Panos Panayiotou v University of Adelaide

[2019] FWCFB 7325

[2019] FWCFB 7325

FAIR WORK COMMISSION

INTERLOCUTORY DECISION

Fair Work Act 2009

s.604 – Appeal of decisions

Panos Panayiotou
v
University of Adelaide

(C2019/5541 and C2019/6144)

JUSTICE ROSS, PRESIDENT
DEPUTY PRESIDENT MILLHOUSE
COMMISSIONER CIRKOVIC MELBOURNE, 23 OCTOBER 2019

Applications for an extension of time within which to lodge appeal.

Background

1. This interlocutory decision relates to two appeals filed by Mr Panayiotou, which have been allocated to this Full Bench.

1. The following timeline outlines some key events in the conduct of the Appellant’s matters against the Respondent:

· 25 June 2019 – Hearing of matter U2019/3430 before Commissioner Hampton.

· 16 July 2019 – Decision [2019] FWC 4363 handed down by Commissioner Hampton, rejecting the Applicant’s application for an extension of time within which to lodge his unfair dismissal application in U2019/3430.

· 21 July 2019 – Appellant lodged a first appeal of decision [2019] FWC 4363 in U2019/3430. This appeal was lodged within time, and was allocated matter number C2019/4461.

· 2 September 2019 – First appeal heard by a Full Bench comprising Vice President Hatcher, Deputy President Clancy and Deputy President Masson.

· 6 September 2019 – Decision [2019] FWCFB 6214 handed down by the Full Bench, refusing permission to appeal Commissioner Hampton’s decision.

· 7 September 2019 – Appellant lodged a second appeal of decision [2019] FWC 4363. This appeal was lodged 32 days out of time, and was allocated matter number C2019/5541.

· 25 September 2019 – A Notice of Listing and Directions were sent to the parties in matter C2019/5541.

· 26 September 2019 – Appellant lodged a third appeal of decision [2019] FWC 4363. This appeal was lodged 51 days out of time, and was allocated matter number C2019/6144.

· 4 October 2019 – Appellant advised the President’s Chambers by email that the second and third appeals are separate and should be allocated different matter numbers.

· 21 October 2019 – At the Appellant’s request, the telephone Mention listed for 21 October 2019 was cancelled.

· 4 November 2019 – Appellant’s outline of submissions is due.

· 13 November 2019 – Respondent’s outline of submissions and any party’s submission regarding permission to be represented at the hearing are due.

· 20 November 2019 –Hearing is scheduled by video link to Adelaide at 9:30am (AEDT).

Second and third appeals lodged on 7 and 26 September 2019

1. The Appellant’s second appeal (7 September Notice of Appeal (C2019/5541)) and third appeal (26 September Notice of Appeal (C2019/6144)) are both seeking to appeal the decision issued by Commissioner Hampton on 16 July 2019 in matter U2019/3430 ([2019] FWC 4363). This is made clear in Section 1 ‘The decision to be appealed’ of the Notices, in which the Appellant has inserted that the Fair Work Commission (Commission) matter number is U2019/3430; that the decision-maker is Commissioner Hampton, and that the date of the decision is 16 July 2019.

1. In his decision, Commissioner Hampton refused the Appellant an extension of time to lodge his unfair dismissal application and ordered that his unfair dismissal application be dismissed.

1. The Appellant has confirmed his intention that the second and third appeals of Commissioner Hampton’s decision are separate appeals. Accordingly, the 26 September Notice of Appeal is not seeking to amend the grounds of appeal in the 7 September Notice of Appeal.

1. While there are some differences between the 7 and 26 September Notices of Appeal, as both applications are in substantively similar terms and are seeking to appeal the same decision, they will be dealt with together by this Full Bench. Some differences that are noted between 7 and 26 September Notices of Appeal are:

· the 7 September Notice does not state that the Appellant requires an interpreter, whereas the 26 September Notice states that he does require an interpreter, in ‘American English’.

· the 7 September Notice states in section 1.1 in relation to the Commission matter number of the matter being appealed: ‘U2019/3430 – Appeal hearing before full bench was had (C2019-4461) by the complainant was not granted procedural fairness in his original appeal.’ The 26 September Notice simply gives the U matter number.

· the content of item 2) under section 2.1 ‘What are the grounds for your appeal?’ in the 7 September Notice (re ‘Outline of Fair Work Commission requirement and circumstantial evidence provided by the complainant’) has been omitted from the 26 September Notice.

· the 26 September Notice states next to the Appellant’s signature ‘(Under Duress)’ and states that the Appellant has ‘requested assistance from WAS but it has not been responded to.’ These matters are not included in the 7 September Notice.

1. We will be issuing a Notice of Listing today to make clear that matters C2019/5541 and C2019/6144 will be dealt with together by this Full Bench. We also issue the revised Directions set out at Attachment A in respect of both matters to ensure that all documents prepared, filed and served by the parties relate to both appeals. The revised Directions do not change any of the timelines for the filing of submissions.

Subject of hearing on 20 November 2019

1. The hearing on 20 November 2019 will only be dealing with the applications for an extension of time within which to institute the appeals in C2019/5541 and C2019/6144. It will not be dealing with whether to grant the Appellant permission to appeal or, if permission is granted, the merits of the appeals. Those matters will be the subject of further Directions, should the Appellant’s applications for an extension of time be granted.

1. In an email to the President’s Chambers on 21 October 2019, the Appellant has stated that ‘2) The [first] full bench hearing had procedural flaws that warrant another appeal – see presidents letter that says another full bench hearing will be had of [the Appellant’s] matters.’

1. The President’s correspondence to the Appellant to which this refers stated that the second appeal application would be allocated to a new Full Bench. It further explained that as the second appeal had been lodged outside the time period prescribed in the Fair Work Commission Rules 2013 (the Rules), the Commission must first consider whether or not to grant an extension of time, and that the application for permission to appeal (and if permission is granted, the merits of the appeal) would only be decided if an extension of time was granted. The President’s correspondence makes no comment in relation to the first appeal other than to note that if Mr Panayiotou was dissatisfied with the decision of the Full Bench in [2019] FWCFB 6214, he may seek to apply to the Federal Court for judicial review of that decision.

1. Since lodgement of the second appeal on 7 September 2019, the President’s Chambers and Associate have received in excess of 50 emails from the Appellant, and have been copied into a further 20 plus emails.

1. The issues discussed below have been identified from the documents filed by the Appellant and these emails. We propose to address these issues in this decision, and thereby obviate the need for any further exchanges with the Appellant on these matters.

Time limits – calculation of time within which to lodge appeal

1. The Appellant has made several enquiries about the reference to ‘32 days out of time’ in the Directions issued on 25 September 2019.

1. As has been explained, Notices of Appeal must be lodged within 21 calendar days after the date of the decision that is being appealed, or within such further time allowed by the Commission on application by the appellant.

1. Commissioner Hampton’s decision was issued on 16 July 2019. For an appeal of that decision to have been lodged within time, it must have been lodged on or before 6 August 2019.

1. The second appeal was lodged by the Appellant on 7 September 2019, which is 32 days after that date. Accordingly, it was lodged 32 days out of time. We note that the third appeal was lodged on 26 September 2019, which is 51 days after 6 August 2019. Accordingly, it was lodged 51 days out of time.

1. The outline of submissions to be filed by the Appellant should address the grounds on which the extensions of time within which to institute the appeals are sought. As the Directions issued on 25 September 2019 explained, time limits of the kind in Rule 56(2) are not simply extended as a matter of course. There are sound administrative and industrial reasons for setting a limit to the time for bringing an appeal and the 21-day period specified in the Rules will only be extended where there are good reasons for doing so. The authorities that were linked to the Directions indicate that the following matters are relevant to the exercise of the Commission’s discretion under Rule 56(2):

   · 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.

2. Further information is contained in the appeal proceedings practice note linked to the Directions issued on 25 September 2019.

1. The parties are reminded that they are expected to comply with the Directions in terms of the length of the outline of submissions.

Legal representation

1. The Directions require any party that wishes to apply for permission to be represented at the hearing on 20 November 2019 to file and serve a document which identifies the lawyer or paid agent the subject of the application and the reasons why permission should be granted, by 4.00pm on Wednesday 13 November 2019.

1. We will make a decision in relation to representation at the hearing on 20 November 2019, if it is necessary to do so.

Request for transcript

1. The Appellant’s letter of 19 October 2019 emailed to the President’s Chambers states that the Appellant is seeking access to the transcript of the hearing in matter C2019/4461 (the first appeal proceeding).

1. We have decided to order the transcript of the hearing in matter C2019/4461 and will make a copy of the transcript available to the parties.

Request for an interpreter in ‘American English’

1. The 26 September Notice of Appeal requests an interpreter in ‘American English’.

1. The provision of an interpreter is at the discretion of the Commission.

1. To our knowledge, there have been no requests by the Appellant in relation to his previous Commission matters for an interpreter, and no request was made in relation to matter C2019/5541. The Appellant represented himself in those matters. We understand from the decisions in those matters that the Appellant provided extensive written and oral submissions and material in English.

1. In the circumstances, we are not satisfied that the Appellant has a need for an interpreter in ‘American English’ having regard to his English language skills. We would also note that the interpreter service used by the Commission in South Australia has advised that it does not provide an ‘American English’ interpreter service.

1. Accordingly, we decline to provide an ‘American English’ interpreter for the hearing on 20 November 2019.

Other matters

1. The Commission will provide a similar private security service for the Appellant in relation to the hearing on 20 November 2019 as was previously provided. Any enquiries about this should be directed to the Executive Director, Tribunal Services (see below).

1. The Appellant is instructed not to communicate with the Chambers of Members comprising this Full Bench or their Associates, prior to the hearing on 20 November 2019, outside of lodging materials in accordance with the Directions issued by the Full Bench. All correspondence (other than submissions filed in accordance with the revised Directions) is to be directed to the Executive Director, Tribunal Services, Mr Murray Furlong – [email protected].

PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR713630>

ATTACHMENT A

REVISED DIRECTIONS

Fair Work Act 2009

s.604—Appeal of decision

Panos Panayiotou

v

University of Adelaide

(C2019/5541 and C2019/6144)

JUSTICE ROSS, PRESIDENT MELBOURNE, 23 OCTOBER 2019

1. Rule 56(2) of the fair Work Commission Rules 2013 (Cth) (Rules) requires that an appeal must be instituted within 21 days after the date of the decision appealed against, or within such time as is allowed by the Commission on application. The appeal before the Commission was lodged some 32 days out of time. If a Notice of Appeal is lodged later than 21 days after the decision under appeal was issued, application should be made for an extension of time within which to institute the appeal. An extract from Practice Note 1/2013 Appeal Proceedings regarding time limits is set out at Attachment A.

1. This matter is listed for the hearing of the extension of time applications only in Melbourne, by video link to Adelaide, before the Full Bench on Wednesday 20 November 2019 commencing at 9:30am (AEDT). The following directions are made:

1.        The Appellant shall file in the Commission and serve on the other party an outline of submissions not exceeding three A4 pages in length, addressing the requirements for an extension of time to file the appeals only, addressing the grounds on which the extensions of time within which to institute the appeals are sought, by 4.00pm Monday 4 November 2019.

2.        The Respondent shall file in the Commission and serve on the Appellant an outline of submissions in response to the Appellant’s outline of submissions not exceeding three A4 pages in length by 4.00pm Wednesday, 13 November 2019.

3. Any party that wishes to apply for permission to be represented at the hearing of the matter by a lawyer or paid agent shall file in the Commission and serve on the other party a document, not exceeding one A4 page in length, which identifies the lawyer or paid agent the subject of the application and the reasons why such permission should be granted having regard to the grounds in s.596(2) of the Fair Work Act 2009 by 4.00pm on Wednesday 13 November 2019.

4.        Any failure to comply with the above directions and/or to attend the hearing date scheduled by either party may result in the matter being determined in the absence of submissions of that party.

PRESIDENT

Printed by authority of the Commonwealth Government Printer

Time limits

1)        The Notice of Appeal (Form F7) must be lodged with the Commission within 21 days after the date the decision being appealed was issued [see Rule 56(2)]. If a Notice of Appeal is lodged later than 21 days after the decision under appeal was issued, application should be made for an extension of time within which to institute the appeal. To do so the appellant needs to indicate this in the Notice of Appeal (Form F7) [see Rule 56.2]. The appeal before the Commission was lodged some 32 days out of time.

2)        Time limits of the kind in Rule 56(2) are not simply extended as a matter of course. There are sound administrative and industrial reasons for setting a limit to the time for bringing an appeal and the 21 day period specified in the Rules will only be extended where there are good reasons for doing so. The following authorities indicate that the following matters are relevant to the exercise of the Tribunal’s discretion under Rule 56(2):

·  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.

·  Stevenson-Helmer v Epworth Hospital, Print T2277, 19 October 2000

·  SPC Ardmona Operations Ltd v Esam and Organ, (2005) 141 IR 338

·  Tokoda v Westpac Banking Corporation, [2012] FWAFB 3995

3)        For more information on the appeals process please refer to the appeal proceedings practice note which is available on the Fair Work Commission website at