1
Fair Work Act 2009
s.604—Appeal of decisions
Jeremy Snyder
v
Helena College Council, Inc. t/as Helena College
(C2019/426)
JUSTICE ROSS, PRESIDENT
COMMISSIONER CIRKOVIC
COMMISSIONER PLATT MELBOURNE, 12 FEBRUARY 2019
Appeal against decision [2018] FWC 4432 of Commissioner Gregory at Melbourne on 27
July 2018 in matter number U2018/3043 – appeal filed out of time – extension of time refused
Introduction
[1] On 16 January 2019 Mr Snyder (the Appellant) lodged a Notice of Appeal against a
Decision1 (the Decision) of Commissioner Gregory, issued on 27 July 2018, in which the
Commissioner refused his application for an extension of time to file Mr Snyder’s application
for an unfair dismissal remedy. Mr Snyder’s appeal was filed outside the time period
prescribed in the Fair Work Commission Rules 2013 (the Rules). The application to extend
time was heard on 5 February 2019. At the conclusion of the hearing we informed the parties
that we had decided to refuse Mr Snyder’s application to extend time and that we would issue
our reasons in due course; these are those reasons.
[2] The relevant background may be shortly stated.
[3] Mr Snyder was employed by Helena College Council (College) from early 2016 until
the termination of his employment on 25 January 2018. Mr Snyder lodged his unfair
dismissal application with the Commission on 22 March 2018. Section 394(2)(a) of the Fair
Work Act 2009 (Cth) (FW Act) provides that an application for an unfair dismissal remedy
must be made within 21 days after the dismissal took effect (or within such further period as
the Commission allows); it followed that Mr Snyder’s application was some 5 weeks out of
time.
[4] In dealing with Mr Snyder’s extension of time application the Commissioner
considered each of the matters specified in s.394(3)(a) to (f) of the FW 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
1 [2018] FWC 4432.
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DECISION
E AUSTRALIA FairWork Commission
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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 because he understood the College was covered by a State-based
enterprise agreement. The College subsequently raised a jurisdictional objection to his
application, which was received by the WAIRC on 9 March 2018.
[5] As to the reasons for the delay, the Commissioner 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.’ (endnotes omitted)
[6] 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
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)).
[7] The Commissioner was not satisfied that there were exceptional circumstances such as
to warrant the exercise of his discretion to extend the time in which Mr Snyder could make his
unfair dismissal application. 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
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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.’ (endnotes omitted)
[8] On 30 July 2018, Mr Snyder lodged a Notice of Appeal against the Decision (matter
C2018/4170, the First Appeal). On 20 December 2018, a Full Bench issued a decision2
refusing permission to appeal having determined that:
the Commissioner had not erred in his conclusion that Mr Snyder had not provided
an acceptable reason for the delay from the time he received the Form F5 until 22
March 2018;3
the Commissioner did not err in his consideration of the merits of Mr Snyder’s
application or in his conclusion that Mr Snyder’s case lacked significant merit;4 and
the grounds of appeal raised by Mr Snyder did not disclose an arguable case of error,
or that the Commissioner’s conclusion was unreasonable, manifested by any
injustice or was counter-intuitive.5
[9] Rule 56(2) of the Rules requires that an appeal must be instituted within 21 days after
the date of the decision appealed against, or within such time as is allowed by the
Commission on application. The appeal before us was lodged some 152 days out of time.
[10] Time limits of the kind in Rule 56 should not simply be extended as a matter of
course. There are sound administrative and industrial reasons for setting a limit to the time for
bringing an appeal and it should only be extended where there are good reasons for doing so.
[11] The authorities6 indicate that the following matters are relevant in considering whether
to exercise the Commission’s discretion to extend time under Rule 56(2)(c):
2 [2018] FWCFB 4734.
3 Ibid at [63].
4 Ibid at [75] and [76].
5 Ibid at [46] and [79].
6 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; 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 and Logan City Electrical Services Division Pty Ltd t/as Logan City Electrical v
Christopher Antonarkis [2018] FWCFB 3815.
https://www.fwc.gov.au/documents/decisionssigned/html/2018fwcfb3815.htm
http://www.fwc.gov.au/decisionssigned/html/2016fwcfb3410.htm
http://www.fwc.gov.au/decisionssigned/html/2014fwcfb4822.htm
http://www.fwc.gov.au/alldocuments/PR923358.htm
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whether there is a satisfactory reason for the delay;
the length of the delay;
the nature of the grounds of appeal and the likelihood that one or more of those
grounds would be upheld if time was extended; and
any prejudice to the respondent if time were extended.
[12] In broad terms, the issue for determination is whether in all the circumstances the
interests of justice favour Mr Snyder being granted an extension of the time within which to
lodge an appeal.
[13] The extent of the delay in this case is substantial just over 21 weeks but the
assessment of whether there is a satisfactory reason for that delay is complicated somewhat by
the unusual circumstances. The First Appeal was filed within time and a decision issued on
20 December 2018. As mentioned earlier, the Second Appeal was filed on 16 January 2019.
Mr Snyder contends that the reason for the delay in filing the Second Appeal was that he had
been engaged in prosecuting the First Appeal and after the decision in that matter was
published he then engaged in exchanges with the presiding Member of the Full Bench in the
First Appeal, in which he sought further reasons for the Full Bench’s decision. As soon as it
became apparent that no further reasons would be forthcoming he instituted the Second
Appeal. In these somewhat unusual circumstances we are prepared to accept that Mr Snyder
has advanced a satisfactory explanation for the delay in instituting the present proceedings.
[14] The Respondent did not contend that it would suffer prejudice if time were extended.
The real issue in contest relates to the nature of the grounds of appeal and the likelihood that
one or more of those grounds would be upheld if time was extended (in short, the merits of
the appeal).
[15] In considering the merits of the Second Appeal it is relevant to observe that an appeal
under s.604 of the FW Act is an appeal by way of rehearing and the Commission’s powers on
appeal are only exercisable if there is error on the part of the primary decision-maker.7 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 the extension of time application, permission to
appeal and the merits of the appeal.
[16] The decision subject to appeal was made under Part 3-2 - Unfair Dismissal - of the FW
Act. Section 400(1) of the FW Act provides that permission to appeal must not be granted
from a decision made under Part 3-2 unless the Commission considers that it is in the public
interest to do so. Further, in such matters, appeals on a question of fact can only be made on
the ground that the decision involved a ‘significant error of fact’ (s.400(2)). The legislative
scheme manifests an intention that the threshold for a grant of permission to appeal be higher
in respect of unfair dismissal appeals than the threshold applicable to appeals generally.8 In
Coal & Allied Mining Services Pty Ltd v Lawler and others, Buchanan J (with whom
7 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 Australian Industrial Relations Commission (2000) 203 CLR 194 at [17] per Gleeson CJ,
Gaudron and Hayne JJ.
8 G & S Fortunato Group Pty Ltd v Stranieri (2013) 233 IR 304 at [13]; Barwon Health – Geelong Hospital v Colson (2013)
233 IR 364 at [6]; Becke v Edenvale Manor Aged Care [2014] FWCFB 6809 at [11].
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Marshall and Cowdroy JJ agreed) characterised the test under s.400 as ‘a stringent one’.9 The
task of assessing whether the public interest test in s.400(1) is met is a discretionary one
involving a broad value judgment.10
[17] Factors that might attract the public interest include where a matter raises issues of
importance and general application; where there are a diversity of decisions at first instance;
where the decision at first instance manifests an injustice or the legal principles applied
appear disharmonious when compared with other recent decisions.11 The public interest is not
satisfied simply by the identification of error, or a preference for a different result.12
[18] It follows that we may only grant permission to appeal here if we consider that it is in
the public interest to do so. A number of factors tell against such a finding in respect of the
Second Appeal.
[19] The grounds advanced in the Second Appeal are that:
(i) Commissioner Gregory erred in law by not considering the interaction of ss.725, 729
and 732 of the FW Act;
(ii) Commissioner Gregory erred in law by applying legal principles differently to
another recent decision; and
(iii) Commissioner Gregory erred in law by applying a test of whether Mr Snyder’s unfair
dismissal application had ‘significant merit’ rather than the accepted test of whether
an application has ‘no merit’.
[20] It is not in contention that each of the grounds in the Second Appeal was agitated by
Mr Snyder in the First Appeal; Mr Snyder’s complaint is that they were not addressed by the
First Appeal Bench in its decision of 20 December 2018.
[21] The Respondent contends that:
‘the Fair Work Act 2009 does not provide for a second appeal … the Appellant not only has
no basis in fact or at law to file a Second Appeal as the Full Bench has already determined the
First Appeal, there is in any event, no case made out for an extension of time even if the
Second Appeal was permissible.’
[22] We would observe at the outset that the notion that a person may institute more than
one appeal in respect of a single decision seems counter-intuitive. The doctrine of res
adjudicata (cause of action estoppel) would clearly prevent such a course of action in Courts
and ‘judicial tribunals’,13 but there is considerable uncertainty as to the application of the
9 Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [43].
10 Ibid at [44].
11 GlaxoSmithKline Australia Pty Ltd v Makin (2010) 197 IR 266 at [27]; Construction, Forestry, Mining and Energy Union
(Construction and General Division) v Port Kembla Coal Terminal Ltd (2015) 251 IR 241 at [28].
12 Lawrence v Coal & Allied Mining Services Pty Ltd (2010) 202 IR 388 at [28] affirmed on judicial review in Coal & Allied
Mining Services Pty Ltd v Lawler (2011) 192 FCR 78; NSW Bar Association v McAuliffe (2014) 241 IR 177 at [28].
13 See Administration of Papua and New Guinea v Daera Guba [1973] HCA 59; 130 CLR 353 at 453, where Gibbs J held
that ‘[t]he doctrine of estoppel extends to the decision of any tribunal which has jurisdiction to decide finally a question
arising between parties, even if it is not called a court, and its jurisdiction is derived from statute or from the submission
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doctrine to Commonwealth tribunals such as the Commission. In Miller v University of New
South Wales14 a Full Court of the Federal Court held that a decision of the Australian
Industrial Relations Commission could not give rise to any issue estoppel in the proceedings
before the Court. That decision was based on an analysis of the limits of the judicial power of
the Commonwealth and an examination of the jurisdiction the tribunal was exercising. In
their joint judgment, Ryan and Gyles JJ observed:
‘It is reasonably well established that (leaving aside constitutional considerations in relation to
federal legislation) the principles of res judicata, whether cause of action estoppel or issue
estoppel, can apply to decisions of bodies which are not called courts and which are not courts
in the ordinary use of that term. … On the other hand, there is a considerable body of
authority in the federal jurisdiction which casts doubt upon the application of this principle to
Commonwealth tribunals ...’15
[23] We note that there is a division of authority as to whether res adjudicata and issue
estoppel apply to decisions of the Administrative Appeals Tribunal.16
[24] Proceeding on the assumption that the doctrine of res adjudicata does not apply in the
present context, there are nevertheless sound public policy reasons why the Commission
should not readily accede to an application for permission to appeal in circumstances where
there has been a previous appeal of the same decision. The public policy benefits associated
with providing finality in litigation tell against such a course. As Gleeson CJ observed in
Minister for Immigration and Multicultural Affairs v Bhardwaj,17 albeit in a different context:
‘The requirements of good administration, and the need for people affected directly or
indirectly by decisions to know where they stand, mean that finality is a powerful
consideration.’
[25] It may also erode public confidence in the administration of justice if conflicting
decisions were obtainable by differently constituted Full Benches on the same matter.
[26] Further, it is clear from a review of the structure of the FW Act that it does not
contemplate an aggrieved person lodging multiple appeals in respect of the same decision.
The FW Act establishes a process whereby a person aggrieved by a decision of a Commission
Member may appeal the decision, with the permission of the Commission (s.604). Appeals
must be determined by a Full Bench (s.613). The FW Act does not provide for appeal of a
decision of a Full Bench of the Commission. Instead, a person aggrieved by a decision of a
Full Bench may seek judicial review of the decision in the Federal Court of Australia,
pursuant to s 39B of the Judiciary Act 1903 (Cth) and ss.562 and 563 of the FW Act.
of parties, and it only has temporary authority to decide a matter ad hoc …’ Also see Morris v Riverwild Management Pty
Ltd [2011] VSCA 283.
14 (2003) 132 FCR 147; [2003] FCAFC 180.
15 Ibid at [56].
16 See Bogaards v McMahon (1988) 15 ALD 313; Comcare Australia v Grimes (1994) 50 FCR 60; Commonwealth v Sciacca
(1988) 17 FCR 476; and Re Jebb and Repatriation Commission (2005) 86 ALD 182. See generally McEvoy TJF (1996) ‘Res
Judicata, Issue Estoppel and the Commonwealth Administrative Appeals Tribunal: A Square Peg in a Round Hole?’, 4
Australian Journal of Administrative Law 37. There are some additional cases referred to in the COAT manual – see
footnotes 28-33: Also see the discussion of the authorities by Weinberg JA in Morris v Riverwild Management Pty
Ltd [2011] VSCA 283 at [65]-[73] - cases cited included Midland Metals Overseas Ltd v Comptroller-General of
Customs (1991) 30 FCR 87; Re Cooper and Repatriation Commission (1995) 38 ALD 164; Lilienthal v Migration Agents
Registration Authority [2001] FCA 2.
17 (2002) 209 CLR 597 at [8].
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[27] In addition, s.603(2) of the FW Act provides for the Commission to vary or revoke a
Commission decision, either on its own initiative or on application by a person who is
affected by the decision. In Grabovsky v United Protestant Association of NSW Ltd T/A UPA,
the President considered the circumstances in which the power in s.603 should be exercised,
and said:
‘As a general proposition applications to vary or revoke a decision should not be used to re-
litigate the original case. After a case has been decided against a party, that party should not be
permitted to raise a new argument which, deliberately or by inadvertence, it failed to put
during the original hearing when it had the opportunity to do so.’18
[28] Permitting multiple successive appeals in respect of the same decision is also
inconsistent with the manner in which the Commission is directed to perform its functions and
exercise its powers (see s.577).
[29] In the present matter, there was a paucity of argument about the Commission’s power
to entertain multiple appeals and given our decision to refuse Mr Snyder’s application to
extend the time in which to file his appeal it is unnecessary for us to express a view on the
question. In short, the absence of merit in Mr Snyder’s appeal has led us to refuse the
application to extend time.
[30] The public policy considerations to which we have referred and the explicit avenues
provided in the FW Act to challenge or seek to vary or revoke the decision in the First Appeal
tell against a finding that it is in the public interest to grant permission to appeal in this matter.
Nor do the grounds of appeal enliven the public interest.
[31] As to the first ground in the Second Appeal (at [19](i) above), it may be accepted that
this ground was not specifically addressed in the First Appeal decision. But on the limited
argument advanced before us we are not persuaded that this ground enlivens the public
interest.
[32] The second and third grounds are related. In essence, it is contended that in assessing
the merit of the substantive application for the purpose of s.394(3)(e) the ‘accepted test’ is
whether the substantive application has ‘no merit’. The decision in Khan v Anglican Schools
Commission t/as Swan Valley Anglican Community School19 (‘Khan’) is cited in support of
that proposition.
[33] The Commissioner’s consideration of the merits of Mr Snyder’s substantive
application was dealt with in the 20 December 2018 decision in the First Appeal:
‘[64] Mr Snyder … takes issue with the Commissioner’s finding, in considering s.394(3)(e)
of the Act, that his case lacked significant merit …
[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
18 [2015] FWC 5161, at [39].
19 [2017] FWC 6057.
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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.’20 [endnotes omitted]
[34] Further, in Khan the Commissioner referred to the following observation in Kornicki v
Telstra-Network Technology Group21 (‘Kornicki’) with evident approval:
‘If the application has no merit then it would not be unfair to refuse to extend the time period
for lodgement. However we wish to emphasise that a consideration of the merits of the
substantive application for relief in the context of an extension of time application does not
require a detailed analysis of the substantive merits. It would be sufficient for the applicant to
establish that the substantive application was not without merit.’22
[35] The above observation needs to be seen in the context of the legislative framework at
that time. In Kornicki the Full Bench was construing s.170CE(8) of the Workplace Relations
Act 1996 (Cth) which provided that:
‘The Commission may accept an application that is lodged out of time if the Commission
considers that it would be unfair not to do so’.
[36] As the Full Bench in Kornicki said:
‘s.170CE(8) is intended to convey an approach to the exercise of the Commission’s discretion
which is more generous to applicants than that which prevailed under the former
s.170EA(3)(b) …
The central consideration in determining whether or not an out of time application should be
accepted is whether it would be unfair to the applicant not to extent the time limit’.23
[37] The current legislative framework (s.394(3)) is quite different and, consequently, as
the Full Bench in Keith Long v Keolis Downer t/as Yarra Trams observed:
‘The discretion to extend time in s.394(3) is not enlivened on the basis of a finding that it
would be ‘unfair not to do so’; rather the Commission must be satisfied that ‘there are
exceptional circumstances’. For the consideration in s.394(3)(e) to weigh in favour of such a
finding it must be shown that there is some merit in the substantive application. The weight to
be given to this consideration is dependent on the extent to which there is merit in the
substantive application.’24
[38] Contrary to Mr Snyder’s contention, an assessment of the merit of the substantive
application for the purpose of s.394(3)(e) is not confined to a consideration of whether the
substantive application has ‘no merit’. The consideration in s.394(3)(e) does not invite a
binary assessment; rather, the merit of the substantive application will fall somewhere on a
20 [2018] FWCFB 4734.
21 (1997) 140 IR 1.
22 Ibid at [11].
23(1997) 140 IR 1 at [10]-[11].
24 [2018] FWCFB 4109 at [71].
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continuum from no merit to substantial or overwhelming merit. An absence of significant
merit will generally sound against a finding of exceptional circumstances.
[39] In many instances the Commission will be unable to make any assessment of the merit
of the substantive application as it is unable to make findings on contested matters without
hearing evidence. In such circumstances the merits will be a neutral consideration.
[40] For the reasons given we are not persuaded that grounds (ii) and (iii) give rise to an
arguable case of error.
[41] We have concluded that Mr Snyder has little or no prospect of obtaining permission to
appeal in the Second Appeal as the appeal does not enliven public interest. Having regard to
all of the matters referred to at [11] above we are not persuaded that it is in the interests of
justice to extend time to file the Second Appeal. Accordingly, we dismiss Mr Snyder’s
application to extend time to file the appeal.
PRESIDENT
Appearances:
Mr Snyder appeared in person
Mr Jensen appeared for the respondent with Mr Papali from Helena College
Hearing details:
Melbourne – VC to Perth
5 February.
2019.
Final written submissions:
Printed by authority of the Commonwealth Government Printer
PR704751
