[2018] FWCFB 3815 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
Logan City Electrical Service Division Pty Ltd T/A Logan City Electrical
v
Mr Christopher Antonarakis
(C2018/2938)
JUSTICE ROSS, PRESIDENT |
MELBOURNE, 14 AUGUST 2018 |
Appeal against decision [2017] FWC 3801 of Commissioner Simpson at Brisbane on 21 July 2017 in matter number U2017/918 – extension of time to file appeal – whether public interest enlivened – application for extension of time refused.
[1] Logan City Electrical Service Division Pty Ltd t/a Logan City Electrical (the Appellant) has applied for permission to appeal and has appealed against a decision1 made by Commissioner Simpson on 21 July 2017 (the Decision). In the Decision the Commissioner found that Mr Antonarakis had been unfairly dismissed from his employment with the Appellant and ordered that the Appellant pay Mr Antonarakis $19,640 compensation (the Order).
[2] Rule 56(2) of the Fair Work Commission Rules 2013 relevantly provides that a notice of appeal under s.604 must be filed within 21 calendar days after the date of the decision the subject of the appeal or within such further time allowed by the Commission on application by the Appellant. The Appellant lodged its notice of appeal on 31 May 2018, some 294 days after the expiry of the prescribed 21-day time period. Rule 56(2)(c) confers a discretion on the Commission to extend the time within which the appeal is to be lodged.
[3] Time limits of the kind in Rule 56 should not simply be extended as a matter of course. There are sound administrative and industrial reasons for setting a limit to the time for bringing an appeal and it should only be extended where there are good reasons for doing so.
[4] The authorities 2 indicate that the following matters are relevant in considering whether to exercise the Commission’s discretion to extend time under Rule 56(2)(c):
• whether there is a satisfactory reason for the delay;
• the length of the delay;
• the nature of the grounds of appeal and the likelihood that one or more of those grounds being upheld if time was extended; and
• any prejudice to the respondent if time were extended.
[5] As mentioned earlier, the Appellant seeks an extension of the time within which an appeal is to be filed. The matters relevant to such an application are those set out at [4] above. In broad terms the issue for the Commission is whether, in all the circumstances and having regard to the matters set out above, the interests of justice favour an extension of the time within which to lodge the appeal.
[6] The application to extend time was heard on 11 July 2018. At the conclusion of the hearing we informed the parties that we had decided to refuse the Appellant’s application to extend time and that we would issue our reasons in due course; these are those reasons.
[7] The relevant background may be shortly stated.
[8] Mr Antonarakis commenced employment with the Appellant on 6 March 2012 as an apprentice refrigeration mechanic and became a qualified tradesperson in 2014. He was dismissed by the Appellant for ‘unsatisfactory conduct’ on 17 January 2017. The alleged unsatisfactory conduct related to the Appellant’s belief that Mr Antonarakis had done a “cash job” which was regarded by the Appellant as stealing. Mr Antonarakis lodged an application for relief from unfair dismissal on 31 January 2017 (the Application).
[9] Following the filing of the Application the Commission attempted to communicate with the Appellant about the programming and conduct of the matter. The Commission’s Case Management System (CMS) records identify the following attempts to communicate with the Appellant:
(i) 2 February 2017 - A copy of the form F2 filed by Mr Antonarakis along with a blank F3 employer response form was served on the Appellant via general email address [email protected] addressed to Mr Peter Burnitt, the Director and Secretary of the Appellant as listed on the ASIC company extract (Mr Burnitt).
(ii) 2 February 2017 – Notice of Listing for conciliation sent to the Appellant via email to [email protected] and post. Conciliation listed for 11.15am, Friday 3 March 2017.
(iii) 27 February 2017 – follow up letter sent to the Appellant noting that no F3 had been received and no contact number for conciliation had been provided.
(iv) 28 February 2017 – Commission staff member phoned the Appellant and left message for Mr Burnitt to call the Commission to provide a phone number for the scheduled conciliation.
(v) 3 March 2017 – Conciliation listed for 11.15am. While Mr Antonarakis was available Mr Peter Burnitt of the Appellant was not available when contacted by the Conciliator. A message was left for Mr Burnitt to call back.
(vi) 3 March 2017 – Letter sent by email to [email protected] advising that conciliation listed that day did not proceed and requesting that advice as to alternate dates of Mr Burnitt’s availability be provided within two working days.
(vii) 8 March 2017 – Letter sent by email to [email protected] advising that the matter had been referred for arbitration.
(viii) 10 March 2017 – Notice of Listing and Directions sent via email to [email protected] and post. Matter listed for arbitration 22 & 23 May 2017. The Appellant was directed to file its material by 12pm Monday 24 April 2017.
(ix) 26 April 2018 – Commission staff member called the Appellant following up on submissions and material due on 24 April 2017. Mr Burnitt was unavailable to take the call and a message was left.
(x) 28 April 2017 - Commission staff member called the Appellant following up on submissions and material due on 24 April 2017. Commission staff member was advised that Mr Burnitt was out of the office and would not be back for a week but a message would be passed on.
(xi) 2 May 2017 – An amended Notice of Listing sent via email to the Appellant at [email protected] noting matter only listed for one day on 22 May 2017.
(xii) 9 May 2017 – Commissioner Simpson’s Chambers contacted the Appellant in relation to the matter. Mr Burnitt was unavailable and a message was left requesting that he call back.
(xiii) 15 May 2017 – Notice of Listing for non-compliance hearing at 3.00pm on 17 May 2017 sent to the Appellant at [email protected].
(xiv) 17 May 2017 – Non-compliance hearing conducted. Commissioner notes that the respondent may not be properly identified and advises Mr Antonarakis to undertake a company search.
(xv) 18 May 2018 – Cancellation of Notice of Listing for 22 May 2017 sent via email to the Appellant at [email protected].
(xvi) 29 May 2018 – Mr Antonarakis filed a form F1 seeking to amend his F2 application in respect of the identification of the respondent. The Appellant was copied via email on the correspondence.
(xvii) 19 June 2017 – Commission issued decision allowing amendment of Mr Antonarakis’ application to correctly identify the Appellant. Decision sent via email to the Appellant at [email protected].
(xviii) 19 June 2017 – Notice of Listing for Mention at 2.00pm 5 July 2017 sent via email to the Appellant at [email protected]
(xix) 5 July 2017 – Mention held. Mr Antonarakis appeared but the Appellant did not. The Commissioner’s Associate attempted to contact Mr Burnitt by telephone but was told he was unavailable and that the message would be passed on.
(xx) 5 July 2017 - Notice of Listing for hearing on 10.00am 20 July 2017 sent via email to the Appellant at [email protected] and post.
(xxi) 20 July 2017 – Hearing conducted. The Appellant did not appear.
(xxii) 21 July 2017 – The Decision was issued and sent to the Appellant via email to [email protected] and post.
[10] The Appellant failed to respond to numerous attempts by Commission staff to contact it by telephone, email and post. The correspondence included directions and notices of listing with respect to the matter. The Appellant failed to file any material in the proceedings, nor did it appear at any conferences or hearings conducted in relation to the matter.
[11] In the Decision the Commissioner makes the following observation in relation to the Appellants’ failure to respond to contact from the Commission or to participate in the proceedings:
‘[15] I am satisfied that the Respondent’s failure to engage with the Commission has not been due to a lack of awareness of the application against it, but rather due to a conscious decision not to participate in the proceedings. Multiple attempts have been made by the Commission to notify the Respondent of the proceedings, by way of emails, letters and telephone calls. I am satisfied that the Respondent has been aware of this matter, and that it has had ample opportunity to respond to this application, however has chosen not to do so. On that basis I am prepared to treat the application as being uncontested.’
[12] We propose to deal with each of the matters set out in [4] above, in turn.
Reason for the delay
[13] The Appellant’s explanation for the delay is set out in a witness statement filed by Mr Burnitt 3. Mr Burnitt is the sole director of Logan City Electrical. The relevant extract from Mr Burnitt’s witness statement is as follows:
‘9 From June 2017 to March 2018, I had been engaged in multiple projects out of the office and out of mobile range or with poor mobile reception. It was not unusual for me to only be in the office twice per week.
10 LCE was served with an application made by the Fair Work Ombudsman under covering letter dated 22 March 2018, on 26 March 2018 in respect of compliance with the Order made on 21 July 2017.
11 Consequently, I engaged Simmonds Crowley Galvin on 27 March 2018 as my solicitors to look into this matter and to review and respond to matters relating to the Decision. On 18 May 2018, I was advised of the potential to appeal against the Decision and order and accordingly instructed my solicitors to prepare the relevant notice of appeal.
12 In early October 2017, in a telephone discussion with a female person from the Ombudsman’s office I first became aware that an Order against LCE had been made, but I did not understand how this occurred or fully appreciate what it meant. I understood that this was not final and could be argued against.
13 Upon these enquiries in paragraph 8 herein having been made, it is apparent that LCE has received certain communications between October 2017 and March 2018 from the Fair Work Ombudsman’s office about the order, but I was personally unaware of them at the time and consequently, I did not action the matter as quickly as I should have.’
[14] In explaining his out of office work commitments in the period of September 2017 to March 2018 4 Mr Burnitt’s evidence was that mail received by the Appellant’s office was personally delivered to him each day but in some circumstances he may not receive it until the following day due to the mail either not being picked up or his being out of the office at the end of the day5.
[15] In respect of email correspondence since identified as having been received by the Appellant Mr Burnitt stated that the email address [email protected] was not his personal email address but was a general email address used for quoting and similar enquiries.
[16] As to his evidence about the contact from the Fair Work Ombudsman (FWO), Mr Burnitt was uncertain as to when he actually first spoke with the FWO 6. He claimed that when he did speak with the FWO it was in relation to a ‘possible order’ that was to be made7. He further claimed that as a consequence of the FWO phone call he understood he would have an opportunity to respond to it (the possible order) and was expecting further information to be sent to him by the FWO8.
[17] Mr Burnitt further stated during oral evidence that he had referred the matter of the FWO proceedings to his legal representatives in the wake of the FWO contacting him in September 2017 9, although when pressed Mr Burnitt confirmed that he didn’t meet with his solicitors until 27 March 2017 following receipt of the correspondence form the FWO dated 22 March 201810.
[18] As regards the delay in instructions to the Appellant’s lawyers for filing an appeal following the receipt of the FWO correspondence dated 22 March 2018, Mr Burnitt gave evidence that it took his lawyers ‘a little bit more time’ to find out about the Order and how it had come about 11. The Appellant also submitted that the delay in filing was explained by the Appellant’s legal representative’s review and preparation of the Appellant’s defence in the FWO proceedings launched against it.
[19] The following timeline of events may be discerned from Mr Burnitt’s evidence:
21 July 2017 Decision and Order issued.
October 2017 Staff member of FWO contacts and speaks directly with Mr Burnitt regarding the Order.
26 March 2018 Appellant served with proceedings by the Fair Work Ombudsman by way of correspondence dated 22 March 2018 in relation to the failure of the Appellant to comply with the Order.
27 March 2018 Appellant engages solicitors Simmons Crowley Galvin to represent them in matters relating to the Decision and Order and, Mr Burnitt meets with them in respect to the matter.
18 May 2018 Appellant instructs its solicitor to file an appeal against the Decision
31 May 2018 Appellant files appeal of Decision.
[20] Mr Burnitt was not a credible witness. His evidence was internally inconsistent 12 and he changed his evidence under questioning. For example, Mr Burnitt initially said that in early October 2017 he was contacted by someone from the Fair Work Ombudsman and that was when he became aware of the Order13.
[21] He later changed his evidence and asserted that the person from the FWO he spoke to in October 2017 only referred to a ‘Possible order getting made’. 14 Mr Burnitt’s evidence had the character of being crafted to best support the Appellant’s case. When it became apparent that an aspect of his evidence did not achieve that objective, he changed his evidence.
[22] We reject Mr Burnitt’s evidence as to the reasons for the delay in filing the appeal. In support of this conclusion we make three points, in addition to our general finding as to Mr Burnitt’s credit.
[23] First, Mr Burnitt claims that he was regularly out of the office on multiple projects with poor mobile coverage in the period June 2017 to March 2018 and advances this as an explanation for why he was personally unaware of the Decision and the contact from the FWO. For the Appellant’s explanation to be credible it would require us to accept that in working away from the office at times in areas with poor mobile phone coverage, that on return to the office or to areas with reasonable mobile phone coverage, no messages or correspondence were either passed on or received by the Appellant. This is patently implausible.
[24] Second, the Appellant’s explanation of his inaction in responding to contact from the FWO in October 2017 regarding the Order lacks credibility. While acknowledging that he received contact from the FWO in early October 2017 he claimed that he was told by the FWO staff member during that telephone conversation of a ‘possible order’ and believed as a consequence of that conversation that he would have an opportunity to challenge it.
[25] It is most unlikely that the FWO would take the time to contact the Appellant directly by phone in relation to an actual Order issued on 21 July 2017 and then describe the Order only as a ‘possible order’. The more likely explanation is that Mr Burnitt chose to simply ignore the FWO’s contact regarding the Order and its implications.
[26] In our view Mr Burnitt was on notice about the fact that an order had been made against the Appellant since at least in October 2017 and took no steps to inform himself of the implications of the Order or to seek legal advice. At the very least some enquiries by the Appellant ought to have been made; and none were.
[27] Third, even if we were to accept Mr Burnitt’s evidence that the first time at which he received a copy of the Order was on 26 March 2018, no adequate explanation was proffered as to why it then took a further two months for an appeal to be filed.
[28] The Appellant engaged legal representation on 27 March 2018 but only gave instructions to file an appeal on 18 May 2018, after which there was a further delay of almost two weeks before the appeal was lodged on 31 May 2018. Mr Burnitt’s suggestion that it took his lawyers ‘a little bit more time’ to review the origins and implications of the Order discloses a lack of urgency or diligence on the part of the Appellant in circumstances where the seriousness of the matter ought to have been abundantly clear from the correspondence from the FWO dated 22 March 2018.
[29] Finally, Mr Burnitt acknowledges that a search of the Appellant’s general email account, [email protected], conducted at the request of his solicitor revealed the receipt of several pieces of email correspondence from the FWO in the period October 2017 to March 2018. Mr Burnitt in his evidence claims that he was personally unaware of that correspondence at the time of its receipt but nonetheless acknowledges that he failed to action the matter as quickly as he should have.
[30] Mr Burnitt’s explanation of his inaction is not credible. Such an explanation requires us to accept that while mail collected by the Appellant’s staff is personally delivered to Mr Burnitt on an almost daily basis, all of the FWO correspondence now admitted as having been received in the Appellant’s general email account in the period October 2017 and March 2018 was either not reported to Mr Burnitt or simply ignored by the Appellant’s staff who were charged with the responsibility of managing the email account to which the correspondence was sent. Such a circumstance is entirely implausible. We reject this aspect of Mr Burnitt’s evidence.
[31] We are not satisfied that the Appellant has provided a satisfactory reason for the delay in filing the appeal. This is a factor which weighs against granting an extension of time.
Length of delay
[32] The length of the delay is substantial. The appeal was lodged some 294 days outside the prescribed 21 day period. This factor weighs against granting an extension of time within which to allow the Appellant to institute the appeal.
Prejudice to Respondent
[33] The Appellant concedes that Mr Antonarakis will suffer prejudice if an extension of time is granted as he will have to respond to the appeal and, if the appeal is successful, face a further hearing of his application. We agree; this weighs against granting an extension of time.
Prospects of appeal
[34] The Appellant presses only one ground of an appeal, that the Commissioner erred by deciding the Application was uncontested because the Appellant had not been served with the Application and had not received any written notification from the Commission of the Application or concerning the hearing of the Application.
[35] The Appellant led evidence from Mr Burnitt that while he recalled some contact from the Commission during the period leading up to hearing of Mr Antonarakis’ Application and issuing of the Decision he did not receive any material relevant to the Application. This included the Application filed by Mr Antonarakis and notices of hearing dates. 15
[36] Some specific contact from the Commission in respect to the Application was conceded by Mr Burnitt in his evidence and included that;
(i) A recent inspection of the Appellant’s service email account [email protected] revealed receipt of a notice of the conciliation conference dated 27 February 2017, but Mr Burnitt says that he was not aware of it at the time.
(ii) Mr Burnitt recalled receiving a message from a staff member regarding telephone contact from the Commission on or about 26 April 2017 but that he was out of the office at the time and on the basis of a subsequent telephone conversation he had with a member of the Commission he believed he had nothing further to do. 16
(iii) Mr Burnitt also recalled receiving a telephone message from a staff member regarding contact from the Commission on 9 May 2017 about the Mention scheduled for 17 May 2018. He explained that his inaction in response to that message was due to there having been multiple persons temporarily engaged by the Appellant at that time. 17
[37] We do not accept that correspondence from the Commission about the Application and the hearing were not received. We make three points in this regard.
[38] First, the correspondence sent by the Commission to the Appellant via email was sent to the same email address, [email protected], that the FWO correspondence was sent to. It is inexplicable that correspondence sent by the FWO was received by the Appellant yet correspondence sent from the Commission to that same email address was not received with the exception of the notice of conciliation conference of 27 February 2017.
[39] Second, the Commission’s records confirm that correspondence was sent to the Appellant via post, in addition to email, in respect of:
• the notice of listing of the conciliation conference on 2 February 2017;
• the notice of listing for arbitration hearing on 10 March 2017;
• an amended notice of listing for arbitration hearing on 5 July 2017; and
• the Decision and Order of 21 July 2017.
[40] The Appellant’s claim that the Commission correspondence sent by post to the Appellant was not received would require us to accept that the Appellant’s processes for handling and personal delivery of correspondence to Mr Burnitt on a daily basis failed to ensure that a single piece of the relevant correspondence was drawn to Mr Burnitt’s attention. Such a circumstance is simply implausible.
[41] Third, on Mr Burnitt’s own evidence attempted telephone contact by Commission staff with the Appellant was passed on to him on at least two occasions. His explanations as to why no action was taken by him in response to those messages were unconvincing.
[42] We do not accept that the Appellant was unaware of Mr Antonarakis’ Application and the subsequent proceedings. To the contrary, we are satisfied that the Appellant was aware of the Application and the proceedings but simply chose to ignore it.
[43] Consequently we have concluded that the Appeal has little prospect of success and this weighs against the granting of an extension of time.
[44] After considering all of the circumstances we are not persuaded that it is in the interests of justice to extend time to institute the appeal. Accordingly, the application to extend the time for the institution of the appeal was dismissed.
PRESIDENT
Appearances
J W Merrell (instructed by Simmonds Crowley & Galvin) on behalf of the appellant
Mr Antonarakis (respondent) appeared in person
Hearing details
2018.
Melbourne, VC to Brisbane.
11 July.
2 See for example Fox v Kangan TAFE Print S0253, 25 October 1999 at [36]; Stevenson-Helmer v Epworth Hospital, Print T2277, 19 October 2000; Dundovich v P&O Ports, Print PR923358, 8 October 2002; SPC Ardmona Operations Ltd v Esam and Organ (2005) 141 IR 338; Jobs Australia v Eland [2014] FWCFB 4822; Farnhill v Australian Business Academy Pty Ltd [2016] FWFBC 3410.
3 Exhibit A1, Witness Statement of Mr Peter Burnitt, dated 26 June 2018
4 Ibid Paragraph [9]
5 Transcript PN67 – PN77
6 Transcript PN87 – PN91, PN118
7 Transcript PN122 – PN130
8 Transcript PN131
9 Transcript PN 95-PN102
10 Transcript PN106
11 Transcript PN 110
12 For example, see Transcript 11 July 2018 at [78] to [91]
13 Ibid at [92] to [98] and [118] to [119]
14 Ibid at [122] to [130]
15 Exhibit A1, Paragraph [8j]-[8k]
16 Ibid Paragraph 8[d]
17 Ibid, Paragraph 8[e]
Printed by authority of the Commonwealth Government Printer
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