Dimitri Torcello v Deakin University
[2024] FWCFB 457
•11 DECEMBER 2024
| [2024] FWCFB 457 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Dimitri Torcello
v
Deakin University
(C2024/7803)
| DEPUTY PRESIDENT EASTON | SYDNEY, 11 DECEMBER 2024 |
Appeal against decision [[2023] FWC 2528] of Deputy President Clancy at Melbourne on 13 November 2023 in matter number C2023/4398.
Mr Dimitri Torcello claims to have been an employee of Deakin University in 2023 and claims that he was dismissed from his employment with the university in contravention of the General Protection provisions of the Fair Work Act 2009. Mr Torcello was enrolled in a Bachelor of Arts/Master of Teaching (Secondary) course and in early 2023 he undertook a vocational placement at a secondary school in Victoria. The alleged dismissal occurred after an incident during the placement.
Within 21 days of the alleged dismissal Mr Torcello filed an unfair dismissal claim under s.394 of the Fair Work Act 2009 (the Act). The unfair dismissal claim was discontinued on 19 May 2023 and an application under the General Protections provisions was filed several weeks later on 21 July 2023.
Mr Torcello claimed that his dismissal took effect on 25 April 2023. Section 366 of the Act requires general protection applications to be made within 21 days after the dismissal took effect. Mr Torcello’s application was lodged approximately 68 days outside the statutory time limit.
Mr Torcello’s application for an extension of time to file his general protections application was heard and determined by Deputy President Clancy. The Deputy President decided not to extend the time for Mr Torcello to make his application. In Dimitri Torcello v Deakin University [2023] FWC 2528, the Deputy President published his reasons for not granting the extension of time.
Mr Torcello now seeks permission to appeal the Deputy President’s decision.
Deputy President Clancy’s decision was published on 13 November 2023. Mr Torcello applied for permission to appeal and an extension of time to file an appeal against the Deputy President’s decision almost one year later on 4 November 2024.
For the following reasons we have decided not to grant an extension of time. Mr Torcello’s explanation for the delay is not satisfactory, the length of the delay is significant and Mr Torcello’s application for permission to appeal has no prospects of success.
The Deputy President’s decision
In his decision the Deputy President:
(a)proceeded on the assumption that Mr Torcello was an employee of Deakin and was dismissed (at [15]), although he later observed that it did not appear reasonably arguable that he was in fact employed by the university (at [46]);
(b)described the factual background and the events that led to Mr Torcello’s alleged dismissal (at [5]-[12]);
(c)set out the relevant law and legal principles relevant to an extension of time (at [13]-[18]);
(d)considered the reason for the delay (at [19]-[34]), including Mr Torcello’s explanation that he had unforeseen personal challenges including mental and physical exhaustion and other mental health issues (at [29]), and Mr Torcello’s claim that his lack of legal representation contributed to the delay (at [30]);
(e)concluded that the explanations did not provide a credible reason for the delay (at [31]-[34]);
(f)considered that the action taken by Mr Torcello before making his application favoured Mr Torcello but not to any great extent (at [35]-[37]);
(g)noted that there was no prejudice to Deakin caused by the delay (at [38]-[39]);
(h)considered the merits of the application in a very preliminary way (at [40-[46]), and found that the merits tell against an extension of time because “it does not appear Mr Torcello’s assertion that he was an employee of Deakin who was dismissed is reasonably arguable and it therefore appears that his application has little prospect of success” (at [46]);
considered the fairness as between Mr Torcello and other persons in a similar position (at [47]); and
(j)having found that there were no exceptional circumstances, declined to grant the extension of time because there was no basis in the legislation to do so (at [50]).
The Appeal
On appeal Mr Torcello submitted that the Deputy President failed to give consideration to the implications of mental health and self-representation and failed to give procedural fairness. Mr Torcello submitted that the Deputy President misinterpreted s.366 and the relevance of mental health concerns for self-represented applicants.
Mr Torcello said on appeal that he was denied procedural fairness insofar as he was, he said, prevented from presenting additional evidence of his mental illness because his family was present in the proceedings.
Mr Torcello submitted that the Deputy President’s preliminary assessment of the merits of his claim was wrong because there was an implied employment relationship between himself and the university.
At the hearing Mr Torcello also claimed that there was cross-contamination between his application against Deakin and his application for an extension of time to make a similar application against the Department of Education (where he attended his placement). The Deputy President heard both matters which, he said, caused a bias and Mr Torcello submitted that if there is even a hint of bias then the whole proceeding has to be reheard.
In the proceedings below, Mr Torcello provided evidence of his mental capacity however the Deputy President found at [29]:
“… I am able to accept Mr Torcello may have experienced some stress and a negative reaction to the events that had unfolded in relation to the placement, but this is not of itself unusual. Stress and anxiety from an asserted dismissal scenario are not unusual and nor are shock and a degree of trauma uncommon reactions. The circumstances before me, however, are not of a nature that persuades me that Mr Torcello was so debilitated and unable to function that he could not have completed and filed the Form F8 in a timely manner. Firstly, as outlined above, Mr Torcello was in fact able to make
both the unfair dismissal application and the First Deakin Application within 21 days after 26 April 2023. Secondly, Mr Torcello’s assertions regarding health issues are not accompanied by medical evidence that establishes incapacity of a scale that prevented him from making an application to the Commission in a timely manner either before or after 17 May 2023.”
[Emphasis added]
Extension of time to appeal – General Principles
Both rule 56(2) of the Fair Work Commission Rules 2013 and rule 128(2) of the Fair Work Commission Rules 2024 applied in the period during which Mr Torcello’s appeal was late. The two rules are materially the same and require an appellant to lodge their appeal within 21 days of the relevant decision. Subrules 56(2(c) and 128(2)(c) respectively allow the Commission to extend the time for filing an appeal.
The Commission applies well established principles when deciding whether to grant an extension of time. Unlike the extension of time provisions in sections 394 and 366, the Commission does not need to be satisfied that there are exceptional circumstances. The primary question to be answered is whether the interests of justice favour an extension of time. The primary considerations are: whether there is a satisfactory reason for the delay in filing the appeal, the length of the delay, the nature of the grounds of appeal and their prospects of success, and any prejudice to the respondent if time were extended (see Jobs Australia v Eland[2014] FWCFB 4822 at [5]-[6] and Appeal by the Australian Workers Union [2023] FWCFB 157 at [72]).
Extension of time to appeal considerations: the delay
The length of the delay in filing the appeal is substantial and points against granting an extension of time.
Mr Torcello’s explanation for the delay is not satisfactory. Mr Torcello claims he has had schizophrenia for some time and that his mental health caused the delay. Mr Torcello was given permission to lead additional evidence in the appeal proceedings. The evidence Mr Torcello provided relates to his consultation with a General Practitioner on 28 November 2024 and the fact that he has been referred to a psychiatrist for further assessment and to a psychologist under a mental health plan. It is not necessary to record all of the details of Mr Torcello’s circumstances in this public decision. The evidence provided by Mr Torcello does not provide any evidence about his mental health between November 2023 when the Deputy President gave his decision, and 4 November 2024 when he filed his appeal. It certainly does not include evidence that he was so debilitated by his condition and so unable to function that he could not have filed his appeal within 21 days as required by the rules.
Extension of time considerations: the prospects on appeal
Mr Torcello’s grounds of appeal are weak and there are no prospects of success on appeal. The Full Bench has now heard full arguments on permission to appeal and has concluded that even if the appeal had been filed in time, we would not grant permission to appeal.
An appeal cannot succeed unless the Appellant can show that the original decision-maker made an error. However not all errors are appealable errors. Commission members exercise considerable discretion in extension of time applications. Members make value judgments on matters about which there is room for reasonable differences of opinion - no particular opinion being uniquely right. As the High Court said in Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission and Others (2000) 203 CLR 194 at 205, [2000] HCA 47 at [21], an appealable error is an error in the decision-making process:
“Because a decision-maker charged with the making of a discretionary decision has some latitude as to the decision to be made, the correctness of the decision can only be challenged by showing error in the decision-making process. And unless the relevant statute directs otherwise, it is only if there is error in that process that a discretionary decision can be set aside by an appellate tribunal. The errors that might be made in the decision-making process were identified, in relation to judicial discretions, in House v The King in these terms:
"If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so."
[Footnotes omitted]
It was comfortably within the Deputy President’s discretion to find that Mr Torcello’s mental health did not prevent him from making his application within the statutory timeframes on the evidence before him. The Deputy President did not make any appealable error in this regard nor did he misinterpret s.366.
Mr Torcello’s claim that he was denied procedural fairness is not correct. We do not accept that Mr Torcello was prevented from presenting evidence at the hearing as he claims. In any event Mr Torcello has not identified any relevant evidence that he could have presented that would have materially affected the outcome of his application.
The grounds of appeal and Mr Torcello’s submissions have not established an arguable case of appealable error and strongly point against granting an extension of time to appeal.
Extension of time considerations: prejudice to the respondent
Deakin did not present evidence of prejudice caused by the delay however we are prepared to accept in a very generalised way that the length of the delay in filing the appeal, compounded by the delay in filing the original application, would prejudice Deakin’s capacity to defend the general protections application.
Conclusion
For all of these reasons we have decided not to exercise the discretion available to us to extend the time for filing Mr Torcello’s application to appeal the decision of Deputy President Clancy given on 23 November 2023.
Mr Torcello’s application for appeal is therefore dismissed.
DEPUTY PRESIDENT
Appearances:
D Torcello, Appellant
R Kux for the Respondent
Hearing details:
2024.
Sydney (By Video using Microsoft Teams)
December 4.
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