1
Fair Work Act 2009
s 604—Appeal of decision
Linda Merhi
v
Commonwealth of Australia, represented by Services Australia (formerly
the Department of Human Services)
(C2020/3180)
VICE PRESIDENT HATCHER
DEPUTY PRESIDENT SAMS
DEPUTY PRESIDENT DEAN
SYDNEY, 29 JULY 2020
Application for permission to appeal and appeal against a decision of Deputy President
Cross in transcript on 14 April 2020 in matter U2020/1579 – unfair dismissal application
lodged out of time – whether exceptional circumstances established – incarceration of
applicant – lengthy delay – reasons for delay – no exceptional circumstances – originating
application dismissed – no arguable case of appealable error – public interest not enlivened –
permission to appeal refused.
Background
[1] This decision will determine an application for permission to appeal and appeal,
pursuant to ss 604 and 400 of the Fair Work Act 2009 (FW Act), filed by Ms Linda Merhi
(appellant), against a decision delivered in transcript of Deputy President Cross on 14 April
2020 (Decision). The effect of the Deputy President’s Decision was to refuse an application
by the appellant for an extension of time to lodge an unfair dismissal application, pursuant to
s 394 of the FW Act. Shortly stated, the appellant contends that the termination of her
employment by the Commonwealth of Australia, represented by Services Australia (the
respondent) on 27 July 2019, was unfair. The termination of the appellant’s employment
arose in the context of her inability to perform the inherent requirements of her job, as she had
been taken into custody on 23 January 2018 and held on remand until 23 November 2019,
when all charges were dropped and she was released from custody. The appellant’s unfair
dismissal application was not filed until 13 February 2020.
[2] The appeal was listed before the Full Bench on 11 June 2020. Both parties were
represented by lawyers, with permission being granted by the Full Bench, pursuant to s 596 of
the FW Act. Mr Ayache, solicitor, represented the appellant, and Ms Bindon of counsel, with
Mr T Randall, solicitor, appeared for the respondent. At this juncture, we note that the
appellant filed an amended Notice of Appeal on 28 May 2020, which we will come to in due
course.
[2020] FWCFB 3523
DECISION
E AUSTRALIA FairWork Commission
[2020] FWCFB 3523
2
[3] 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). These subsections provide as follows:
(2) The 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).
(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.
[4] As the Deputy President explained in the Decision, there was some controversy as to
the number of days the application had been filed out of time. If the appellant was dismissed
on 27 July 2019, then her application was filed 181 days out of time. Two other dates may
have been relevant. If 23 November 2019 was the date when the appellant first became aware
of her dismissal, then the application was required to be filed by 15 December 2019. The
application would then be 60 days late. If 5 December 2019 was the date she became aware of
her dismissal, then the delay in filing the application was 47 days. In either case, the delay in
filing the application was significantly out of time. Accordingly, this required the
Commission to consider, in the exercise of its discretion, whether there were “exceptional
circumstances” taking into account the matters in s 394(3), to allow a further period under s
394(3) within which the application could be made.
The Deputy President’s Decision
[5] The Deputy President set out the unusual background to the appellant’s dismissal and
the steps taken by the respondent when issuing a proposed notice of termination to the
applicant’s former solicitors (AHA Taylor Lawyers) on 7 June 2019. This firm had acted for
her in respect to the criminal proceedings. On 26 July 2019, the respondent issued a notice of
termination again to the appellant’s former solicitors. By this time, the applicant’s original
solicitor had himself been arrested and was in custody. The Deputy President notes that
neither of these notices were copied to the appellant. After being released from custody on 23
November 2019, the Deputy President noted that it was “abundantly clear” there was
[2020] FWCFB 3523
3
communication between the appellant and Ms Pateman from the respondent, in respect to her
ongoing employment. The Deputy President records these exchanges as follows:
“On 26 November the applicant emailed Ms Pateman to effectively touch base in
relation to her ongoing employment.
On 5 December there was a telephone call and subsequent email from the applicant to
the respondent that related to an escalation regarding unfair termination, seeking
advice in relation to what might be able to be done in relation to a review of that, and
noting that the applicant had engaged lawyers. Those lawyers were One Legal, who
had previously represented the applicant in the criminal proceedings.
There was some further correspondence from the applicant on 9 December 2019
relating to steps to be taken in relation to the challenge to her dismissal.”1
[6] The Deputy President then dealt with the medical evidence from Mustafa Alameddine,
Psychologist, dated 11 March 2020. Mr Alameddine stated that despite the appellant’s initial
difficulties in “addressing her mental health issues immediately following her discharge from
the correctional centre she had managed to reach some of her set goals”, and that this included
completing day to day activities.
[7] The Deputy President found that he had no difficulty in accepting the delay the
appellant had in filing her application prior to her release from prison, due to the high level of
her incarceration and that she had not been made aware of her termination of employment,
and had received no advice that the termination had occurred. He concluded:
“Even if such communication had occurred, bearing in mind the quality of the charges
against the applicant, I would have considered it would have been extremely hard, if
not completely impossible, for the applicant to make any agitation of an unfair
dismissal from such a significant level of incarceration, and I would have had no
difficulty extending the time available to the applicant from the time of her release on
23 November 2019 for a period of 21 days.”
[8] Ultimately, the Deputy President found that the applicant first became aware of her
termination on or about 23 November 2019 upon her release from prison and rejected the date
of 26 July 2019. This weighed slightly in her favour. However, he found no good reason for
the delay beyond 23 November 2019 and said:
“That said, however, I find no acceptable reason to extend the time past 23 November
2019 as there is, at least in relation to the first consideration under section 394(3), no
good reason for that delay. Contrary to the submissions of the applicant, the applicant
could take steps and did take steps to agitate in relation to the termination of her
employment. Numerous emails occurred in early December that noted, among other
things, that the applicant had a lawyer acting for her.
Far from being a self-represented applicant somehow incapacitated from acting, the
applicant had a clear capacity to act and had legal assistance to do so. This factor
weighs heavily against the applicant establishing exceptional circumstances.”2
1 Transcript, 14 April 2020, PNs 166-68
[2020] FWCFB 3523
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[9] As to actions taken by the appellant to dispute her dismissal, the Deputy President
found this factor weighed only slightly in the appellant’s favour. In respect to any prejudice to
the employer, the Deputy President found this factor was a neutral consideration. The Deputy
President also considered that the merits of the application was a neutral consideration. As to
fairness between the parties, the Deputy President concluded that as no submission was put on
this factor, it attracted no weight.
[10] The Deputy President summarised his Decision as follows:
“In conclusion, the application was filed 181 days late. Though I accept the absence of
notice to the applicant due to her incarceration results in the period of lateness being
somewhat less, as previously described in these reasons; however, when that delay,
and the six factors to be considered under 394(3) are considered, the applicant has not
established that when viewed holistically, the circumstances are out of the ordinary,
unusual, special or uncommon.
The appropriate weight assigned particularly to the absence of reasons for the bulk of
the delay points to the absence of exceptional circumstances. Therefore I am not
satisfied that the Commission has jurisdiction to hear the claim, and I order that the
application be dismissed.”
Grounds of appeal
[11] In her amended Notice of Appeal, the appellant identified three grounds of appeal as
follows:
“1. The Deputy Commissioner erred in his assessment of the consideration set out in
s394(3)(a) of the Act, which affected the ultimate finding of whether exceptional
circumstances existed when this matter was weighed up against the other five matters
to be considered under s394(3).
2. Deputy Commissioner erred in his assessment of the consideration set out in
s394(3)(e) of the Act, which affected the ultimate finding of whether exceptional
circumstances existed when this matter was weighed up against the other five matters
to be considered under s394(3).
3. The Deputy Commissioner erred in reaching the conclusion that the Applicant had
not established exceptional circumstances existed for the purposes of s 394(3).”
[12] As to the public interest, it was put that:
“1. The Respondent is a large organisation and a Commonwealth entity which has an
obligation to act and behave as a model litigant.
2. It is in the public interest that where a Commonwealth entity had not acted in
accordance with a law of Australia, such matter should be heard and determined on its
2 Ibid, PNs 183-4
[2020] FWCFB 3523
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merits for the benefit of the public and the perception that justice is done and seen to
be done.”
Submissions on appeal
[13] After dealing with the relevant principles applicable to matters of this kind, Mr
Ayache went into considerable detail to examine the general legal principles surrounding
requests for extensions of time in the Courts and under different legislative schemes, and
referred to the decisions in Arogen v Leighton,3 Rayscan Management Pty Ltd & Ors v Siv
Nandan Moodilar4 and Jackamarra v Krakouer.5 Mr Ayache submitted:
“14. … having regard to the principles set out above, a decision maker considering an
application to extend time under s394 must:
A. consider ALL of the matters set out in s394(3)(e);
B. evaluate each matter and give each matter due weight, having regard to all
other relevant matters (noting that a matter is not taken into account by being
noticed and erroneously discarded as irrelevant);
C. determine whether, either a single matter or a combination of the matters
taken together, establish exceptional circumstances (having regard to what the
authorities say constitutes exceptional circumstances); and
D. Determine whether the exceptional circumstances, if they exist, warrant the
grant of an extension of time pursuant to s394(2)(b).” (footnotes omitted)
Appeal Ground One
[14] As to this appeal ground, Mr Ayache submitted that despite the Deputy President
accepting that he had no difficulty in extending the time for filing the application to 21 days
after the appellant’s release from custody on 23 November 2019, resulting in a 60-day delay,
out of a total of 181 days (which explained at least 121 days of the delay), this was an error
when weight was attributed against the other five matters in s 394(3) of the FW Act. Later, the
Deputy President had referred to the absence of reasons for the bulk of the delay as painting to
an absence of exceptional circumstances, and such a finding must be an error, when the bulk
of the delay had been accepted as explaining that delay. Mr Ayache submitted that:
“21. … this error identified at paragraph 19 above was “material to the decision in the
sense that it contributes to it so that, but for the error the decision could have been or
might have been different”: (Australian Broadcasting Tribunal v Bond [1990] HCA
33; 170 CLR 321 at 353).”
Appeal Ground Two
3 [2013] NSWSC 1099 at [93]-[94]
4 [2008] NSWSC 857 at [24]-[28]
5 [1998] HCA 27, 195 CLR 516 at [5]-[7]. [1998] HCA 27, 195 CLR 516 at [5]-[7].
[2020] FWCFB 3523
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[15] Mr Ayache referred to an alleged inconsistency between the Deputy President’s
finding that “most of the evidence in the matter is contained in the correspondence and
generally agreed between the parties” with his later finding that “[a]s these matters [(the
merits)] are contested, I am unable to make a finding in this case it either lacks merit or has
significant merit.” Mr Ayache submitted that in assessing the merits of the appellant’s case,
the Deputy President erred in finding:
a. the matters raised for consideration were contested;
b. the Deputy President was unable to find whether or not the case lacked merit;
and
c. the question of merits was a neutral consideration.
Appeal Ground Three
[16] Mr Ayache submitted that, having found unusual circumstances surrounding the
dismissal, the Deputy President erred by not concluding the appellant had not established the
existence of exceptional circumstances for the purposes of s 394 of the FW Act.
[17] As to permission to appeal, the appellant submitted that the Decision is attended by
sufficient doubt as to warrant its reconsideration and that a substantial injustice may result if
permission is refused.
[18] In oral submissions, Mr Ayache submitted that the public interest was enlivened in this
case for two main reasons. Firstly, there is a public benefit in the Full Bench giving guidance
in this jurisdiction to the general principles applying in the discretion as to the granting of
extensions of time; see: the cases cited at [13] above. Secondly, the public interest is engaged
when the employer party to these proceedings is a model litigant, and has particular
obligations in that context.
Respondent’s submissions
[19] Ms Bindon noted firstly that s 400(1) of the FW Act evinces an intention that the
threshold for the grant of permission to appeal is higher in respect of unfair dismissal appeals,
than it is in respect to other appeals, and referred to Workpac v Bumback6; Barwon Health v
Colson7and Coal and Allied Mining Services Pty Ltd v Lawler.8 In setting out the
considerations which may attract the public interest, Counsel submitted that the only two
matters relied on by the appellant were as follows.
[20] Firstly, where the Commonwealth is involved and must behave as a model litigant, it
is in the public interest that where it has not acted in accordance with a law of Australia, the
matter must be heard as to its merits for the benefit of the public.
[21] Ms Bindon rejected this submission as there was no authority to support it and it does
not make sense. In particular:
6 [2012] FWAFB 3206, 220 IR 33
7 [2013] FWCFB 4515, 233 IR 364
8 [2011] FCAFC 54, 192 FCR 78, 207 IR 177
[2020] FWCFB 3523
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“a. It would, for example, be plainly contrary to the public interest to require taxpayer
resources to be expended on a clearly unmeritorious appeal.
b. The notion that it is in the public interest to have a hearing on the merits when a
Commonwealth entity “has not acted in accordance with a law of Australia” is
obviously circular, in that there needs to be a hearing on the merits in order to
determine that very question.
c. There is nothing in the Commonwealth’s model litigant obligations which entails
the conclusion that an appeal against the Commonwealth is necessarily in the public
interest. The only specific mention of appeals in the model litigant obligations is in
clause 2(h) which provides that the Commonwealth is to act honestly and fairly in
litigation by “not undertaking and pursuing appeals unless the Commonwealth or the
agency believes that it has reasonable prospects for success or the appeal is otherwise
justified in the public interest”. That does not assist the Appellant’s argument. On the
contrary, it reinforces the importance of there being a public interest served by the
appeal.” (footnote omitted)
[22] Secondly, the grant of permission is justified because the decision is attended with
sufficient doubt as to warrant its reconsideration and a substantial injustice may result if leave
is refused. Ms Bindon agreed this was a relevant criterion. However, it cannot be applied in a
general sense and the appellant put no specific submissions in support of the general
proposition.
[23] As to the merits of the appeal, Counsel referred to the tests to be applied in
establishing an error in the decision-making process as identified in House v The King.9
Moreover, the error must involve a significant error of fact as required by s 400(2) of the FW
Act. None of the grounds of appeal establish any error of the House v The King kind.
[24] As to Appeal Ground One, the Deputy President did not fall into error by referring to
the bulk of delay falling in the 181-day period. On a proper reading, it is clear that the Deputy
President was referring to delay after 23 November 2019 and the reference to the bulk of the
delay was a reference to the period of 60, or 47, days, and not the total period, which included
when the appellant was unaware of her dismissal.
[25] As to Appeal Ground Two going to the merits of the appellant’s case, the mere fact
that some matters may not be in dispute does not mean that there was no dispute about the
question of whether the dismissal was “harsh, unjust or unreasonable”. It was plain from the
parties’ written submissions that the appellant considered the factors under s 387 would
satisfy the application as having merit and the respondent submitted the direct opposite.
[26] Appeal Ground Three relied on the Deputy President’s comment as to the “unusual
circumstances surrounding the dismissal” by reference to Ho v Professional Services10 and the
definition of the word “exceptional”. Ms Bindon outlined three reasons as to why this
submission should be rejected:
9 [1936] HCA 40, 55 CLR 499
10 [2007] FCA 388
[2020] FWCFB 3523
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“1. The statutory provisions considered in Ho was not s 394(3) of the FW Act.
Caution would be exercised in these circumstances.
2. The question of “exceptional circumstances” is not at large or a substitute for a
general definition. The term must be read in the specific legislative context of
the factors which must be applied in paragraphs (a)-(f) of s 394(3).
3. The Deputy President’s comment related to unusual circumstances in respect
to the dismissal, not the unusual circumstances which followed in the period
after the dismissal, which will be relevant to whether exceptional
circumstances are established.”
[27] Ms Bindon said that permission to appeal had not been established by the appellant,
and none of the grounds of appeal reveal any error of the House v King kind, which would
warrant permission being granted under s 604(2) and s 400(1) of the FW Act.
Consideration
[28] 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.11. There is no right to appeal and an appeal may only be made with
the permission of the Commission.
[29] 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.
[30] 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
assessing whether the public interest test is met is a discretionary one involving a broad value
judgment.12. 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
11 Coal and Allied Operations Pty Ltd v AIRC [2000] HCA 47, 203 CLR 194, 99 IR 309 at [17] per Gleeson CJ, Gaudron and
Hayne JJ
12 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 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]
[2020] FWCFB 3523
9
applied appear disharmonious when compared with other recent decisions dealing with
similar matters.”13
[31] 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.14. 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.15
[32] In relation to extensions of time to lodge applications under s 394(3) of the FW Act,
the test of “exceptional circumstances” establishes a “high hurdle” for an applicant for an
extension, and a decision as to whether to extend time under s 394(3) involves the exercise of
a broad discretion.16. It will therefore 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 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 King17 – 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.
[33] We turn now to deal with each of the appeal grounds as follows.
[34] In respect to Appeal Ground One that the Deputy President erred in wrongly
attributing the length of delay as 181 days and not 60 days, we consider that little turns on
whether the delay was 60 or 181 days. In either case, the delay was significant. We consider
the Deputy President properly exercised his discretion in balancing this factor with the other
factors in s 394(3). We discern no arguable case of error in the Deputy President’s approach.
[35] As to Appeal Ground Two, there is no error, let alone a significant error, with the
Deputy President’s conclusion that he could make no finding on the merits of the appellant’s
case. The fact the appellant points to an alleged inconsistency in this respect is of no
consequence and in any event, we think it is open to conclude that the evidence being
generally agreed between the parties is a reference to the correspondence evidence and not to
the contested issues as to the merits or otherwise of the dismissal.
[36] The appellant submitted that the merits of this case included the question as to whether
a person who is fit and able to perform their duties, but is otherwise prevented from doing so
by due process (i.e. imprisonment) can be unfairly dismissed, and the significance of this was
not afforded sufficient weight by the Deputy President in the balancing exercise. We do not
13 [2010] FWAFB 5343, 197 IR 266 at [27]
14 Wan v AIRC [2001] FCA 1803, 116 FCR 481 at [30]
15 GlaxoSmithKline Australia Pty Ltd v Makin [2012] FWAFB 5343, 197 IR 266 [26]-[27]; 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]
16 Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace
Relations [2014] FWCFB 2288 at [21]
17 [1936] HCA 40, 55 CLR 499
[2020] FWCFB 3523
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accept this submission. This question is not dissimilar to the circumstances of a person who is
unable to perform the inherent requirements of their job because of a medical condition. Such
circumstances are not unusual or out of the ordinary and the Deputy President was alive to the
circumstances surrounding the appellant’s dismissal. We discern no error in his balancing of
all the factors under s 394 of the FW Act.
[37] We would wish to add that the Deputy President’s primary finding related to the
appellant’s claim that she was in a state of incapacity as a result of a major depressive
disorder, generalised anxiety disorder and post-traumatic stress disorder as set out in Mr
Alameddine’s report of 11 March 2020. However, Mr Alameddine pointedly added:
“Ms Merhi demonstrates good insight into her mental health and has demonstrated
positive progress in therapy since her first appointment. Despite the initial difficulties
she has experienced with addressing her mental health issues immediately following
her discharge from the correctional centre she has managed to reach some of her set
goals. These are: completing day-to-day activities such as organising and attending all
medical/health appointments, sorting out employment and court documents, and
managing her mental health by practising her distress tolerance and emotional
regulation skills.”
We note that this opinion is consistent with the appellant’s capacity to engage with her
lawyers and Ms Pateman shortly after her release from custody.
[38] In Underwood v Terra Firma Pty Ltd t/a Terra Firma Business Consulting18 the Full
Bench dealt with an appeal in a case where medical evidence was called in aid of a conclusion
that the primary reason for the delay in filing an unfair dismissal application was an
applicant’s depressive illness. At [15] and [16] the Full Bench said:
“Regarding the Appellant’s contentions surrounding his medical evidence, in Roberts
the Applicant’s unfair dismissal application was filed some 22 days out of time and
there was medical evidence which established the primary reason for the delay in filing
the application related to Mr Robert’s depressive illness. Senior Deputy President
O’Callaghan found that the circumstances were exceptional for the purpose of s.394(3)
and on that basis his Honour made an order extending the time within which the
applicant could file his unfair dismissal application. The facts in the matter before us
are quite different and the circumstances of each case must be considered in their own
unique context. Roberts cannot be taken as authority for the proposition that in every
case where the applicant is suffering from depression, exceptional circumstances will
be found for the purposes of s.394(3) of the Act. …
…
We consider that the Deputy President properly considered the medical evidence
at paragraphs [7]-[12] of the Decision and found that it did not positively
demonstrate that the Appellant’s depressive illness had an impact on his mental
capacity so as to prevent him from lodging the application within the 21 day time
frame. At best, the letter recited the Appellant’s own assessment of his inability to
have lodged the application within time.”
18 [2015] FWCFB 3435,
[2020] FWCFB 3523
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[39] Accordingly, we accept the Deputy President’s finding that the appellant’s mental
state did not prevent her capacity to engage in day to day activities in the period shortly after
her release from prison, and certainly does not explain the period of delay between 23
November 2019 and the application’s filing date of 13 February 2020. In our opinion, the
Deputy President’s decision carefully set out the basis for his conclusions and, after weighing
up all the medical evidence with other relevant factors, came to the correct conclusion. We
discern no arguable error in the Deputy President’s approach or outcome.
[40] In regard to Appeal Ground Three, the appellant incorrectly conflated the “unusual
circumstances” the Deputy President found in respect to the dismissal with whether the
circumstances in the period after the dismissal were unusual, such as to justify a finding of
“exceptional circumstances” for that period. It is apparent the Deputy President’s observation
as to the “unusual circumstances surrounding the dismissal” related to the appellant’s
incarceration and subsequent release, without charge after 22 months on remand. This period
is not relevant to the considerations under s 394(3) of the FW Act, save for the prima facie
consideration of the merits (s 394(3)(e)) which we have dealt with earlier in this decision.
Plainly, the Deputy President was not attributing the term “unusual” to the relevant period
under consideration; that is, post 23 November 2019. There is no substance to this ground of
appeal. We reject it.
[41] Overall, we consider the Deputy President’s approach to the specific requirements of s
394(3) of the FW Act appear to be entirely conventional and unremarkable. No arguable case
of appealable error is disclosed.
[42] We are not satisfied that this appeal raises any issues of general importance and/or
general application beyond the direct interest of the parties, or that there is not a diversity of
Commission decisions about this subject matter. There have been numerous decisions of the
Commission, at Full Bench and single Member level, as to the relevance of whether the
reasons for delay based on mental incapacity provide an explanation or reason for delay, when
the medical condition does not prevent a dismissed employee engaging in normal day to day
activities. The legal principles are well-settled and appear to have been applied by the Deputy
President, albeit in a shorthand ex tempore decision. There is no basis to revisit these
principles in this appeal.
[43] We reject the submission that there is a public benefit in this Full Bench giving
guidance as to the general legal principles applying to extension of time applications to the
Commission’s exercise of discretion under s 394 of the FW Act. This Commission, and its
predecessors, has a well-developed and settled jurisprudence under this section of the FW
Act. We do not accept that the general legal principles applying under other statutory regimes,
where those principles do not require a test of “exceptional circumstances” are necessarily
relevant to the express requirement for “exceptional circumstances” to be established for an
extension of time being granted under the FW Act.
[44] Lastly, we do not consider that it is arguable that the Deputy President’s decision
manifests an injustice or that it is counterintuitive.
[45] For the reasons herein, we are not satisfied that the public interest is enlivened in this
case. Accordingly, permission to appeal must be refused.
[2020] FWCFB 3523
12
VICE PRESIDENT
Appearances:
A Ayache, solicitor, on behalf of the appellant.
P Bindon of counsel on behalf of the respondent.
Hearing details:
2020.
Sydney (via telephone):
11 June.
Printed by authority of the Commonwealth Government Printer
PR720749
OF THE FAIR WORK MISSION THE
