DECISION

Fair Work Act 2009
s.604—Appeal of decision

Tojo Thomas
v
Serco Immigration Detention Centre
(C2021/573)

Appeal against decision [2020] FWC 3738 of Commissioner Simpson at Brisbane on 17 July 2020 in matter number U2020/453- appeal filed out of time- application to extend time dismissed.

Introduction

[1] Mr Tojo Thomas (the Appellant) has applied for permission to appeal, and has appealed, against a decision 1 made by Commissioner Simpson on 17 July 2020 (the Decision) in which the Commissioner dismissed the Appellant’s application for an unfair dismissal remedy.

[2] An appeal filed under s.604 of the Act must be filed within 21 calendar days after the date of the decision being appealed against, or within such further time allowed by the Commission. 2 When the Appellant lodged the Form F7 – Notice of appeal (Form F7) on 5 February 2021, it was 182 days after the expiry of the prescribed 21-day time period.

[3] Rule 56(2)(c) confers a discretion on the Commission to extend the time within which the appeal is to be lodged. However, 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. 3

[4] The appeal was listed for a hearing via telephone concerning the issues of the necessary extension of time to lodge the appeal and permission to appeal on 8 April 2021.

[5] Directions made on 10 February 2021 required the Appellant to lodge submissions with the Commission addressing the requirements for an extension of time and for permission to appeal. In particular, the Directions required the Appellant to address why he says it is in the public interest to grant permission to appeal, and if the appeal is on a question of fact, what is the significant error of fact involved in the Decision.

[6] The authorities 4 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 would be upheld if time was extended; and

•  any prejudice to the Respondent if time were extended.

[7] The Appellant seeks an extension of time within which the appeal is to be lodged. The matters relevant to such an application are those set out at [6] above. In broad terms, the issue for determination is whether, in all the circumstances and having regard to the matters set out above, the interests of justice favour the Appellant being granted an extension of the time within which to lodge the appeal.

Application for extension of time - Reason for the delay

[8] The Commission’s Fair hearings practice note is available on the Commission’s website and provides procedural guidance and information about the conduct of hearings before the Commission. This includes a section What action can be taken if a party is aggrieved by a decision of the Commission, which provides “Appeal proceedings are outlined in the Appeal proceedings practice note, available on the Commission website.” From the Commission’s Appeal proceedings practice note, the Appellant could have ascertained, if he was aggrieved by the Decision, that he could seek permission to appeal it and further, that Rule 56(2) required him to have lodged the Form F7 by midnight on 7 August 2020. 5

[9] In the Form F7 lodged on 5 February 2021, the Appellant explains the reason for his delay, having received the Decision on 17 July 2020, and the grounds on which he says an extension of time should be granted as follows:

“ After that [the receipt of the Decision], I was in a mental trauma as my wife Sumi John was facing a severe medical condition after the birth of my second child. She was unable to carry the baby and I have two children and during that time, my first child was 2 years and the second one was below 9 months. During the preparations and trials of my first application, she had struggled a lot with the children. Due to the medical condition, I had to support her throughout the day and I was unable to move to the next steps of the case as I understood from the first trial that it requires a deep preparation and needs to spend a huge time. That’s why I couldn’t appeal the decision of the first trial.

The medical certificate indicating her physical condition is submitting with this appeal application.

Now she is feeling better after the treatments with the physiotherapists and she is confident to be her own with the kids.

Kindly, please consider the stages that I have passed through and the documents being considered with this application to explain the reason of the delay for this application. I am more than happy to submit any other necessary supporting documents as per the required procedure.”

[10] This explanation was also outlined in a letter accompanying the Form F7, which attached a medical certificate dated 3 December 2020 from Dr B. Jagadeesh Kandangath. The medical certificate stated:

“This is to certify that Mrs Sumi John is unfit to mind her children for extended hours on her own due to an underlying medical condition. She is being treated for the same. She requires support from her husband with the care of their two children who are two and one year old.

This certificate was completed on 3/12/2020.”

[11] As to the Appellant’s capacity to prepare and lodge the Form F7 prior to 5 February 2021, we observe that following the hearing before the Commissioner on 26 May 2020, the parties were directed to file and serve final submissions by no later than 4.00pm, Friday 12 June 2020 and that the Appellant complied with that direction. The material before us is not illuminating in relation to the period between 17 July 2020 (the date of the Decision) and 3 December 2020. While it can be concluded that on 3 December 2020, Mrs John was unfit to mind her children for extended hours on her own due to her underlying medical condition, there had already been a delay of 115 days by that time. Dr Kandangath did not detail the point at which Mrs John’s certified incapacity commenced and nor did the Appellant. Nor has it been submitted that there was no time at all prior to 5 February 2021 during which the Appellant could have dedicated his efforts towards the preparation and lodgement of the Form F7. Further, there was no material submitted in support of the Appellant’s claimed mental trauma and its impact on his capacity to prepare and lodge the Form F7.

[12] Having regard to the material before us, we are not satisfied that the Appellant has provided a satisfactory reason for the 182-day delay in lodging the appeal. This is a factor that weighs against granting an extension of time.

Application for extension of time - Length of the delay

[13] The length of the delay in this case is substantial. This factor weighs against granting an extension of time within which to allow the Appellant to lodge the appeal.

Application for extension of time - Prospects of the appeal

[14] The appeal grounds outlined by the Appellant in the Form F7 may be summarised as follows:

a) The Commissioner erred in finding that the Appellant failed to report the incident and that he had multiple opportunities to remedy this failure;

b) The Commissioner had regard to irrelevant considerations, being the assertion that the Appellant did not report the incident properly and that he did not correct the report when he had the opportunity to do so;

c) The Commissioner did not consider the Appellant’s arguments and instead made a “one sided decision”;

d) The Commissioner erred in relying only on the CCTV footage shown at the hearing because it was edited and fabricated when he should have instead had regard to the entire CCTV footage of the incident;

e) The Commissioner failed to have regard to the inadequate staffing and the Appellant’s bank statement/salary certificate.

[15] In his written submissions filed on 7 April 2021, the Appellant restated what he had outlined in the Form F7. His oral submissions at the hearing were high level and brief.

[16] The Appellant addressed why it is in the public interest for the Commission to grant him permission to appeal in the Form F7 and his written submissions filed on 7 April 2021, as follows:

a) The detainee under his control was an illegal immigrant being treated for “mental disorder” who was attempting to escape and had he done so, may have been a threat to the community;

b) Despite Serco Immigration Detention Centre’s failure to roster adequate staff so as to provide a safe working environment, he had still managed to tackle the detainee and lock him away, thereby saving the community from a disastrous “what may have been”;

c) Having prevented the escape, the public has a responsibility to support him particularly given he no longer has a job and is dependent on Centrelink payments in order to support his family;

d) If he is reinstated, he will no longer require social security payments; and

e) The community’s confidence is undermined because he has been punished with termination of his employment despite having prevented the detainee’s escape.

[17] In considering the merits of the appeal, it is relevant to observe that an appeal under s.604 of the Fair Work Act 2009 (the 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. 6 There is no right to appeal and an appeal may only be made with the permission of the Commission.

[18] 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.

[19] 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.⁷ A Full Bench of the Commission, in GlaxoSmithKline Australia Pty Ltd v Makin, 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

[20] 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, the fact that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.¹⁰

[21] An application for permission to appeal is not a de facto or preliminary hearing of the appeal. In determining whether permission to appeal should be granted, it is unnecessary and inappropriate for the Full Bench to conduct a detailed examination of the grounds of appeal. 11 However it is necessary to engage with those grounds to consider whether they raise an arguable case of appealable error.

[22] Appeal grounds (a) and (b) outlined at [14] above essentially allege erroneous factual findings. We are not however persuaded there is a basis for the Appellant to establish that the Commissioner’s findings that the Appellant was aware of his reporting requirements, chose what to include in his reports and had opportunities to give his account having regard to the CCTV and allegations made by Serco Immigration Detention Centre, were not open to him.

[23] Appeal grounds (c) and (d) outlined at [14] above contend that the Commissioner did not take into account the Appellant’s submissions or material considerations, such as the entire CCTV footage. From our reading of the Decision, it appears CCTV footage relevant to the factual issues the Commissioner was required to resolve was viewed and considered and that the Commissioner engaged with the officer’s report, incident log and Appellant’s submissions.

[24] As to appeal ground (e), it does not appear to us that the factors raised were material considerations.

[25] Finally, we are not persuaded the Appellant has identified any public interest considerations that would support the granting of permission to appeal.

[26] Our reservations regarding the likelihood of any of the appeal grounds being upheld and the absence of public interest in granting permission to appeal weighs against the granting of an extension of time.

Application for extension of time - Prejudice to the Respondent

[27] Neither party addressed this factor and in the circumstances of this matter, we consider it a neutral consideration.

Conclusion

[28] After considering all of the circumstances, we are not persuaded that it is in the interests of justice to extend time for the Appellant to lodge the appeal. Accordingly, we dismiss the Appellant’s application to extend time to lodge the appeal.

VICE PRESIDENT

Appearances:

Mr T Thomas on his own behalf.

Mr C Graham for Serco Immigration Detention Centre.

Hearing details:

2021.

Sydney (via Telephone):

8 April.

Printed by authority of the Commonwealth Government Printer

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 1   [2020] FWC 3738.

 2   Rule 56(2) of the Fair Work Commission Rules 2013.

 3   Tokoda v Westpac Banking Corporation T/A Westpac [2012] FWAFB 3995 at [3] and Snyder v Helena College Council, Inc. t/as Helena College [2019] FWCFB 815 at [10].

 4   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 and Logan City Electrical Service Division Pty Ltd T/A Logan City Electrical v Antonarkis [2018] FWCFB 3815.

 5   The Commission’s Appeal proceedings practice note at paragraphs [8], [21] and [22].

 6   This is so because on appeal FWC has the power to receive further evidence, pursuant to s.607(2); see Coal and Allied v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ

7 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, 85 ALJR 398 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]

 8   [2010] FWAFB 5343, 197 IR 266 at [24]-[27]

9 Wan v AIRC [2001] FCA 1803, 116 FCR 481 at [30]

10 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]

 11   Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]