FEDERAL COURT OF AUSTRALIA

Reihana v Mastercare Highrise Cleaning Services Pty Ltd [2014] FCA 353

THE COURT ORDERS THAT:

1.    The amended originating application filed on 14 October 2013 be dismissed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    In his amended originating application filed on 14 October 2013 the applicant, Mr Reihana, seeks the following orders:

1.    That the Federal Court issues a writ of certiorari directed to Fair Work Australia to quash its order or decision of 2 August 2013 in this matter;

2.    That the Federal Court issues a writ of mandamus directed to Fair Work Australia to determine the applicant/appellant Reihana’s application for unfair dismissal remedy under s. 394(3) of the Fair Work Act 2009 according to law;

3.    Fair Work Australia be differently constituted when obeying the writ of mandamus issued under clause 3 of these claims;

4.    That the Federal Court directs the Queensland Industrial Relations Commission to amend and rectify the contents of their website that do not reflect where Fair Work Act provisions have superseded Queensland Industrial Relations Act provisions regarding (unjustified) dismissals;

  5.    Costs of and incidental to this proceeding

  6.    Such other Order this Honourable Court deems just.

2    I note that Mr Reihana was self-represented in this Court, and also before the Full Bench of the Fair Work Commission at the hearing on 30 July 2013.

3    In summary, Mr Reihana is dissatisfied at the decision of the Full Bench of the Fair Work Commission, in respect of the termination of his employment.

4    In my view the proceedings should be dismissed. In explaining my decision it is appropriate to first turn to the background of this proceeding.

Background

5    The background to the present proceeding is summarised in the decision of the Full Bench of the Fair Work Commission in Reihana v Mastercare Highrise Cleaning Services Pty Ltd [2013] FWCFB 4960. In summary, the position is as follows.

6    Mr Reihana is a commercial cleaner, formerly employed as a window cleaner by the first respondent (“Mastercare”). He was dismissed from his employment effective 23 December 2012, and paid in lieu of notice.

7    The matter was subject to an unsuccessful conciliation conference. Mr Reihana sought an unfair dismissal remedy in the Fair Work Commission pursuant to s 394 of the Fair Work Act 2009 (Cth) (“the Act”). Section 394 provides:

Application for unfair dismissal remedy

(1)    A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

Note 1:     Division 4 sets out when the FWC may order a remedy for unfair dismissal.

     Note 2:    For application fees, see section 395.

Note 3:    Part 6-1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.

  (2)    The application must be made:

     (a)    within 21 days after the dismissal took effect; or

(b)    within such further period as the FWC allows under subsection (3).

(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.

8    Mastercare objected to Mr Reihana’s application for an unfair dismissal remedy on the basis that his application was made on 13 February 2013, being some 52 days after the dismissal took effect.

Proceeding before Senior Deputy President Richards

9    The matter originally came before SDP Richards. At the hearing Mr Reihana sought an extension of time pursuant to s 394(2)(b) in which to make his substantive application. He made submissions and produced evidence in relation to the various matters set out in s 394(3) of the Act, materially as follows:

    In relation to s 394(3)(a) and the reason for the delay in making the application, Mr Reihana claimed that he posted by ordinary surface mail an application for an unfair dismissal remedy on 25 January 2013, however he posted the application to the Queensland Industrial Relations Commission (QIRC). On or about 1 February 2013 he was informed in writing by a delegate of the Industrial Registrar that the application should have been despatched to the Fair Work Commission. Mr Reihana had lodged a new application with the Fair Work Commission on 13 February 2013.

    In relation to s 394(3)(c), Mr Reihana had informed Mastercare at the time of dismissal that he would challenge the dismissal.

    In relation to s 394(3)(e), Mr Reihana pressed the view that his application had merit.

10    In relation Mr Reihana’s claims, SDP Richards found, in summary, as follows:

    In relation to the delay, Mr Reihana had produced no real explanation as to why he had not sent his application to the Queensland Industrial Relations Commission before 25 January 2013, which in any event was more than 21 days after the date of his dismissal. Further, Mr Reihana had not provided an explanation as to why, on learning of his error concerning the correct tribunal, Mr Reihana had waited until 13 February 2013 to finally make his application to the Fair Work Commission.

    Mastercare did not demonstrate in any substantive manner that it would be inconvenienced by an extension of time to Mr Reihana to pursue an unfair dismissal remedy.

    In relation to Mr Reihana’s claim that his application had merit, it appears that:

o    Mr Reihana’s employment was terminated because he had embarked on a period of leave, overseas, without informing Mastercare;

o    Mr Reihana had arranged for a substitute person to undertake his duties during his absence, however the substitute did not perform those duties;

o    Mastercare had previously warned Mr Reihana about this practice, and had said that this conduct would give rise to insurance issues.

SDP Richards considered that, at the level he explored, Mr Reihana’s conduct did give rise to some particularly significant issues, however on balance he considered that the merits of the application were of neutral importance.

11    SDP Richards concluded:

[25]    The Applicant was unable to provide any explanation of any substance for the delay in his application for the period prior to making the application with the Queensland Industrial Relations Commission. That application was not received by the Queensland Industrial Relations Commission until 29 January 2013 (whereas the Applicant’s dismissal occurred on 23 December 2012).

[26]    Once having been informed that his application should have been made to the Fair Work Commission, a period of eleven or twelve days lapsed until the application itself is made. Though the Applicant claimed he “acted quick smart” in the circumstances, that period of elapsed time is without substantive explanation.

[27]    There are no exceptional circumstances evident in the Applicant’s evidence in this respect.

[28]    Nor are any of the other circumstances set out in the Applicant’s evidence persuasive that there were exceptional circumstances relating to the delay in his application for an unfair dismissal remedy.

12    As a result SDP Richards dismissed Mr Reihana’s application under s 394 of the Act and did not provide for the application to be made in a further period of time under s 394(2)(b) of the Act.

Proceeding before the Full Bench of the Fair Work Commission

13    Mr Reihana appealed to the Full Bench of the Fair Work Commission against the decision of SDP Richards. The Full Bench (comprised of Senior Deputy President Acton, Deputy President Sams and Commissioner MacDonald) set out in some detail the reasoning of SDP Richards and noted that in support of his appeal Mr Reihana had submitted that:

•    taking into account the notice of dismissal due to him, he was not legally dismissed until 14 January 2013;

•    he thought the FWC would grant him an extension of time for the making of his unfair dismissal remedy application because he was misled by the website for the Queensland Industrial Relations Commission (QIRC) into making an unfair dismissal remedy application to the QIRC on 29 January 2013, before he made his unfair dismissal remedy application to the FWC on 13 February 2013;

•    there is 15 days between 14 January 2013 and 29 January 2013, meaning his unfair dismissal remedy application was filed within the 21 days required by the QIRC; and

•    the period under s.394(2)(a) for making an unfair dismissal remedy application should not have started until he was advised that he had wrongly made an application to the QIRC.

14    At [6] the Full Bench observed:

Mr Reihana sought to introduce new evidence or information on appeal about the notice of dismissal afforded to him by Mastercare, about his lack of preparedness for the proceedings before Senior Deputy President Richards and about matters he thought he should have presented, but did not present, to his Honour. That new evidence or information concerned him being given payment in lieu of notice, him being overseas until a few days before the proceeding, and his involvement in tenancy and associated matters, including litigation, in the period leading up to and post his dismissal.

15    The Full Bench then found as follows:

[8]    Sections 604 of the FW Act states in respect of appeals:

“604    Appeal of decisions

(1)    A person who is aggrieved by a decision:

(a)    made by the FWC (other than a decision of a Full Bench or the Minimum Wage Panel)…

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 s 400).

(3)    A person may appeal the decision by applying to the FWC.”

[9]    Section 607 of the FW Act states:

“607    Process for appealing or reviewing decisions

(1)    An appeal from, or a review of, a decision of the FWC or the General Manager may be heard or conducted without holding a hearing only if:

(a)    it appears to the FWC that the appeal or review can be adequately determined without persons making oral submissions for consideration in the appeal or review; and

(b)    the persons who would otherwise, or who will, make submissions (whether oral or written) for consideration in the appeal or review consent to the appeal or review being heard or conducted without a hearing.

(2)    The FWC may:

(a)    admit further evidence; and

(b)    take into account any other information or evidence.

(3)    The FWC may do any of the following in relation to the appeal or review:

(a)    confirm, quash or vary the decision;

(b)    make a further decision in relation to the matter that is the subject of the appeal or review…”.

[10]    Section 400 of the FW Act, however, states:

“400    Appeal rights

(1)    Despite subsection 604(2), FWA must not grant permission to appeal from a decision made by FWA under this Part unless FWA 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.”

[11]    The “Part” referred to in s.400 of the FW Act is Part 3-2 of the FW Act concerning unfair dismissal.

[12]    With respect to Mr Reihana’s application for us to admit or take into account new evidence or information on appeal, s.607(2) of the FW Act concerning such evidence or information was considered by a majority of a Full Bench of the then Fair Work Australia in J.J. Richards & Sons Pty Ltd v Transport Workers’ Union of Australia. The majority in J.J. Richards recognised that s.607(2) confers a discretion on a Full Bench hearing on appeal to “admit further evidence” and “take into account any other information or evidence” and that the principles governing the admission of fresh evidence on appeal in the courts provide a useful guide to the exercise of the discretion. In that regard, in Akins v National Australia Bank, Clarke JA said:

“The Court is empowered to receive further evidence upon the hearing of an appeal (s.75A(7) of the Supreme Court Act 1970) but pursuant to subs (8) of that section may not receive further evidence after a trial on the merits ‘except on special grounds’. Although it is not possible to formulate a test which should be applied in every case to determine whether or not special grounds exist there are well understood general principles upon which a determination is made. These principles require that, in general, three conditions need be met before fresh evidence can be admitted. These are: (1) It must be shown that the evidence could not have been obtained without reasonable diligence for use at the trial; (2) The evidence must be such that there must be a high degree of probability that there would be a different verdict; (3) The evidence must be credible.”

[13]    The new evidence or information Mr Reihana seeks to have us admit or take into account on appeal is evidence or information that was available to Mr Reihana at the time the matter the subject of this appeal was heard by the Senior Deputy President. Moreover, the new evidence or information is not sufficient to lead to satisfaction that there are exceptional circumstances as required by s.394(3) of the FW Act for allowing him a further period for the making of his unfair dismissal remedy application. In the circumstances, we decline to admit or take into account Mr Reihana’s new evidence or information.

[14]    We are not persuaded the Senior Deputy President made an appealable error in his decision to refuse Mr Reihana an extension of time for the making of his unfair dismissal remedy application.

[15]    Mr Reihana was dismissed shortly before Christmas 2012 and given pay in lieu of any outstanding notice of dismissal required to be given to him. We were not referred to any authority precluding Mastercare giving Mr Reihana payment in lieu of notice. Further, the Senior Deputy President took into account Mr Reihana’s application to the QIRC and the period within which it was made but did not consider that an exceptional circumstance. That finding was reasonably open to his Honour. The absence of a specific reference to the QIRC website in his Honour’s decision is of no consequence. In addition, under s.394(2)(a) of the FW Act an unfair dismissal application must be made within a certain period after the dismissal took effect. The Senior Deputy President considered Mr Reihana’s delay between him receiving the advice about his application to the QIRC and him making his unfair dismissal remedy application to the FWC but found no meaningful explanation was provided for the delay and no exceptional circumstances were evident. Those findings were also reasonably open to his Honour.

Conclusion

[16]    Mr Reihana has not established that the Senior Deputy President’s decision involved a significant error of fact and, in the circumstances, we do not consider it is in the public interest or otherwise that we grant him permission to appeal. Mr Reihana’s appeal does not raise matters that attract the public interest in granting permission to appeal. We refuse Mr Reihana permission to appeal and, to the extent necessary, dismiss his appeal.

(footnotes omitted.)

Submissions of Mr Reihana

16    Mr Reihana has filed submissions in respect of the current application and made lengthy oral submissions at the hearing. Those submissions can be summarised as follows:

    The Full Bench made the same mistakes as SDP Richards, in that they did not compare his case facts and evidence directly against principles relevant to the “exceptional circumstances test” and the “new evidence test”.

    The decision of the Full Bench was incomplete.

    The Full Bench failed to accord Mr Reihana natural justice, by refusing to allow him to talk to his submissions, evidence and complex related material, and by refusing to allow him to elaborate upon submissions and evidence when necessary. In his submissions Mr Reihana pointed to specific instances in the transcript where he was “totally shut down” by members of the Full Bench where he sought to take the members to the new evidence he wanted to submit. This was an improper exercise of power, or a failure to allow reasonable natural justice, or perhaps an unreasonable exercise of power by the Full Bench.

    Mr Reihana did not consider it necessary to adduce evidence before SDP Richards concerning his residential tenancies dispute which was occurring at the same time as his dismissal. However the Full Bench acted improperly in refusing to allow Mr Reihana to produce new evidence concerning those residential issues.

    He had lodged an application with the QIRC following a Google search for “unjustified dismissal in Queensland” and an examination of the QIRC website. The “exceptional circumstance” relates to Mr Reihana being wrongly led to that website as a result of unamended Government website advice.

    SDP Richards erred in not mentioning Mr Reihana’s internet extract exhibits concerning the QIRC, and the fact that Mr Reihana was wrongly directed to the QIRC. This was key material upon which Mr Reihana relied to establish that there were exceptional circumstances warranting an extension of time to make his substantive application.

    Mr Reihana was entitled to the benefits or coverage of s 74 of the Queensland Industrial Relations Act 1974 (Qld) while the dismissal was in the QIRC’s “quadrant”.

    The pressure and duress of dealing with his residential tenancy matter in the Queensland Civil and Administrative Tribunal affected his timely filing in the QIRC with the s 74 application for reinstatement, which was the reason he was late in filing the original application with the QIRC.

    SDP Richards was overly harsh when he made an issue of the fact that Mr Reihana delayed an extra eleven days to make an application to the Fair Work Commission.

    There is authority to support his position in relation to “exceptional circumstances”, namely Tonia Shelley v McRoberts Agency [2009] QIRComm 22.

    The proceeding before the Full Bench was over in less than an hour and was a “rush job”.

    The proposed new evidence concerning his matter in the Queensland Civil and Administrative Tribunal is relevant because it puts into perspective his dismissal as follows:

1.    Above it is pointed out how T27/13 affected the filing of my dismissal with QIRC;

2.    If still not clear, it was the associated duress, case workload, chattel physical relocation requirements, threats of physical removal, all necessary QCAT applications to preserve my status quo which confused and disoriented me for my timely dismissal application to QIRC

3.    After the preliminary hearing of T27/13 on 25th Feb. 2013 I did deconstruct and relocate on the caravan park, and managed to set up camp before flying out to NZ on March 7th when my father was hospitalised;

4.    I did not return until end of May 2013 and had someone watching my camp while gone and I had paid the rent ahead;

5.    But when I returned 3 days before the first instance hearing on 21st May 2013, contrary to the adjudicators instructions at the 25th Feb. 2013 hearing, the lessor had gone to another registry and filed to have the Notice to Leave without Ground upheld, and to have my tenancy terminated;

6.    And she did about April 16th 2013 get an order to terminate my tenancy, and obtain a Police warrant to forcibly remove me, which transpired on 9th May 2013 while I was in the middle of the New Zealand bush and not contactable;

7.    So that when I returned to Aussie I had chattels strewn across the countryside in some four different places and all of my paperwork was in storage;

8.    Needless to say I was less than prepared for the first instance hearing that was also set down without my knowledge, whilst I had “gone bush” in NZ, and I was too shell shocked with what had transpired with my tenancy and relocation of my chattels to make fist of the first instance hearing, but I tried best I could;

9.    And there is no way I could have prepared all that I submit now for this Federal Court appeal, within that 3 days over the weekend and only Monday to do things – no way!

    The aspect of the test set out by the Full Bench in Akins v National Australia Bank (1994) 34 NSWLR 155 to the effect that new evidence should not be admitted unless it could not have been obtained without reasonable diligence for use at the trial is too narrow and should be broadened in the interests of justice.

    He was given one week’s Notice to Terminate by his employer when he was actually entitled to four weeks’ notice.

    His dismissal date was actually 13 January 2013, which means that there was no issue of late filing to the QIRC.

17    Mr Reihana has also filed a number of affidavits in support of his submissions.

Submissions of Mastercare

18    Mastercare has also filed submissions in this proceeding. In summary, it contends:

    The appellate jurisdiction of the Full Bench required the identification of some error of law or fact on the part of the Commissioner before the Full Bench could intervene, whereas the jurisdiction of the Federal Court to review a decision of the Full Bench requires the identification of a jurisdictional error.

    Although a failure to address a submission which is significant and which touches upon the core duty being discharged may in some cases found a conclusion that it has not been taken into account (and therefore expose jurisdictional error), decision makers need not refer to every piece of evidence and every contention of a party.

    The Full Bench correctly summarised Mr Reihana’s submissions at [5] and [6] of their decision.

    The Full Bench noted that in their view the new evidence was not sufficient to lead to the satisfaction that there were exceptional circumstances as required by s 394(3) of the Act for allowing a further period for the making of the applicant’s unfair dismissal remedy application. It was in those circumstances that the Full Bench declined to admit or take into account the new evidence, noting also that this evidence had been available earlier at the time of the hearing before SDP Richards.

    The Full Bench identified the reasoning process followed by SDP Richards to find that there were no exceptional circumstances to justify extending time for the making of Mr Reihana’s application.

    The Full Bench dealt with Mr Reihana’s contention that the date of dismissal was actually 13 January 2013 rather than 23 December 2012 as had been accepted at the first hearing before SDP Richards.

    The transcript of the hearing before the Full Bench does not support Mr Reihana’s claim that he was “shut down” or stifled in his attempts to elaborate and clarify his submissions.

    It is clear that Mr Reihana was given a fair opportunity to make submissions in respect of the matters for which he contended.

    It is not in dispute that a party to a proceeding should be given an adequate opportunity to be heard. In this case it is clear that Mr Reihana was given an opportunity to be heard and to present his case.

    In the absence of jurisdictional error Mr Reihana’s applications should be dismissed.

Consideration

19    Pursuant to the Act, appeals from decisions of the Fair Work Commission can be heard by a Full Bench, in the way of a rehearing (ss 605, 607 and 614). There is no appeal from a decision of the Fair Work Commission (sitting as either a single member or the Full Bench) to this Court, however judicial review of decisions of the Fair Work Commission is available pursuant to s 39B of the Judiciary Act 1903 (Cth). It is in this context that Mr Reihana asks the Court to set aside the decision of the Full Bench of the Fair Work Commission, and has sought orders in the nature of prerogative writs, as well as certain orders against the Queensland Industrial Relations Commission.

20    Mr Reihana is an articulate and well-prepared litigant, and thorough in his submissions. He comprehensively addressed issues before the Court, in particular the complex question of whether the decision of the Full Bench was attended by jurisdictional error, in a reasoned and persuasive manner. However after consideration of the respective cases of each party I have formed the view that the application before me should be dismissed, for the following reasons.

21    First, I am not satisfied that Mr Reihana was denied natural justice or procedural fairness by the Full Bench in considering whether he had established “exceptional circumstances” warranting an extension of time under s 394(3) of the Act to make a substantive application for an unfair dismissal remedy.

22    It is clear from Mr Reihana’s oral and written submissions that he was particularly concerned that his attempts to elaborate his case before the Full Bench had been stifled or “shut down” by the members of the Bench. He referred in particular to specific paragraphs in the transcript of the Full Bench hearing, namely paragraphs PN 65, 94, 97, 126 and 128 which were as follows:

PN 65

SENIOR DEPUTY PRESIDENT ACTON: Well, Mr Reihana, you’ve already filed the material that goes to this new evidence. We have that before us. We’ve actually read it. Whether we’ll admit it or not is another matter but there’s no need for you to go through it because we’ve read it.

…

PN 94

SENIOR DEPUTY PRESIDENT ACTON: We have read the documents, Mr Reihana. Listen to me. We have read them. There is no need to take us to them.

…

PN 97

SENIOR DEPUTY PRESIDENT ACTON: No, you don’t have to talk any more about the new evidence application.

…

PN 126

SENIOR DEPUTY PRESIDENT ACTON: Mr Reihana, you haven’t said anything yet that isn’t in your submissions that you filed.

PN 127

MR REIHANA: Yes, I’m just talking to my submissions.

PN 128

SENIOR DEPUTY PRESIDENT ACTON: Yes, well, we’ve read them, Mr Reihana. Is there anything you wish to add to them?

23    It is clear that Mr Reihana perceived the cited comments of the Commission member as impatient and abrupt. However, whilst unfortunate, impatient or abrupt comments by an adjudicating officer do not of themselves constitute a denial of natural justice in the sense of a refusal to hear a litigant, particularly in circumstances where the litigant has clearly been provided an ample opportunity to be heard. The comments of the Senior Deputy President must be considered in the context where, as is clear from the transcript:

    The members of the Full Bench repeatedly explained that they had read Mr Reihana’s submissions. To his second affidavit sworn 28 October 2013 Mr Reihana attached “the paper trail of documents and ‘evidence’” filed by him prior to the hearing of the Full Bench appeal. This “paper trail” constitutes 75 pages of material, including material relevant to his residential dispute.

    Although Mr Reihana was critical of the Full Bench in that the appeal hearing was only an hour in duration, most of that time involved Mr Reihana making submissions to and responding to questions from the bench. Very little time appeared to be given to (or sought by) the legal representative of Mastercare.

    SDP Acton specifically asked Mr Reihana to describe the error or mistake in the decision of SDP Richards (at transcript PN 62).

    SDP Acton clearly grasped Mr Reihana’s claims concerning the distraction caused to him in his preparation of his substantive application by his involvement in his residential tenancy dispute. I note in particular the following exchange:

PN 82

SENIOR DEPUTY PRESIDENT ACTON: Mr Reihana, your main point is that at the relevant times you were busy in other proceedings?

PN 83

MR REIHANA: Inundated, totally engrossed, totally embroiled.

PN 84

SENIOR DEPUTY PRESIDENT ACTON: Yes, that’s your point, yes?

PN 85

MR REIHANA: Yes, well, that’s what I’m saying. That’s why I’m saying…

PN 86

SENIOR DEPUTY PRESIDENT ACTON: Yes, we understand that. You don’t have to say any more about that. We understand it.

24    Indeed, notwithstanding Mr Reihana’s concerns, he has not pointed to any material he can identify which was not taken into account by the Full Bench. Perhaps more realistically, a review of the transcript reveals a not unnatural tension between a litigant in person who wished to expound at length on his claims and draw the attention of the Bench to his material, and a busy Full Bench seeking to conduct a hearing in an efficient manner without undue prolongation of submissions relating to material previously filed. Indeed, the Fair Work Commission is under an obligation to conduct its proceedings in a manner which is not only fair and just, but is quick, informal and avoids unnecessary technicalities (s 577 of the Act).

25    Second, Mr Reihana submitted that it was clear that SDP Richards had not taken into account his errors concerning lodgement of an application with the QIRC, because the Senior Deputy President had not made specific reference to the internet material concerning the QIRC provided by Mr Reihana at the first hearing. However to the extent that Mr Reihana submits that this was a denial of natural justice by the Senior Deputy President, which was not “cured” by the Full Bench on appeal, the submission is not sustainable. The Fair Work Commission is not required to refer to every piece of evidence and every contention made by Mr Reihana (WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630; [2003] FCAFC 184 at [46]; Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; Linfox Australia Pty Ltd v Fair Work Commission [2013] FCAFC 157 at [47]). In any event, as the Full Bench noted at [15] SDP Richards acknowledged that Mr Reihana had made an error in applying to the QIRC for relief – the primary reason for the Senior Deputy President’s view that Mr Reihana had not demonstrated exceptional circumstances within the meaning of s 394(3) of the Act was that Mr Reihana had not given an adequate explanation for his delays in both filing with the QIRC and subsequently the Fair Work Commission. I note that material facts of this case can in this respect be contrasted with those in Tonia Shelley to which Mr Reihana referred me. Mr Reihana conceded at the hearing before me that he had not given evidence concerning his residential dispute at the first hearing because, inter alia, he did not consider that he needed to. As an issue of fact in the circumstances of this particular case, the finding of the Senior Deputy President that Mr Reihana had not demonstrated exceptional circumstances was open on the material before the Commission.

26    Third, I am not satisfied that Mr Reihana was denied natural justice or procedural fairness by the Full Bench in refusing to permit him to adduce new evidence concerning his residential dispute pursuant to s 607(2)(a) of the Act, which evidence Mr Reihana submitted supported his claim of “exceptional circumstances”. As is clear from the transcript of the appellate hearing, the Full Bench understood not only the nature of the new evidence Mr Reihana sought to adduce (because the members informed Mr Reihana that they had read his additional material), but also its potential relevance to Mr Reihana’s claim of “exceptional circumstances”. Further, in its decision at [13]-[14] the Full Bench considered the question whether the new evidence should be admitted and concluded that it should not. I am satisfied that, in doing so, the Full Bench appreciated the nature and importance to Mr Reihana’s case of this material. I also consider, however, that the reference to Akins by the Full Bench was in accordance with the law and the preponderance of authority on this point.

27    Fourth, the Full Bench properly noted s 400 of the Act, and the requirements that an appeal be permitted only, inter alia, where the public interest so required and the decision at first instance involved a significant error of fact. The transcript clearly reveals that the Full Bench engaged with Mr Reihana in relation to both of these issues, and found against him on both points. I am not persuaded that the decision of the Full Bench in relation to its conclusions on these issues was attended by jurisdictional error. In particular, I am not satisfied that the Full Bench erred in any way in declining to accept Mr Reihana’s submission that there was a public interest in relation to “misleading information on a government web site that leads a person to such and such a pathway and may end up making an application in the wrong jurisdiction”. Indeed it is very difficult to ascertain how the error of Mr Reihana in believing that he needed to make an application to the QIRC rather than the Fair Work Commission, particularly in the apparent absence of confirmation by him as to the correctness of this course, constituted fault in the QIRC or its website, or indeed an issue of public interest. I note in this context that even had I been satisfied that Mr Reihana was entitled to the prerogative writs he sought, it would have been improper for me to make the orders he sought against the QIRC in the absence of the QIRC being joined as a party to these proceedings.

28    Finally, I am not satisfied that Mr Reihana has substantiated his claim that his actual date of dismissal was four weeks from 20 December 2013 in light of the salary in lieu of notice provided by Mastercare. I note that the Full Bench questioned Mr Reihana extensively concerning this point at the appeal hearing, and concluded at [15] of the decision that the Full Bench was not referred to any authority precluding Mastercare giving Mr Reihana payment in lieu of notice. In my view no jurisdictional error is attendant upon this aspect of the Full Bench’s decision.

Conclusion

29    Mr Reihana submits that the decisions of the Fair Work Commission (both at first instance and in the Full Bench) in refusing to permit him an extension of time to make a substantive application for an unfair dismissal remedy were unduly harsh, particularly in light of comparable authorities including Shelley. I note that no prejudice to Mastercare was claimed in respect of the application for an extension of time, and no conclusions drawn as to the merits of Mr Reihana’s case. However as I observed earlier in this judgment, this proceeding does not permit a merits review of the decisions of the Fair Work Commission. Whether or not the circumstances of the delay are exceptional is a question of fact to be determined by the Fair Work Commission in each instance. On the material before the Court and for the reasons I have explained there is no basis for granting Mr Reihana the orders he has sought.

Associate:

Dated:    7 April 2014