Dimitri Torcello v Koala Kare
[2024] FWC 3595
•31 DECEMBER 2024
| [2024] FWC 3595 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Dimitri Torcello
v
Koala Kare
(C2024/8087)
| DEPUTY PRESIDENT O’NEILL | MELBOURNE, 31 DECEMBER 2024 |
Application to deal with contraventions involving dismissal – extension of time not granted – application dismissed.
Introduction
On 11 November 2024, Mr Dimitri Torcello made an application to the Commission for a general protections application involving dismissal. He contends that he was dismissed by the Respondent, effective 20 June 2024, in contravention of sections 340, 343 and 351 of the Fair Work Act 2009 (Cth) (the Act).
Section 366 of the Act states that an application under section 365 must be made within 21 days after the dismissal took effect, or within such further period as the Commission allows.
The period of 21 days ended at midnight on 11 July 2024. The application was therefore filed 123 days outside the 21-day period.
For the application to proceed, Mr Torcello requires the Commission grant a further period of time within which to bring his application.
This decision deals with the question of whether exceptional circumstances exist warranting additional time to make the application. The issue was dealt with at a hearing on 23 December 2024, at which the Applicant gave evidence in support of his application. An earlier hearing on 13 December 2024 dealt with the Applicant’s application that I recuse myself, which I declined to do.[1]
Additional time can be allowed under section 366(2) of the Act if there are exceptional circumstances. These are circumstances that are “out of the ordinary course, or unusual, or special, or uncommon” but that “need not be unique, or unprecedented, or very rare”.[2]
The requirement that there be exceptional circumstances before the time to apply can be extended is a high hurdle.[3]
In deciding whether I am satisfied that there are exceptional circumstances, I must consider:
· the reason for the delay,
· any action taken by the person to dispute the dismissal,
· prejudice to the employer (including prejudice caused by the delay),
· the merits of the application, and
· fairness as between the person and other persons in a similar position.
In assessing whether there are exceptional circumstances I am required to consider and give appropriate weight to each of these considerations.
Relevant factors
Reason for delay:
The Act does not specify what reason for delay might justify granting an extension however decisions of the Commission have referred to an acceptable or reasonable explanation. 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 of the circumstances must be considered.[4]
The delay required to be considered is the period after the prescribed 21-day period for lodging an application. It does not include the period from the date the dismissal took effect to the end of the 21-day period.[5] However, the circumstances from the time of the dismissal must be considered when assessing whether there is an acceptable reason for the delay, or any part of the delay, beyond the 21-day period.[6]
The Respondent has raised a further objection that the Applicant was not dismissed within the meaning of the Act, as it contends that the Applicant was not an employee but was engaged as an independent contractor. For the purposes of determining whether additional time should be granted for the making of the application, I am presuming that the Applicant was dismissed, as he contends, effective 30 June 2024.
The Applicant’s reasons for the delay are set out in his written submissions and elaborated on at the hearing. They set out sensitive and personal matters which it is unnecessary to repeat in this decision, however I have considered all the submissions and evidence of the Applicant. In summary, the Applicant relies on five key submissions:
(a) Mental Health and Psychological Impairment:
(b) Complexity of the Case and Self-Representation:
(c) Concurrent Legal Obligations:
(d) Family Responsibilities and Personal Circumstances:
(e) Public Interest and Systemic Implications
During the hearing, the Applicant also submitted that he was unaware of his legal rights. However, it is well established that ignorance of one’s legal rights does not, of itself, constitute exceptional circumstances.
In relation to the state of his health, in the Form F8 Application the Applicant states “at time of my dismissal I was suffering from severe mental health challenges that affected my decision-making capacity. A medical report from Dr Kristian Eldridge dated 13 May 2023 confirms that I was experiencing severe anxiety, stress, and mental exhaustion which materially impacted my ability to engage in legal processes promptly.”[7] The medical report referred to appears to be a document prepared by Dr Eldridge dated 13 May 2023 headed “Full Summary”.[8] It contains progress notes of a consultation with the Applicant where the reason for the attendance is ‘anxiety’ and includes a prescription for medicinal cannabis. However, the document does not provide either a medical diagnosis nor any opinion as to the Applicant’s capacity, including his capacity to engage in legal processes.
The Applicant also provided a referral from a Dr Jiang dated 18 December 2023. Dr Jiang refers the Applicant to a psychologist – for opinion and management “having significant concerns about having difficulty with social interactions ever since childhood. He was never formally investigated and is concerned he has undiagnosed ASD/ADHD. He is seeking to get NDIS support. Kindly review.”[9] Similarly, this letter of referral does not contain a diagnosis nor evidence of any diminution in the Applicant’s capacity to make the application.
The Applicant also relied on the following medical evidence, each dated 25 November 2024:
(a)A GP Mental Health Treatment Plan completed by the Applicant’s General Practitioner, Dr Tait.[10] The Plan reports that the Applicant presented as a ‘33 year old man with anxiety, rumination, poor sleep on the background of significant stressors relating to legal proceedings with his previous university and ex-employer’, with a history of anxiety and asthma and reported a provisional diagnosis of mixed anxiety/depression. Under the heading ‘Results of Mental State Examination’ the Plan notes “no perceptual disturbances evident, Cognition grossly intact (not formally assessed), Good insight and Judgement reasonable’, with a stated mood of ‘helpless’, and recorded several persecutory themes in thoughts.
(b)A letter of referral from Dr Tait to a psychologist for an initial 6 sessions of psychology for opinion and management of anxiety/depression.[11]
(c)A letter of referral from Dr Tait to a psychiatrist.[12] The referral notes that Mr Torcello presented with anxiety, low mood, rumination and feelings of hopeless and seeks an opinion as to whether anxiety/depression is the correct diagnosis.
(d)A photograph and receipt for Dytrex,[13] a pharmaceutical used in the treatment of depression and anxiety.
The Applicant also provided a copy of a receipt and extract of Progress Notes of a Dr Enas Makar dated 27 November 2024,[14] which records:
“presented to get a second opinion. Issues with thought process. Hearing voices/messages? Auditory hallucinations. High expectations, Relationship issues, difficulty with employment. Referred to see a psychiatrist ? schizophrenia.”
The Applicant also provided a letter from Dr Tait dated 6 December 2024.[15] In the letter Dr Tait sets out that the Applicant has been a patient of the Alsalam Medical Centre since December 2023, and Dr Tait’s patient since September 2024. It details the symptoms the Applicant presented with that are consistent with a diagnosis of generalised anxiety disorder and major depressive disorder and reports having symptoms of these conditions for 12 months. He reported symptoms following his dismissal from the Respondent where he again experienced increased levels of anxiety, panic attacks and difficulty sleeping, which persisted until Dr Tait’s review in November 2024.
The Applicant included in the materials he filed in support of his application, a number of other decisions. He submitted that his situation was different to that of applicants in those cases where extensions of time were not granted, largely because the symptoms he experienced and the state of his mental health were more severe and profound than in other cases. He drew my attention specifically to the decision in Roberts v Westech IT Solutions Pty Ltd.[16] In that matter, the applicant was granted an extension of time. However, the circumstances involved in that case were quite different to Mr Torcello’s circumstances. In particular, the period of delay involved was 22 days and not the much longer period in this case, and there was evidence that the applicant had “been given the run around” when seeking assistance from relevant bodies.
As helpfully set out by Deputy President Easton in Rosso v Teddy Bear Cottage Early Childhood Services Pty Ltd,[17] the relevant principles which I have applied include:
[32] …
(i)stress, shock, confusion and similar conditions are not exceptional circumstances in and of themselves (per Shaw);
(ii)a depressive illness might point towards exceptional circumstance if the illness had a material impact upon the Applicant’s capacity to lodge the application within the statutory time limit (per Roberts, Beard and Underwood);
(iii)the evidence should positively demonstrate that the Applicant’s depressive illness had an impact on their mental capacity so as to prevent the lodging of the application within the 21 day time frame (per Beard, Underwood and Merhi); and
(iv)an applicant’s self-assessment of their alleged psychological incapacity is unlikely to be sufficient (per Underwood).
I accept the medical evidence Mr Torcello provided evidences that he has experienced mental health challenges for an extended period of time. I accept that Mr Torcello was likely suffering anxiety/depression and possibly schizophrenia. However, the medical evidence provided by the Applicant do not individually or collectively provide a basis for concluding that the Applicant’s health precluded or significantly impaired his ability to make the application in a timely way. To the contrary, the evidence indicates that as at 25 November 2024, his cognition, insight and judgment were not dramatically impaired. That is especially significant in the context of a very significant delay in making the application. I am not persuaded that the state of Mr Torcello’s health was a significant cause of, and explanation for, the long delay in making the application.
The Applicant also relied on evidence from his mother,[18] sister[19] and brother-in-law[20]. Their evidence, relevantly, goes to their observations of changes in Mr Torcello’s mood and behaviour during his employment with the Respondent and thereafter, the emotional and psychological toll he experienced, and their view that the delay in making the application is related to these changes. Whilst I accept their evidence, I am not satisfied, viewed in the context of the medical and other evidence, that it explains the delay in making the application.
Other matters point to a conclusion that Mr Torcello was not so significantly impacted by his health so as to explain the delay in making the application. He was able to pursue other applications for extensions of time in relation to two separate general protections applications pursuant to s.365 of the Act (C2023/4051 and C2023/4398). Mr Torcello was able to appear and give evidence in support of extensions of time in both matters at a hearing on 5 October 2023. The Applicant’s pursuit of these previous cases also evidence that he was aware of the 21-day period for making a general protections application, and had perhaps at least some appreciation of the challenge in being granted additional time to make an application filed late.
In relation to the submission that the Applicant was under immense strain to meet deadlines because he was concurrently managing several other cases, I do not find that this is an acceptable reason for the delay. As set out above, the delay required to be considered is the period after the prescribed 21-day period for lodging an application – in Mr Torcello’s case, the four-month period between 11 July and 11 November 2024. The two other applications were dealt with at a hearing on 5 October 2023, with decisions handed down on 13 November 2023. The Applicant appealed both decisions, filing notices of appeal on 18 October 2024 in C2024/7498 and 4 November 2024 in C2024/7803. Whilst I accept that preparing the two notices of appeal involved some time and effort, it does not provide an acceptable reason for the almost four-month delay in making the current application.
I am similarly not persuaded by the Applicant’s submission that the level of complexity involved in the application explained the delay, in the context of the very long delay involved and the extensive resources available on the Commission’s website.
In relation to the submissions relied on regarding the Public Interest and Systemic Implications, I have taken these into consideration in my overall assessment, but they do not provide an explanation for the delay in making the application.
Considering all the evidence and submissions made by the Applicant in support of an extension of time, I am not satisfied that the Applicant has provided an acceptable reason for the very significant delay in making the application. The absence of an acceptable reason for the whole of the period of the delay weighs against a conclusion that there are exceptional circumstances.
Whether the Applicant took action to dispute the dismissal:
The Applicant did not make any specific and relevant submissions that this consideration weighs in favour of a finding of exceptional circumstances, and I have treated it as a neutral consideration.
Prejudice to the employer (including prejudice caused by the delay):
The Respondent asserts that it will suffer prejudice if the application is allowed to proceed because of the length of time that has passed since the alleged dismissal. The Applicant disputes that any prejudice will be suffered, including because ‘[t]he nature of the employment relationship and the circumstances surrounding the dismissal remain unchanged, and the employer retains access to all pertinent records and information.’[21] In the circumstances and in the absence of any evidence of actual prejudice to the employer, I have treated this as a neutral consideration.
Merits of the application:
In relation to the merits of the application, a key issue in this case will be whether the Applicant was engaged by the Respondent as an employee or as an independent contractor. There are significant factual disputes between the parties as to what occurred and how the relationship is to be characterised. In the absence of untested assertions, it is not possible to form a clear view at this point in time, and I have treated this as a neutral consideration.
Fairness as between the person and other persons in a similar position:
This consideration concerns consistency with other relevant cases to ensure fairness between the applicant and other persons. It involves considering, for example, how other cases involving similar circumstances were treated to ensure there is fairness in the treatment of the Applicant’s claim. However, cases will generally turn on their own facts.
I have considered the Applicant’s submission regarding this consideration, and I have treated this as a neutral consideration.
Conclusion
I am sympathetic to the challenges the Applicant has been experiencing, however having regard to the matters I am required to take into account under s.366(2) of the Act and all of the matters raised by the Applicant, I am not satisfied that there are exceptional circumstances, either when the various circumstances are considered individually or together. In particular, the Applicant does not have an acceptable or reasonable explanation for the delay in lodging his application and none of the considerations I need to take into account weigh in favour of a finding of exceptional circumstances, and the granting of additional time.
As there are no exceptional circumstances, no additional time can be allowed for Mr Torcello to make his application. This means that he is not eligible to apply for a general protections application involving dismissal.
The application is dismissed. An order to that effect will be issued separately.
DEPUTY PRESIDENT
Appearances:
D. Torcello, the Applicant appearing on his own behalf.
D. Heath, appearing on behalf of the Respondent.
Hearing details:
2024.
23 December (via Microsoft Teams)
[1] Dimitri Torcello v Koala Kare[2024] FWC 3520
[2] Nulty v Blue Star Group (2011) 203 IR 1 at [13].
[3] Mooney v Mega Industries Pty Ltd[2021] FWCFB 2489 at [16].
[4] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39]
[5] Long v Keolis Downer[2018] FWCFB 4109 at [40].
[6] 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].
[7] DHB, p.12.
[8] DHB p.609.
[9] DHB p.722.
[10] DHB p.627-631.
[11] DHB p.635.
[12] DHB p.623.
[13] DHB p.632-633.
[14] DHB p.660.
[15] DHB p.721.
[16] [2014] FWC 4226.
[17] [2022] FWC 189 at [25]-[32].
[18] DHB p711-712.
[19] DHB p.718.
[20] DHB p.716-717.
[21] DHB p.705.
Printed by authority of the Commonwealth Government Printer
<PR782859>
0
10
0