1
Fair Work Act 2009
s.604 - Appeal of decisions
Mr Dennis Obel
v
Central Desert Regional Council
(C2020/7100)
VICE PRESIDENT CATANZARITI
DEPUTY PRESIDENT CROSS
COMMISSIONER LEE
SYDNEY, 14 JANUARY 2021
Appeal against decision [2020] FWC 4740 of Commissioner Yilmaz at Melbourne on
3 September 2020 in matter number C2020/3745. Section 365 application, extension of time
refused to file application. Permission to appeal refused.
[1] Mr Dennis Obel (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 of
Commissioner Yilmaz issued on 3 September 2020. In the Decision, the Commissioner
declined to extend time for lodgement of a general protections dismissal application (the
Application) made by the Appellant pursuant to s.365 of the Act. The respondent in this
matter is the Central Desert Regional Council (the Respondent).
[2] Section 366(1) requires an application to be made within 21 days after the 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 dismissal was 28 April 2020, the latest date by which the
Appellant could have lodged his Application within time was 19 May 2020. In lodging the
application on 20 May 2020, the Appellant’s Application was one day 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 3
November 2020, the Chambers of Vice President Hatcher issued directions for the filing of
submissions by the Appellant regarding the requirement for permission to appeal, and
submissions were subsequently received from the Appellant. The matter was subject to a
hearing on 30 November 2020.
Legislative provisions and permission to appeal principles
[4] Section 366(2) of the Act sets out the circumstances in which the Commission may
grant an extension of time as follows:
1 Dennis Obel v Central Desert Regional Council [2020] FWC 4740 (the Decision).
[2021] FWCFB 167
DECISION
E AUSTRALIA FairWork Commission
[2021] FWCFB 167
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“(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.”
[5] The test of “exceptional circumstances” establishes a “high hurdle” for an application
for an extension.2 A decision as to whether to extend time under s.366(2) involves the
exercise of discretion.3
[6] 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 Ltd 4 (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.”
[7] 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
2 Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace
Relations [2014] FWCFB 2288 at [21].
3 Halls v McCardle and Ors [2014] FCCA 316.
4 [2011] FWAFB 975.
http://www.fwc.gov.au/decisionssigned/html/2014fwcfb2288.htm
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primary decision maker.5 There is no right to appeal and an appeal may be made only with the
permission of the Commission.
[8] 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 judgement.6 The public
interest is not satisfied simply by the identification of error, or a preference for a different
result.7 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.” 8
[9] 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.9 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
[10] In the Decision, the Commissioner considered each of the matters she was required to
take into account under s.366(2) of the Act and concluded that there were no exceptional
circumstances to warrant an extension of time.
[11] In respect of s.366(2)(a) of the Act, the Commissioner concluded that the Appellant’s
reason for delay weighed against any finding as to exceptional circumstances. The
Commissioner addressed the reason for delay at paragraphs including [29], [30] and [31]:
“[29] Mr Obel’s submissions concerning the unreliability of internet access and lack of
access can be characterised in two periods. Firstly, Mr Obel had access to internet
and phone services for the two weeks while still in Willowra. Secondly, Mr Obel had
access to internet services when he returned to Alice Springs. He had organised
accommodation before returning to Alice Springs and he submits for the period of 14 -
15 May 2020 he stayed at the Mercure Hotel. Mr Obel makes reference to driving 420
kilometres to pick up keys from a friend to gain access to his friend’s unit, and I accept
5 Coal and Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.
6 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].
7 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].
8 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343 at [27]; (2010) 197 IR 266.
9 Wan v AIRC (2001) 116 FCR 481 at [30].
http://www.fwc.gov.au/decisionssigned/html/2010fwafb5343.htm
http://www.fwc.gov.au/decisionssigned/html/2014fwcfb1663.htm
http://www.fwc.gov.au/decisionssigned/html/2010fwafb10089.htm
http://www.fwc.gov.au/decisionssigned/html/2010fwafb5343.htm
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it is reasonable that he did not have access to the internet on 15 May 2020. However, I
do not accept the explanations as reasonable for the period Mr Obel relies on to
explain his delay.
[30] Mr Obel submits he experienced a technical error when filing his application on
19 May 2020. He does not provide any evidence of this error message being received.
Mr Obel bears the onus to demonstrate a credible explanation for the delay.
[31] Further I observe that Mr Obel admits to taking his first steps in filing his
application on the deadline. Evidence in this matter concerning Mr Obel’s failure to
comply with deadlines includes his responding to the show cause letter (5 days late)
and complying with the Commission’s directions (two days late) and then submitting
further unapproved materials after the deadline (19 days late). Mr Obel provided no
credible explanations nor regret for failure to comply with any of the abovementioned
deadlines..”
[12] In respect of action taken by the Appellant to dispute the dismissal, the Commissioner
noted that the Appellant relied on two emails sent to the Respondent on 22 and 28 April 2020,
but found that those emails, and other correspondence, related to challenging a show cause
letter rather than challenging the termination of employment decision. The Commissioner
made the following observations in relation to s.366(2)(b)-related considerations:
“[37] Not only do these submissions confirm that no action was taken by Mr Obel to
challenge his termination of employment when he became aware of it until he filed this
application, it is also inconsistent with his submissions concerning delay where he
states the dismissal was abrupt and immediate, causing significant inconvenience to
meet the statutory timeframe.
[38] No action, other than filing an application under the Act goes against the
granting of an extension 12.
[39] This consideration does not weigh in Mr Obel’s favour.”
[13] In respect of the other matters specified in s.366(2)(c) of the Act, the Commissioner
noted she was not satisfied the Respondent had demonstrated prejudice and as such it was a
neutral consideration.10
[14] Regarding the merits of the Application (s.366(2)(d)), the Commissioner found:
“[49] While the evidence tendered is contested, it is not tested at an extension of time
hearing, nevertheless I cannot conclude that on balance that Mr Obel demonstrated a
meritorious application. The evidence of the existence of policies, emails and
correspondence provided weighs in favour of the submission that Mr Obel failed to
comply with reasonable and lawful management directions.
[50] In relation to merit I do not find in Mr Obel’s favour.”
10 Decision at [43]
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[15] In relation to the final consideration (s.366(2)(e)), the Commissioner found neither
party addressed the consideration adequately in respect to the circumstances of the case, and
consequently, she found the consideration neutral.
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 grounds of appeal to be that the Commissioner made
two significant errors 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:
A denial of procedural fairness involving prejudicially allowing the Respondent to
introduce late evidence, and failing to respond to the Appellant’s case;
Misconstruction and misapplication of s.366(2) of the Act, principally relating to the
Commissioner referring to the Appellant failing to comply with deadlines as indicative
of his approach to time deadlines; and
Significant errors of fact involving making findings of fact that did not reflect the
evidence before her, and failing to consider the Appellant’s evidence.
[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] We do not accept the proposition that the Appellant was denied procedural fairness.
While the Commissioner was initially not disposed of receiving materials filed at a late stage
by the Appellant in the proceedings at first instance, the Commissioner noted, and the
Appellant accepted11, that the Appellant was nonetheless able to make oral submissions that
addressed the additional materials. The Appellant was further, on the second day of hearing,
allowed to address further material relied upon by the Respondent. The Commissioner did not
fail to address the Appellant’s case. The Commissioner summarised the key elements of the
case advanced by the Appellant but in conclusion found it without merit.
[20] The Commissioner did not misconstrue or mis-apply s.366(2) of the Act. It was open
to the Commissioner to note other examples of the Appellant failing to comply with deadlines
as indicative of his approach to time deadlines, particularly where the Appellant conceded to
taking his first steps in filing the Application on the 21 day deadline.
[21] Finally, 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 that the Decision
contained significant errors of fact. The Appellant’s submissions elaborate upon certain
matters which had already been considered in the Decision at first instance.
11 Transcript 9 July 2020, at PN 148.
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[22] The public interest is not enlivened where an Appellant expresses a preference for a
different result. That the Commissioner took a different view to the Appellant on
determination of various facts, and their application to the considerations of s.366(2), is not a
factor that enlivens the public interest.
[23] 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
• the legal principles applied by the Commissioner were disharmonious when compared
with other decisions dealing with similar matters.
Conclusion
[24] 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 Commissioner was attended with sufficient doubt to warrant its
reconsideration in an appeal.
[25] Accordingly, permission to appeal is refused.
VICE PRESIDENT
Appearances:
Mr D Obel, the Appellant on his own behalf
Ms I McCreevy, for the Respondent
Hearing details:
2020
Sydney
November 30.
WORK COMMISSION ORK THE SEAA THE
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