FEDERAL COURT OF AUSTRALIA Gao v Citywide Service Solutions Pty Ltd [2013] FCA 394 Citation: Gao v Citywide Service Solutions Pty Ltd [2013] FCA 394 Parties: PENG GAO v CITYWIDE SERVICE SOLUTIONS PTY LTD and FAIR WORK COMMISSION File number: VID 1081 of 2012 Judge: TRACEY J Date of judgment: 3 May 2013 Catchwords: ADMINISTRATIVE LAW – Application for relief pursuant to s 39B of Judiciary Act 1903 (Cth) where challenge to certain orders and decisions of Fair Work Commission – consideration of grounds relied upon by applicant in respect of nominated decisions – whether proper basis established for an allegation of reviewable error Legislation: Fair Work Act 2009 (Cth) – ss 394, 400, 587, 596, 604, 772, 773 Judiciary Act 1903 (Cth) – s 39B Cases cited: Peng Gao v Citywide Service Solutions Pty Ltd [2012] PR529520 – considered Peng Gao v Citywide Service Solutions Pty Ltd [2012] FWAFB 9830 – considered Date of hearing: 26 April 2013 Place: Melbourne Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 50 Counsel for the Applicant: The applicant appeared in person Counsel for the Second Respondent: Submitting appearance IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 1081 of 2012 BETWEEN: PENG GAO Applicant AND: CITYWIDE SERVICE SOLUTIONS PTY LTD First Respondent FAIR WORK COMMISSION Second Respondent JUDGE: TRACEY J DATE OF ORDER: 3 May 2013 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The application be dismissed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011 IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 1081 of 2012 BETWEEN: PENG GAO Applicant AND: CITYWIDE SERVICE SOLUTIONS PTY LTD First Respondent FAIR WORK COMMISSION Second Respondent JUDGE: TRACEY J DATE: 3 May 2013 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 Mr Peng Gao commenced employment with Citywide Service Solutions Pty Ltd ("Citywide") as a meter technician on 12 April 2010. His employment was summarily terminated by Citywide on 27 April 2012 on misconduct grounds. 2 Mr Gao applied to what was then known as Fair Work Australia ("Fair Work") for an unfair dismissal remedy under the Fair Work Act 2009 (Cth) ("the FW Act"). Mr Gao alleged that Citywide had dismissed him for reasons proscribed by the FW Act. His application was lodged on 17 July 2012. 3 Mr Gao's application came before Commissioner Blair on 14 September 2012. Section 394 of the FW Act prescribed that any application of the kind made by Mr Gao had to be made within 14 days after the dismissal took effect or within such further period as Fair Work allowed. Section 394(3) of the FW Act empowered Fair Work to extend time for the making of the application if it was satisfied that there were exceptional circumstances having regard to various prescribed matters. Commissioner Blair heard submissions from Mr Gao on the question of whether an extension of time should be granted. He determined that no exceptional circumstances existed which justified an enlargement of time. He dismissed the application. He gave extempore reasons for doing so. On 5 October 2012 the Commissioner published what was described as an "order" dismissing the application. This document contained edited reasons for the decision made by the Commissioner on 14 September 2012: see Peng Gao v Citywide Service Solutions Pty Ltd [2012] PR529520. 4 Mr Gao sought to appeal. On 23 November 2012 a Full Bench refused him permission to appeal: see Peng Gao v Citywide Service Solutions Pty Ltd [2012] FWAFB 9830. 5 On 14 December 2012 Mr Gao filed a originating application for relief under s 39B of the Judiciary Act 1903 (Cth) ("the Judiciary Act"). He named Citywide as the sole respondent. 6 The application did not identify the terms of the decisions which Mr Gao wished to have reviewed. He sought orders that Fair Work's decision of 14 September 2012 and the orders made by it on 5 October 2012 and 23 November 2012 be set aside. No grounds were provided. 7 On 12 March 2013 Mr Gao filed a statement of claim. 8 I subsequently directed that Mr Gao join Fair Work (now the Fair Work Commission) as a respondent. He did so. The Commission filed a submitting appearance save as to costs. 9 I also directed Mr Gao to file a document identifying with precision the orders and decisions which he wished to challenge. He filed a document which identified the following decisions: " 1. The commissioner Blair decision … stated on 14/09/2012 transcribed by the transcript of proceeding dated on 14/09/2012 … … 2. The commissioner Blair order … given on 05/10/2012 … The order, paragraph 12 is [12] Accordingly, the Tribunal orders that this matter be dismissed … 3. The order … made by senior deputy president Acton, senior deputy president Hamberger & commissioner Bissett on 23/11/2013 … The order are: A. Further to the decision of the Full Bench of 23 November 2012 [[2012] FWAFB9830], Fair Work Australia orders that permission to appeal in matter C2012/5532 is refused. B. This order operates from 23 November 2012. … 4. FWA'ss Legal process for the order made on 05/10/2012. … 5. FWA's Legal process for respondent to be represented on 20/11/2012 … 6. FWA's Legal process for nature of both transcript of proceedings given on 14/09/2012 & 20/11/2012 …" These passages have been reproduced in their original form. 10 On 23 April 2013 Mr Gao signed a notice of discontinuance in respect of Citywide. 11 Mr Gao, however, persisted in his application for judicial review of the various decisions of Fair Work which I have set out above at [9]. 12 In the absence of Citywide no proper contradictor was available to assist the Court. 13 I have, for the purpose of determining Mr Gao's application, had careful regard to all of the material which he has filed in support of his application and to the oral submissions which he made at the hearing of his application. The documentary material which I have examined includes the reasons for decision of Commissioner Blair, the reasons for decision of the Full Bench, Mr Gao's statement of claim and an "affidavit" filed by him on 18 April 2013. THE LEGISLATION 14 Section 394 of the FWA Act provided: "(1) A person who has been dismissed may apply to FWA for an order under Division 4 granting a remedy. (2) The application must be made: (a) within 14 days after the dismissal took effect; or (b) within such further period as FWA allows under subsection (3). (3) FWA may allow a further period for the application to be made by a person under sub-section (1) if FWA 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." 15 Section 604 of the Act provided that a person who is aggrieved by a decision under certain provisions including s 394 may appeal against the decision. This right is qualified by the provisions of s 400(1) which require that permission to appeal from a decision, made under s 394, must not be granted unless the Full Bench considers that it is in the public interest to do so. Furthermore, to the extent that any appeal is brought on a question of fact, it must be established that the decision "involved a significant error of fact": see s 400(2). THE COMMISSIONER'S REASONS 16 The Commissioner found that no exceptional circumstances existed which warranted the grant of an extension of time and dismissed the application. In doing so he referred to each of the paragraphs of s 394(3). He said that: "[5] In relation to (a), there appears to be no logical reason for the delay, in the Tribunal's view. The Applicant, in his own submissions, indicated that he did attend the Tribunal approximately two days beyond the 14-day time period, and realised at that time that he was only a couple of days beyond the 14-day period, but still waited approximately 60 days before he lodged his claim. So there was no appropriate reason for the delay. [6] In relation to (b), there is no issue. The Applicant was aware because the termination was in writing and The Applicant was, in fact, spoken to about his termination. [7] In relation to (c), again, the Applicant attended the Tribunal approximately two days beyond the 14-day time frame and, acknowledging that there was the 14-day period and he was a couple days (sic) beyond it, still chose to wait some 60-odd days before he lodged his claim. [8] In relation to (d), even if the application for an extension of time was granted, the Tribunal would be satisfied that there would be no prejudice to the employer. [9] In relation to (e), the Applicant seems to rely upon court proceedings instituted in June 2011 that appear to have given rise to his termination, which took effect by letter dated 24 April 2012. The Respondent indicated that they became aware of the 2011 court proceedings by way of contact by the Police to verify that the Applicant worked for the Respondent. The termination of the Applicant resulted from actions which the Respondent alleged occurred after he had been spoken to, and been given a final warning about allegations that he was tampering with parking metres outside his work, and was tampering with parking meters of a client of the Respondent. [10] In relation to (f), the Tribunal and the courts have made it abundantly clear that the 14-day time frame must be adhered to strictly, unless there are exceptional circumstances. The Tribunal has rejected extension of time claims simply one day out of time, because there are no exceptional circumstances. For the Tribunal to grant the Applicant an extension of time some 60-odd days beyond the 14-day time frame, in the Tribunal's view, would be totally unfair to persons in similar positions." THE FULL BENCH'S DECISION 17 Mr Gao appealed to a Full Bench of Fair Work. The Full Bench had some difficulty in discerning precisely what grounds Mr Gao was advancing on the appeal. This difficulty arose because of Mr Gao's limited ability to express himself in the English language. Having read the relevant documents and heard argument the Full Bench discerned the following grounds of appeal: "• there are differences in the wording of the decision the Commissioner gave in transcript and his later order; • the FWA member who heard his matter was not listed in the notifications he received from FWA in respect of the hearing of his matter and he was not aware of the FWA member who was to hear his matter until the day of the hearing; • there are errors in the transcript of the hearing; • the Commissioner erred in failing to find that the reason for Mr Gao's delay in making his unfair dismissal remedy application, being that he was awaiting the outcome of related criminal proceedings, constituted exceptional circumstances; • the Commissioner erred in his finding about the merits of Mr Gao's unfair dismissal remedy application; and • the Commissioner should not have dismissed his unfair dismissal remedy application." 18 The Full Bench conducted a hearing on 20 November 2012. Mr Gao appeared in person. The Full Bench had difficulty understanding his submissions. It offered him the services of an interpreter. Mr Gao declined the offer. Citywide was represented by an employee of an employer organisation who appeared with the permission of the Full Bench pursuant to s 596 of the FW Act. 19 On 23 November 2012 the Full Bench made an order refusing Mr Gao permission to appeal and published its reasons for this decision. 20 The Full Bench found no material disparity between the Commissioner's ex tempore reasons for decision and those appearing in the subsequent "order". They attributed any differences to "appropriate editing". In any event, they did not consider the existence of variations to constitute appellable error. 21 The Full Bench rejected the contention that Mr Gao had been denied procedural fairness because he had not been advised of the name of the Commissioner who was to deal with his application until shortly before the hearing. 22 The Full Bench was not persuaded that the Commissioner had erred in deciding that no exceptional circumstances existed for extending the period within which Mr Gao might make a valid application. It directed particular attention to Mr Gao's argument that he was entitled to await the outcome of Court proceedings in the State jurisdiction before pursuing his rights under the FW Act. The Full Bench considered that there was no reason why Mr Gao could not have commenced his proceeding in Fair Work in a timely manner and, if need be, sought an adjournment of that proceeding pending the outcome of the State criminal matter. The Full Bench also noted that a significant delay had ensued between the conclusion of the criminal proceedings and the making by Mr Gao of his application to Fair Work. 23 The Full Bench referred to the Commissioner's observation that Mr Gao and his former employer seemed to be at odds about the true reason for Mr Gao's dismissal. The Full Bench was not persuaded that any such difference constituted an exceptional circumstance for the purposes of s 394 of the FW Act. THE APPLICATION TO THIS COURT 24 In this Court Mr Gao sought judicial review of each of the decisions of Fair Work which he identified in the document which he filed pursuant to the Court's order: see above at [9]. As already noted, Mr Gao's application contained no grounds of appeal. 25 In oral argument Mr Gao said that his grounds were to be found in his statement of claim. This document is by no means easy to read. Doing the best that I can I have sought to identify the grounds on which Mr Gao has sought to rely in respect of each of the nominated decisions and to determine whether or not a proper basis has been established for an allegation of reviewable error. Commissioner Blair's ex tempore reasons 26 Mr Gao took issue with the way in which Commissioner Blair had dealt with the considerations identified in paragraphs (a), (c) and (e) of s 394(3). In each case his ground was that the Commissioner had "misinterpreted or misapplied the question of law or principle of law … supported by incorrect findings of fact …" 27 In respect of paragraph (a) Mr Gao objected to the Commissioner's observation that there appeared "to be no logical reason for the delay" in the making of the application to Fair Work. Mr Gao submitted that there was, indeed, a logical reason, namely, that he didn't want to waste Fair Work's "resources" by making his application prior to the completion of the State court proceedings. Those proceedings concluded on 27 June 2012. He did not explain why it was that he delayed until 17 July 2012 in making his application to Fair Work. Mr Gao could have made his application within 14 days of his dismissal. Had he done so Fair Work's "resources" would not have been wasted. Had it been necessary to delay the hearing of his application whilst the supposedly related State criminal matter was resolved, this could, as the Full Bench pointed out, have been done and no resources would have been directed unnecessarily to the application. 28 This ground has not been made out. 29 In respect of paragraph (c) Mr Gao referred to the Commissioner's finding that he (Mr Gao) had first attended Fair Work "a couple of days beyond the 14 day time frame" but "still chose to wait some 60-odd days before he lodged his claim." 30 Mr Gao failed to articulate any basis upon which it could be said that the Commissioner was in error in making these findings. The evidence supported them. 31 This ground has not been made out. 32 In respect of paragraph (e) Mr Gao appeared to dispute the Commissioner's findings relating to when Citywide became aware of certain court proceedings which involved him, the circumstances in which Citywide determined to issue a warning letter to Mr Gao and the catalyst for Citywide's decision to terminate his services. 33 Paragraph (e) required the Commissioner to give consideration to the merits of the application which Mr Gao sought to bring. That application alleged that Mr Gao had been dismissed by Citywide for reasons proscribed by the Act. The factual findings which Mr Gao sought to dispute were, at best for him, peripheral to the central question which would have fallen for determination had the application proceeded. They were not matters which touched in any significant way on the merits of his application. 34 This ground has not been made out. 35 Mr Gao concluded his attack on the Commissioner's decision by challenging, on a number of grounds, the ultimate finding that no exceptional circumstances existed which warranted an extension of time. He reiterated his submissions that exceptional circumstances did, in fact, exist. He said that there was significant evidence before the Commissioner that he (Mr Gao) had never been a member of a trade union but that his assertion to this effect had not been recorded or transcribed. He further contended that his termination of employment was in contravention of s 772(1)(c) and 773 of the FW Act and that the Commissioner was precluded, by s 587(2), from dismissing his application. 36 The fact that Mr Gao was not a member of a trade union had no bearing on the outcome of his application for an enlargement of time. It was not, so far as I can determine, a matter on which Mr Gao sought to rely before the Commissioner. Had he done so the Commissioner would have been entitled to disregard any such submission. It is, therefore, hardly surprising that the Commissioner made no mention of Mr Gao's status as a non-member of a trade union in his reasons. 37 Section 773 of the FW Act provides that an employee who alleges that his or her employment has been terminated for a reason proscribed by s 772 of the FW Act may apply to Fair Work to deal with the dispute. Section 587(2) provides that Fair Work must not dismiss an application under s 773 on the ground that the application is frivolous or vexatious or that it has no reasonable prospects of success. 38 Mr Gao's arguments overlook the power conferred on Fair Work by s 587(1) of the Act. Fair Work may dismiss an application if the application has not been made in accordance with the FW Act. Mr Gao's application was made under s 394 of the Act. By s 394(2) the application had to be made within 14 days of his termination taking effect. In any event Mr Gao's application was not dismissed for one of the reasons referred to in s 587(2). 39 These arguments also fail. The Full Bench's decision 40 The Full Bench refused Mr Gao permission to appeal. As a result the operative decision which prejudiced his interests remains that of the Commissioner. As Mr Gao has been unable to establish jurisdictional error on the part of the Commissioner it is not strictly necessary that consideration should be given to the allegations of error on the part of the Full Bench. Mr Gao did, however, advance written and oral arguments relating to the Full Bench's decision. I will, therefore, deal shortly with those arguments. 41 Mr Gao complained first about the Full Bench's decision to grant leave to an employee of the industry association, of which, I infer, Citywide was a member, to appear for Citywide. Mr Gao objected to Citywide being so represented. The Full Bench held that the officer was entitled to represent Citywide "pursuant to the provisions of s 596(4) of the FW Act and, to the extent necessary, with the permission of FWA pursuant to s 596(2)(a)." 42 Although the Full Bench's reasons do not say so it appears that Citywide's principal representative was a lawyer. The lawyer was an employee of the Australian Industry Group which is an organisation registered under the Fair Work (Registered Organisations) Act 2009 (Cth). 43 Section 596 confers a discretion on Fair Work to permit a person to be represented by a lawyer in certain circumstances. One of those circumstances is that "it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter": see s 596(2)(a). It was not, however, necessary for the Full Bench to consider the exercise of its discretion under this provision because s 596(4) provides that, for the purposes of the section, a person is not to be taken to be represented by a lawyer if the lawyer is an employee of an organisation: see s 596(4)(b)(i). 44 As a result there was no obstacle to the legally qualified employee representing Citywide before the Full Bench. The Full Bench did not err by permitting him to appear. 45 Mr Gao's next argument seemed to suggest that the Full Bench was bound by s 604(3) of the FW Act to entertain his appeal. 46 This argument cannot succeed. Section 604(3) merely prescribes the method of instituting an appeal: this may be done by making an application to Fair Work. The sub-section imposes no obligation on Fair Work to entertain the appeal. Indeed, s 604(1) provides that a person may only appeal from a decision with the permission of Fair Work. 47 Finally, Mr Gao alleged that the transcripts of the proceedings before the Commissioner on 14 September 2012 and the Full Bench on 20 November 2012 had been "knowingly mis-transcribed." He complained that, at 10 points in the transcript before the Commissioner, the word "indistinct" had been inserted in passages which were recording his submissions. The same thing had occurred on 277 occasions in the transcript of the proceedings before the Full Bench. 48 As the Full Bench said in its reasons, its members had great difficulty in understanding much of what Mr Gao said. It had been necessary, on a number of occasions, to ask him to repeat things which he had said. I experienced similar difficulties and also found it necessary to ask Mr Gao to repeat things which he had said. I can well understand why employees of the recording service would have had difficulty in transcribing Mr Gao's words from the recording taken during the hearings. Mr Gao appears not to appreciate the difficulties experienced by others in understanding what he is saying. His allegation that his words had been deliberately mistranscribed is without foundation and should not have been made. In any event the mere existence of deficiencies in a transcription of a proceeding does not amount to jurisdictional error. 49 Mr Gao failed to establish any reviewable error on the part of the Full Bench. DISPOSITION 50 Mr Gao's application must be dismissed. I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey. Associate: Dated: 3 May 2013