concluded that the effective date of dismissal was 25 January 2018, he did
not consider the relevance of this date of dismissal to the reason given for the
dismissal and hence to the merits of the case (s.394((3)(e)).
Appellant’s submissions
1) Reason for delay and merits considerations related to industrial instrument
[23] Mr Snyder contends that the Commissioner failed to have proper regard to the reason
for the delay in the filing of his Application, that reason being Mr Snyder’s confusion as to
whether the Respondent was a National System Employer. Further, Mr Snyder contends that
the Commissioner did not have regard to the steps taken by Mr Snyder to clarify that
confusion and the prompt action taken by him to file his Application with the Commission
once he was able to overcome that confusion.
[24] Mr Snyder claims that the Respondent erroneously and negligently registered the
Helena College Inc. Collective Agreement 2014 (the WA Agreement) with the Western
Australian Industrial Relations Commission (WAIRC) even though it was a National System
Employer. Further, according to Mr Snyder, the Respondent referred to the WA Agreement as
the basis for his entitlements throughout his employment with the Respondent and also as the
basis for his redundancy entitlements.
[25] Mr Snyder further asserts he was not provided with a copy of the Fair Work
Information Statement or the Educational Services (Teachers) Award 2010 when he
commenced employment with the Respondent, which he contends he ought to have received
if, as the Respondent now maintains, it was a National System Employer at that time.
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[26] Mr Snyder acknowledges that the Respondent raised a jurisdictional objection in its
Form 5 – Notice to answer10 (Form 5) filed on 9 March 2018 in response to his application for
unfair dismissal relief in the WAIRC (WAIRC Application), that objection being that it was
an “incorporated entity and is deemed to be a National System Employer”.
[27] Following receipt of the Form 5, Mr Snyder states that he sought legal advice, which
was received on 14 March 2018.11 Mr Snyder submits that while the advice received from his
lawyer confirmed that it was likely that the Respondent was a National System Employer,
which gave further weight to the Respondent’s response,12 he was unable to immediately
believe that position in light of the contrary evidence of the WAIRC State industrial
instrument and the State system status that the Respondent had represented itself as having,
during his employment with the Respondent.
[28] Mr Snyder submits it is significant that the Respondent agreed to participate in the
conciliation conference listed for 22 March 2018 in the WAIRC Application notwithstanding
its jurisdictional objection raised in the Form 5. Mr Snyder submits that his confusion over the
Respondent’s status was not resolved until the conciliation conference was conducted by the
WAIRC on 22 March 2018.13 He says that following that conference, he immediately filed his
application in the Commission on 22 March 2018 and subsequently filed a Form F14 – Notice
of withdrawal or discontinuance (Notice of Withdrawal) in respect of the WAIRC
Application on 23 March 201814.
[29] Mr Snyder referred the Full Bench to and sought to rely on a number of Commission
authorities including Mr Ricky King v Gourmet Beef Pty Ltd 15(Ricky King).
[30] In summary, Mr Snyder submits that his application to the WAIRC filed on 13
February 201816 was filed in error due to the Respondent’s misrepresentations that it was a
WA State system employer and not a National System Employer. Further, he says he took
reasonable steps to clarify the jurisdictional status of the Respondent once it had raised an
objection to his WAIRC application on 9 March 2018 and prompt action to file his
application in the Commission once his confusion was resolved on 22 March 2018. He
contends that the Commissioner erred by failing to have proper regard to these considerations.
[31] The way in which Mr Snyder appeared to contend that the Respondent’s continued
misrepresentation as to the applicable industrial instrument was a significant factor in relation
to the merits of the application (s.394((3)(e)) was that prior to reaching a conclusion on the
adequacy of the consultation undertaken in relation to the redundancy, it was necessary for the
Commissioner to firstly determine the appropriate industrial instrument.
10 Appeal Book at page 95.
11 Appellant Submission received 17 August 2018, Attachment - Letter from Lynn Brown Lawyers to Appellant re
Employment Law Matter Involving Termination By Redundancy, dated 14 March 2018.
12 Appellant Submission received 17 August 2018 at paragraph [19].
13 Ibid at paragraph [24].
14 Appeal Book at page 98.
15 [2017] FWC 3866.
16 Appeal Book at page 87.
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2) Merits of Application based on date of termination
[32] Mr Snyder contends that the Commissioner erred in finding “…it is difficult to
conclude, based on the material before the Commission, that Mr Snyder’s case has significant
merit.”17 Mr Snyder submits that the Commissioner took into account the evidence until 10
January 2018 but did not consider that he accepted a reduction of hours on 11 January 2018
and it was the Respondent’s lack of consideration for his family circumstances thereafter that
lead to it to terminate his employment.
[33] Mr Snyder submits the Commissioner failed to consider the implications of the date of
his termination being brought forward from 16 March 2018 to 25 January 2018 and
specifically, that his dismissal with immediate effect on 25 January 2018 undermined the
alleged basis of his dismissal, that of a genuine redundancy.
[34] Mr Snyder refers to the sequence of correspondence exchanged between himself and
the Respondent between 10 January 2018 and 25 January 2018 and specifically,
correspondence from the Respondent on 10 January18, 19 January19 and 23 January 2018,20 in
which Mr Snyder’s date of termination is identified as 16 March 2018. He also points to the
correspondence from the Respondent dated 25 January 2018,21 in which he was advised of his
termination with immediate effect.
[35] Mr Snyder contends that the change in termination date was driven by a reason other
than a genuine redundancy. He submits the reason for his termination was that he made a
complaint about the Principal of the Respondent to the Head of the Respondent’s College
Council22 on 22 January 2018. Mr Snyder submits that the requirement imposed by the
Respondent that he work out the notice period to 16 March 2018 was inconsistent with the
stated reason for his redundancy, that being the reduction in required teaching hours for Term
1 in 2018.
[36] Mr Snyder contends the real reason for his dismissal was not that of genuine
redundancy and this was not considered by the Commissioner, causing him to err in
concluding his case lacked significant merit.
Respondent’s submissions
1) Reason for delay and merits considerations related to industrial instrument
[37] The Respondent rejects Mr Snyder’s submissions that it had misrepresented its status
as a State based system employer rather than as a National System Employer. It refers to
various correspondence and communications to bargaining representatives and staff during
the negotiations for a new enterprise agreement during 2017 that it says made clear its status
17 Decision at paragraph [47].
18 Appeal Book at page 73.
19 Ibid at page 77.
20 Ibid at page 84.
21 Ibid at page 86.
22 Ibid at page 79.
[2018] FWCFB 4734
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as a National System Employer, and of which, Mr Snyder was or ought to have been aware.
There was some limited evidence to this effect at first instance.23
[38] The Respondent also referred to a range of documents that appear not to have been put
before the Commissioner:
Email communication with bargaining representatives between June and October
2017, and copied to all staff, that identified the move from the State to federal
system;24
A document provided by the Respondent to bargaining representatives at an EBA
negotiation meeting on 17 October 2017 which conveyed information pertaining to
the change in the registration of the next agreement from the WAIRC to the
Commission and described the reason for the change as being that the Respondent
was an “incorporated entity and deemed to be a ‘National System Employer.’”;25
Minutes of EBA bargaining meeting on 17 October 2017 which recorded a change
from a WAIRC to Commission registered agreement.26
[39] The Respondent submits that all staff were aware or ought to have been aware of the
change in jurisdiction from the State to National system through a combination of direct and
indirect communications during the course of bargaining for a new agreement. The
Respondent submits that the Applicant’s assertion that he was confused regarding the
appropriate jurisdiction was not substantiated and fails to disclose error on the part of the
Commissioner in the Decision.
2) Merits of Application based on date of termination
[40] The Respondent submits that in finalising its 2018 timetable, it conducted a review of
student subject selections for the 2018 year which revealed a reduced demand for Indonesian
language, the particular subject that Mr Snyder taught. It says the consequence was that the
requirement for one full time equivalent (FTE) Indonesian teaching position in 2017 reduced
to 0.61 FTE equivalent in 2018 and Mr Snyder was offered the choice of taking a full or
partial redundancy.
[41] The Respondent submits that an inability to reach agreement with Mr Snyder on his
claim for the pay-out of seven weeks’ notice in taking a partial redundancy and moving to the
reduced hours resulted in Mr Snyder withdrawing his partial redundancy request and instead
seeking a full redundancy. When the parties then agreed to a full redundancy, the Respondent
says it initially declined to pay the seven week notice period in lieu, but when pressed by the
Applicant it agreed on 25 January 2018 to do so.
23 Transcript at first instance PN 92-93, AB 54.
24 Respondent Submissions, dated 27 August 2018, Attachment 3- Email dated 11 October 2017.
25 Ibid, Attachment 4, EBA Negotiations HCCI Collective Agreement – Information pertaining to change in registration of
Agreement from WAIRC to FWC.
26 Ibid, Attachment 4, Minutes of EBA Negotiations – HCCI Collective Agreement 2017, dated 17 October 2017.
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Permission to appeal
[42] This appeal is one to which s.400 of the 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.”
[43] 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
stringent one”.27
[44] The task of assessing whether the public interest test is met is a discretionary one
involving a broad value judgment.28 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.”29
[45] 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.30 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.31
Consideration of grounds of appeal
[46] We are not persuaded that the grounds of appeal on which Mr Snyder relies raise any
issue of importance or general application, nor do any of those grounds disclose an arguable
case of error or attract the public interest. Our reasons for this conclusion follow below.
27 (2011) 192 FCR 78 at [43].
28 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].
29 [2010] FWAFB 5343, 197 IR 266 at [27].
30 Wan v AIRC (2001) 116 FCR 481 at [30].
31 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].
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Ground 1: Reason for delay related to industrial instrument
[47] Mr Snyder contends that in reaching his conclusions on the reason for the delay, the
Commissioner made erroneous findings by failing to have proper regard to Mr Snyder’s
confusion over whether the Respondent was a State or National system employer. Mr Snyder
attributed the source of his confusion to the State registered industrial instrument and
representations made to him by the Respondent during his employment that it was subject to
the Western Australian State system. As to this claim of confusion, the evidence of the
Respondent before the Commissioner was limited to statements that Mr Snyder knew that it
was moving to the National system and had been advised that it was a National system
employer.32
[48] Mr Snyder also sought to emphasise the prompt steps taken by him to file his
application with the Commission once his confusion was resolved on 22 March 2018, which
he submits the Commissioner did not have regard to.
[49] We note the Commissioner explicitly acknowledged Mr Snyder’s jurisdictional
confusion at paragraphs [39] and [49] of the Decision and we consider it is open to conclude
that the Commissioner had regard to it and accepted his reason for the delay up until 9 March
2018. We therefore do not consider it to be reasonably arguable that the Commissioner failed
to take into account a consideration that was materially relevant to the reason for the delay up
until at least 9 March 2019.
[50] The question then becomes, was the Commissioner in error in his consideration of
that part of the delay from 10 March 2018 until 22 March 2018, when Mr Snyder’s
application for unfair dismissal remedy was made?
[51] The Commissioner’s finding that Mr Snyder was on notice from Friday, 9 March 2018
is erroneous because the Applicant did not receive a copy of the Respondent’s response
outlining its jurisdictional objection to his application in the WAIRC until the afternoon of 12
March 2018. The Commissioner considered that upon receipt of the Form 5, Mr Snyder
delayed for a further 13 days before making his application for unfair dismissal remedy
whereas the further delay was, in fact, 10 days. We do not, however, consider this error to be
so significant as to come within s.400 (2) of the Act.
[52] As to the period after Mr Snyder became aware that it was the Respondent’s view that
he had made his application in the wrong jurisdiction, his evidence before the Commissioner
was limited to:
“Despite Helena College’s jurisdictional objection, a conciliation conference was
listed at the WAIRC on 22 March 2018 (Evidence 26), which had no outcome.”33
Having become aware that the Respondent had objected to his application in the
WAIRC on the basis it was a National system employer, he then went to see a
lawyer and “got legal advice and the legal advice told me that they probably are a
32 Transcript at first instance PN 92-93, AB 54.
33 AB 6.
[2018] FWCFB 4734
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national system employer, in which case the EBA didn’t actually apply to my
employment.”34
The Respondent agreed to have a conciliation conference at the WAIRC so he was
hoping that that would resolve the matter. The conciliation was held on 22 March
2018, but it did not resolve the matter and so that same afternoon he applied to the
Fair Work Commission because he “was now aware that they are a national system
employer.”35
[53] Mr Snyder’s complaint rests on the findings the Commissioner made in relation to the
balance of the delay until his filing of the application for unfair dismissal remedy on 22
March 2018:
“[40] Mr Snyder was also made aware on 9 March 2018 that the College was of the
view that he had made application in the wrong jurisdiction. However, he continued to
allow the matter to be progressed in the State Commission and participated in a
conference with the College on 22 March to explore whether some agreed resolution of
the dispute could be arrived at. Mr Snyder only then made application to the Federal
Commission when that conference process proved to be inconclusive.
[41] I am satisfied in response that it would have been prudent, and perhaps expected,
that Mr Snyder would have made application to the Federal Commission as soon as he
became aware that the College was taking issue with his ability to pursue the
application in the WAIRC. However, Mr Snyder agreed to let that process play out,
despite being aware that the College had raised a jurisdictional objection to the State
Commission’s ability to deal with his application. If he had made application to the
Federal Commission as soon as he became aware of the jurisdictional objection his
application would still have been lodged out of time. However, that situation would
have been more akin to the circumstances involved in the matter of RCR
Engineering that he seeks to rely upon.
…
[49]……It is acknowledged that he made application to the WAIRC on the basis of a
mistaken belief that it was the appropriate jurisdiction in which to pursue his unfair
dismissal claim. However, I am also satisfied that he should have been alerted to the
fact he may have made application in the wrong jurisdiction when the jurisdictional
objection was made to his application by the College on 9 March of this year.
However, he decided to let that process play out, and only made the present
application when the processes before the State Commission had been exhausted. It
also appears that nothing prevented him from making application to the Fair Work
Commission at any time, including immediately after 10 March of this year……”
(our emphasis, reference omitted)
34 Transcript at first instance PN 44, AB 49-50.
35 Transcript at first instance PN 45, AB 50.
[2018] FWCFB 4734
13
[54] Before us, Mr Snyder submits his lawyer had agreed it was likely the Respondent was
a National System Employer, but while he acknowledged this, he gave further weight to the
Respondent’s objection to the WAIRC Application, as to which he submits “it was not
immediately believable.” Mr Snyder also submits that he had to prepare for the conciliation in
the WAIRC, listed on 16 March 2018 and to take place on 22 March 2018.36
[55] Mr Snyder further submits that during the 10-day period from 13 March until 22
March 2018, he “struggled to come to terms with this legally complex issue and continued to
actively seek an outcome to the dispute up to and including during the Conciliation meeting.
It was not until the Conciliation meeting that I was genuinely aware for the first time that the
Fair Work Commission was the appropriate jurisdiction and I submitted my application for
Unfair Dismissal to the Commission straightaway that afternoon…”37
[56] Mr Snyder also filed correspondence he had with his lawyers that was not put before
the Commissioner38 and that he now seeks to rely on. We have determined, pursuant to
s.607(2) of the Act, that we will take it into account. This correspondence indicates that Mr
Snyder:
was on notice regarding the Respondent’s jurisdictional objection from at least 12
March 2018;
was then in immediate contact with his lawyers;
received advice from his lawyers that the Educational Services (Teachers) Award
2010 was likely to apply to his employment, at 5.28pm on 13 March 2018;
received a preliminary view from his lawyers that the neither the WA Agreement nor
the WA State Award applied to his employment, at 5.43pm on 13 March 2018; and
received advice from his lawyers on 14 March 201839 which variously stated:
“…..Your former employer is incorporated and provides education services
for fees. This means the legal argument that it is within the federal industrial
relations system, rather than within the Western Australian industrial
relations system, is strong and persuasive.”
“Based on your instructions to us about your employment law matter, we
advise that there is a strong legal argument that the Former Employer (the
Respondent) is a national system employer and you are a national system
employee, which means the FWC, rather than the WAIRC may be the
appropriate tribunal for your dismissal dispute.”
“On the other hand, the Helena College (Inc) Collective Agreement is
registered with the WAIRC, supporting the legal argument that your
36 Appellant Outline of Submissions received 17 August 2018 pages 4 and 5.
37 Ibid at page 5 at paragraph 24.
38 Document referred to as Evidence 6 filed with Appellant Outline of Submissions received 17 August 2018.
39 Appellant Submission received 17 August 2018, Attachment - Letter from Lynn Brown Lawyers to Appellant re
Employment Law Matter Involving Termination By Redundancy dated 14 March 2018.
[2018] FWCFB 4734
14
employment is within the Western Australian industrial relations system and
the WAIRC should have jurisdiction and power to determine your
employment disputes.” (our emphasis)
[57] Mr Snyder’s proposition is that in spite of having received the Form 5 and the legal
advice from his lawyers, his explanation for the delay between 12 March and 22 March 2018
was acceptable on the basis of the Respondent’s previous misrepresentation as to the
applicable industrial instrument. We do not agree.
[58] From 12 March 2018, Mr Snyder was on notice that the Respondent had raised a
jurisdictional objection to the WAIRC application. From 14 March 2018, he had received
advice from his lawyers that the legal argument that the Respondent was a National System
Employer was “strong and persuasive.” We consider that from this time it would have been
apparent to Mr Snyder that there was a real risk that he had lodged an application in the
wrong jurisdiction and he had the choice between persisting with the WAIRC Application or
discontinuing and pursuing an application for unfair dismissal remedy in the Commission. Mr
Snyder chose to persist with the WAIRC Application until 22 March 2018.
[59] The decision in Ricky King is distinguishable and does not assist Mr Snyder because
Mr Snyder had the benefit of the advice of his lawyer, such advice confirming the “strong
and persuasive” legal argument that the Respondent was a National System Employer. Mr
Snyder pressed on with the WAIRC Application despite his inquiries and the legal advice
received by him.
[60] The fact that the Respondent may have agreed to proceed to the conciliation
conference before the WAIRC on 22 March 2018 is not a matter of great moment in our view,
nor is the lack of mention of that point by the Commissioner an error, in our view, let alone a
significant error. That is because ultimately the decision as to whether the Applicant either
continued to pursue or withdraw the WAIRC Application was a matter for him, not the
Respondent.
[61] Further, the conciliation before the WAIRC on 22 March 2018 was not a formal
determinative hearing of the jurisdictional objection and we were not taken to any evidence
led before the Commissioner revealing that further material was adduced during the WAIRC
conciliation that could have unequivocally resolved Mr Snyder’s claimed confusion.
[62] The Commissioner’s conclusions that Mr Snyder was on notice upon receiving the
Respondent’s jurisdictional objection, despite being in error as to the date this occurred, and
that it “would have been prudent, and perhaps expected, that Mr Snyder would have made an
application to the Federal Commission…”40 were reasonable, particularly because Mr
Snyder’s evidence before the Commissioner was that he then went to see a lawyer and “got
legal advice and the legal advice told me that they probably are a national system employer.”
We also consider the Commissioner’s finding that Mr Snyder decided instead to let the
processes in the WAIRC Application “play out” was open to him.
40 Decision at paragraph [41].
[2018] FWCFB 4734
15
[63] In our view, the Commissioner reasonably concluded on the material before him that
Mr Snyder was aware of the jurisdictional hurdle before him, but chose to allow the WAIRC
Application to continue in the hope of reaching agreement with the Respondent at the
conciliation on 22 March 2018. In these circumstances, we are not persuaded that the
Commissioner erred in his conclusion that Mr Snyder had failed to provide an acceptable
explanation for the delay from the time he received the Form F5 until 22 March 2018, which
weighed against a finding that exceptional circumstances exist. Mr Snyder’s first ground of
appeal is rejected.
Ground 2 – Merits of Application based on date of termination
[64] Mr Snyder contends that having concluded that the effective date of dismissal was 25
January 2018, the Commissioner did not consider the relevance of this date of dismissal to the
reason for dismissal, and hence, to the merits of the case. He takes issue with the
Commissioner’s finding, in considering s.394(3)(e) of the Act, that his case lacked significant
merit.41
[65] In doing so, Mr Snyder asserts that a genuine redundancy was not the real reason for
the dismissal. He contends that his dismissal with immediate effect on 25 January 2018
cannot be reconciled with the Respondent’s previous position that his termination date would
be 16 March 2018. He submits that the real reason for his dismissal with immediate effect on
25 January 2018 was because he had raised a formal complaint on 22 January 2018.
[66] It is useful to summarise particular events leading up to the termination of Mr
Snyder’s employment on 25 January 2018. They are as follows:
December 2017 – Mr Snyder was notified of the redundancy of his position and the
option for him to take either a partial (0.39 FTE) or full redundancy.
9 January 2018 – Mr Fiala of the Independent Education Union of WA (IEUWA)
sent correspondence on behalf of Mr Snyder to Mr Ian Lyons, the Principal of the
Respondent, seeking clarification of a number of questions regarding the proposed
redundancy and the options available to Mr Snyder.42
10 January 2018 – Mr Lyon replied to Mr Fiala’s correspondence. The response
includes confirmation that in taking a partial redundancy and reducing from 1.0 to
0.61 FTE, a seven week notice period would apply which would require Mr Snyder
to work full time up until 16 March 2018, the end of Term 1.43
11 January 2018 – Mr Snyder sent correspondence to Mr Lyon in which he
confirmed acceptance of the 0.39 FTE partial redundancy and in doing so
“respectfully” requested that the Respondent bring forward the effective date of
redundancy from 16 March 2018 to the commencement of Term 1, with the notice
period to be paid out.44
41 Decision at [47].
42 Appeal Book at page 72.
43 Ibid at page 74.
44 Ibid at page 76.
[2018] FWCFB 4734
16
19 January 2018 – Mr Lyon replied and referred to various emails from Mr Snyder
of 11, 12 and 16 January 2018, and in doing so confirmed the redundancy offer per
previous correspondence to Mr Snyder dated 22 December 2017 and 10 January
2018. Mr Lyon reiterated that the notice period for the partial redundancy would
commence at the start of Term 1 on Monday, 29 January 2018 and finish on Friday,
16 March 2018.45
22 January 2018 – Mr Snyder sent correspondence to Mr Lyon withdrawing his
acceptance of the 0.39 FTE partial redundancy, seeking instead the default position
of a full 1.0 FTE redundancy and requesting confirmation of the Respondent’s
acceptance of the full redundancy. Mr Snyder attributed his change of position to the
failure of the parties to reach “mutual agreement” on the pay out of his 7 week
notice period.46
22 January 2018 – Mr Snyder sent correspondence to Mr Nathan Johnston, Head of
the College Council of the Respondent, in which he raised a formal complaint
regarding Mr Lyon’s handling of his redundancy. Mr Snyder in the correspondence
proffered to resolve the dispute by accepting a full redundancy “with 7 weeks’ notice
paid out in lieu, associated 2.1 weeks holiday pay and the required 6 weeks’
severance pay….”47
23 January 2018 – Mr Lyon replied to Mr Snyder’s email sent to him on 22 January
2018 and in doing so agreed to the full 1.0 FTE redundancy sought by Mr Snyder.
Mr Lyon again confirmed that the notice period would need to be worked out rather
than be paid in lieu as sought by Mr Snyder.48
25 January 2018 – Mr Snyder sent further correspondence to Mr Johnston requesting
that his request for the full redundancy with payment in lieu of the seven weeks’
notice be dealt with by the close of business on Friday, 25 January 2018. Mr Snyder
specifically referred to a breakdown of his professional relationship with Mr Lyon
and that he had “lost all trust and confidence in the leader of the school”.49
25 January 2018 – Mr Lyon sent correspondence to Mr Snyder, in which he agreed
to Mr Snyder’s request for a full 1.0 FTE redundancy and advised of the withdrawal
of the requirement for Mr Snyder to work out the seven week notice period. Mr
Lyon confirmed a total payment of 15.1 weeks would be made to Mr Snyder on 25
January 2018, consisting of six weeks’ severance pay, seven weeks’ notice period
payment in lieu and 2.1 weeks’ holiday pay applicable for Term 1.50
45 Ibid at page 77.
46 Ibid at page 78.
47 Ibid at page 82.
48 Ibid at page 84.
49 Ibid at page 85.
50 Ibid at page 86.
[2018] FWCFB 4734
17
[67] Having regard to this chain of events, the correspondence behind which was before the
Commissioner, we do not accept the proposition of Mr Snyder that he was dismissed with
immediate effect on 25 January 2018 because he had raised a formal complaint on 22 January
2018. It is rather the case that the parties were disputing how the notice of the termination of
Mr Snyder’s employment should be treated. The Respondent’s position appeared to be that
notice of termination could only be given to a teacher during a school term51 and the notice
period could only commence when it was known what option regarding notice Mr Snyder
would be taking.52 Mr Snyder’s position appeared to be that he had a preference to not work
out a notice period. It appears the Respondent ultimately reviewed its position and agreed to
Mr Snyder’s request for payment in lieu of the notice period.
[68] The following transcript reveals the position articulated by Mr Snyder before the
Commissioner in relation to the merits of his claim:
“THE COMMISSIONER: In terms of the merits of your application, I don't need to go
into the merits in detail, but as I understand the college maintains that you are
redundant. What do you say in response?
MR SNYDER: All right. Well, I don't think that it was a genuine redundancy because
they didn't really consult me very well. As Michael Papali said this morning, the first
meeting on 4 December was then notifying me of my dismissal. So obviously they
agree that they weren't consulting me at that meeting, they were just telling me that I
was being dismissed.
I also - what happened was I agreed to what they called a partial redundancy, which
basically meant that I was getting redeployed into 61 per cent of my original role.
And I agreed to that but on the condition that the notice period gets brought forward
until 29 January because of my family reasons.
But they disagreed to that and because of this disagreement that's why they terminated
my employment. So I don't think that the real reason is actually redundancy. I think
it's because of this disagreement. And that was on 23 January and then two days later
they terminated it again for other reasons.”53
[69] Mr Snyder then said in reply to submissions of the Respondent:
“They've also said that they hired a relief teacher full-time for seven weeks and yet
they're claiming that I was dismissed for redundancy on the 25th. So that kind of says,
well, no, my job still existed for seven weeks in which case it wouldn't be a
redundancy, right?”54
[70] Mr Snyder’s position appears to be that the Respondent’s insistence that he serve out a
notice period as a 1.0 FTE suggests his position was not genuinely redundant and that the
Commissioner failed to take this material consideration into account when weighing the
merits of his application that he has been unfairly dismissed. However, the Respondent’s
51 Transcript at first instance at PN 101-103, AB 55-56.
52 Ibid at PN 103, AB 56.
53 Ibid at PN46 – PN49, AB 50
54 Ibid at PN 118, AB 57.
[2018] FWCFB 4734
18
evidence before the Commissioner, referred to above at [67], indicates it held the view that
notice of termination could only be given to a teacher during a school term and the notice
period could only commence when it was known what option regarding notice Mr Snyder
would be taking. This, and the events leading to the termination of Mr Snyder’s employment,
on 25 January 2018 suggest that the Respondent ultimately agreed to the outcome of pay in
lieu of the notice period at the request of Mr Snyder. This does not disclose that Mr Snyder’s
dismissal was for a reason other than genuine redundancy.
[71] The Commissioner considered the submissions of Mr Snyder as to the merits of his
unfair dismissal application as follows:
“Mr Snyder also submits that his termination was harsh, unjust or unreasonable because
it was never made clear why he had been selected for redundancy in circumstances
where his dismissal was not related to capacity or performance. The two letters from
the College, dated 23 and 25 January 2018, also provided inadequate information
about what was being proposed. In addition, the processes of consultation about his
redundancy were inadequate, and the discussions did not deal comprehensively with
what other options might be available to him. He also submits that in the meeting in
December last year, when these issues were first discussed, he was told by Mr Michael
Papali, the Business Manager at the College, that he was being dismissed which left
little room for consultation about any other options.”55
[72] The Commissioner also identified the change in position adopted by the Respondent in
its 25 January 2018 correspondence to Mr Snyder, wherein it modified its position in respect
of its requirement that Mr Snyder work out the seven week notice period at Mr Snyder’s
behest and, in dealing with the dispute in the proceedings at first instance as to whether the
date of dismissal was 25 January 2018, concluded as follows:
“[24] I am satisfied in response that it was originally intended when the letter of 23
January was sent to Mr Snyder that he would work out the notice period associated
with him being made redundant. However, it was subsequently decided, and confirmed
that, in the letter of 25 January, he would no longer be required to work out that notice
period, and he would instead receive a lump sum payment in lieu of notice. I am
satisfied that, as a consequence, Mr Snyder’s employment was terminated with effect
from 25 January 2018. He was not required at work after that time and received a
payment in lieu of notice at that time. His employment accordingly ended on that
date.”
[73] The Commissioner then stated, correctly observing as to merits:
“The Commission is in no position at this time to express any concluded view about the
respective merits of this matter, given the submissions and evidence now before the
Tribunal. It is also noted that previous decisions of this Tribunal have determined that
the Commission is not required, in proceedings of this kind, to come to a concluded
view about the respective merits of an application…”56
55 Decision at [14].
56 Decision at [45].
[2018] FWCFB 4734
19
[74] Having summarised the competing positions of the parties regarding merit and having
stated the correct principles, the Commissioner then proceeded to conclude as follows:
“However, it is difficult to conclude, based on the materials now before the
Commission, that Mr Snyder’s case has significant merit. There were a number of
discussions held with him after it was decided that the maintenance of a full-time
position could not be justified. He was also provided with some options in these
circumstances. While it is accepted that Mr Snyder did not necessarily agree with the
rationale for what was being proposed this does not mean that the College’s decision,
and the processes put in place as a consequence of that decision, were necessarily
misconceived or unwarranted.”57 (our emphasis)
[75] Reading the Decision as a whole, we do not consider the Commissioner erred in his
consideration of the merits of Mr Snyder’s application that he has been unfairly dismissed.
The approach the Commissioner adopted was appropriate for the consideration of the merits
in an application for an extension of time. The Commissioner did not have the benefit of
hearing all the evidence but he nonetheless considered the material before him and his
conclusion, that it was difficult to conclude that Mr Snyder’s case has significant merit, was
open to him.
[76] We are not persuaded the Commissioner erred in his assessment of the material before
him or in his conclusion that Mr Snyder’s case lacked significant merit. No error is disclosed
in respect of Mr Snyder’s second ground of appeal and we reject it.
Further material
[77] Since the appeal hearing Mr Snyder has continued to prosecute his complaints and
arguments, both with the Respondent and us. Having reviewed the additional material he has
sent us, we are not persuaded that it adds anything of moment to the material previously filed
as part of these proceedings. We have consequently had no regard to it.
Conclusion
[78] The grounds for the grant of permission to appeal set out in the notice of appeal were
(in summary) that Mr Snyder had suffered an injustice because the Commissioner had not
considered crucial evidence, the Respondent was going to benefit from a favourable decision
from the Commission as a result of its negligent misrepresentation of the appropriate
industrial instrument, and he had been summarily dismissed because he made a complaint
about his employer in accordance with a dispute resolution policy.
[79] On the material before us, we are not persuaded that the matters set out in the grounds
of appeal raise an arguable case of error in the Commissioner’s Decision. We also do not
consider that an arguable case has been made out that the Commissioner's conclusion was
unreasonable, manifested by any injustice or was counter-intuitive. Nor are we persuaded in
circumstances where the matter turned entirely on its own facts that the appeal raises issues of
importance or general application or that there is a need for Full Bench guidance on any
matter raised. Therefore, we do not consider that there is any basis that would justify the grant
57 Decision at [47].
[2018] FWCFB 4734
20
of permission to appeal in the public interest or otherwise. In accordance with s.400(1) of the
Act, permission to appeal is refused.
[80] Having reached the above conclusions regarding the grounds of appeal advanced by
Mr Snyder it is unnecessary for us to deal with the question of the utility of the appeal as
raised in paragraphs [17] – [19] above.
DEPUTY PRESIDENT
Appearances:
J Snyder on his own behalf
M Papali and M Jensen (Solicitor) for Helena College Council, Inc. T/A Helena College
Hearing Details:
2018.
Melbourne:
1 November.
Printed by authority of the Commonwealth Government Printer
PR609883
THE FAIR WOR COMMISSION THE SEAL
