Dimitri Torcello v Department of Education (State of Victoria)
[2023] FWC 2527
•13 NOVEMBER 2023
| [2023] FWC 2527 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Dimitri Torcello
v
Department of Education (State of Victoria)
(C2023/4051)
| DEPUTY PRESIDENT CLANCY | MELBOURNE, 13 NOVEMBER 2023 |
Application to deal with contraventions involving dismissal– application filed 53 days out of time –circumstances not exceptional – extension not granted – application dismissed.
On 9 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). The Form F8 indicates the application was not made within 21 calendar days after Mr Torcello’s dismissal took effect.
The Respondent to this application is the Department of Education (State of Victoria) (the Department). In its Form F8A – Response to General Protections Application, the Department objected to Mr Torcello’s application on the following bases:
1)Mr Torcello’s application is out of time (i.e. lodged more than 21 days after the dismissal took effect);
2)Mr Torcello was not an employee of the Department; and
3)Mr Torcello 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 1 September 2023. Mr Torcello appeared and gave evidence. The Department was granted permission to be represented by Ms Stephanie Cheligoy of Counsel and adduced evidence from Ms Jo Cucchiara (Principal of Fountain Gate Secondary College) and Ms Danielle Shmerling (Fountain Gate Secondary College Teacher).
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 9 July 23, Mr Torcello’s application, based on the information he has outlined, was made 54 days late and he requires the Commission to grant him an extension of time (s.366(1)(b) of the Act).
Factual Background
Mr Torcello has also filed a general protections application involving dismissal pursuant to s.365 of the Act naming Deakin University as Respondent (the Deakin application).[1] A hearing was also conducted by me on 5 October 2023 in relation to the Deakin application. Some documentation in that proceeding was of assistance in ascertaining the factual background of this matter and the factual background does not materially differ for the two applications, such that I adopt in this Decision that which I have outlined in the decision for the Deakin Application.[2]
On 9 March 2020, Mr Torcello enrolled in the Bachelor of Arts/Master of Teaching (Secondary) course (Course) at Deakin University (Deakin).[3] The Deakin University course handbook for the Master of Teaching Course requires students to undertake a least 60 days of professional placement during the course.[4] 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[5] between the Department and Deakin and various other institutions. The Department generates a list of Victorian government schools that indicate they are open to working with Deakin. Participating schools, including Fountain Gate, indicate the number of pre-service teacher (PST) Placements they anticipate being available for each PST Placement round.[6]
Mr Torcello commenced his second placement with Fountain Gate in April 2023 and it was to resume at the beginning of Term 2 of the 2023 school year, on 24 April 2023. Mr Torcello was placed in a Year 12 Business Management class and from 19 April 2023 to 26 April 2023, emails were exchanged between Deakin, Fountain Gate and Mr Torcello. Copies of these emails were submitted as part of the material of the Department and, in summary, they revealed that Mr Torcello was unhappy with the placement because he did not consider it was aligned with English, the subject he considered to be his teaching speciality.[7] This email correspondence also reveals that some feedback from Fountain Gate was conveyed to Mr Torcello at 4.42pm on 25 April 2023. The feedback was from Mr Torcello’s mentor. She expressed the opinion that Mr Torcello’s content knowledge was not adequate to deal with Year 12 students and said she would be giving him “another year 11/10 to teach”.[8] This prompted two emails in reply from Mr Torcello. In the first, sent at 10.11pm, Mr Torcello appeared to perceive the feedback as an ‘incident report’ filed against him which would trigger an assessment of his competence.[9] In the second email, sent at 10.49pm, Mr Torcello appeared to attach a recording made of his mentor teacher in a classroom setting without her knowledge or consent.[10]
It is apparent that on 26 April 2023, Deakin decided to pause Mr Torcello’s placement. Deakin email correspondence sent at 9.52am outlined:
“Whilst we are awaiting some further clarity from the PST coordinator and the school, the escalation and nature of Dimitri’s communications, including references to legal action and voice recordings are concerning.
To protect all parties we should prepare to ‘pause’ this placement, but am happy to take further advice on this should further detailed information come to light.”[11]
Subsequent email correspondence sent at 12.33pm on 26 April 2023 suggests Fountain Gate had been unaware of any incident report to that point and was confused at Mr Torcello’s decision to escalate matters. It also indicates that Fountain Gate agreed with the inclination of Deakin to pause the placement.[12]
At 2.36pm on 26 April 2023, Deakin’s Acting Director of Professional Practice, Dr Joanne Henriksen, sent an email stating:
“I am emailing in regard to Dimitri Torcello EPR782
It has been decided to pause his current placement.
Dimitri will need to be contacted via phone this afternoon, after 4pm regarding the pause to this placement.
There is an inference from the escalation in Dimitri’s email content, timing and discourse that may indicate some undisclosed wellbeing issues…”[13]
At 5.24 pm on 26 April 2023, Dr Henriksen sent an email to Mr Torcello, which stated:
“Hi Dimitri
Thank you for speaking with me this afternoon. As Acting Director of Professional Practice, please note and as per our conversation, Dr. Matt Thomas is the Director of Professional Practice and will return to this role on Monday 1st May. I have cc’d your Course Director, Unit Chair and PEO contacts into this email.
Further to your recent communication with the Deakin Professional Experience Office and as detailed in our phone conversation, we agree that VCE Business Management is unsuitable, as such we are going to pause this placement and seek alternatives.
Your InPlace details indicate that English and Humanities are your specialisations, as discussed this afternoon you specified English, Literacy and Philosophy are your method areas. With your permission these will be added to your InPlace data.
Your recent emails indicated some of your concerns, should you require further assistance and as discussed, I have include some Deakin central links for services…”[14]
Legislation
Section 366 of the Act sets out the statutory requirements for the timing of an application made pursuant to s.365:
“366 Time for application
(1) An application under section 365 must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (2).
(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) any action taken by the person to dispute the dismissal; and
(c) prejudice to the employer (including prejudice caused by the delay); and
(d) the merits of the application; and
(e) fairness as between the person and other persons in a like position.”
The Act allows the Commission to extend the period within which an application under s.365 of the Act must be made only if it is satisfied that there are “exceptional circumstances”. Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare.[15] Exceptional circumstances may include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together can be considered exceptional.[16]
Notwithstanding there is a dispute as to whether Mr Torcello was an employee of the Department and dismissed, I will proceed on the basis of an assumption that Mr Torcello was an employee and there was a dismissal solely for the purposes of considering whether this application has been filed within the prescribed 21 day time limit and if not, whether a further period should be allowed under s.366(2) of the Act.
A dismissal takes effect when it is communicated to an employee and the employee knows, or at least has a reasonable opportunity to know, that they have been dismissed.[17] The delay required to be considered in each case is the period beyond the expiration of the prescribed 21-day period after employee has been notified of their dismissal.
As outlined above in [4], Mr Torcello’s application, based on the information outlined in the Form F8, was made 54 days late. However, having regard to the factual background I have outlined, it would seem that 26 April 2023 was the date upon which Mr Torcello was advised that the Placement was paused. Having regard to this date, the application was made 53 days late.
The requirement that the matters outlined in s 366(2) be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. I now consider these matters in the context of Mr Torcello’s application for an extension of time.
Reason for the delay – s.366(2)(a)
The Act does not specify what reason for delay might tell in favour of granting an extension however decisions of the Commission have referred to an acceptable or reasonable explanation. It may be noted that the chronology of events lying behind this application is identical to the chronology of events pertaining to the Deakin application. It is outlined below.
The Commission’s records indicate that on 12 May 2023, Mr Torcello lodged a Form F2 – Unfair Dismissal Application naming Deakin as Respondent, asserting employment that commenced on 3 April 2023 and alleging a dismissal that took effect on 24 April 2023.[18] The Commission file indicates that Mr Torcello was contacted by telephone on 17 May 2023 and during the ensuing conversation with the member of the Commission’s staff, Mr Torcello discontinued the unfair dismissal application, as recorded in the contemporaneous Commission filenote:
“Explain to A he does not meet MEP. He said he has lodge this due to the 21 day time frame. A will now look into General Protection. Also send him WAS info.”
An email sent by the Commission to Mr Torcello at 10.13am on 17 May 2023 confirmed his discontinuance, advised that the case file had been closed and outlined that the Commission would take no further action in relation to it. Very shortly after, at 10.50am, Mr Torcello lodged a general protections application involving dismissal pursuant to s.365, naming Deakin as Respondent (the First Deakin Application). The Form F8 – General Protections Application Involving Dismissal for the First Deakin Application alleged that Mr Torcello was notified of his dismissal on 24 May 2023 and that it took effect on 25 May 2023. This prompted a member of the Commission’s staff to contact Mr Torcello on the basis that his application may have been prematurely made. In response to this contact, Mr Torcello stated the date of dismissal should have read 25 April 2023. Mr Torcello was advised that if this was the case, the application would be processed as ‘out of time’. Mr Torcello responded by filing a Form F1 Application seeking for the date of termination to be recorded as 24 April 2023. This amendment was accepted by me in my capacity as Regional Co-ordinator and the First Deakin Application was then allocated to Commissioner Johns.
Notwithstanding Mr Torcello’s allegation that a dismissal took effect on 24 April 2023, I have adopted 26 April 2023, the date upon which the placement was paused, for the purposes of determining this application for an extension of time. When considering the delay in this case, it does not include the period from 26 April 2023 until the end of the 21-day period, which in this case ended at midnight on 17 May 2023. However, the circumstances from 26 April - 17 May 2023 must be considered when assessing whether there is a credible reason for the 53-day delay in this case, or any part of that delay beyond the 21-day period.[19] Noting that Mr Torcello was able to make both the unfair dismissal application and the First Deakin Application within 21 days after 26 April 2023, I am satisfied the circumstances from 26 April 2023 to 17 May 2023 have no bearing on the subsequent 53-day delay.
Commissioner Johns listed the First Deakin Application for a Case management hearing which took place at 10.00am on Monday 19 June 2023. During the Case management hearing, Mr Torcello confirmed his allegation that his dismissal occurred on 24 April 2023 and thereafter the discussion largely concerned the objection made by Deakin that Mr Torcello was not an employee and therefore not dismissed. During this discussion, Mr Torcello disclosed a desire to take action against Fountain Gate and/or the Department and then stated he wished to discontinue the First Deakin Application. Having taken care to ensure this was Mr Torcello’s intention, the Commissioner accepted the discontinuance and then outlined:
Should Mr Torcello wish to take action against Fountain Gate and/or the Department with an unfair dismissal application or a general protections claim involving dismissal, he would be sent hyperlinks with access to information;
There is 21 days from the date an alleged dismissal occurs to make application;
Mr Torcello would be out of time if he decided to make any subsequent application;
The Commission has the power to extend time in exceptional circumstances; and
Mr Torcello would need to make application for an extension of time.
Shortly after the conclusion of the Case management hearing, an email was sent from the Chambers of Commissioner Johns to Mr Torcello and Deakin at 11.22am, stating:
“Dear Mr Torcello,
Below I have provided some links to resources you may wish to use.
· Unfair dismissals benchbook
· General protections benchbook | Fair Work Commission (fwc.gov.au)
· Job loss or dismissal | Fair Work Commission (fwc.gov.au)
Where to get legal advice? Please refer to the following link on where to get legal advice:
Where to find legal help | Fair Work Commission (fwc.gov.au)
I confirm that as noted during the mention/directions hearing, your oral notice of discontinuance is accepted, and your file is now closed.”
The Commission’s file relating to the First Deakin Application indicates that the on Thursday 22 June 2023, Mr Torcello sent an email to Commissioner Johns which stated:
“Would it be to much to ask for assistance
Case reference customer 721137797
It was dismissed but had adequate claim for compensation. They said it wasn’t because of lack of evidence, this is just a shot in the dark email maybe you couldn’t help extradite it, really just a shot in the dark,
Dimitri”
This email was followed by another email sent to the Commissioner’s Chambers on Saturday 8 July 2023, in which Mr Torcello requested that the First Deakin Application be re-opened and outlined a number of reasons for this request, including the assertion that he had come across new evidence that was not available during the original proceeding for the First Deakin Application.
When he made this current application on 9 July 2023, Mr Torcello stated in the Form F8 that the reason for the delay was as follows:
“Commissioner John [sic] chambers is my witness of excuse as we had a summons for a case in regards to deakin [sic] on another matter that is related to this one, this is a submission in response to conversations and conclusions came to at the end of that meeting”.
It is not a pre-condition to the grant of an extension of time that the applicant provide a credible explanation for the entire period of the delay.[20] The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant’s favour, however all the circumstances must be considered.[21]
Mr Torcello asserted he experienced a change in his personal circumstances following his dismissal. He said unforeseen personal challenges and health issues arose and these affected his ability to focus on his claim in a timely manner. Mr Torcello described these as family dynamics, mental fatigue, physical exhaustion and his taking up of smoking. As to the family dynamics, which Mr Torcello described as being the impact on familial expectations from the events at Fountain Gate, I do not consider this an unusual outcome. There is invariably an impact on family dynamics when employment scenarios do not go according to plan or do not fulfil hopes and aspirations. Similarly, 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 mental fatigue and physical exhaustion 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.
Mr Torcello also submitted that a reason for the delay was his lack of legal representation, which meant that he was inadequately informed of the complex legal procedures involved. He also asserts the complex nature of his case contributed to the delay. I note, however, that at the Case management hearing before Commissioner Johns on 19 June 2023, Mr Torcello made a number of references to having already spoken with lawyers. Further, in the hearing before me, Mr Torcello referenced obtaining legal advice in a free 1-hour consultation. Finally, as outlined below, Mr Torcello has disclosed that he conducted “a meticulous review of the evidence in consultation with legal experts.” It may be accepted that Mr Torcello may not have had prior experience with unfair dismissal laws, general protections proceedings or dealing with the Commission but it is well established that ignorance of one’s rights will not usually provide an acceptable explanation for a delay in lodging an application within the time prescribed[22] and that unfamiliarity is not exceptional. Applications pursuant to s.365 can be and are routinely made by reference to the Commission’s website, without legal or other professional advice. The website is replete with material designed to assist members of the public wanting to prepare and lodge applications or obtain assistance. In this case, not only did Mr Torcello demonstrate he was capable of making both the unfair dismissal application and the First Deakin Application without legal representation, but he was also able to make the First Deakin Application only 40 minutes after discontinuing the unfair dismissal application. I have also noted in [20] above that Mr Torcello made a comment during the telephone conversation with the Commission staff member on 17 May 2023 that suggests he knew about the 21-day time requirement. In all the circumstances therefore, I am not persuaded Mr Torcello’s lack of legal representation provides an acceptable or reasonable explanation for the delay.
I do not consider there is otherwise an acceptable or reasonable explanation relating to the first 33 days of the delay period (i.e. the 33 days after 17 May 2023 until the Case management hearing on 19 June 2023) weighing in favour of granting an extension. Firstly, Mr Torcello was intent on pursuing the unfair dismissal application and the First Deakin Application during this period. Secondly, I am not persuaded by Mr Torcello’s submission that it was only because of the information revealed during the Case management hearing before Commissioner Johns on 19 June 2023, that he realised that he had a case against the Department. I am not persuaded because I note that in the Form F8 for the First Deakin Application, Mr Torcello was seeking, amongst other remedies, to be reinstated to his “former position as a teacher at Fountain Gate Secondary College” on the basis that his dismissal was unjust and unreasonable and that he required his “personnel file” to be updated with accurate and truthful information about his employment history and performance at Fountain Gate. Further, it was Mr Torcello who first raised the notion of Fountain Gate being his employer during discussion at the Case management hearing. Finally, I observe that on 31 May 2023, Mr Torcello filed a Form F1 seeking to both amend an ‘error’ relating to the incorrect date of termination, from 24 May 2023 to 24 April 2023 and add the name of the Coordinator for Student Contact at Fountain Gate as a Respondent to his application. These factors suggest Mr Torcello had turned his mind to pursuing Fountain Gate/the Department as a Respondent prior to the Case management hearing.
In any event, a further 20 days passed after the Case management hearing on 19 June 2023 before Mr Torcello filed this application on 9 July 2023. Mr Torcello said this period of delay ensued because it took time for him to firstly conduct a ‘meticulous review’ of the evidence in consultation with legal experts, and then he discovered new evidence and reevaluated his position. However, I do not consider the Form F8 for this application bears out these assertions and further, it is apparent from Mr Torcello’s email dated 8 July 2023 to the Chambers of Commissioner Johns that Mr Torcello’s focus at that time was directed towards having the First Deakin Application reopened by the Commissioner.
Having regard to the evidence and material before the Commission, I do not consider there were circumstances within the 21-day period prescribed for making an application that provide a credible reason for the 53-day period of delay and nor do I consider, on balance, that there was an acceptable or reasonable explanation for the 53-day delay. The absence of an acceptable or reasonable explanation for the delay weighs against an extension of time.
Action taken to dispute the dismissal – s.366(2)(b)
Action taken by an employee to contest the dismissal, other than lodging a general protections application, may be treated as favouring the grant of an extension of time.[23]
Mr Torcello submitted that following the email of 26 April 2023, in which he was notified that a pause would be placed on his placement at Fountain Gate, he took action to dispute his purported dismissal, evidenced by the multiple emails he sent to Fountain Gate and Deakin and the internal complaints he made. I am not persuaded the emails before the Commission bear this out. The Department says there was no communication between it and Mr Torcello following receipt of advice from Deakin that Mr Torcello’s placement was paused, relying on evidence from Ms Cucchiara.[24]
It is accepted that Mr Torcello took steps to assert and dispute a dismissal by filing the unfair dismissal application on 12 May 2023 naming Deakin as Respondent. That particular step, together with the email correspondence Mr Torcello sent after 12 May 2023, the making of the First Deakin Application on 17 May 2023 (albeit it was subsequently discontinued on 19 June 2023), and the correspondence sent after 19 June 2023 was action taken to dispute a dismissal prior to the lodgement of this application. However, the action taken must be action taken to contest the dismissal that is action other than lodging the relevant application. Given the circumstances of this case, I do not consider the action taken by Mr Torcello prior to lodging this dismissal on 9 July 2023 was action taken to challenge a dismissal by the Department. As such, I am not persuaded this consideration weighs in favour of an extension of time.
Prejudice to the employer – s.366(2)(c)
Mr Torcello submits there is no prejudice to the Department (including prejudice caused by the delay). I cannot identify any greater prejudice that would accrue to the Department caused by this application being dealt with now than there would have been had it been made within the 21-day time period. The mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. However, if one were to consider the absence of prejudice as favouring an extension, I would attribute it very little weight in the consideration of whether there are exceptional circumstances.
Merits of the application – s.366(2)(d)
The essence of Mr Torcello’s position on the merits appears to be that he reported certain concerns arising out of his placement at Fountain Gate, and that there was in effect ‘retaliation’ against that action that he took in the form of his dismissal.[25] More specifically, one of Mr Torcello’s assertions appears to be that on 24 April 2023, he discovered an audio recording capturing an incident of bullying in the staff room towards Ms Amuda Ratnavelu, the coordinator for student placement. Mr Torcello says that he sent the audio recording to Ms Ratnavelu and Ms Helen Weston, Site Director of the Hallam Alliance, with the intention of seeking guidance and appropriate measures to address the bullying incident.[26] Mr Torcello appears to allege that as a result of doing so, he was dismissed. Mr Torcello also alleges there were breaches of multiple general protections provisions with the Act when he was dismissed by the Department.[27]
The Department submits the Applicant’s application has no merit because Mr Torcello was not dismissed by it within the meaning of s.386(1) of the Act. Observing that Mr Torcello also alleges dismissal by Deakin (in the Deakin application), the Department asserts Mr Torcello was not an employee of the Department but was instead undertaking a vocational placement at Fountain Gate without entitlement to remuneration, relying on unchallenged evidence of Ms Cucchiara. The Department further submits that Mr Torcello has not articulated how s.346, s.348 and s.351 are engaged in the circumstances of this case.
I am required to “take into account” the merits of the application in considering whether to extend time so some assessment of the merits must be made. In general, the substantial merits of the application are not able to be fully examined or agitated at this stage of the proceeding, which is essentially interlocutory.
The weight to be given to the merits consideration in an application for an extension of time is dependent on the extent to which there is merit in the substantive application.[28] Mr Torcello has referred to an incident on 24 April 2023. It is difficult to confirm from the material currently before the Commission as to whether he sent the audio recording of it to Ms Ratnavelu and Ms Helen Weston and in particular, prior to the placement being paused. Nor does the email correspondence the parties have otherwise submitted make clear the nature of the incident. Having reviewed the material before me and heard from the parties, I consider the merits of Mr Torcello’s application asserting a breach of s.340, assuming he is eligible to make a general protections application against the Department, would turn on contested points of fact that would need to be tested, including under cross-examination if an extension of time were granted and the matter were to proceed and further, that the parties would need the opportunity to fulsomely present their respective cases. Based on the material currently before the Commission, it does not appear Mr Torcello’s assertions in relation to ss.346, 348, 351, 352 and 358 are reasonably arguable.
However, a person must have been ‘dismissed’ in order to be entitled to make application under s.365, and for a dismissal to have occurred, the person must have been an employee (s.386 of the Act). Whether an employment relationship exists is a question of fact and law and this question must be determined on an objective basis, not a subjective belief. Mr Torcello is enrolled as a student of Deakin in a Master of Teaching (Secondary) course.[29] As referred to above, this course required Mr Torcello to complete a placement with Fountain Gate as part of the Placement program governed by the MOU between the Department and Deakin. Mr Torcello had no entitlement to be paid during his participation in the placement.
Mr Torcello has acknowledged that his “status as a student is undeniable”[30] and yet claims his contributions and engagement at the College were so substantial as to transcend that of a student teacher and instead constitute an employment relationship.[31] The Department relies on evidence from Ms Cucchiara and Ms Shmerling that the activities undertaken by Mr Torcello on his placement went no further than any other student teacher.
Based on the material currently before the Commission, it does not appear Mr Torcello’s assertion that he was an employee of the Department who was dismissed is reasonably arguable and it therefore appears that his application has little prospect of success. I therefore consider the merits tell against an extension of time.
Fairness as between the person and other persons in a similar position – s.366(2)(e)
This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. However, cases of this kind will generally turn on their own facts. Neither party has brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. I therefore consider this to be a neutral consideration.
Conclusion as to Extension of time
The requirement that there be exceptional circumstances before time can be extended under s.366(2) contrasts with the broad discretion conferred on the Commission under s.185(3) of the Act to extend the 14-day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is “fair” to do so.
The task before me in determining whether to grant this extension of time application was laid out by the Full Bench in Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd:
“[38] As we have mentioned, the assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional.
[39] So much is clear from the structure of s.366(2), each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary to consider the matters collectively and to ask whether collectively the matters disclose exceptional circumstances. The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly a credible explanation for the entirety of the delay, will usually weigh in the applicant’s favour, though, as we mention later, it is a question of degree and insight. However the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the relevant matters and the assignment of appropriate weight to each.”[32]
Having regard to and weighed each of the matters I am required to take into account under s.366(2), and having considered them collectively, I am not satisfied that there are exceptional circumstances. In my view, there are no exceptional circumstances in this case, either when the various circumstances are considered individually or together. Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under s.366(2). Accordingly, I dismiss Mr Torcello’s application against the Department on this basis.
DEPUTY PRESIDENT
Appearances:
D Torcello on his own behalf
S Cheligoy of counsel for the Department of Education (State of Victoria).
Hearing details:
2023
Melbourne
5 October
[1] C2023/4398.
[2] [2023] FWC 2528
[3] DCB in C2023/4398, p.56.
[4] Digital Court Book (DCB) at p.121, footnote 3.
[5] Ibid at p.126.
[6] Ibid at pp.129-130 (Clause 5.2).
[7] Ibid at pp 20-39.
[8] Ibid at p.26.
[9] Ibid at p.29.
[10] Ibid at pp. 30-31.
[11] Ibid at p.34.
[12] Ibid at pp 34-35.
[13] Ibid at p.37.
[14] Ibid at pp 38-39.
[15] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].
[16] Ibid.
[17] Ayub v NSW Trains [2016] FWCFB 5500.
[18] U2023/4121.
[19] Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic [2016] FWCFB 349 at [29]-[31].
[20] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [40].
[21] Ibid at [39].
[22] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [14].
[23] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300.
[24] DCB at pp 115 (at 3.9) and 123 (at [31] and [32]).
[25] Transcript PN362; PN406-418; PN472-481; PN493; PN499.
[26] DCB in C2023/4398, p.24.
[27] DCB at pp.13-14.
[28] Long v Keolis Downer T/A Yarra Trams[2018] FWCFB 4109 at [71].
[29] DCB at p.106.
[30] DCB 84.
[31] DCB 84 – 87.
[32] [2018] FWCFB 901.
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