1
Fair Work Act 2009
s.604—Appeal of decision
Harjit Singh
v
Trimatic Management Services Pty Ltd ATF the Trimatic Management
Services Unit Trust T/A TSA Group
(C2019/7522)
DEPUTY PRESIDENT CLANCY
DEPUTY PRESIDENT MILLHOUSE
COMMISSIONER BISSETT
MELBOURNE, 4 FEBRUARY 2020
Appeal against decision [2019] FWC 7729 of Deputy President Young at Melbourne on 11
November 2019 in matter number C2019/5288 – extension of time – permission to appeal
refused.
Introduction
[1] Mr Harjit Singh has applied for permission to appeal and appeals a decision1 made by
Deputy President Young on 11 November 2019 (the Decision) in which the Deputy President
declined to grant his application for an extension of time to lodge a general protections
application under s.365 of the Fair Work Act 2009 (Cth) (the FW Act). The matter was listed
for hearing in respect of permission to appeal only.
[2] Mr Singh was employed by Trimatic Management Services Pty Ltd ATF the Trimatic
Management Services Unit Trust T/A TSA Group (the Respondent) as a casual Inbound
Service and Sales Consultant from 19 October 2018 until his dismissal on 17 January 2019.
Mr Singh filed his general protections dismissal application on 26 August 2019. The Deputy
President found that the application was filed 199 days after the 21 day statutory time period
under s.366(1) and that it was therefore necessary for Mr Singh to obtain an extension of time
under s.366(2). Mr Singh subsequently made an application to extend time.
[3] The extension of time application was heard on 28 October 2019 and the Decision
published on 11 November 2019. The Deputy President refused an extension of time, stating
“Having regard to all the factors I am required to take into account under section 366(2), I am
not satisfied the requisite exceptional circumstances exist.”2
1 [2019] FWC 7729.
2 Ibid at [24].
[2020] FWCFB 553
DECISION
E AUSTRALIA FairWork Commission
[2020] FWCFB 553
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The Appeal
[4] An appeal under s.604 is by way of rehearing and the Commission’s powers on appeal
are only exercisable if there is error on the part of the primary decision maker.3 There is no
right to appeal and an appeal may only be made with the permission of the Commission.
[5] Subsection 604(2) requires the Commission to grant permission to appeal if satisfied
that it is “in the public interest to do so”. The task of assessing whether the public interest test
is met is a discretionary one involving a broad value judgment.4 The public interest is not
satisfied simply by the identification of error,5 or a preference for a different result.6
[6] Other than the special case in s.604(2), the grounds for granting permission to appeal
are not specified. Considerations which have traditionally been adopted in granting leave and
which would therefore usually be treated as justifying the grant of permission to appeal,
include that the decision is attended with sufficient doubt to warrant its reconsideration and
that substantial injustice may result if leave is refused.7 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.8 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.9
[7] 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.10
However it is necessary to engage with those grounds to consider whether they raise an
arguable case of appealable error.
[8] We will say something about s.366 first, before turning to the grounds of appeal
articulated by Mr Singh.
[9] Section 366(1) provides that an application under s.365 (a general protections
application) must be made:
“(a) within 21 days after the dismissal took effect; or
3 This is so because on appeal the Commission has power to receive further evidence, pursuant to s.607(2); see Coal and
Allied v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.
4 O’Sullivan v Farrer (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ: applied in Hogan v Hinch
(2011) 85 ALJR 398 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Alllied Mining Services Pty
Ltd v Lawler and others (2011) 192 FCR 78 at [44]-[46].
5 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, 197 IR 266 at [24]-[27].
6 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, 197 IR 266 at [26]-[27], Lawrence v Coal & Allied
Mining Services Pty Ltd t/as Mt Thorley Operations/ Warkworth [2010] FWAFB 10089 at [28], affirmed on judicial review;
Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 178; NSW Bar Association v Brett McAuliffe;
Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663, 241 IR 177 at [28].
7 Also see CFMEU v AIRC (1998) 89 FCR 200 at 220; and Wan v AIRC (2001) 116 FCR 481 at [26].
8 Wan v AIRC (2001) 116 FCR 481 at [30].
9 Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089 at [28],
202 IR 288, affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78; NSW Bar
Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB
1663, 241 IR 177 at [28].
10 Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82].
[2020] FWCFB 553
3
(b) within such further period as the FWC allows under subsection (2).”
[10] The 21 day period prescribed in s.366(1)(a) does not include the day on which the
dismissal took effect. If the final day of the 21 day period falls on a weekend or on a public
holiday the prescribed time will be extended until the next business day.11
[11] Section 366(2) sets out the circumstances in which the Commission may grant an
extension of time as follows:
“(2) The FWC may allow a further period if the FWC is satisfied that there are
exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) any action taken by the person to dispute the dismissal; and
(c) prejudice to the employer (including prejudice caused by the delay);
and
(d) the merits of the application; and
(e) fairness as between the person and other persons in a like position.”
[12] The meaning of “exceptional circumstances” in s.366(1) was considered by a Full
Bench of the then Fair Work Australia in Nulty v Blue Star Group Pty Ltd12 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.” (emphasis added)
11 See s.36 of the Acts Interpretation Act 1901 (Cth) as in force on 25 June 2009, see s.40A of the FW Act; Cahill v Bstore
Pty Ltd T/A Bstore for Birkenstock [2015] FWCFB 103; Stedman v Transdev NSW Pty Ltd T/A Transdev Buses [2015]
FWCFB 1877; Hemi v BMD Constructions Pty Ltd [2013] FWC 3593.
12 [2011] FWAFB 975.
[2020] FWCFB 553
4
[13] Generally speaking, the assessment of whether exceptional circumstances exist will
require consideration of all the relevant circumstances, because even though no one factor
may be exceptional, in combination the circumstances may be such as reasonably to be
regarded as exceptional.13
[14] In deciding whether there are exceptional circumstances such as to enliven the
discretion to extend time, the Commission must take into account the matters specified in
s.366(2)(a)-(e).
[15] In the Decision, the Deputy President gave consideration to each of the matters
specified in s.366(2)(a) to (e) that were relevant to the matter before her and, as stated above,
concluded that there were no exceptional circumstances such as to warrant an extension of
time.
[16] In relation to s.366(2)(a), the reason for the delay, the Deputy President summarised
the reasons advanced as including that Mr Singh “was depressed, stressed, anxious and
mentally unwell”,14 that he “had no money and was in financial distress”,15 had to move
house,16 “searched and applied for alternate employment, attended interviews and ultimately
obtained alternate employment” and performed odd jobs for friends in return for money17 and
was “unaware of his rights as a non-permanent resident or citizen”.18 The Deputy President
addressed the reasons for the delay at paragraphs [10] to [15] of the Decision:
“[10] In his materials and in his evidence at the determinative conference Mr Singh says
that following his dismissal he was depressed, stressed, anxious and mentally unwell. I
accept that Mr Singh was stressed following the termination of his employment.
However, this is both a common and understandable reaction. Mr Singh did not file
any medical evidence in support of his asserted depression, anxiety or mental illness,
nor any evidence that this prevented him from lodging the application in time.
[11] He says he had no money and was in financial distress, including resulting from a
car accident (and the costs associated with repairs of a replacement car which he
purchased) and because he had a student loan to pay off. However, Mr Singh provided
no evidence in support of this financial distress. Further, in my view, although
regrettable, financial distress following the termination of one’s employment and the
consequent loss of income cannot be said to uncommon or special or unusual.
[12] Mr Singh also says in his materials that he had to move house. However, he did
not give any evidence about this matter at the determinative conference. Mr Singh also
says that he had a heart attack in 2018, has a cardiac stent and takes medication which
he is required to pay for. At the determinative conference Mr Singh did not seek to
rely upon this as a reason for the delay; rather, as I understand it, this was provided as
13 (Also see Griffiths v The Queen (1989) 167 CLR 372 at 379 (Brennan and Dawson JJ); Ho v Professional Services Review
Committee No 295 (No 2) [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)).
14 [2019] FWC 7729 at [10].
15 Ibid at [11].
16 Ibid at [12].
17 Ibid at [13].
18 Ibid at [14].
[2020] FWCFB 553
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a further example of the expenses Mr Singh had to meet, the financial stress he was
under following his loss of employment and income and the challenges he has faced
since the termination of his employment.
[13] Mr Singh gave evidence that following the termination of his employment he
searched and applied for alternate employment, attended interviews and ultimately
obtained alternate employment in early March 2019. Unfortunately, Mr Singh says his
employment in this new role was terminated after two weeks (Second Termination).
Since that time, Mr Singh’s evidence was that he has continued to search for alternate
employment and has applied for, and attended interviews for, a number of roles.
Further, Mr Singh also gave evidence that since the termination of his employment he
has done odd jobs for friends for money. If Mr Singh had sufficient capacity to search,
apply for, obtain and attend work, and undertake odd jobs for friends for money, it is
difficult to see how he did not have sufficient capacity to lodge the application in time.
[14] Finally, Mr Singh also says that he was unaware of his rights as a non-permanent
resident or citizen to challenge his dismissal. It is well established that ignorance of
one’s rights is not an acceptable explanation for late lodgement. Further, Mr Singh
gave evidence that sometime in March 2019, following the Second Termination, he
accessed the Fair Work Commission website to obtain information as to his rights to
challenge that dismissal. Accordingly, even if it is accepted that Mr Singh was not
aware of his rights to challenge his dismissal after his employment ended on 17
January 2019, it is difficult to see how it can be said that after he accessed the
Commission websitpe in March 2019 he remained unaware of his rights to challenge
his dismissal after that time.
[15] Accordingly, in my opinion, Mr Singh has failed to provide an acceptable or
reasonable explanation for the delay in lodgement. This weighs against the granting of
an extension of time.” (references omitted)
[17] The Deputy President dealt with the remaining matters specified in s.366(2)(b)-(d) at
paragraphs [16] to [22] of the Decision as follows:
Mr Singh did not dispute his dismissal at the time of his termination of employment
or at any time thereafter prior to the lodgement of his application19 (s.366(3)(b));
the Deputy President was not persuaded that any particular prejudice would accrue
to the Respondent if the extension of time was granted, such that it was a neutral
factor20 (s.366(2)(c));
On the basis of the material before her, the Deputy President concluded that the
merits of Mr Singh’s application appeared to be weak21 (s.366(3)(d));
As the parties did not draw attention to any persons or cases that would be relevant
in relation to the question of fairness as between Mr Singh and other persons in a
19 Ibid at [16].
20 Ibid at [17].
21 Ibid at [18]-[21].
[2020] FWCFB 553
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similar position, the Deputy President considered this to be a neutral consideration22
(s.366(2)(e)).
[18] Having considered the factors in s.366(2), insofar as they were relevant, the Deputy
President concluded that she was not satisfied that there were the requisite exceptional
circumstances that would give rise to the need for the Commission to consider exercising its
discretion to grant an extension of time. On that basis, Mr Singh’s application was dismissed.
[19] The grounds of appeal listed in Mr Singh’s notice of appeal are:
“• Less visa period remaining;
Losing opportunity costs and time;
Financial support; and
Future in stake (sic)”
[20] These stated grounds of appeal do not point to error on the part of the Deputy
President but rather, consequences flowing from the termination of Mr Singh’s employment.
[21] However, in his written outline of submissions, Mr Singh asserts the Deputy President
erred in failing to consider the impact the termination had on him. In particular, Mr Singh
referred to mental illness for which he could not obtain medical treatment, the impact the
termination has had on his ability to obtain new employment and his financial commitments.
Mr Singh also submitted there was a lack of merit attached to the reason he was given when
terminated by the Respondent.
[22] While there were no public interest grounds outlined in the notice of appeal, Mr Singh
submits there are the following public interest grounds in his written outline of submissions:
“1.Fair work Unfair Dismissal Application criteria made me disheartened to apply for it
leading to prove to grant for Extension of time
2. Employer not providing Sufficient Documentation when asked which was useful for
my job and Unclear with its Terms and Conditions of doing work
3. Lack of Financial & Mental help/Aid Available for Probationary Terminated People
especially Non-Australian Citizens/ Temporary Visa Holders
4. Lower Chances to secure employment Post Probationary Termination
5. Odd Jobs Experience isn’t always helpful to secure Professional Job
6. No Experience means no opportunities available anywhere and lacking in
competition and waste of time”
[23] Mr Singh’s oral submissions at the hearing of his application for permission to appeal
focussed firstly on the merits of his general protections dismissal application and he then re-
agitated matters which he argued before the Deputy President. When asked to address error in
the Decision, Mr Singh turned to the Deputy President’s conclusions regarding the reasons he
gave for the delay and in particular, her observations that he submitted no supporting evidence
regarding the impact of the termination on either his health and well-being or his financial
distress. In addition to saying it was not possible for him to obtain medical evidence because
he could not access medical treatment, Mr Singh said he did not know he should have put
evidence of this nature before the Deputy President.
22 Ibid at [22].
[2020] FWCFB 553
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[24] Mr Singh seeks to tender a number of documents for the purposes of the appeal. These
include:
A document establishing Mr Singh has an education loan;
A summary of Mr Singh’s monthly living expenses;
A document confirming that Mr Singh’s visa required him to maintain health
insurance;
A discharge summary relating to Mr Singh’s hospital admission in 2018 for an
anterolateral myocardial infarction; and
Information regarding Mr Singh’s Medibank health cover.
[25] Section 607 of the FW Act provides this Full Bench with discretion to admit new
evidence on appeal. The principles governing the exercise of that discretion are well
established. In Akins v National Australia Bank23 the Court noted that while it is not possible
to formulate a test which should be applied in every case, in general three principles should be
applied:
it must be shown that the evidence could not have been obtained with reasonable
diligence for use at the proceedings at first instance;
the evidence must be such that there must be a high degree of probability that there
would be a different decision; and
the evidence must be credible.
[26] In subsequent decisions of the Commission, these principles have been applied as a
useful guide to the exercise of discretion under s.607(2),24 and we likewise do so.
[27] Applying these principles, we have decided not to admit the evidence. Firstly, we are
not satisfied this evidence could not have been obtained with reasonable diligence for use at
the proceeding before the Deputy President. Secondly, we consider there is no high degree of
probability that there would be a different decision were the evidence found to be credible and
admitted. In relation to Mr Singh’s health following the termination, the evidence before the
Deputy President was that during the period of the not insignificant delay, Mr Singh was
capable of applying for and did apply for and obtain new employment, move house and
perform odd jobs for friends for money . Mr Singh would need to explain how his unfitness
arising from his health condition and distress did not apply to these activities, but did apply to
a Commission claim. In relation to Mr Singh’s financial distress, we are not persuaded the
evidence he seeks to tender is of such a nature that there is a high degree of probability that
there would be a different decision.
Conclusion
[28] The test of “exceptional circumstances” establishes a “high hurdle” for an applicant
for an extension.25 A decision whether to extend time under s.366(2) involves the exercise of
23 [1994] 34 NSWLR 155 at 160.
24 J.J. Richards & Sons Pty Ltd v Transport Workers’ Union of Australia [2010] FWAFB 9963; Abigroup Contractors Pty
Ltd v Mr John Crema, Mr Paul Edwards, Ms Christine Comley and Mr Ray Allan [2012] FWAFB 8453.
[2020] FWCFB 553
8
a discretion.26 Therefore it is necessary, in an application for permission to appeal against a
decision made under s 366(2), 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 King27 – 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.
[29] In reaching our decision in this matter we have taken into account the written material
filed by Mr Singh, both on appeal and at first instance, the transcript of the hearing held on 28
October 2019 and Mr Singh’s oral submissions in support of his appeal. Independent of Mr
Singh’s notice of appeal and submissions, we have carefully reviewed the Decision.
[30] We are satisfied the Deputy President considered and attributed weight to each of the
matters she was required by the FW Act to take into account and concluded that when they
were considered together, there were not the requisite exceptional circumstances warranting
the granting of a further period to make an application, pursuant to s.366 of the FW Act. We
do not identify any error either in the Deputy President’s approach to the considerations in
s.366(2) of the FW Act or in her conclusion that in this case, there was an absence of
exceptional circumstances warranting an extension of the period in which the general
protections dismissal application was made. No basis for an arguable contention of appealable
error is ascertainable. Furthermore, we wholly agree with the Decision. The Decision does not
raise any question of law or general principle worthy of consideration at the appellate level.
[31] As we are not persuaded that Mr Singh has established any appealable error in the
Deputy President’s decision, or that there are any other considerations that warrant the grant
of permission to appeal, permission to appeal is refused and the appeal is accordingly
dismissed.
DEPUTY PRESIDENT
Appearances:
H Singh on his own behalf.
B Neinert for the Respondent.
Hearing details:
25 Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace
Relations [2014] FWCFB 2288 at [21].
26 Halls v McCardle and Ors [2014] FWCFB 9020.
27 [1936] HCA 40, 55 CLR 499.
NO R HE FAI NOISSIN THE SEA
[2020] FWCFB 553
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2020.
Melbourne and Brisbane (video hearing):
February 3.
Printed by authority of the Commonwealth Government Printer
PR716381
