Dimitri Torcello v Department of Education
[2024] FWCFB 454
•10 DECEMBER 2024
| [2024] FWCFB 454 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Dimitri Torcello
v
Department Of Education
(C2024/7498)
| DEPUTY PRESIDENT MILLHOUSE COMMISSIONER CRAWFORD | MELBOURNE, 10 DECEMBER 2024 |
Appeal against decision [2023] FWC 2527 of Deputy President Clancy at Melbourne on 13 November 2023 in matter number C2023/4051 – extension of time refused.
Mr Dimitri Torcello has lodged an appeal under s 604 of the Fair Work Act 2009 (Cth) (Act) against a decision[1] of Deputy President Clancy issued on 13 November 2023, for which permission to appeal is required. In the decision, the Deputy President declined to grant an extension of time for the filing of Mr Torcello’s general protections application involving dismissal, filed pursuant to s 365 of the Act against the respondent, the Department of Education (Department). The Deputy President was not satisfied that there were exceptional circumstances, having regard to the considerations in s 366(2) of the Act.
The Notice of Appeal was filed outside the 21-day timeframe for lodging an appeal required by the Fair Work Commission Rules 2024. Accordingly, the matter was listed for an extension of time and permission to appeal hearing. For the reasons that follow, we decline to allow a further period of time for the lodgement of the appeal and the application for permission to appeal is dismissed on that basis.
Decision under appeal
The decision relevantly records that Mr Torcello enrolled in a Bachelor of Arts/Master of Teaching (Secondary) course at Deakin University on 9 March 2020. In connection with the course requirements for professional placement, Mr Torcello completed a vocational placement with Fountain Gate Secondary College (Fountain Gate) between 13 February and 24 February 2023. The placement program is governed by a memorandum of understanding between the Department, Deakin University and other institutions.
Mr Torcello commenced a further placement with Fountain Gate in April 2023 in a Year 12 Business Management class. The evidence before the Deputy President included emails demonstrating that Mr Torcello was unhappy with his placement and Fountain Gate held concerns that Mr Torcello’s content knowledge was inadequate.
On 26 April 2023, Deakin University paused Mr Torcello’s placement with Fountain Gate, with a view to seeking alternatives in Mr Torcello’s preferred specialisations of English, Literacy and Philosophy. On 9 July 2023, Mr Torcello filed his general protections application in the Commission against the Department. Mr Torcello also filed a general protections application against Deakin University, which was the subject of other proceedings in the Commission.[2]
The Department objected to Mr Torcello’s application on the basis that it was out of time, Mr Torcello was not an employee of the Department and Mr Torcello was not dismissed. Being satisfied that the application was filed more than 21-days after the alleged dismissal took effect, the Deputy President proceeded on the basis of an assumption that Mr Torcello was an employee and there was a dismissal solely for the purpose of considering whether a further period should be allowed pursuant to s 366(2) of the Act.
The Deputy President proceeded to consider each of the matters to which he was required to have consideration under s 366(2) of the Act. As to the reason for the delay, the Deputy President was not persuaded that the personal challenges upon which Mr Torcello relied were such that he was unable to file the application earlier and there was no medical evidence which established otherwise. The Deputy President noted that Mr Torcello had been able to make other applications in the Commission within time. Nor was the Deputy President satisfied that the circumstances supported Mr Torcello’s contention that his lack of legal representation provided an acceptable or reasonable explanation for the delay, or that the 20 days that passed between a case management hearing on 19 June 2023 at which Mr Torcello discontinued an application against Deakin University, and the making of this application on 9 July 2023 were adequately explained. The Deputy President concluded that the consideration in s 366(2)(a) weighed against the grant of an extension of time.
As to the considerations in s 366(2)(b), (c) and (e) of the Act, the Deputy President accepted that although Mr Torcello’s earlier applications demonstrated that he had taken steps to dispute a dismissal, he had not taken action in relation to the dismissal allegation concerning the Department outside of lodging the application with the Commission. This did not weigh in favour of an extension of time. While there was no discernible prejudice to the Department, this was attributed little weight in the consideration of whether there were exceptional circumstances and there were no relevant matters of fairness to consider.
The Deputy President took into account the merits of Mr Torcello’s application, as required by s 366(2)(d) of the Act, concluding that the resolution of the matters advanced by Mr Torcello would turn on contested points of fact. As to the Department’s other jurisdictional objections, the Deputy President noted that on the material currently before him, Mr Torcello’s contention that he was an employee of the Department and dismissed by the Department did not appear to be reasonably arguable such that his application had little prospects of success, which weighed against an extension of time.
Considered individually and collectively, the Deputy President concluded that there were no exceptional circumstances and therefore no basis for granting an extension of time. Mr Torcello’s application against the Department was dismissed on this basis.
Grounds of appeal and public interest
Having regard to the content of Mr Torcello’s Notice of Appeal, we discern that 12 matters are advanced in support of the appeal, which we summarise as follows:
(1) The hearing before the Deputy President was not procedurally fair having regard to the decision to grant the Department permission to be legally represented.
(2) The Deputy President’s conduct breached the principle of judicial impartiality, and the application was dismissed prematurely.
(3) A conflict of interest arises in circumstances where the Deputy President also presided over Mr Torcello’s (second) application against Deakin University.
(4) Mr Torcello was denied access to critical materials including transcripts, audio records and surveillance footage.
(5) The Department filed material after the deadline had passed, which was permitted by the Deputy President and provides a further indication of judicial bias.
(6) The principal of Fountain Gate provided false testimony at the hearing and the Deputy President did not hold the witness accountable or address the evidential inconsistencies.
(7) Mr Torcello’s request for CCTV footage and promotional materials was declined, there were errors in the transcript of a case management hearing before another Member of the Commission, and the folder of material produced by the Department manipulated the facts.
(8) The Deputy President failed to appropriately consider Mr Torcello’s evidence demonstrating exceptional circumstances.
(9) Due to procedural misconduct, mishandling of evidence and clear bias, the Deputy President must be recused from dealing with the application.
(10) The application should be amended from a dismissal at the Department’s initiative to a forced resignation under s 386(1)(b) of the Act, having regard to the Department’s decision to strip Mr Torcello of his responsibilities and its hostile behaviour which forced Mr Torcello’s hand.
(11) The 24 April 2023 incident in which Mr Torcello took an audio recording solidifies Mr Torcello’s resignation such that 25 April 2023 should be regarded as the date the dismissal took effect.
(12) There is an implied contract of employment between Mr Torcello and the Department. Mr Torcello’s position was not merely that of a student teacher. This is supported by Mr Torcello’s involvement, decision making and contribution in education institutes between 2010 and 2023 which effectively conferred upon him the role of a minister of education. The considerations under s 366(2) of the Act should be expanded to include Mr Torcello’s contribution to the sector, the matters supporting his claim of an implied employment relationship, and Mr Torcello’s proven ability to operate at a ministerial level to provide consulting services.
Mr Torcello elaborates on these matters in his written outline of submissions. It is contended that it is in the public interest to grant permission to appeal to uphold integrity in judicial fairness, ensure equal access to evidence, address broader issues of mental health in employment disputes, prevent unjust precedents in future cases, and to protect the rights of self-represented litigants.
Extension of time
An appeal must be filed within 21 days after the date of the decision appealed against, or within such further time allowed by the Commission on application.[3] As is frequently noted,[4] time should not be extended for the filing of an appeal simply as a matter of course. There are sound administrative and industrial reasons for setting a limit to the time for bringing an appeal and it should only be extended where there are good reasons for doing so. The usual principles applying to consideration of an application to extend time to lodge an appeal were summarised in the Full Bench in Jobs Australia v Eland[5] as follows:
·whether there is a satisfactory reason for the delay;
·the length of the delay;
·the nature of the grounds of appeal and the likelihood that one or more of those grounds being upheld if time was extended; and
·any prejudice to the respondent if time were extended.
Taking these matters into account, the exercise of discretion will be guided by a consideration of whether, in all the circumstances, the interests of justice favour Mr Torcello being granted an extension of time within which to file the Notice of Appeal.[6]
Mr Torcello seeks to adduce new evidence pursuant to s 607(2)(b) of the Act. The material was identified at the hearing of Mr Torcello’s application and is not described in detail here. To the extent that this material is relied upon to explain the delay in filing the appeal, we have had regard to it. However, we are not persuaded that it provides a satisfactory explanation for the extensive delay in filing the appeal. We understand Mr Torcello’s position to be that the delay was occasioned by his “diagnosis of anxiety and depression” along with symptoms which affected his ability to meet the filing deadlines. However, the material upon which Mr Torcello seeks to rely post-dates the filing of his Notice of Appeal and does not demonstrate that Mr Torcello’s state of health prevented him from filing his appeal within the time-limit prescribed by the rules. It follows that we are not persuaded that Mr Torcello has provided a satisfactory reason for the extensive delay (of over 300 days) in filing the appeal.
To the extent that Mr Torcello otherwise seeks to rely upon the material as fresh evidence in support of his application for permission to appeal, we decline to admit it. We are not satisfied that the requirements of Akins v National Australia Bank (Akins)[7] are met. We do not regard the material to be of such a high degree of probative value that there is a probability that there would have been a different result in the decision at first instance.
In the assessment of whether to extend time, it is necessary to consider the nature of the grounds of appeal and the likelihood that one or more of those grounds would be upheld if time was extended. There is no right to appeal, and an appeal may only be made with the permission of the Commission. Without limiting when the Commission might grant permission, s 604(2) of the Act provides that the Commission must grant permission if the Commission is satisfied that it is in the public interest to do so. The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[8] The public interest is not satisfied simply by the identification of error or a preference for a different result.[9] Considerations that may attract the public interest include that the matter raises issues of importance and general application, that the decision manifests an injustice or that the result is counterintuitive.[10] It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated.
Having regard to the Notice of Appeal and submissions, we do not consider that Mr Torcello has alleged any matter that demonstrates an arguable case of appealable error in the exercise of the Deputy President’s discretion. There is no basis to conclude that the various contentions of procedural unfairness could have had any meaningful consequence for the outcome of the proceedings or Mr Torcello’s capacity to advance his case. The Deputy President was determining a threshold issue, being whether to grant Mr Torcello an extension of time. Without an extension of time, the application could not proceed. To this end, the Deputy President’s approach to determining the extension of time application as a preliminary matter was legally correct.
The contention that the Deputy President demonstrated bias in favour of the Department is not arguable. While the Deputy President made findings that Mr Torcello does not agree with, this is insufficient to justify appellate intervention in circumstances where the conclusions that the Deputy President reached appear to be firmly supported in the material before him. The Deputy President considered each of the matters to which he was required to have regard under s 366(2) of the Act by reference to the material that Mr Torcello sought to advance in support of his position. An arguable contention has not been advanced that the Deputy President “failed to appropriately consider” any of the evidence before him.
We are not otherwise persuaded that the balance of matters raised by Mr Torcello demonstrate an arguable error. Nor are we satisfied, for the purposes of s 604(2), that the appeal attracts the public interest. The appeal does not raise any genuine issue of law, principle or wider application.
There is no evidence before us demonstrating that the Department would be prejudiced if time were extended. However, having regard to the likelihood that the appeal grounds would not be upheld, we conclude that in all the circumstances, the interests of justice do not favour Mr Torcello being granted an extension of time.
Order and disposition
An extension of time to file the appeal is refused. Mr Torcello’s application for permission to appeal is dismissed on that basis.
DEPUTY PRESIDENT
Appearances:
D Torcello, on his own behalf.
D Fawcett, of Counsel, on behalf of the respondent.
Hearing details:
2024.
By video (using Microsoft Teams).
December 3.
[1] [2023] FWC 2527
[2] See [2024] FWC 2528
[3] See both rule 56(2) of the Fair Work Commission Rules 2013 and rule 128(2) of the Fair Work Commission Rules 2024, each of which applied during the period of the delay
[4] See Snyder v Helena College Council, Inc t/a Helena College[2019] FWCFB 815
[5] [2014] FWCFB 4822; see also Panayiotou v University of Adelaide[2020] FWCFB 1692 at [8] and the authorities cited therein; Andrew John Paul v Busways Pacific Pty Ltd & Others [2024] FWCFB 369 at [32]-[33]
[6] Brisbane South Regional Health Authority v Taylor [1996] HCA 25, 186 CLR 541
[7] Akins v National Australia Bank [1994] 34 NSWLR 155
[8] O’Sullivan v Farrer (1989) 168 CLR 210 at 216-217 per Mason CJ, Brennan, Dawson and Gaudron JJ: applied in Hogan v Hinch (2011) 243 CLR 506 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [44]-[46]
[9] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343; 197 IR 266 at [24]-[27]; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/ Warkworth[2010] FWAFB 10089 at [28], affirmed on judicial review; Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 178; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663; 241 IR 177 at [28]
[10] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343, 197 IR 266 at [24]-[27]
Printed by authority of the Commonwealth Government Printer
<PR782240>
0
0
0