| [2017] FWCFB 763 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
VICE PRESIDENT HATCHER |
|
Appeal against decision [2016] FWC 9205 of Commissioner Ryan at Melbourne on 30 December 2016 in matter number C2016/7105.
Introduction and background
[1] Atanaskovic Hartnell Corporate Services Pty Limited t/a Atanaskovic Hartnell (appellant) has lodged an appeal, for which permission to appeal is required against a decision of Commissioner Ryan issued on 30 December 2016 1 (Decision). In the Decision, the Commissioner granted an extension of time to the respondent, Ms Elizabeth Marie Kelly to file a general protections dismissal application under s.365 of the Fair Work Act 2009 (FW Act). The appellant contends that the Decision was attended by appealable error, and that it would be in the public interest for permission to appeal to be granted.
[2] The extension was granted pursuant to s.366 of the FW Act, which provides:
(1) An application under section 365 must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (2).
(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
[3] Section 367 provides for the payment of a filing fee for a s.365 application as follows:
367 Application fees
(1) The application must be accompanied by any fee prescribed by the regulations.
(2) The regulations may prescribe:
(a) a fee for making an application to the FWC under section 365; and
(b) a method for indexing the fee; and
(c) the circumstances in which all or part of the fee may be waived or refunded.
[4] An application fee is prescribed for s.367(2) under reg.3.02 of the Fair Work Regulations 2009.
[5] The facts of the matter were, for the purposes of the appeal, largely not in dispute. Ms Kelly was employed by the appellant from April 2004 until 4 November 2016. After completing her last day of work, Ms Kelly resided at a remote rural property in New South Wales. There was no access to the internet at this property, but it did have a telephone with faxing capabilities. Ms Kelly initially tried to resolve a dispute with the appellant concerning the payment of allegedly outstanding entitlements, which caused a delay, but she eventually determined to lodge with the Commission a general protections dismissal application. Ms Kelly contacted the Commission about how to go about this, and was advised that she could submit her application by email using the prescribed Form F8 on the Commission’s website. Ms Kelly was aware of the 21-day time limit for filing the application in s.366(1). She ultimately sought the assistance of her sister Ms Bedford, who had internet access, to file her application.
[6] On 25 November 2016 (the 21st day from the date of the alleged dismissal on 4 November 2016) Ms Bedford downloaded the Form F8 on the “Forms” section of the Commission’s website. This contained the form approved by the President of the Commission pursuant to rule 8(1) of the Fair Work Commission Rules 2013. The Form F8 contained a cover sheet which provided information about s.365 applications and how to lodge them. The cover sheet included the following information:
“Lodging your completed form
1. Lodge your application along with any supporting documents with the Commission. Your application (Form F8) must be lodged within 21 calendar days after the dismissal took effect. You can lodge your application online using the Commission’s Online Lodgment Service (OLS) or by post, by fax or by email or in person at the Commission’s office in your State or Territory.
2. Pay your application fee at the same time as you lodge your application. The current application fee is available on the Lodge an application page on the Commission’s website.
If payment of the fee will cause you serious hardship, you can apply to have the fee waived. You must apply to have the fee waived at the same time as you lodge your application. You can download a copy of the Fee Waiver form from the Commission’s website.”
[7] At the foot of page 6 of the approved Form F8 is the space for signing and dating the application. The following page 7 (the last page) is headed “Application fee”. It relevantly states:
“...
The current application fee is available on the Lodge an application page on the Commission’s website www.fwc.gov.au.
The Fair Work Act 2009 requires a fee to be paid on lodgment of this application with the Fair Work Commission. Where applicable, any refund of the application fee will be forwarded by cheque to the Applicant at the address provided on this application form.
Financial hardship
If paying the fee will cause you financial hardship, you can apply to have the fee waived. If you are applying to have the fee waived you must complete and lodge the Fee Waiver form at the same time as you lodge your application. Note that the Commission will not forward a copy of this form to the Respondent. The Fee Waiver form can be downloaded from the Fair Work Commission website www.fwc.gov.au.
Payment options
[ ] I have completed the Fee Waiver form and have attached it to my application.
[ ] I am paying by cash—Cash payments can only be made in person at one of the Fair Work Commission offices. Payment should be made at the same time as the application is lodged.
[ ] I have attached a cheque or money order to this application—Cheques and money orders should be made payable to the Collector of Public Monies, FWC. Please note that the cheque or money order must be for the exact amount of the application fee, if it is not it may cause the processing of your application to be delayed.
[ ] I am paying by credit card—Please see below:
If paying by credit card, please provide your contact details below and a Fair Work Commission officer will contact you by telephone within 3 business days from the date of lodgement.
...”
Below this were spaces to fill in the applicant’s contact details.
[8] Having downloaded the application form, Ms Bedford faxed it to Ms Kelly, who completed it by hand and returned it to Ms Bedford for lodgment. Ms Bedford then retyped the information into the form so that it was ready to be lodged. The intention was to pay the filing fee by credit card, and Ms Bedford and Ms Kelly believed that, based upon what was stated in the final page of the Form F8 which they had completed, that having filled in Ms Kelly’s contact details, once the form was lodged the Commission would contact her to obtain her credit card details within three business days.
[9] At about this point Ms Bedford realised that there was an online lodgment facility on the Commission’s website. After receiving approval from Ms Kelly, Ms Bedford proceeded to utilise this facility. The facility contained nine pages which had to be completed before lodgment was effected. Page 1 contained the statement that “If your application requires you to pay a fee, you will need to do this at the time of lodgement. You will be asked to provide payment by credit card”. Page 2 contained the statements: “the time of lodgement for the online application is the time the Fair Work Commission receives the application and is taken to be the local time in the place where you are located” and “an application is not considered to be lodged unless any required fee has been paid or an application for waiver of that fee has been received ...”.
[10] Page 4 contained a button to click on to download the application form. The Form F8 that is produced when this facility is used is different to the Form F8 to which reference has earlier been made. It does not contain the last page headed “Application fee” quoted from above. Ms Bedford did not download the form, but used the form she already had. At page 5, she uploaded the completed form. At page 7, after a “Captcha code” was filled in, a “Lodge Application” button was to be clicked. It appears that Ms Bedford clicked on this, which brought her to page 8. Under the heading “Payment” there was a requirement to choose between 2 options - “I will pay the $69.60 for lodging this application” and “Discard lodgement”. Underneath this was two buttons which could be clicked. The first, less prominent one, was entitled “Print Summary”. Clicking this would produce a document (Lodgment document) containing the seal of the Commission and which then set out “Lodgment details” including a lodgment date, time, State and reference number. Below that were “Matter classification” details. The other, more prominent button, if clicked, took the user to the final page, 9. This required the credit card details to be filled in, with a button entitled “Continue” to be pressed. Once this was pressed, the uploaded application was actually sent to the Commission’s registry.
[11] It may be deduced from her evidence given before the Commissioner that Ms Bedford, once she had pressed the “Lodge Application” button on page 8, believed that the application had been lodged and that, because it was intended to pay the filing fee by credit card, the Commission would contact Ms Kelly within three days for her credit card details. It appears therefore that Ms Bedford never clicked through to page 9, and because that page was never completed, the uploaded application was never actually sent to the Commission’s registry. Ms Bedford also gave evidence that she “received” a Lodgment document which identified the date of lodgment (25 November 2016) and a lodgment number (11728). The system did not “send” any such document to her, but we presume that she obtained it by clicking on the “Print Summary” button on page 8.
[12] Having taken these steps, Ms Bedford told Ms Kelly that her application was lodged, and sent her the Lodgment document. Ms Kelly then waited for a telephone call from the Commission to obtain her credit card details. Having received no contact from the Commission during the next three working days after 25 November 2016 (28, 29 and 30 November 2016), Ms Kelly rang the Commission on 1 December 2016 to provide her credit card details. She was told that the Commission had no record of her application. She then had Ms Bedford lodge her application online again, with her credit card details on this occasion, at 10.41am that day. At 12.06pm Ms Bedford sent the Commission an email explaining what had happened in relation to the first attempt at lodgment. The Commission sent Ms Bedford an email acknowledging a valid lodgment of the application on 2 December 2016.
[13] In the circumstances described, it was necessary for Ms Kelly to obtain an extension of time under s.366(2). The appellant opposed the grant of such an extension.
The Decision
[14] In the Decision, after making findings about the circumstances which led to the late lodgment of Ms Kelly’s application, the Commissioner stated the following:
“[14] The Commission accepts that Ms Bradford genuinely believed that in making an online application on 25 November 2016 that the FWC would contact the Applicant within 3 days to obtain payment by way of credit card. The online lodgement process requires that the Form F8 be downloaded and filled in and then uploaded to the FWC website. The Form F8 contains a statement that if paying by credit card then the FWC will contact the applicant for the credit card details. However, the online lodgement process requires that payment be made at the time of uploading the Form F8 to the website. The information on the Form F8 is not the same as the information on the online lodgement service, yet the Form F8 is used to complete an online lodgement.
[15] In the present matter the evidence of both Ms Bradford and Ms Kelly was given openly and honestly and the evidence of each was not shaken by cross examination. The Commission accepts the evidence of both Ms Bradford and Ms Kelly. Both gave evidence to the best of their recollection of events and the minor inconsistencies between the two are understandable. The evidence of Ms Bradford and Ms Kelly provides a wholly satisfactory reason for the delay in filing an application on 1 December 2016 if the 21 day time limit ended on 25 November 2016.”
[15] After rejecting a submission about the date of the dismissal advanced by the appellant, the Commissioner said:
“[18] The criteria in s.366(2)(b) was addressed by both parties in their written material. The Respondent contends that the Applicant took no action to dispute the dismissal. The Applicant contends that during the notice period that complaints were made by the Applicant to Mr Hartnell. In the circumstances of the present matter this criteria does not weigh in favour of a finding as to the existence of exceptional circumstances.
[19] The criteria in s.366(2)(c) was addressed by both parties in their written material. The Respondent contends that it has suffered significant prejudice because it did not have the opportunity to address the dismissal any time between 5 August 2016 and November 2016 The Respondent’s contentions in relation to this criteria are misconceived as they are based upon the erroneous assertion that the dismissal took effect on 5 August 2016. In any event the Respondent has not led any evidence to support any assertion that it has suffered prejudice in relation to an application which is 6 days out of time. In the present matter this criteria does not weigh against a finding that there are exceptional circumstances nor does it assist the Applicant in establishing that exceptional circumstances exist.
[20] The merits of the application have not been the subject of any detailed submissions or evidence before the Commission. The most that can be said in relation to the merits of the application in the present matter is that this criteria [sic] has neutral value in considering whether exceptional circumstances exist.
[21] Both parties agree that the criteria in s.366(2)(e) is not relevant to the present matter. The Commission agrees.
[22] In taking into account each of the relevant criteria in s.366(2) the Commission is positively satisfied that exceptional circumstances exist which warrant the Commission exercising its discretion to grant an extension of time to the Applicant to file her general protections application before close of business on 1 December 2016. As the application is within the further period as allowed by the Commission under s.366(2) the application will be referred for further action under s.368 of the Act.”
Appeal grounds and submissions
[16] The appellant’s notice of appeal set out seven grounds of appeal, which in summary contended that the Commissioner erred in the following respects:
[17] The appellant submitted that the grant of permission to appeal was in the public interest because it raised the following questions of general importance:
● whether in effect every online applicant is entitled to have an extension of time of three business days or longer to pay the application fee, irrespective of whether or not the applicant is suffering financial hardship or applying for a waiver;
● whether the statement on the last page of the Form F8 could override or vary the clear and express statements elsewhere on the form and the online lodgment facility that payment was required at the time of lodgment and that the lodgment would not be effective if payment was not made;
● whether the information on the Form F8 is somehow materially different to the information on the online lodgment facility such as to place an applicant or an applicant’s representative at the risk of forming the genuine but mistaken belief that it was not necessary for an application fee to be paid at the time of lodgment; and
● whether any such genuine but mistaken belief should excuse the applicant from a failure to comply with the time limit in s.366(1).
Consideration
[18] An appeal under s.604 of the FW Act is an appeal by way of rehearing and the Fair Work Commission’s (Commission) powers on appeal are only exercisable if there is error on the part of the primary decision maker. 2 There is no right to appeal and an appeal may only be made with the permission of the Commission. Section 604 provides:
(1) A person who is aggrieved by a decision:
(a) made by the FWC (other than a decision of a Full Bench or an Expert Panel); or
(b) made by the General Manager (including a delegate of the General Manager) under the Registered Organisations Act;
may appeal the decision, with the permission of the FWC.
(2) Without limiting when the FWC may grant permission, the FWC must grant permission if the FWC is satisfied that it is in the public interest to do so.
Note: Subsection (2) does not apply in relation to an application for an unfair dismissal (see section 400). (2) A person may appeal the decision by applying to the FWC.
[19] Subsection 604(2) 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. 3 The public interest is not satisfied simply by the identification of error4, or a preference for a different result.5 In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of Fair Work Australia 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...” 6
[20] Other than the special case in s.604(2), the grounds for granting permission to appeal are not specified. Considerations which have traditionally been adopted in granting leave and which would therefore usually be treated as justifying the grant of permission to appeal include that the decision is attended with sufficient doubt to warrant its reconsideration and that substantial injustice may result if leave is refused. 7 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.8 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.9
[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. 10
[22] The test of “exceptional circumstances” establishes a “high hurdle” for an applicant for an extension. 11 A decision as to whether to extend time under s.366(2) involves the exercise of a discretion.12
[23] We have decided to grant permission to appeal because the appeal raises an issue of general application, namely whether the Commission’s forms and online lodgement facilities are capable of misleading a potential applicant into believing that an application may successfully be lodged online without immediate payment. We will return to this issue shortly.
[24] However we are not satisfied that the appellant has demonstrated any appealable error in the Decision or that the appeal otherwise has any merit. The Commissioner took into account all of the matters he was required to take into account under s.366(2). No error of fact of any significance has been demonstrated by the appellant. The only error of primary fact contended for by the appellant is that the last page of the Form F8 does not contain the statement “contains a statement that if paying by credit card then the FWC will contact the applicant for the credit card details exercising a discretion to grant an extension of time” (as stated in paragraph [14] of the Decision), but we consider that this is a reasonable representation of the intended effect of what is actually stated on the last page of the Form F8, namely that “If paying by credit card, please provide your contact details below and a Fair Work Commission officer will contact you by telephone within 3 business days from the date of lodgement.” There was further no challenge to the Commissioner’s conclusion that Ms Kelly and Ms Bedford genuinely believed that Ms Kelly’s s.365 application had been lodged on 25 November 2016.
[25] The Decision otherwise involved the exercise of a discretion. We consider that it was reasonably open to the Commissioner to conclude that exceptional circumstances existed, and that an extension should be granted, having regard to the following matters:
● Ms Kelly did not have access to the internet at her residence when she sought to lodge her application, and it was necessary for her to seek the assistance of her sister, Ms Bedford.
● Although Ms Bedford eventually tried to lodge the application online, she used the version of Form F8 that is available on the website for other methods of lodgment, and formed the genuine belief from the last page of the form that if paying by credit card the Commission would make contact within three days to obtain the credit card details.
● Ms Bedford further genuinely believed, when she clicked the “Lodge Application” button and generated the Lodgment document, that she had lodged the application.
● Ms Kelly, who did not herself have access to the Commission’s website, relied upon her sister’s assurance that the application had been lodged.
● Ms Kelly subsequently acted consistently with her belief that the Commission would contact her for her credit card details.
● When it became apparent to her that her belief was mistaken, Ms Kelly acted immediately to re-file her application and explain what had happened to the Commission.
[26] We do not accept the appellant’s submission that these circumstances could not be characterised as exceptional because they face any person who attempts to lodge online. They fail to take into account Ms Kelly’s reliance on Ms Bedford to lodge the application, and the circumstances which led Ms Bedford to use a version of the Form F8 which is different to that generated by the online lodgment facility and which caused Ms Bedford (and Ms Kelly) to be misled about the correct method of paying by credit card. We also reject the submission that Ms Kelly and Ms Bedford acted in ignorance of the requirement in s.367 and that this could not constitute an exceptional circumstance; rather, the evidence demonstrated that they were at the time of lodgment aware of the need to pay the lodgment fee and were ready, willing and able to pay it by credit card, and genuinely believed that they were following the Commission’s procedures for doing so.
[27] The appellant’s appeal grounds concerning the merits of Ms Kelly’s general protections dismissal application do not disclose any error. Any assessment of the merits of an application when considering an extension of time under s.366(2) is necessarily of an extremely preliminary nature and ultimately can go no further that an assessment of whether the s.365 application as filed discloses a potential cause of action. Ms Kelly’s application disclosed that she resigned from her employment with the appellant, but contends that she was forced to resign because of the bullying, harassing and abusive conduct of the managing partner of the Atanaskovic Hartnell business (for which the appellant was the service company) in contravention of ss.341 and 351 of the FW Act. It would not be possible to make other than a neutral assessment of the merits of Ms Kelly’s application without hearing the evidence concerning the circumstances which led to Ms Kelly’s resignation. That Ms Kelly’s resignation letter (which was attached to the appellant’s response to the application) did not give any indication of her resignation having been forced could not be treated as decisive of anything in the absence of any other evidence. The Commissioner’s references to the dismissal in the Decision are fairly to be read as meaning the dismissal alleged by Ms Kelly to have occurred in her application, and not as a finding that a dismissal had actually occurred. It is not the role of the Commission to make a finding of that nature in the conduct of its limited functions with respect to applications made under s.365. 13
[28] For these reasons, the appeal will be dismissed.
[29] However the circumstances of this matter does give rise to the following concerns about the Commission’s procedures for lodgment of general protections dismissal applications:
(1) The statement on the last page of the approved Form F8, “If paying by credit card, please provide your contact details below and a Fair Work Commission officer will contact you by telephone within 3 business days from the date of lodgement”, may not be consistent with the requirement in s.367(1) that the application be “accompanied” by payment of the prescribed application fee, and may create doubt as to the validity of lodgement where the application is lodged (physically or by email or fax) in reliance upon this statement within three days of the expiry of the 21-day filing period.
(2) The use of the approved Form F8 in conjunction with the online lodgment facility (as distinct from the version of the Form F8 which the online lodgment facility generates), together with the “Lodge Application” button and the Lodgment document which may then be generated may, as in Ms Kelly’s case, generate the belief that the application has been lodged without filling in the credit card details.
(3) The version of the Form F8 generated by the online lodgment facility does not appear on the Commission’s website as an approved form.
[30] These matters will require review.
[31] We make the following orders:
(1) Permission to appeal is granted.
(2) The appeal is dismissed.
VICE PRESIDENT
Appearances:
M. Sophocles for Atanaskovic Hartnell Corporate Services Pty Limited t/a Atanaskovic Hartnell.
M. Harmer solicitor for Elizabeth Maree Kelly.
Hearing details:
2017.
Sydney:
9 February.
2 This is so because on appeal the Commission has 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
3 O’Sullivan v Farrer (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ: applied in Hogan v Hinch (2011) 85 ALJR 398 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Alllied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [44]-[46]
4 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, 197 IR 266 at [24]-[27]
5 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, 197 IR 266 at [26]-[27], 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; Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 178; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663, 241 IR 177 at [28]
6 [2010] FWAFB 5343, 197 IR 266 at [24] – [27]
7 Also see CFMEU v AIRC (1998) 89 FCR 200 at 220; and Wan v AIRC (2001) 116 FCR 481 at [26]
8 Wan v AIRC (2001) 116 FCR 481 at [30]
9 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) 192 FCR 78; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663, 241 IR 177 at [28]
10 Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]
11 Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288 at [21]
12 Halls v McCardle and Ors [2014] FCCA 316
13 Hewitt v Topero Nominees Pty Ltd [2013] FWCFB 6321, 238 IR 42
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