| [2022] FWCFB 179 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Brendan Paul Johnstone
v
Scotch College
(C2022/5315)
VICE PRESIDENT CATANZARITI |
SYDNEY, 20 SEPTEMBER 2022 |
Appeal against decision [2022] FWC 1771 of Commissioner Cirkovic at Melbourne on 7 July 2022 in matter number U2022/5947 – permission to appeal refused.
Introduction
[1] Mr Brendan Paul Johnstone (the Appellant) has lodged an appeal under s.604 of the Fair Work Act 2009 (the Act) for which permission to appeal is required against the ex tempore decision of Commissioner Cirkovic delivered on 7 July 2022 and reasons for her decision published on the same day (the Decision). 1 The Decision concerned an application, brought by the Appellant, for an unfair dismissal remedy against Scotch College (the Respondent), pursuant to s.394 of the Act. The Commissioner refused to grant Mr Johnstone an extension of time under s.394(3) of the Act to lodge an unfair dismissal remedy application.
[2] Mr Johnstone was dismissed by his former employer, Scotch College, effective from 11 May 2022. Under s.394(2) of the Act, an unfair dismissal application must be filed within 21 days after the dismissal took effect, or within such further period as the Commission allows under s.394(3). The Appellant filed his application on 2 June 2022, 22 days after the date the Commissioner determined the dismissal took effect. This meant the Appellant’s application was filed one day out of time. Accordingly, it was necessary for the Appellant to obtain an extension of time to file his application pursuant to s.394(3), which provides:
“(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.”
[3] Mr Johnstone’s Form F7 - Notice of appeal set out the following appeal grounds:
“The simple fact the commissioner said in her statement that the actual case I have has merit. Yet is thrown out on a time limit technicality when it was under 24 hours late. I also let her know I had been in contact with fair work commission a week prior asking for advice on what to do in my situation.
As I stated I have also been suffering anxiety and depression since my termination.”
[4] The Appellant also included the following in section 1.2 of the Form F7, which we consider the Appellant intended to form part of his appeal grounds:
“I do not agree with the decision made, based purely on the fact Commissioner Cirkovic stated that she agrees with the applicant that the case does indeed have merit.
However, will not hear the case due to the fact the application was less than 24 hours late. How does this make any sense or is this decision justifiable?
My case has merit yet you think its ok to throw it out due to the fact the application was under 24 hours late when the applicant has recently had 2 young children and the jab mandates have now ended.
I ask the Commissioner to overrule her decision to have the case thrown out on extension of time and do the right thing and have my case heard.”
[5] In his notice of appeal, Mr Johnstone also contended that it would be in the public interest to grant permission to appeal for the following reasons:
“Public interest would be the fact that the herald sun was sitting in on my hearing and wrote an article how I lost a jab mandate battle with the school. When in truth, the first hearing was nothing to do with the jab mandate but to do with the extension of time of an application that was lodged less than 24 hours late.
Also, the commissioner made it very clear with myself and the defendant on the day that this hearing was strictly to do with the extension of time not the actual case I have lodged.
I think the public have the right to know the truth of this and this just tops it off, to lose your job due to a ridiculous mandate that doesn’t even exist any longer. Then to have an untruthful story published about me in a major newspaper corporation.”
[6] After Mr Johnstone’s appeal was filed, directions were made for the parties to file written submissions in relation to the appeal, and the matter was listed for hearing before us on 5 September 2022. The notified mode of hearing was by video, using the Microsoft Teams platform. The Appellant failed to file any written material in accordance with the directions. The Commission wrote to the Appellant on 29 August 2022 and again on 1 September 2022, informing him that his submissions had not been received and advising that he should file submissions with the Commission as soon as practicable. On 2 September 2022, the Appellant responded advising that he wished to make an oral submission at the hearing.
[7] As this matter was listed for permission to appeal only, the Respondent was not required to file any substantive material and it did not do so. The Respondent filed an application to be legally represented at the hearing pursuant to s.596 of the Act. Given the complexity of the matter and the fact that the Respondent was not directed to make any submissions, the Full Bench refused permission for the Respondent to be legally represented at the hearing.
[8] For the reasons that follow, permission to appeal is refused.
[9] In her Decision, the Commissioner began by dealing with the date that the Appellant’s termination of employment took effect. The Commissioner found that the Respondent’s termination letter was unambiguous in notifying the Appellant that his effective date of termination was 11 May 2022 and that the Appellant conceded that point during the hearing. Further, that the Appellant did not dispute receiving the letter on 11 May 2022. Therefore, the Commissioner concluded that the Appellant’s application was filed one day out of time. The Appellant does not challenge that finding.
[10] The Commissioner then turned to consider the factors under s.394(3) of the Act to determine whether exceptional circumstances existed such that an extension of time should be granted to file the application.
[11] Having regard to s.394(3)(a), the Commissioner considered the reasons for the delay in filing the application advanced by the Appellant and found as follows:
“On the material before I find that the reasons for the delay are the Applicant’s unfamiliarity with the 21-day time limit, uncertainty as to the effective date of termination, feelings of depression and concern for his young family and experiencing technical difficulties with his home internet provider on 31 May 2022.” 2
[12] In relation to s.394(3)(b), the Commissioner then considered whether the Appellant first became aware of the dismissal after it had taken effect and determined that she was satisfied that the Appellant’s dismissal took effect on 11 May 2022 and that he became aware of the dismissal on that date. 3
[13] Considering s.394(3)(c), the Commissioner found that the Appellant took some action to dispute the dismissal by way of an email to the Respondent indicating he did not consent to the dismissal.
[14] The Commissioner also determined that there was not any prejudice to the employer as a result of the delay in filing the application (s.394(3)(d)).
[15] As to the merits of the application (s.394(3)(e)), the Commissioner found as follows:
“The Respondent submits that the Applicant was dismissed as a consequence of his decision not to become vaccinated against COVID-19 and as such, was unable to meet the inherent requirements of his role.
The Applicant contends that he provided significant private medical evidence that has not been disclosed to anyone other than myself and my doctors before, as to why I cannot be vaccinated.
The merits of the application turn on contested points of fact, evidence in respect of which would be heard and weighed in a hearing of the merits of this matter, if an extension of time were granted. As noted by the Full Bench at paragraph 36 of its decision in Nulty v Blue Star Group, which is at [2011] FWAFB 975, it is well established that, “it will not be appropriate for the Tribunal to resolve contested issues of fact going to the ultimate merits for the purposes of taking account of the matter” in an application for an extension of time. Although the Full Bench was considering an extension of time in the context of a general protections application, the principle applies equally to unfair dismissal applications.
In the absence of a hearing of the evidence in this matter, it is not possible for the Commission to make any firm or detailed assessment of the merits. The Applicant has an apparent case, to which the Respondent has an apparent defence.
In the circumstances, I find that it is not possible to make an assessment of the merits of the application.” 4
[16] As to fairness as between the Appellant and other persons in a similar position (s.394(3)(f)), the Commissioner made the following finding:
“The Applicant submits that the Commission should take into consideration that he has Chron’s disease and ...had a medical episode on site working at the college for anaphylaxis, which gives you exemption to the vaccination. Also, I know a lot of people, including family members, who have had adverse reactions to the COVID 19 vaccination. One of those reactions being death.
Having regard to the submissions above, in all the circumstances and on the materials provided, I consider the issue of fairness neutral in this matter.” 5
[17] The Commissioner went on to consider whether there are any exceptional circumstances taking into account her findings. In summary, the Commissioner determined as follows:
“The Applicant indicates that one of the reasons for the delay in lodging his application is that he was ignorant as to the lodging requirements as he has never been through this process before. Further, the Applicant appears to have mistakenly concluded that the termination of his employment became effective on 12 May 2022. In Nulty, the Full Bench noted that ignorance of the statutory time limit is not of itself an exceptional circumstance.” 6
[18] Further, the Commissioner determined that it was not apparent that the Appellant could be mistaken as to the effective date of termination. 7 As to the Appellant’s claims related to his mental state as a reason for the delay, the Commissioner noted that “the only medical evidence before me predates the termination of the Applicant’s employment and that there is no medical evidence before the Commission as to the effect of the Applicant’s mental condition on his capacity to file his unfair dismissal application on time.”8
[19] The Commissioner noted that the unfair dismissal application form clearly states that applications must be lodged within 21 calendar days and the variety of ways in which the application can be lodged. 9
[20] The Commissioner considered the Appellant’s claimed internet difficulties on 31 May 2022 and noted that had the application been lodged on that date, it would have been within time. She noted that “[t]he Applicant concedes that he started to complete the unfair dismissal application on 31 May but did not attend a public library or internet café to send the document because he did not appreciate the seriousness of the 21 day time limit.” 10
[21] Finally, the Commissioner considered that the application was lodged one day late but endorsed the comments of Deputy President Gostencnik in Ozsoy v Monstamac Industries Pty Ltd (Ozsoy), where he observed as follows:
“The fact that the application was lodged only one day late does not take the matter further. Whether the delay is one day or one year, there must be an acceptable explanation for the delay. Whilst the length of delay may be relevant to questions of prejudice, it does not provide an explanation nor does it render the circumstances exceptional. The absence of an acceptable explanation for the delay weighs against the Applicant in this case.” 11
[22] The Commissioner then concluded as follows:
“Ultimately, I am not satisfied that the Applicant offers a reasonable explanation for failing to complete and lodge his application within the required period. I have made findings above as to the Applicant’s submissions as to unfamiliarity with the legal process and the other factors relied on by the Applicant. I do not believe the circumstances in this case individually or taken together support a finding of a reasonable explanation for the delay.
Statutory time limits that are applicable to the exercise of a person’s right to bring an unfair dismissal remedy application are an expression of the Parliament’s intention that rights should be exercised promptly so as to bring about certainty. Time limits seek to balance the right to bring an action against the desirability for prompt action and certainty. The reason for time limits is that parties should be able to know that if there is a question about an action that has been taken by one party, in this case, in relation to a dismissal, that the right to question that action will be exercised promptly, otherwise except in exceptional circumstances, the right to bring the action will be lost.
Having regard to all of the matters that I am required to take into account under s.394(3), I am not satisfied that the requisite exceptional circumstances exist. There is no credible, acceptable or reasonable explanation for the delay in filing the application. Apart from some action taken by the Applicant to dispute the dismissal, the other factors are neutral in this matter. In my view, the circumstances of this case are not exceptional, either individually or when considered together.
Conclusion
Not being satisfied that there are exceptional circumstances, there is no basis for the Commission to allow an extension of time. The Applicant’s application for an unfair dismissal remedy is therefore dismissed.”
[23] At the hearing, the Appellant made brief oral submissions largely directed at his concerns about the COVID-19 vaccine rollout which included his view that it was a medical experiment, that he had offered alternatives to vaccination to his employer which were not accepted and that there was a plausible reason for the lateness of his application having regard to the fact of the pandemic and associated emergency and having two young children. The Appellant also provided further details as to his concerns about the article in the Herald Sun and advised that he now has a medical exemption from the COVID-19 vaccine.
[24] An appeal under s.604 of 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.12 There is no right to appeal and an appeal may only be made with the permission of the Commission.
[25] This appeal is one to which s.400 of the 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.”
[26] In the Federal Court Full Court decision in Coal & Allied Mining Services Pty Ltd v Lawler and others, 13 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.14 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.” 15
[27] 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.16 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.17
[28] The test of “exceptional circumstances”, in relation to extensions of time to lodge applications under s.394(3), establishes a “high hurdle” for an application for an extension, and a decision as to whether to extend time under s.394(3) involves the exercise of a broad discretion. 18 Therefore it will 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 and 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 King19 - 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.
[29] The required approach to s.394(3) was summarised by the Full Bench in Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters. 20 Relevantly, the assessment of exceptional circumstances means that the Commission must take into account the matters set out at s.394(3)(a)-(f) and this requires that each of these matters, insofar as they are relevant, must be treated as a matter of significance in the decision-making process. An overall assessment of all of the relevant circumstances and the matter is required.
[30] In this case, we are not persuaded that it would be in the public interest to grant permission to appeal. We do not consider that any reasonably arguable case has been advanced that the Decision of the Commissioner was attended by appealable error.
[31] Dealing first with the Appellant’s proposition that the Commissioner agreed his case had merit yet threw the case out on a technicality because it was filed under 24 hours late. We note that the statutory requirement as to the time in which an unfair dismissal application may be filed is not a mere technicality. Such time limits are a fundamental part of the statutory framework and must be properly considered by decision makers. In these circumstances, the Appellant’s application was clearly filed one day late. The Act does not require the Commission to consider the number of hours involved in a late application. Furthermore, the Commissioner endorsed the comments of DP Gostencnik in Ozsoy where he found that whether the delay is one day or one year, there must be an acceptable explanation for the delay.
[32] As to the Commissioner’s findings on the merits of the application, she simply determined that the Appellant had an apparent case, to which the Respondent had an apparent defence, and that in those circumstances it was not possible to make an assessment of the merits of the Appellant’s case. It is apparent that she considered this factor to be a neutral consideration. 21 There is no discernible error in the manner in which the Commissioner dealt with the consideration of the merits of the matter. Accordingly, we reject this ground of appeal.
[33] The Appellant further submitted that he informed the Commissioner that he had contacted the Commission a week prior to ask for advice “on to what to do in his situation”. It is not apparent from the Appellant’s materials or transcript that this issue was in fact raised before the Commissioner at first instance. In any event, if there was a failure of the Commissioner to refer to the fact that the Appellant had contacted the Commission prior to his dismissal asking for advice, this would not in our view rise to the level of error, let alone a significant error of fact to provide grounds for permission to appeal.
[34] Additionally, the Appellant referred to his anxiety and depression since his termination as a factor that may give rise to permission to appeal. The Commissioner clearly considered these submissions and the evidence and determined that the only medical evidence on the Appellant’s mental health predated the dismissal and there was no evidence as to the effect of the Appellant’s medical condition on his capacity to file his application on time. The Appellant also raised that having a young family impacted his ability to file his application on time and again we note that the Commissioner took this submission into account in the Decision. 22 We find there is no arguable error in the Commissioners approach to dealing with the evidence on this point and therefore we reject these grounds of appeal.
[35] Finally, the Appellant’s oral submissions at the appeal hearing are little more than a restatement of his concerns about the COVID-19 vaccine rollout and are of no assistance to him as they do not point to any arguable case of appealable error in the Decision.
[36] As earlier stated, s.400(1) of the Act dictates that we must not grant permission to appeal unless we consider that it is in the public interest to do so. The Appellant’s contention that the grant of permission to appeal would be in the public interest because the Herald Sun attended the hearing and published an article about the matter with which he disagrees is not a matter which would enliven the public interest. Further, the Appellant’s concern about the quality or accuracy of the reporting of that newspaper does not raise an issue of public interest such that we consider it appropriate to grant permission to appeal.
[37] Overall, we are not persuaded that any of the matters raised by the Appellant justify the grant of permission to appeal enliven the public interest. We are not satisfied that the appeal raises any issue of importance or general application, nor does it identify any relevant diversity of decisions at first instance. We do not consider that it is arguable that the decision manifests an injustice, or that the result is counterintuitive or unjust.
[38] As we do not consider that it would be in the public interest to grant permission to appeal, s.400(1) requires that permission to appeal not be granted. Accordingly, permission to appeal is refused.
VICE PRESIDENT
Appearances:
Mr Johnstone, on his own behalf.
Ms Diaz, for the Respondent.
Hearing details:
2022.
Sydney (via Microsoft Teams Video).
5 September.
Printed by authority of the Commonwealth Government Printer
<PR746057>
1 Mr Brendan Paul Johnstone v Scotch College [2022] FWC 1771 (Decision).
2 Decision at [18].
3 Ibid at [19].
4 Ibid at [25]-[29].
5 Ibid at [30]-[31].
6 Ibid at [33].
7 Ibid at [34].
8 Ibid at [35].
9 Ibid at [36].
10 Ibid at [37].
11 [2014] FWC 479 at [21].
12 This is so because on appeal the Commission has power to receive further evidence, pursuant to s 607(2); see 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.
13 [2011] FCAFC 54, 192 FCR 78, 207 IR 177 at [43].
14 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].
15 [2010] FWAFB 5343, 197 IR 266 at [27].
16 Wan v AIRC [2001] FCA 1803, 116 FCR 481 at [30].
17 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].
18 Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288 at [21].
19 [1936] HCA 40, 55 CLR 499 at 505.
20 [2018] FWCFB 901, 273 IR 156 at [10]-[19].
21 Decision at [41].
22 Decision at [35].