1
Fair Work Act 2009
s.604—Appeal of decision
John Mamur
v
Coles Group Supply Chain Pty Ltd
(C2020/6289)
VICE PRESIDENT CATANZARITI
DEPUTY PRESIDENT ANDERSON
COMMISSIONER MCKENNA
SYDNEY, 15 SEPTEMBER 2020
Appeal against decision [2020] FWC 3885 of Deputy President Boyce at Sydney on 28 July
2020 in matter number C2020/972. Section 365 application, extension of time refused to file
application. Permission to appeal refused.
Background
[1] Mr John Mamur (the Appellant) has lodged an appeal, for which permission to appeal
is required under s 604 of the Fair Work Act 2009 (Cth) (the Act), against a Decision1 and
order2 of Deputy President Boyce issued on 28 July 2020. In the Decision, the Deputy
President declined to extend time for lodgement of a general protections dismissal application
(Application) made by the Appellant pursuant to s 365 of the Act. The respondent in this
matter is Coles Group Supply Chain Pty Ltd (the Respondent).
[2] Section 366(1) requires an application to be made within 21 days after the dismissal
(which, in this case, was an alleged constructive dismissal) took effect or within such further
period as the Commission allows under s 366(2) of the Act. Given the effective date of the
alleged constructive dismissal was 13 January 2020, the latest date by which the Appellant
could have lodged his Application within time was 3 February 2020. In lodging the
application on 18 February 2020, the Appellant’s Application was 15 days late. It was
therefore necessary for the Appellant to obtain an extension of time under s 366(2) of the Act
in order to progress his Application to the s 368 conference phase.
[3] This matter was listed for hearing in respect of permission to appeal only. On 19
August 2020, the Chambers of the presiding member, Vice President Catanzariti, noted that if
the parties after receiving submissions would prefer to have the matter determined on the
papers (pursuant to s 607(1) of the Act), they could advise the Full Bench. Both parties
confirmed they were content with a determination on the papers.
1 John Mamur v Coles Group Supply Chain Pty Ltd [2020] FWC 3885 (the Decision).
2 PR721349.
[2020] FWCFB 4954
DECISION
E AUSTRALIA FairWork Commission
[2020] FWCFB 4954
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[4] The Appellant also requested that the Full Bench grant leave to file further evidence.
On 31 August 2020, the Chambers of Vice President Catanzariti sent correspondence to the
parties noting that, in the event that permission to appeal was granted, the Appellant then
would have an opportunity to seek leave to file further evidence.
Legislative provisions and permission to appeal principles
[5] Section 366(2) of the Act 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.”
[6] The test of “exceptional circumstances” establishes a “high hurdle” for an application
for an extension.3 A decision as to whether to extend time under s 366(2) involves the
exercise of discretion.4
[7] The meaning of “exceptional circumstances” in s 366(2) was considered by a Full
Bench of the then-named Fair Work Australia in Nulty v Blue Star Group Pty Ltd5 (Nulty) 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.”
3 Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace
Relations [2014] FWCFB 2288 at [21].
4 Halls v McCardle and Ors [2014] FCCA 316.
5 [2011] FWAFB 975.
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[8] An appeal under s 604 of the Act is an appeal by way of rehearing and the
Commission’s powers on appeal are exercisable only if there is error on the part of the
primary decision maker.6 There is no right to appeal and an appeal may be made only with
the permission of the Commission.
[9] Section 604(2) of the Act 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.7 The public
interest is not satisfied simply by the identification of error, or a preference for a different
result.8 In GlaxoSmithKline a Full Bench of the Commission identified some of the
considerations that may attract the public interest:
“… the public interest might be attracted where a matter raises issues of importance and
general application, or where there is a diversity of decisions at first instance so that
guidance from an appellate court is required, or where the decision at first instance
manifests an injustice, or the result is counter intuitive, or that the legal principles
applied appear disharmonious when compared with other recent decisions dealing with
similar matters.”9
[10] 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.10 However, that the Member at first instance made an error is not
necessarily a sufficient basis for the grant of permission to appeal.
The Decision
[11] In the Decision, the Deputy President considered each of the matters he was required
to take into account under s 366(2) of the Act and concluded that there were no exceptional
circumstances such as to warrant an extension of time.
[12] In respect of s 366(2)(a) of the Act, the Deputy President concluded that the
Appellant’s reason for delay weighed against any finding as to exceptional circumstances.
The Deputy President addressed the reason for delay at paragraphs including [22], [26] and
[27] (the second reason to which reference is made in the quote below was, as noted in the
Decision at [28], withdrawn in the hearing):
“[22] The Applicant submits that there were two reasons for the delay (in summary):
(a) the Applicant was unable to lodge his application on time because the
Respondent wanted to investigate reasons prompting his dismissal, and so
6 Coal and Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.
7 O’Sullivan v Farrer and another (1989) 168 CLR 210 at [216]-[217] per Mason CJ, Brennan, Dawson and Gaudron JJ;
applied in Hogan v Hinch (2011) 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) 192 FCR 78; (2011) 207 IR 177 at [44]-[46].
8 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343 [26]-[27], 197 IR 266; Lawrence v Coal & Allied Mining
Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089 at [28], 202 IR 388, affirmed on judicial
review in Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78; NSW Bar Association v Brett McAuliffe;
Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663 at [28].
9 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343 at [27]; (2010) 197 IR 266.
10 Wan v AIRC (2001) 116 FCR 481 at [30].
[2020] FWCFB 4954
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the Applicant had to wait to attend the scheduled meeting (which delayed
the submission of his General Protections Application) (Meeting Reason)
…”
…
[26] In general, there is nothing “exceptional” about an employer seeking to
investigate allegations of bullying and victimisation made by an employee as part of
their resignation letter, post the cessation of the employment relationship between the
parties. If anything, it is a commendable action to take, and demonstrates a desire by a
Respondent to deal with and resolve such matters, if they did occur, in the workplace
going forward. Having particular regard to this case, the Respondent had clearly
communicated its position regarding its acceptance of the Applicant’s resignation, and
the purpose of the post-resignation investigation. Nothing the Respondent did could be
seen to have mislead [sic] the Applicant into believing that that investigation had
suspended the Applicant’s resignation (or dismissal) or otherwise cast doubt as to the
date of the employment relationship coming to an end (i.e. on 13 January 2020). That
the Applicant took an erroneous view as to the Respondent’s position on the cessation
of the his [sic] employment is not an exceptional circumstance. It is nothing more than
an ordinary mistake made by an employee.
[27] Significantly, the Applicant had sufficient time to prepare and file his Application
prior to or following the meeting on 3 February 2020. The simple fact is that the
timing and occurrence of that meeting does not lean toward a finding of exceptional
circumstances vis-à-vis the period and reason for the delay post that meeting.”
[13] In respect of action taken by the Appellant to dispute the dismissal, the Deputy
President made the following observations in relation to s 366(2)(b)-related considerations:
“[33] Again, I am minded to agree with the Respondent’s submissions in this regard.
The wording of s.366(b) [sic] is clear — regard must be had to the actions of the
employee in disputing his dismissal. In this instance, the post-resignation investigation
was initiated and carried out by the Respondent. It was not carried out at the behest of
the Applicant. The Applicant did little more than attend his former workplace and
provide information in order to assist the Respondent’s inquiry as to alleged bullying
and victimisation. The Applicant’s participation in that meeting (or investigation) was
not action that disputed his dismissal; it was an opportunity to provide the Respondent
with information that had led to his resignation. In other words, the Applicant’s actions
regarding the investigation did not, on the evidence, give rise to what might be said to
the Applicant disputing his dismissal.
[34] Further, having regard to the email communications between the Applicant and
[the Respondent’s People and Culture Manager], and the unchallenged evidence of
[the Respondent’s Distribution Centre Manager], the Applicant could be under no
misapprehension as to the Respondent’s position regarding the investigation. In view
of the facts before more, I am not satisfied that the circumstances as considered under
s.366(b) [sic] of the Act lean towards a finding of exceptional circumstances.”
[14] In respect of the other matters specified in s 366(2)(c)-(e) of the Act, the Deputy
President dealt with them as follows:
[2020] FWCFB 4954
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neither party made submissions or provided evidence that the Respondent was
prejudiced by the delay and therefore this criterion was of neutral consideration (s
366(2)(c))11;
notwithstanding submissions made by the Respondent in respect of whether the
Appellant was “dismissed” within the meaning of s 386 of the Act, no findings were
made and therefore this was a neutral consideration in the matter (s 366(2)(d))12; and
neither party identified a person who might be said to be in a similar position to the
Appellant and therefore this criterion was of a neutral consideration in the matter (s
366(2)(e))13.
[15] Therefore, in consideration of such findings, the Deputy President dismissed the
Appellant’s Application and made an order to that effect.
Consideration
[16] As the matter before us concerns only permission to appeal, we will be determining
solely that question notwithstanding the fact that the Appellant’s submissions addressed a
range of other substantive-type matters.
[17] We understand the Appellant’s ground of appeal to be that the Deputy President made
significant errors of fact which misguided the ultimate Decision; this matter was elaborated in
the Appellant’s written submissions together with some other matters. We understand that the
matters said to enliven the public interest to grant permission for the appeal were:
allowing the Decision to stand would be in direct conflict with the Commission’s
principle of impartiality, as it is unjust. Additionally, the failure to rectify such errors
will erode the public’s confidence in the Commission administering equitable
justice. The Decision was unjust because the Deputy President did not consider the
fact that the Appellant did not have the benefit of legal advice;
the case represents an opportunity to modify or repeal s 366 of the Act in its entirety,
as this section gives members of “the high social class” an unfair advantage over
“the low class” because they can afford legal representation; and
the Deputy President made significant errors of fact, including in his inference in
respect of the “Meeting Reason”.
[18] In broad summary, the Respondent disputes the contention that there is an arguable
error of fact or law in the Decision and submits that none of the purported errors gives rise to
a manifest injustice in the requisite sense.
[19] First, we do not accept the proposition that the Decision manifests an injustice. There
is nothing in the Decision to indicate that the Appellant raised a lack of knowledge of time
limits for lodgement of the Application before the Deputy President in explanation of the
11 Decision [35].
12 Decision [37].
13 Decision [38].
[2020] FWCFB 4954
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delay, albeit that is a matter canvassed directly or indirectly in the submissions before us –
more specifically in the context of his lack of legal representation. In any event, as noted in
Nulty, mere ignorance of the statutory time limit in s 366(1)(a) is not an exceptional
circumstance. Here, the Appellant’s submissions before us included the submission that “The
delay in submission [of the Application] was not due to ignorance” and the reason for the
delay in connection with the permission to appeal submissions seemed more particularly to
turn on questions of access to legal advice. The Deputy President had due regard to each of
the requirements set out in s 366(2) of the Act and dealt with them in an orthodox way. The
Deputy President also had regard to the relevant evidence before him in considering whether
there were exceptional circumstances.
[20] Second, the Appellant’s submission that the matter represents an opportunity to
modify or repeal s 366 of the Act to assist self-represented litigants is, respectfully,
misconceived. We need take the Appellant’s submission no further than to note that the
Commission is not empowered to modify or repeal sections of the Act.
[21] Third, we do not consider in the context of what has been advanced by the Appellant
in relation to permission to appeal that there is an arguable appellate case the Decision
contained significant errors of fact, more particularly when the appeal ground specifically
contended that the Deputy President “ … made a significant error of facts [sic] which
misguided the ultimate decision” . The Appellant’s submissions elaborate upon certain
matters which had already been considered in the decision at first instance. The Appellant, for
instance, disagrees with the Deputy President’s inference in regards to the purpose of a
meeting scheduled on 3 February 2020, but disagreement by an appellant with inferences
drawn does not amount to the establishment of significant error of fact such as to lead to the
grant of permission to appeal.
[22] Moreover, to the extent that the Appellant contends that the public interest is enlivened
because the Respondent did not suffer prejudice from the delay in the Application being
filed, we would observe that the Deputy President dealt with this issue at [35] in the Decision.
In any event, this criterion was viewed as a neutral consideration in the circumstances and
nothing turns on it.
[23] Finally, the public interest is not enlivened where an Appellant expresses a preference
for a different result. That the Deputy President took a different view to the Appellant on the
significance of the meeting on 3 February 2020 is not a factor that enlivens the public interest;
and nor are the other factors upon which the Appellant relied.
[24] Having considered all the matters raised by the Appellant with respect to permission to
appeal, we are not persuaded that the public interest is enlivened. More specifically, we are
not satisfied that:
there is a diversity of decisions at first instance so that guidance from an appellate
body is required of this kind;
the appeal raises issues of importance and/or general application;
the decision at first instance manifests an injustice, or the result is counter intuitive;
or
[2020] FWCFB 4954
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the legal principles applied by the Deputy President were disharmonious when
compared with other decisions dealing with similar matters.
Conclusion
[25] For the reasons set out above, we are not satisfied that the Appellant has established
that there is an arguable case of error in relation to any relevant aspect of the Decision or that
the conclusion reached by the Deputy President was attended with sufficient doubt to warrant
its reconsideration in an appeal.
[26] Accordingly, permission to appeal is refused.
VICE PRESIDENT
Hearing details:
Matter determined on the papers.
Final written submissions:
Appellant’s written submissions dated 27 August 2020.
Respondent’s written submissions dated 1 September 2020.
Printed by authority of the Commonwealth Government Printer
PR722799
WORK COMMISSION NORK $1 THE THE SEAA
