Dimitri Torcello v Deakin University - [2023] FWC 2528

[2023] FWC 2528

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Dimitri Torcello
v

Deakin University

(C2023/4398)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 13 NOVEMBER 2023

Application to deal with contraventions involving dismissal– application filed 67 days out of time –circumstances not exceptional – extension not granted – application dismissed.

On 23 July 2023, Mr Dimitri Torcello made a general protections application involving dismissal pursuant to s.365 of the Fair Work Act 2009 (the Act) by lodging a Form F8 – General Protections Application Involving Dismissal (Form F8). As the Form F8 indicated that the application was not made within 21 calendar days after Mr Torcello’s dismissal took effect, Mr Torcello is required to seek an extension of time in which to file it.

The Respondent to this application is Deakin University (Deakin). In its Form F8A – Response to General Protections Application, Deakin has objected to Mr Torcello’s application on the basis that it is out of time (i.e. lodged more than 21 days after the dismissal took effect), and because it contends Mr Torcello was not an employee of Deakin and therefore, was not dismissed.
A hearing was conducted on 5 October 2023 with reference to the material filed and served by the parties in response to my directions dated 22 August 2023. Mr Torcello appeared and gave evidence. Deakin was represented by its Senior Consultant People Solutions (Workplace Relations), Ms Alexandra Gonos. Dr Matthew Thomas, Senior Lecturer, Pedagogy and Curriculum, gave evidence on behalf of Deakin.

In the Form F8, Mr Torcello has outlined that he was notified of his dismissal on 24 April 2023 and the dismissal took effect on 25 April 2023. If this is correct, s.366(1)(a) of the Act required Mr Torcello’s application to have been made by midnight on 16 May 2023. Having been made on 23 July 2023, Mr Torcello’s application, based on the information he has outlined, was made 68 days late and he requires the Commission to grant him an extension of time (s.366(1)(b) of the Act).

Factual Background

It should be noted that Mr Torcello has also filed a General Protections Application involving dismissal pursuant to s.365 of the Act naming ‘Department of Education, Victoria’ as Respondent (the Department application).[1] A hearing was also conducted by me on 5 October 2023 in relation to the Department application. Documentation in that proceeding was of assistance in ascertaining the factual background of this matter.

On 9 March 2020, Mr Torcello enrolled in the Bachelor of Arts/Master of Teaching (Secondary) course (Course) at Deakin University (Deakin).[2] Between 13 February and 24 February 2023, Mr Torcello completed a vocational placement with Fountain Gate Secondary College (Fountain Gate) as part of his Professional Experience Unit (Placement program) for the Course.

The Placement program is governed by a ‘Memorandum of Understanding’ (MOU) dated 2 August 2021[3] between the Department of Education and Training for and on…

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: [2023] FWC 2528
Decision Date: 13 NOVEMBER 2023

CaseChat Overview and Summary

Dimitri Torcello applied to the Fair Work Commission (FWC) for an extension of time to lodge his general protections application involving dismissal under section 365 of the Fair Work Act 2009. The application was lodged 67 days after his dismissal from Deakin University. The FWC Deputy President, Clancy, dismissed the application as the circumstances did not amount to exceptional circumstances. The Deputy President noted that while the applicant was able to lodge two other applications within the 21-day period, he had not provided a credible reason for the 67-day delay. The Deputy President found that the absence of a credible reason for the delay weighed against the applicant. The Deputy President also noted that the applicant had not demonstrated that there was prejudice to Deakin University caused by the delay, and that the merits of the application were weak. The Deputy President concluded that there were no exceptional circumstances and therefore the application for an extension of time should be dismissed.

Orders