Dimitri Torcello v Deakin University - [2024] FWCFB 457

[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
COMMISSIONER CRAWFORD
COMMISSIONER SLOAN

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] FWCFB 457
Decision Date: 11 DECEMBER 2024

CaseChat Overview and Summary

The case of Dimitri Torcello v Deakin University involved a dispute regarding the timeliness of an appeal filed by Mr Torcello against a decision made by the Fair Work Commission. The Fair Work Commission was asked to determine whether an extension of time should be granted for Mr Torcello to file his appeal, which he had not lodged within the statutory 21-day period as required by the Fair Work Commission Rules. The primary legal issue before the Commission was whether the interests of justice favoured an extension of time for Mr Torcello to file his appeal, despite the significant delay.

The court considered the extent to which Mr Torcello's mental health issues could be considered a satisfactory reason for the delay. It noted that while Mr Torcello had provided evidence of his consultation with a General Practitioner and his referral to a psychiatrist and psychologist, this evidence did not establish that he was so incapacitated as to be unable to file the appeal within the required timeframe. The Commission also took into account the substantial length of the delay, the nature of the grounds of appeal, their prospects of success, and any prejudice to the respondent if time were extended. Ultimately, the Commission found that the delay was too significant and the reasons provided for the delay were not satisfactory, leading to the conclusion that an extension of time should not be granted.

In light of the above, the Fair Work Commission dismissed the appeal, finding that the interests of justice did not favour an extension of time. The Commission held that the length of the delay and the lack of satisfactory evidence of incapacity due to mental health issues meant that the appeal was not filed within the required timeframe. Consequently, Mr Torcello's appeal was dismissed, and the original decision of the Deputy President remained in place.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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 makeboth 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] 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]). 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.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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