1
Fair Work Act 2009
s.604 - Appeal of decisions
Gail Miller
v
DPV Health Ltd (Hume)
(C2019/4559)
VICE PRESIDENT HATCHER
DEPUTY PRESIDENT CLANCY
COMMISSIONER GREGORY SYDNEY, 9 OCTOBER 2019
Appeal against decision [2019] FWC 3979 of Deputy President Colman at Melbourne on 4
July 2019 in matter number U2019/1548.
[1] Ms Gail Miller has lodged an appeal, for which permission to appeal is required,
against a decision made by Deputy President Colman on 4 July 20191 (Decision) in which the
Deputy President declined to grant Ms Miller an extension of time to file her application for
an unfair dismissal remedy against DPV Health Ltd (DPV Health) under s 394 of the Fair
Work Act 2009 (FW Act).
[2] Section 394(2) of the FW Act requires an unfair dismissal remedy application to be
lodged within 21 days after the dismissal took effect or within such further period as the
Commission allows under s 394(3). Section 394(3) provides:
(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.
1 [2019] FWC 3979
[2019] FWCFB 6890
DECISION
E AUSTRALIA FairWork Commission
[2019] FWCFB 6890
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[3] The relevant facts of the matter may briefly be stated. Ms Miller was employed by
DPV Health as a dentist. She was summarily dismissed on 23 January 2019 on the basis of a
finding that she had extracted the wrong tooth from a patient and then attempted to conceal
this error by altering the medical records. Ms Miller contends that her dismissal was unfair
because she did not engage in the conduct which caused her to be dismissed.
[4] Under s 394(2), it was necessary for Ms Miller to file her unfair dismissal application
by midnight on 13 February 2019. However she did not do so until the following day, thus
making it necessary for her to seek an extension of time under s 394(3).
The Decision
[5] In the Decision, the Deputy President addressed each of the matters he was required to
take into account under s 394(3). In relation to s 394(3)(a), the Deputy President concluded
that he was not satisfied that Ms Miller had demonstrated an acceptable or reasonable
explanation for her delay in lodging her unfair dismissal, and that this weighed against a
finding that there were exceptional circumstances. In relation to s 394(3)(b), the Deputy
President found that Ms Miller became aware of her summary dismissal as soon as it took
effect and accordingly had the full period of 21 days to file her application, and therefore this
did not weigh in favour of an extension of time. As to s 394(3)(c), the Deputy President found
that Ms Miller took action to dispute her dismissal and that this weighed in favour of an
extension.
[6] Concerning s 394(3)(d), the Deputy President found:
“[22] I cannot identify any prejudice that would accrue to the company if an extension
of time were to be granted. I do not consider the mere absence of prejudice as a factor
that would point in favour of the grant of extension of time. It is a neutral factor. Some
decisions of the Commission take a different view and see the absence of prejudice as
telling in favour of an extension. But even adopting this approach, in this case at least,
I would attribute it little weight in the consideration of whether there are exceptional
circumstances.”
[7] As to s 394(3)(e), the Deputy President summarised the competing factual positions of
the parties concerning the alleged misconduct which gave rise to Ms Miller’s dismissal, and
then stated the following conclusion:
“[27] The merits of the application turn significantly on contested points of evidence
that would need to be tested in cross-examination if an extension of time were granted
and the matter were to proceed. Much would depend on findings of fact and
assessments of witness credibility. It is not possible to make any firm or detailed
assessment of the merits. However, my preliminary view is that Ms Miller’s
application is not without merit. She has at least an arguable case that her misconduct
was not substantiated and that her dismissal was not for a valid reason and unfair.
Equally however, the company has a reasonable prima facie defence to the claim,
namely that the misconduct was established to the requisite standard of proof and that
the dismissal was not unfair in all the circumstances. Given the interlocutory nature of
an application to extend time, and mindful that the material has not been fully explored
or tested, I do not consider the merits of the case to tell for or against an extension of
time. I consider the merits to be a neutral consideration.”
[2019] FWCFB 6890
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[8] The Deputy President treated s 394(3)(f) as a neutral consideration. His overall
conclusion was that he was not satisfied that there were exceptional circumstances, having
regard to the relevant circumstances considered both individually and together, and declined
to grant an extension of time pursuant to s 394(3).
Grounds of appeal
[9] The grounds of appeal in the notice of appeal as initially filed challenged only the
Deputy President’s findings concerning the considerations in s 394(3)(d) and (e):
“1. Having correctly determined that the substantive application is not without
merit, the Deputy President erred in failing to assess the extent of the merits
and the weight to be given to this factor in considering whether there are
exceptional circumstances.
2. In concluding that, because contested evidence had not been tested, he
could not assess the extent of the merits of the substantive application, the
Deputy President erred because he should have considered the ample
uncontested evidence before him showing the significant merits or intrinsic
worth of the application.
3. Having correctly determined that no prejudice would accrue to the employer if
an extension of time were to be granted, the Deputy President erred in not
giving this factor significant weight in considering whether there are
exceptional circumstances.
4. In concluding there were no exceptional circumstances, the Deputy President
erred because if he had properly assessed and given appropriate weight to both
the merits of the application and the absence of prejudice to the employer, he
should reasonably have concluded there are exceptional circumstances. This is
despite the Deputy President's finding that the applicant had not made out an
acceptable or reasonable explanation for the delay in lodging the application,
which the applicant does not contest in this appeal.”
[10] Ms Miller submitted that the grant of permission to appeal would be in the public
interest because:
the approach taken in the Decision to the absence of prejudice to the employer was
inconsistent with numerous other decisions of the Commission in which the absence
of prejudice to the employer was found to be a factor weighing in favour of the grant
of an extension of time;
the resolution of the disharmony was a matter of importance and general application;
the Deputy President’s preliminary assessment that Ms Miller’s application was not
without merit and that she had an arguable case should have led to a conclusion that
the s 394(3)(e) consideration weighed in favour of an extension of time;
[2019] FWCFB 6890
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in assessing the merits of the application, the Deputy President overlooked
uncontested evidence concerning the merit of the application, including that Ms Miller
was 63 years of age, was a single parent with a dependent child, had been a qualified
dentist for nearly 22 years, was dismissed for serious misconduct on facts which Ms
Miller considered to be misconceived, and had been unsuccessful in obtaining new
employment as a dentist;
to deny Ms Miller the opportunity to make her application in the above circumstances
would deprive her of the right to have the grounds for her dismissal adjudged to be
invalid and for her to be reinstated and would render dire her prospects of resuming
her professional career; and
for these reasons the Decision manifested an injustice justifying the grant of
permission in the public interest.
[11] During the hearing of the application for permission to appeal on 2 September 2019,
Ms Miller sought orally to amend her notice of appeal to add an additional ground. We
directed Ms Miller to reduce to writing the proposed additional ground. Later the same day,
following the completion of the hearing, Ms Miller filed a proposed amended notice of appeal
which included the following additional ground:
“5. The outcome of the Deputy President's exercise of discretion in relation to the
weight to be given to the factors in section 394(3)(d) and (e) of the Act was
unreasonable and plainly unjust, allowing the inference that the discretion was
improperly exercised.”
Consideration
[12] 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.2 There is no right to appeal and an appeal may only be made with the
permission of the Commission.
[13] This appeal is one to which s 400 of the FW 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.
[14] In the Federal Court Full Court decision in Coal & Allied Mining Services Pty Ltd v
Lawler and others (2011) 192 FCR 78 at [43], Buchanan J (with whom Marshall and
Cowdroy JJ agreed) characterised the test under s 400 as “a stringent one”. The task of
2 This is so because on appeal the Commission has power to receive further evidence, pursuant to s.607(2); see Coal and
Allied v AIRC [2000] HCA 47, 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ
[2019] FWCFB 6890
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assessing whether the public interest test is met is a discretionary one involving a broad value
judgment.3 A Full Bench of the Commission, in GlaxoSmithKline Australia Pty Ltd v Makin,
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.”4
[15] 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.5 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.6
[16] An application for permission to appeal is not a de facto or preliminary hearing of the
appeal. In determining whether permission to appeal should be granted, it is unnecessary and
inappropriate for the Full Bench to conduct a detailed examination of the grounds of appeal.7
However it is necessary to engage with those grounds to consider whether they raise an
arguable case of appealable error.
[17] The test of “exceptional circumstances”, in relation to extensions of time to lodge
applications under s 394(3), establishes a “high hurdle” for an application for an extension,
and a decision as to whether to extend time under s 394(3) involves the exercise of a broad
discretion.8 Therefore it will be necessary, in an application for permission to appeal against a
decision made under s 394(3), to demonstrate that there is an arguable case and that there was
appealable error in the exercise of the discretion. This will require the identification of error
of the type described in House v The King9 – that is, that the decision-maker has acted on a
wrong principle, has mistaken the facts, has taken into account an irrelevant consideration or
failed to take into account a relevant consideration, or has made a decision which is
unreasonable or manifestly unjust. Additionally, where an error of fact is alleged, s 400(2)
requires that it must be a significant error of fact. The overriding public interest requirement
of s 400(1) remains.
[18] We do not consider that it would be in the public interest to grant permission to appeal
in this matter because the grounds of appeal (including the proposed additional ground of
3 O’Sullivan v Farrer [1989], HCA 61, 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v
Hinch [2011] HCA 4, 243 CLR 506, 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] FCAFC 54, 192 FCR 78, 207 IR 177 at [44]-[46]
4 [2010] FWAFB 5343, 197 IR 266 at [24] – [27]
5 Wan v AIRC [2001] FCA 1803, 116 FCR 481 at [30]
6 Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089, 202 IR
388 at [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54, 192 FCR 78,
207 IR 177; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation
Office [2014] FWCFB 1663, 241 IR 177 at [28]
7 Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]
8 Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace
Relations [2014] FWCFB 2288 at [21]
9 [1936] HCA 40, 55 CLR 499
[2019] FWCFB 6890
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appeal) are not sufficiently arguable and because, contrary to Ms Miller’s submissions, we do
not consider that the appeal raises any issue of importance or general application or that there
is any relevant disharmony in first instance decisions that requires resolution at the appellate
level.
[19] We have earlier set out the grounds of appeal (including the proposed additional
ground). They focus upon the subsidiary conclusions reached by the Deputy President
concerning s 394(3)(d) and (e). There is no challenge to the conclusion reached pursuant to s
394(3)(a) that a reasonable or acceptable explanation for the delay of one day had not been
demonstrated and that this weighed against a finding of exceptional circumstances. Nor is it
contended that the overall conclusion concerning an absence of exceptional circumstances
was unreasonable and plainly unjust such as to fall within the second limb of appealable
discretionary error identified in House v The King.10 The challenge to the Decision therefore
proceeds on a relatively narrow basis.
[20] With respect to the grounds of appeal concerning the issue of prejudice to the
employer arising pursuant to s 394(3)(d), we consider that the appeal for which permission to
appeal is sought proceeds upon a misconception about the operation of s 394(3). The matters
identified in s 394(3), including in paragraph (d), are required to be taken into account only
for the purpose of determining whether there exist exceptional circumstances. They are not
required to be taken into account for the purpose of informing whether a general discretion to
grant an extension of time should be exercised. Such a discretion may only be exercised once
a finding that exceptional circumstances exist has been made.
[21] Ms Miller’s appeal proceeds upon the basis that a finding under s 394(3)(d) that there
is no prejudice to the employer must always weigh in favour of the applicant for an extension.
However, bearing in mind that the relevant task is to consider whether the requisite
exceptional circumstances exist, whether a lack of prejudice to the employer weighs in favour
of such a conclusion or not will vary depending on the circumstances of the case. There is no
necessary single conclusion which will apply in that respect. Where the delay involved is very
short, as here, it will usually be entirely unsurprising that there is a lack of prejudice to the
employer, and thus this will likely not weigh in favour of a finding of exceptional
circumstances. As was stated by the Full Bench in Ozsoy v Monstamac Industries Pty Ltd,11 a
case likewise involving a delay of one day:
“[38] Ground 9 was an assertion that the absence of prejudice should have been found
to be a positive consideration and not a neutral one. It identifies no error. The absence
of a prejudice to the employer is usual in extension of time matters and does not
provide a positive basis for finding exceptional circumstances warranting an extension
of time for lodgement.”
[22] However in other circumstances, such as where the delay is a long one and the case
will require multiple witnesses to be called to resolve contested factual issues, a conclusion
that the delay would not cause prejudice to the employer might well weigh in favour of a
finding of exceptional circumstances. It will all depend on the facts of the case. That different
conclusions on this score have been reached in different decisions is not demonstrative of any
10 [1936] HCA 40, 55 CLR 499 at 505
11 [2014] FWCFB 2149
[2019] FWCFB 6890
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disharmony on a question of principle. No arguable case of error in respect of the Deputy
President’s conclusion as to s 394(3)(d) is discernible.
[23] We likewise consider that there is no arguable contention of error concerning the
Deputy President’s conclusion pursuant to s 394(3)(e) that the merits of Ms Miller’s
application was a neutral consideration in his assessment of exceptional circumstances. As
earlier explained, Ms Miller denied committing the misconduct for which she was dismissed,
and she outlined the evidence she would give in this respect if her application was received
and heard. The Deputy President’s conclusion that Ms Miller’s application was not without
merit and that she had an arguable case was clearly based on the proposition that, if she gave
the evidence she outlined and it was accepted, she had good prospects of demonstrating that
she had not engaged in misconduct and there was no valid reason for her dismissal. However
the Deputy President equally recognised that DPV Health would, if the application proceeded,
call evidence to demonstrate that Ms Miller had committed the misconduct alleged. There
could be little doubt that, if DPV Health was able to establish the alleged misconduct, Ms
Miller’s application would fail. In those circumstances, it is not surprising that the Deputy
President considered the merits of the application to be a neutral matter in his consideration of
exceptional circumstances. The outcome would entirely depend on whose evidence was
accepted, and the Deputy President was in no position to make an advance assessment of the
issue.
[24] It may be accepted that Ms Miller’s capacity to prosecute her application has
implications for the continuation of her professional career as a dentist, and it might arguably
be perceived as unfair that she cannot now test the allegations against her by way of an unfair
dismissal case. However, as earlier stated, the threshold requirement for exceptional
circumstances is not a general discretion proceeding upon considerations of fairness.
Accordingly this is not a matter that advances the application for permission to appeal.
[25] For these reasons we are not satisfied that it would be in the public interest to grant
permission to appeal. Permission to appeal must therefore be refused in accordance with s
400(1) of the FW Act.
VICE PRESIDENT
Appearances:
C Power and A Warren on behalf of Ms Miller
J Tracey of Counsel and A Frydenberg on behalf of DPV Health Ltd
Hearing details:
2019.
OF THE FAIR WORK MISSION THE
[2019] FWCFB 6890
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Melbourne:
2 September.
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