DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Panos Panayiotou
v
University of Adelaide
(U2019/3430)

Application for an unfair dismissal remedy – application lodged outside of the 21-day time period by reference to the claimed date of alleged dismissal – conjecture about date of alleged dismissal and whether applicant an employee – extension of time matter heard – findings made about date of alleged dismissal – whether relevant exceptional circumstances exist – considerations provided by s.394(3) taken into account – not persuaded that exceptional circumstances exist warranting extension of time – extension not granted – unfair dismissal application dismissed.

1. What this decision is about

[1] Mr Panos Panayiotou (the Applicant) has applied to the Fair Work Commission (the Commission or FWC) for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the FW Act) following his alleged unfair dismissal from the University of Adelaide (Adelaide University, the University or the Respondent).

[2] In documents attached to his application, Mr Panayiotou states he was “hired to work on a medical research project by the University of Adelaide” and he was in effect “dismissed” after having raised concerns about the integrity of research activities. Additionally, Mr Panayiotou provided information that he contends “demonstrated employee status” with Adelaide University.

[3] In the application, Mr Panayiotou claims he was dismissed on 10 October 2018; however there is some conjecture about this date. This application was lodged on 26 March 2019; outside the standard time limit for lodging an application under s.394(2)(a) of the FW Act. However, the FW Act permits the Commission to allow a further period for lodgment if, having regard to certain considerations in s.394(3), it is satisfied that exceptional circumstances exist and that it is appropriate to grant an extension of time (EOT).

[4] Mr Panayiotou contends that there are exceptional circumstances in relation this application and that the Commission should exercise its discretion to extend the time limit allowed in order for the unfair dismissal application to proceed.

[5] Adelaide University opposes the granting of an EOT to Mr Panayiotou, and the unfair dismissal application more generally, and has raised a number of jurisdictional objections. It asserts that Mr Panayiotou was not a person protected from unfair dismissal under the FW Act because he was not an employee and was not dismissed (the other jurisdictional issues). Amongst other matters, Adelaide University claims that Mr Panayiotou was a Masters candidate on a scholarship program that had his status as a “student” cancelled.

[6] This decision deals with the EOT matter.

2. Further background to the matter

[7] This matter was subject to a hearing, in person, on 25 June 2019 to deal with the EOT claim, but not the other jurisdictional issues. Mr Panayiotou was unrepresented during this proceeding (and has been unrepresented over the course of this application). In an earlier Decision, 1 I granted Adelaide University permission under s.596 of the FW Act to be represented by a lawyer (Mr Short of Minter Ellison) at the EOT hearing. Some of the background to this matter is also discussed in the Permission Decision and I do not repeat it here.

[8] There are some additional matters of context that should be set out in this decision. These explain some of the pre-lodgment communications between Mr Panayiotou and the Commission and the various steps taken to ensure that both parties were afforded a fair hearing given Mr Panayiotou’s circumstances and the particular features of his application.

[9] Mr Panayiotou filed this application with the Commission on 26 March 2019. However, prior to the lodgment Mr Panayiotou had extensively engaged with the Commission, and various Government agencies and public officials, regarding his situation and apparent intent to contest his treatment by Adelaide University, including the termination of his scholarship. Most of these communications were copied into all of the various agencies and officials, with new contacts being progressively added. Amongst other matters, Mr Panayiotou claims that as part of this process he attempted to, or did, lodge an earlier unfair dismissal application with the Commission in October 2018.

[10] Given that Mr Panayiotou was not represented, no longer had access to his work emails, and it was unlikely that Adelaide University would have access to most of that communication as it involved Mr Panayiotou’s personal email account, I considered that all of the relevant communications between the Applicant and the Commission leading up to the lodgment should be assembled and provided to both parties in advance of the hearing. Relevant in this context means all direct communications between Mr Panayiotou and the Commission’s Registries (and other staff) regarding Adelaide University in the period between 29 September 2018 (being the date of Mr Panayiotou’s first recorded contact with the Commission) and the time when the unfair dismissal application was lodged. This ultimately involved a package of some 223 pages, comprising 43 documents and their attachments. This was ultimately admitted as evidence 2 and confirmed3 by Mr Panayiotou as representing all of the communications between himself and the Commission in that period, noting that the Commission had been copied into exchanges with other bodies and there was some additional information accompanying the 26 March 2019 application, which is also properly before the Commission.

[11] Further, in the lead up to the hearing, and during the hearing itself, the measures were undertaken to ensure a fair hearing for all parties included the following:

•  When it became clear from the application and response documents, and other materials foreshadowed by Mr Panayiotou, that there were apparently relevant factual disputes and a conference or hearing would be required, 4 a comprehensive directions conference was conducted by phone to explore the alternatives, including the nature of the proceedings, the scope of matters to be considered, the extent of material likely to be involved from each party, the timeframes, and whether the proceedings would be conducted in private or in public;

Comprehensive directions, with subsequent explanations, were issued designed to permit both parties to provide all relevant information and submissions regarding the EOT and to ensure that the Commission was aware of precisely which documentation Mr Panayiotou was ultimately seeking to rely upon in the context of numerous emails sent to the Commission and other agencies and individuals, both before and after the directions conference;

Confirming, in the immediate lead up to, and during the hearing, precisely which documents each party was seeking to rely upon;

Permitting additional materials provided by Mr Panayiotou in advance or during the hearing (but not afterwards) when these were relevant and the other party had an opportunity to deal with such during the hearing;

Explaining the purpose of the hearing and the proposed conduct of the matter at the outset of the hearing, and dealing with questions about procedure during the course of the proceedings;

Explaining the relative weight of evidence and “bar table” submissions;

Assisting Mr Panayiotou to present his evidence and asking clarifying questions to explore the matters he was relying upon;

Arranging for external security (and before the hearing - a staff member of the Commission) to accompany Mr Panayiotou to and from the Commission’s facilities in the Riverside Centre in Adelaide on the day of the hearing in light of concerns that he had raised about his safety; and

•  Providing information, including comprehensive responses, to various emails from Mr Panayiotou questioning, or disputing, certain arrangements put in place by the Commission to hear his EOT claim.

3. The position of the parties and their evidence

[12] Each of the parties addressed the considerations established by s.394(3) of the FW Act and I will deal with these in my consideration of those matters. Before doing so, it is convenient to outline the general nature of the cases presented by the parties.

3.1 Mr Panayiotou

[13] Mr Panayiotou has provided very extensive materials in support of his EOT claim. In addition to submissions dealing with the considerations established by s.394(3)of the FW Act, the intended relevance of other materials and rejoinders to the Respondent’s evidence, a total of 114 individual items (some with attachments) comprising documents and audio recordings have been provided in support of his claim for an EOT. These documents were primarily records of email exchanges between Mr Panayiotou and various officers of Adelaide University, as well as Mr Panayiotou’s communications with a wide-ranging array of non-government, State and Commonwealth bodies, including: organisations, unions, independent authorities, Commonwealth law enforcement agencies, tribunals, departments, the South Australian Premier and Deputy Premier, State and Federal ministers, Attorneys-general and the South Australian Governor.

[14] The scope of issues covered by Mr Panayiotou’s numerous documents is almost as broad as the number of bodies contacted. Without being exhaustive, the documents include and/or concern:

● Correspondence to and from Adelaide University regarding access to emails, IT systems and physical sites and Mr Panayiotou’s scholarship, research, review of work completed and internal appeal processes;

● Correspondence to and from Adelaide University regarding counselling referrals, internal whistle-blower processes and information on the date Mr Panayiotou’s candidature was terminated;

● Correspondence to and from other research bodies exploring further research proposals;

● Correspondence from the South Australian Office of the Training Advocate regarding initiation, process, and outcome of an external appeal relating to Adelaide University’s decision to cancel Mr Panayiotou’s enrolment;

● Correspondence to and from Adelaide University regarding the circumstances of a potential referral of Mr Panayiotou’s visa status to the Commonwealth Department of Home Affairs;

● Correspondence to and from the offices of the South Australian Premier, the South Australian Minister for Education, and the Chief Executive of the South Australian Department of Education regarding the independent status of Adelaide University;

● Correspondence from the Commonwealth Department of Education and Training;

● Correspondence to and from the Commonwealth Tertiary Education Quality and Standards Agency regarding ‘corruption in South Australian universities’;

● Correspondence from the Commonwealth Ombudsman, the South Australian Ombudsman and the Fair Work Ombudsman;

● Correspondence to and from the office of the South Australian Independent Commissioner Against Corruption (ICAC SA) and the Reviewer at ICAC SA regarding Adelaide University’s termination of Mr Panayiotou’s candidature;

● Correspondence from the South Australian and Commonwealth Attorneys-general regarding access to legal advice;

● Correspondence to and from the South Australian Minister for Health’s office regarding whistle-blowing;

● Correspondence from the South Australian Governor’s office declining involvement;

● Correspondence to and from the Federal Courts Self-Representation Service SA/NT concerning an appointment(s) with the service;

● Correspondence to and from the Law Society of South Australia concerning a request for legal advice;

● Correspondence to and from the University of South Australia regarding guidance sought about Adelaide University’s policies;

● Correspondence from the National Tertiary Education Union expressing their view about whether Mr Panayiotou was an employee and eligible to be a union member;

● Correspondence from the Commonwealth Department of Home Affairs regarding Mr Panayiotou’s visa status;

● Correspondence from the Commonwealth Department of Jobs and Small Business regarding allegations of workplace bullying made by Mr Panayiotou;

● Documents regarding payments received by Mr Panayiotou from Adelaide University;

● Extracts of Commission and Australian Taxation Office materials concerning the indicia of employment relationships;

● Correspondence to and from the Australian Research Council and the Office of the Chief Scientist regarding a Public Interest Disclosure Scheme approach and research integrity reporting;

● Correspondence to and from the Inspector-General of Intelligence and Security concerning a whistle-blowing disclosure; and

● Various audio recordings of conversations Mr Panayiotou has participated in.

[15] The general context for the unfair dismissal application as presented by Mr Panayiotou included the following propositions:

● He began working for Adelaide University on 14 March 2017;

● He was hired by Adelaide University to work on a medical research project;

● A disagreement arose between Mr Panayiotou and other researchers regarding data discrepancies;

● After presenting the data discrepancies he was subjected to “bullying, unfair dismissal, and a range of other procedural errors that have occurred in Government departments”;

● He was subjected to threats, blackmail and physical contact by Adelaide University staff;

● He was dismissed from Adelaide University on 10 October 2018;

● He first sent “documentation” through contesting his unfair dismissal in October 2018;

● The current application was being made after the Australian Federal Police (AFP) recommended he bring his issues to the Commission;

● There were exceptional circumstances arising from his own particular situation and the nature of the unfair dismissal application that warranted an extension of time; and

● Mr Panayiotou seeks, in effect, that he be permitted to pursue his studies at the University of Adelaide or another South Australian university, be hired for a relevant job where he can continue to undertake his research and have the work undertaken during his candidature recognised to allow him to graduate.

[16] I will further outline and deal with Mr Panayiotou’s specific s.394(3) propositions in my consideration of this matter.

[17] Mr Panayiotou gave sworn evidence in support of his claim and cross-examined each of the Respondent’s witnesses.

[18] Some three weeks after the hearing in this matter, Mr Panayiotou sought, in effect, to provide additional evidence to support some of the context in which he had provided his explanation for the delay in lodgement. The material, being a copy of the rejection, dated 16 July 2019, by South Australia Police of a complaint made by Mr Panayiotou about access to a “report” associated with what the Applicant contends was a search conducted on his home by Counter-Terrorism Police. The letter confirms that a complaint was made on 12 July 2019 about non-provision of the “report”. The context for this material, beyond the limited evidence about the issue provided by Mr Panayiotou in his oral testimony, has not been subject to any sworn evidence and was not able to be challenged by Adelaide University given the timing of the new material. Even taken at its very highest, the new material only supports a component of Mr Panayiotou’s explanation that I have taken into account based upon the existing evidence. In that light, I do not consider that it is proper to conduct further proceedings or invite additional submissions to deal with the new material.

3.2 Adelaide University

[19] Adelaide University provided written submissions dealing with the considerations established by s.394(3) of the FW Act. In addition, it provided witness statements, and led sworn evidence from the following employees:

● Ms Donna Gould, Interim Director of the Adelaide Graduate Centre;

● Mr Shuichi Sakai, Chief Information Security Officer; and

● Ms Jane Smart-Foster, Manager, HR Systems and Operations.

[20] The general propositions underpinning its position may be summarised as follows:

● Mr Panayiotou was an international student undertaking a Master of Philosophy (Surgery);

● Mr Panayiotou was studying at Adelaide University on an International Wildcard Scholarship;

● Mr Panayiotou was paid a “stipend”, being an allowance as part of his scholarship but was not engaged or treated as an employee;

● After problems arose regarding Mr Panayiotou’s behaviour and academic progress, Adelaide University terminated his candidature on 30 July 2018;

● Mr Panayiotou asserted he was dismissed on 10 October 2018;

● Mr Panayiotou did not file an application until 26 March 2019 - 4 months and 26 days after the statutory time limit had expired;

● There are no exceptional circumstances warranting an extension of time; and

● The application for an extension of time should be refused.

[21] I will further outline and deal with the University’s specific s.394(3) propositions in my consideration of this matter.

4. Observations on the evidence and admissibility of some material

[22] As I observed in the Permission Decision, Mr Panayiotou is an intelligent, educated and resourceful person with evident research skills. I also do not doubt that Mr Panayiotou firmly believes that he has been treated unfairly by Adelaide University and that he wants to resume his research activities and to graduate. However, I found the evidence of Mr Panayiotou about the facts to be generally unconvincing. He has a tendency to be highly subjective in his evidence and to exaggerate and conflate events to support his view. His evidence about the timing of making the unfair dismissal application, including the reasons for not actually lodging an application when given an express opportunity to do so on numerous occasions by the Commission, was not always consistent and was particularly unconvincing.

[23] As a result, where there is an absence of supporting objective evidence, I have treated his evidence with considerable caution.

[24] The evidence of the witnesses for the University was generally objective and, with some limited exceptions, convincing. I found that each of these witnesses were truthful and honest and made appropriate concessions. The exceptions concern Mr Sakai’s evidence about whether Mr Panayiotou had a separate Gmail email account when at the University. It is evident to me that he made an assumption about this without checking. This evidence goes to whether some implications could be drawn from the number and nature of the email accounts in terms of the Applicant’s status at the University. However, in relation to the issues that he directly explored and gave evidence about; being the Applicant’s access and use of his ‘edu’ email account - which was the one said to be used to lodge any October 2018 application, the times when that account was offline, and whether there was any interference with the account; his evidence was clear and convincing and I accept it.

[25] Amongst the materials provided by Mr Panayiotou were a number of recordings of conversations in which he participated. Mr Panayiotou’s evidence is that these were recorded covertly. It is a reasonable inference that the other persons involved were not aware of, and did not consent to, the recordings.

[26] Adelaide University contends that the Commission should not admit or have regard to that evidence as a result of the Surveillance Devices Act 2019 (SA) (the SD Act). In particular, it contends that s.4(1)(b) of the SD Act makes it an offence to use a listening device to record a private conversation to which the person is a party. It further contends that none of the exceptions provided in subsection 4(2) apply and even if the lawful interest and/or public interest exceptions were taken into account, the use of the material would still not be authorised by the SD Act.

[27] The immediately relevant parts of the SD Act are as follows:

“3—Interpretation

(1) In this Act, unless the contrary intention appears—

… …

investigating agency means—

(a) SA Police; or

(b) the Independent Commissioner Against Corruption; or

(c) the ACC; or

(d) an enforcement agency within the meaning of the Telecommunications (Interception and Access) Act 1979 of the Commonwealth (an enforcement agency); or

(e) a police force of a participating jurisdiction;

… …

judge means a judge of the Supreme Court of South Australia;

… …

listening device means—

(a) a device capable of being used to listen to or record a private conversation or words spoken to or by any person in private conversation (whether or not the device is also capable of operating as some other kind of surveillance device); and

(b) associated equipment (if any),

but does not include—

(c) a device being used to assist a person with impaired hearing to hear sounds ordinarily audible to the human ear; or

(d) a device, or device of a class or kind, excluded from the ambit of this definition by the regulations;

… …

private conversation means a conversation carried on in circumstances that may reasonably be taken to indicate that at least 1 party to the conversation desires it to be heard only by the other parties to the conversation (but does not include a conversation made in circumstances in which all parties to the conversation ought reasonably to expect that it may be heard by a person who is not a party to the conversation);

… …

relevant investigation means any of the following investigations:

(a) an investigation of an offence (whether under the law of this State or another jurisdiction);

(b) an investigation for the purposes of the Serious and Organised Crime (Control) Act 2008;

(c) an investigation for the purposes of the Serious and Organised Crime (Unexplained Wealth) Act 2009;

(d) an investigation for the purposes of a proceeding for the confiscation or forfeiture of property or for the imposition of a pecuniary penalty;

(e) an investigation of alleged misbehaviour or improper conduct of a member of a police force or an officer or employee of the State or another jurisdiction;

relevant action or proceeding means any of the following actions or proceedings (whether under the law of this State or another jurisdiction):

(a) a prosecution of an offence;

(b) an application for bail;

(c) an application for a warrant or authority under this Act or any other Act or law;

(d) the making, variation or revocation of a public safety order under the Serious and Organised Crime (Control) Act 2008;

(e) an application for a declaration or order under the Serious and Organised Crime (Control) Act 2008 (or an Act of another jurisdiction prescribed for the purposes of this paragraph);

(f) the giving of an authorisation by the DPP under the Serious and Organised Crime (Unexplained Wealth) Act 2009;

(g) an application under the Serious and Organised Crime (Unexplained Wealth) Act 2009;

(h) the confiscation or forfeiture of property or the imposition of a pecuniary penalty;

(i) the taking of evidence on commission for use in criminal proceedings originating in Australia;

(j) the extradition or transfer of a person to or from Australia or a State or Territory of the Commonwealth;

(k) a police disciplinary proceeding;

(l) a proceeding relating to alleged misbehaviour, or alleged improper conduct, of a police officer (however described), or an officer or employee, of the State or another jurisdiction;

… …

surveillance device means—

(a) a listening device; or

(b) an optical surveillance device; or

(c) a tracking device; or

(d) a data surveillance device; or

(e) a device that is a combination of any of the devices referred to in a preceding paragraph; or

(f) a device of a class or kind prescribed by the regulations;

… …

4—Listening devices

(1) Subject to this section and section 6, a person must not knowingly install, use or cause to be used, or maintain, a listening device—

(a) to overhear, record, monitor or listen to a private conversation to which the person is not a party; or

(b) to record a private conversation to which the person is a party.

Maximum penalty:

(a) in the case of a body corporate—$75 000;

(b) in the case of a natural person—$15 000 or imprisonment for 3 years.

(2) Subsection (1) does not apply—

(a) to the use of a listening device by a party to a private conversation to record the conversation if—

(i) all principal parties to the conversation consent, expressly or impliedly, to the device being so used; or

(ii) the use of the device is reasonably necessary for the protection of the lawful interests of that person; or

(b) to the installation, use or maintenance of a listening device if—

(i) the installation, use or maintenance is authorised under this Act or any other Act or a corresponding law; or

(ii) the installation, use or maintenance is authorised under the Telecommunications (Interception and Access) Act 1979, or another law, of the Commonwealth, or

(iii) the device is installed, used or maintained for the purposes of an approved undercover operation under Part 2 of the Criminal Investigation (Covert Operations) Act 2009 by, or on behalf of, a person who is an authorised participant in the approved undercover operation; or

(iv) the device is installed, used or maintained by a person who holds an investigation agent's licence under the Security and Investigation Industry Act 1995 that authorises the holder of the licence to perform the functions of inquiry work and—

(A) the device is used by the licensee in the course of his or her functions as an investigation agent; and

(B) the use is reasonably necessary for the protection of the lawful interests of a person; or

(v) the device is installed, used or maintained by a loss adjuster to whom the Security and Investigation Industry Act 1995 does not apply and—

(A) the device is used by the loss adjuster in the course of his or her functions as a loss adjuster; and

(B) the use is reasonably necessary for the protection of the lawful interests of a person; or

(c) to the installation, use or maintenance of a listening device on or within premises or a vehicle if—

(i) an owner or occupier of the premises or vehicle agrees to the installation, use or maintenance of the device; and

(ii) the installation, use or maintenance of the device is reasonably necessary for the protection of the lawful interests of the owner or occupier of the premises or vehicle, or some other person; or

(d) to the use of a listening device to record any words spoken in connection with the execution of a surveillance device warrant or surveillance device (emergency) authority under this Act, or a warrant or other authority under any other Act or law; or

(e) to the use of a listening device by an officer for the purpose of recording any words spoken by or to, or within the hearing of, the officer during activities carried out in the course of the officer's duties; or

(f) to the unintentional hearing of a private conversation by means of a listening device; or

(g) to the use of a listening device solely for the purposes of the location and retrieval of the device; or

(h) to the installation, use or maintenance of a listening device in prescribed circumstances.

(3) An exemption from subsection (1) that applies under subsection (2) or section 6 to a person in relation to the installation, use or maintenance of a listening device for the purposes of the investigation of a matter by an investigating agency extends to any other person who, for the purposes of the investigation—

(a) installs, uses or maintains that device; or

(b) overhears, records, monitors or listens to the private conversation by means of that device.

… …

6—Listening devices and optical surveillance devices—public interest exception

(1) Section 4 does not apply—

(a) to the use of a listening device to overhear, record, monitor or listen to a private conversation if the use of the device is in the public interest; or

(b) to the installation, use or maintenance of a listening device under subsection (2)(b)(iv) or (v) of that section if the use of the device is in the public interest.

… …

9—Communication or publication of information or material—lawful interest

(1) A person must not knowingly use, communicate or publish information or material derived from the use of a listening device or an optical surveillance device in circumstances where the device was used to protect the lawful interests of that person except—

(a) to a person who was a party to the conversation or activity to which the information or material relates; or

(b) with the consent of each party to the conversation or activity to which the information or material relates; or

(c) to an officer of an investigating agency for the purposes of a relevant investigation or relevant action or proceeding; or

(d) in the course, or for the purposes, of a relevant action or proceedings; or

(e) in relation to a situation where—

(i) a person is being subjected to violence; or

(ii) there is an imminent threat of violence to a person; or

(f) to a media organisation; or

(g) in accordance with an order of a judge under this Division; or

(h) otherwise in the course of duty or as required or authorised by law.

Maximum penalty:

(a) in the case of a body corporate—$50 000;

(b) in the case of a natural person—$10 000.

(2) (not relevant)

(3) (not relevant)

10—Communication or publication of information or material—public interest

(1) A person must not knowingly use, communicate or publish information or material derived from the use of a listening device or an optical surveillance device in circumstances where the device was used in the public interest except in accordance with an order of a judge under this Division.

Maximum penalty:

(a) in the case of a body corporate—$50 000;

(b) in the case of a natural person—$10 000.

(2) Subsection (1) does not apply to the use, communication or publication of information or material derived from the use of a listening device or an optical surveillance device in circumstances where the device was used in the public interest if—

(a) the use, communication or publication of the information or material is made to a media organisation; or

(b) the use, communication or publication of the information or material is made by a media organisation and the information or material is in the public interest.

… …

12—Prohibition on communication or publication derived from use of surveillance device in contravention of Part 2

(1) A person must not knowingly use, communicate or publish information or material derived from the use (whether by that person or another person) of a surveillance device in contravention of this Part.

Maximum penalty:

(a) in the case of a body corporate—$75 000;

(b) in the case of a natural person—$15 000 or imprisonment for 3 years.

(2) This section does not prevent the use, communication or publication of information or material derived from the use of a surveillance device in contravention of this Part—

(a) to a person who was a party to the conversation or activity to which the information or material relates; or

(b) with the consent of each party to the conversation or activity to which the information or material relates; or

(c) for the purposes of a relevant investigation or relevant action or proceeding relating to that contravention of this Part or a contravention of this section involving the communication or publication of that information or material; or

(d) in the course of proceedings for an offence against this Act; or

(e) otherwise in the course of duty or as required by law.

(3) A person who obtains knowledge of information or material in a manner that does not involve a contravention of this Part is not prevented from communicating or publishing the knowledge so obtained even if the same knowledge was also obtained in a manner that contravened this Part.”

[28] Mr Panayiotou contends that he has recorded the conversations in circumstances where he held genuine fears about his safety and had also raised concerns about the integrity of some publicly funded research. I apprehend that he seeks to rely upon the lawful interest and/or public interest exceptions of s.4(2) and s.6(1) of the SD Act.

[29] There is little before the Commission about the circumstances in which the recordings were made. Mr Panayiotou indicated that he had been threatened by university staff and had been forced to leave a university building and was subject to Counter-Terrorism Police activity at some point. Given my earlier observations, I treat that evidence with caution. Importantly, other than the fact the recordings were made covertly, there is no evidence that would permit a finding to be made as to whether these were private conversations within the meaning of the SD Act. Whilst an inference may be drawn to that effect in some of the conversations, I do not consider that this is a sufficient foundation in the present context to make the necessary findings. In that regard, I observe that Adelaide University in making the objection was represented by a lawyer who cross-examined the Applicant and made final submissions in relation to the SD Act. As a result, I cannot make any proper finding as to whether s.4(1) of the SD Act is engaged in the case of the recordings.

[30] In the circumstances, I have considered the recordings in making my findings in this matter. I would however observe that should I have found that s.4(1) of the SD Act was engaged, and even assuming (without finding) that one of the exceptions in s.4(2) and/or s.6(1) applied, the use of the recordings and their provision to others receiving the Applicant’s materials outside of these proceedings, would probably not be sanctioned under the SD Act given the terms of ss.9, 10 and 12. 5 I also observe that there are broader public policy and fairness issues arising from covert recording of, and between, people in workplaces; however this is not the forum to deal with such matters.

[31] Although I have considered the recordings, the absence of some convincing oral evidence from Mr Panayiotou, and those others participating in the discussions, about the full context and conduct of the discussions, limits their utility for present purposes. On face value, they reveal mutually robust discussions and are indicative of the fact that Mr Panayiotou considers that he did not receive the level or nature of support that he wanted from the University. On their own, they are not indicative of any personal or physical threats being made against Mr Panayiotou.

5. Statutory provisions and the required approach

[32] Section 394 of the FW Act relevantly provides as follows:

“394  Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

(2) The application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3).

(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) whether the person first became aware of the dismissal after it had taken effect; and

(c) any action taken by the person to dispute the dismissal; and

(d) prejudice to the employer (including prejudice caused by the delay); and

(e) the merits of the application; and

(f) fairness as between the person and other persons in a similar position.”

[33] Accordingly, s.394(2) of the FW Act provides a period within which to lodge the unfair dismissal application. The period being 21 days after the dismissal took effect and the 21-day period is exclusive of the day of the event; in this case, the alleged dismissal. 6

[34] Where an application is filed outside this 21-day period, s.394(3) of the FW Act provides the Commission with discretion to extend the time period for lodgment where it is satisfied that ‘exceptional circumstances’ exist to warrant that action. The Commission must take into account paragraphs (a) to (f) of s.394(3) when determining whether ‘exceptional circumstances’ exist. A decision as to whether to extend the time period under s.394(3) involves both a broad discretion and a high hurdle of exceptional circumstances. 7

[35] Although discussed in the context of an extension of time for a general protections application, the meaning of ‘exceptional circumstances’ applying largely the same statutory considerations was considered by the Full Bench in Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters 8 (Stogiannidis). There, the Full Bench described the test in the following terms:

“[14] The test of ‘exceptional circumstances’ establishes a ‘high hurdle’ for an applicant for an extension. A decision whether to extend time under s.366(2) involves the exercise of a discretion.

[15] The meaning of ‘exceptional circumstances’ in s.366(1) was considered by a Full Bench of the then Fair Work Australia in Nulty v Blue Star Group Pty Ltd (Nulty) as follows:

‘[13] In summary, the expression “exceptional circumstances” has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can 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 are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.

[14] Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance.’ (emphasis added)

[16] The Full Bench in Nulty relied on the following observations of Rares J in Ho v Professional Services Review Committee No 295: 

‘26. Exceptional circumstances…can 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 are seen as exceptional. Thus, the sun and moon appear in the sky everyday and there is nothing exceptional about seeing them both simultaneously during day time. But an eclipse, whether lunar or solar, is exceptional, even though it can be predicted, because it is outside the usual course of events.

27. It is not correct to construe ‘exceptional circumstances’ as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural ‘circumstances’ as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of ‘exceptional circumstances’ in s 106KA(2) includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon. And, the section is directed to the circumstances of the actual practitioner, not a hypothetical being, when he or she initiates or renders the services.’ (emphasis added)

[17] Generally, the assessment of whether exceptional circumstances exist will require consideration of all the relevant circumstances, because even though no one factor may be exceptional, in combination the circumstances may be such as reasonably to be regarded as exceptional.

[18] In deciding whether there are exceptional circumstances such as to enliven the discretion to extend time the Commission must take into account the matters specified in s.366(2)(a)-(e).”

[36] I have applied the above approach in considering the particular circumstances of Mr Panayiotou’s claim for an EOT and when taking into account the specific considerations of s.394(3) of the FW Act. In particular, it is the relevant factors in s.394(3) that must be taken into account when assessing whether there are exceptional circumstances supporting the exercise of discretion to grant an EOT. In this decision, I refer to this as being relevant exceptional circumstances.

6. Consideration

6.1 Findings as to the timing of certain key events

[37] Before dealing with the factors to be taken into account under s.394(3) of the FW Act, it is appropriate to make some findings about the timing of certain key events that inform those considerations.

When was the alleged dismissal?

[38] Although Mr Panayiotou cited 10 October 2018 as the day of his dismissal, he acknowledged that various other (generally earlier and some later) events could have constituted the end of his relationship with Adelaide University. Based upon the evidence, these potentially included dates in May 2018 when he lost access to the building where the research was being conducted, 30 July 2018, when he was advised that his candidature was being cancelled, and 25 September 2018 when he was advised that his internal review was not successful. I note that the significance of this latter event, and whether it was a final outcome, is disputed by Mr Panayiotou and I will return to this aspect shortly.

[39] 10 October 2018 coincides with the period when the University ceased making payments of what it described as a “stipend” to Mr Panayiotou. This is also the date that Mr Panayiotou’s role would cease, as advised on 26 September 2018 in the following terms: “information contained within the University’s systems indicates that your role of Postgraduate Research Student will end on 10 October 2018.” 9 In submissions, Adelaide University contended that there was no dismissal (of the Applicant as an employee) but accepted that the relationship had concluded. It also accepted that it, in effect, treated the relationship as being on foot until the internal review process had concluded in September 2018.

[40] Although it could be found to have taken place earlier, at least for present purposes, I will proceed on the basis that 10 October 2018, as cited in the application, represents the date when the alleged dismissal took effect. In that regard, Mr Panayiotou’s faintly advanced alternative contention that the alleged dismissal did not take effect until the final external appeal of the cessation of his scholarship (position) was confirmed, has no legal or practical merit in the circumstances of this case. I will return to Mr Panayiotou’s awareness of the cessation as part of my consideration of s.394(3)(b) of the FW Act.

When was the application lodged with the Commission?

[41] This arises from Mr Panayiotou’s contention that he attempted to, or did, lodge an actual Form F2 unfair dismissal application with the Commission in October 2018. There is no evidence that Mr Panayiotou sent any unfair dismissal application to the Commission in or about October 2018. There is evidence that he was earlier in contact with the Commission (without making an application) and did engage with the Fair Work Ombudsman in October 2018, but there is nothing to suggest that any of this was in the form of an application that could relied upon in this context. I will also deal with the proposition that he was confused as between the FWO and the Commission shortly.

[42] Mr Panayiotou contends that he sought to send the application form from his university (.edu) email account. In making the above finding, I do not accept the proposition that Mr Panayiotou’s computer and/or email account and associated records were interfered with by the University. I do accept that he did not have access for a limited period in October 2018 but this did not prevent Mr Panayiotou from sending an application if he sought to do so at or around the time he claims. I also note that in subsequent correspondence with the Commission, Mr Panayiotou did not mention an earlier application until 31 January 2019, 10 but rather generally referred to a complaint;11 and at one point rejected the notion that he had to make an application at all given his circumstances.12

[43] As a result, the only application in both form and substance made to the Commission by Mr Panayiotou under s.394 of the FW Act was that made on 26 March 2019.

[44] This also means that the delay in lodging is the period beyond 21 days after the alleged dismissal took effect, being 1 November 2018, up until the day of lodgment, being 26 March 2019; a period well in excess of 4 months.

6.2 The factors to be taken into account under s.394(3)

[45] It is now convenient to address the statutory considerations (factors) that inform the existence of exceptional circumstances by dealing with the issues that arise from them in the context of this application.

The reason for the delay – s.394(3)(a)

[46] The Commission must consider and take into account the reason put by an applicant for the delay in lodging their application. In this case, this requires consideration of the reasons for the delay after 1 November 2018.

[47] The relevant principles in relation to s.394(3)(a) of the FW Act have been stated 13 by a Full Bench in the following terms:

•  The prima facie position is that the time limit prescribed by the Act should be complied with unless there is an acceptable explanation for the delay which makes it equitable to so extend.

•  An applicant needs to provide a credible reason for the whole of the period that the application was delayed.

•  The delay required to be considered is the period beyond the prescribed 21-day period for lodging an application. It does not include the period from the date of the dismissal to the end of the 21-day period.

•  The longer the delay in making an unfair dismissal application the more difficult it will generally be to get over the high hurdle of exceptional circumstances.

[48] Mr Panayiotou contends that there is a reasonable explanation for the delay and relies upon the actions that he has taken to contest the dismissal, his reaching out to the Commission within and beyond the 21-day time period, and his particular personal circumstances, as part of that explanation.

[49] The elements relied upon by Mr Panayiotou include the following propositions: 14

•  There was no clear indication of when he was actually dismissed and that on April 19th 2018 his access card to the work place was cut with no notification or prior warning. At that time, Mr Panayiotou was shocked and confused and had to call security himself to find out his access was cut.

•  Mr Panayiotou was not familiar with Australian Government support systems and was not provided with genuine support services from the University, which was the only support service system he was familiar with. When trying to communicate with the University they provided biased support and engaged in severe bullying. There was prejudice toward him for being an international student and there was biased support from the staff that were supposed to help.

•  Mr Panayiotou then tried to reach out by sending an email to the Fair Work Commission (on 29 September 2018) well within the 21-day time frame of the University’s claimed date of dismissal.

•  After Mr Panayiotou sent this email, his staff email account was again tampered with which prevented further communication with the Fair Work Commission. He tried to send the Commission many more emails and even tried sending official applications for unfair dismissal from his staff email in October 2018 and that it makes sense that the Fair Work Commission did not receive these communications due to the tampering of his staff email account.

•  When Mr Panayiotou did not hear back from the Fair Work Commission, he thought his only appeal option was the Office of the Training Advocate.

•  During the time period after he first attempted to reach out to the Fair Work Commission in September 2018 there were several struggles such as stress, confusion, and a feeling of isolation which inhibited Mr Panayiotou from being able to properly engage in the support channels. I note that in cross-examination Mr Panayiotou also referred to visits being made to his home by Counter-Terrorism Police.

•  Even through the stress, fear, and confusion Mr Panayiotou made continual efforts for conflict resolution and asked many departments for help or at least recommendations of where he could go for help.

•  Through these efforts, there were no consistent answers provided. For example, during his phone call with the Commonwealth Ombudsman he was informed that it was impossible to have the Fair Work Commission evaluate the evidence after the 21-day period.

•  After this phone call and having already attempted to engage the Fair Work Commission within the timeframe, Mr Panayiotou gave up the Fair Work Commission option but continually tried to find support for conflict resolution elsewhere.

•  On March 26th 2019 the AFP notified him that “The matters you have raised should be referred to the Fair Work Commission in the first instance.” Further communication with the AFP allowed Mr Panayiotou to discover that engaging with the Fair Work Commission was possible with an extension of time application. On the same day of receiving this email from AFP he launched an application with the Fair Work Commission. His understanding was that termination was only official after the outcome from Office of the Training Advocate. This was only external agency provided to him by the University and other agencies before trying to launch his second application with the Fair Work Commission.

[50] Mr Panayiotou also relied upon what he described as prejudice for being an international student, his confusion between the role of the Commission and the FWO, and the confusion between the Commonwealth and State Government agencies responsibility for University affairs, and their neglectful support, which meant that his complaints were not dealt with.

[51] In terms of the responses made by him to the Commission in relation to various emails advising that he could lodge an unfair dismissal application, Mr Panayiotou described them as being “cookie-cutter” responses that were being made to multiple agencies at the time. I understand this to mean that he was making broadly the same responses to various agencies without engaging with the particular issues or matters being raised by him with those agencies, or their responses.

[52] I am prepared to accept that Mr Panayiotou was unfamiliar with the Australian legal system and our system of Government, did not initially appreciate the difference between the Commission and the FWO and did not obtain the level of assistance from the University that he thought was appropriate. I am also prepared to allow for the fact (without finding) that Mr Panayiotou considers that he was being treated unreasonably by the University and some of its staff, that this caused him distress and that he had other events in his life at times, including the range of issues outlined in the array of documentation provided by him in this matter. I note that there is very little objective evidence about most of these matters. I also accept that he was advancing his complaints in various forums and that this added to the complexity of Mr Panayiotou’s situation.

[53] However, even allowing for all of these factors, I do not consider that there is a reasonable explanation for the delay in lodging the unfair dismissal application with the Commission. This becomes evident when the chronology of email exchanges between Mr Panayiotou and the Commission is considered in the full context of the above, including the engagements with other authorities and agencies contained within the Applicant’s materials.

[54] This chronology of exchanges with the Commission includes the following communications (by email): 15

•  29 September 2018 - Mr Panayiotou (PP) (from his ‘.edu’ account) to FWC – addressed to “SA Government Services” advising that he is an international student, requesting legal advice or direction.

•  4 October 2018 - FWC to PP (at his ‘.edu’ account) - advising the nature and role of the Commission and advising that the Commission can assist in matters of unfair dismissal, with a form F2 unfair dismissal application attached. The Commission advised of the 21-day time limit, and capacity to lodge an application outside the 21-day timeframe, and that Commission can extend time for lodging if satisfied there are exceptional circumstances. The Commission also advised how an unfair dismissal application may be lodged, and provided website links to further information, including the FWO in respect of underpayment of wages and entitlements. The evidence is that this response was received at the ‘edu’ account and that Mr Panayiotou had access at that time.

•  12 December 2018 - PP (from a personal Outlook account) 16 to FWC - Advising that he had “written a while back and wanted to provide the material again” and provided some “additional information”, including a letter to the Applicant from Adelaide University’s Dean of Medicine regarding alleged incidents reported by various staff members relating to his behaviour.

13 December 2018 - FWC to PP - Advising of other Commission jurisdictions that may be responsive to the Applicant’s circumstances, including the anti-bullying jurisdiction, the general protections jurisdiction, and repeated the information about the Commission’s unfair dismissal jurisdiction, including the ability to lodge outside the 21-day timeframe.

13 December 2018 - PP to FWC - The Applicant responds indicating “Your level of effort to assist is noted”, advising that “there are exceptional events and documented evidences that bypass the need to fill these forms in order for an assessment of the material presented to this department to commence” and “that the forms will be provided by email.” There is no evidence that the Applicant made any attempts to complete the application form and to provide this to the Commission by mail, or in any other form. I note that attached to this email was a slide concerning “research integrity issues”, and a summary of events concerning his treatment as an “international student”, the termination of his scholarship, the internal review of this decision and his attempt to initiate an external review with the South Australian Office of the Training Advocate.

•  14 December 2018 - FWC to PP - Referring to 13 December 2018 email, and advising that “Until an application is received from you, no further action will be taken by the Fair Work Commission in relation to the material received from you.”

•  On 9 and 10 January 2019, despite the provision of the above information, the Applicant copied the Commission into email exchanges with the FWO and a multitude of other State and Federal agencies, seeking “alternative avenues to resolve [an] issue”. Amongst this exchange was the FWO advising the Applicant that the FWC was the correct body for an unfair dismissal matter, and that a time limit applied, and the Applicant’s response questioning how the 21-day time limit had been exceeded given he made a complaint in October 2018.

•  29 January 2019 - PP to FWC - email merely stating “application lodged OCT 2018”.

•  29 January 2019 - PP to FWC - emails to FWC and various staff email addresses, requesting FWC assistance and advising that he lodged a complaint in October 2018.

•  29 January 2019 - FWC to PP - Acknowledged email inquiries since September 2018, confirming FWC has responded on 4 October, 13 and 14 December and that no application form has been received. The FWC requested the Applicant supply a phone number and invited him to attend the FWC registry to make an application.

•  Despite the above, on 29 and 30 January 2019 the Applicant continued to contact various individuals in the Commission seeking clarification about what steps are required to progress.

•  31 January 2019 - FWC to PP - Refers to previous correspondence and again requests a phone number and confirms no application has been received and no action will be taken based on material already received. An unfair dismissal application form, and fee waiver form, were provided, together with details of community legal centres.

•  31 January 2019 - PP to FWC - Applicant acknowledges information, requests advice as to whether he can lodge “another application”. The Applicant first provided his phone number at this time. The Applicant followed up this request on 5 and 6 February 2019.

•  6 February 2019 - FWC to PP - Response to 31 January email provided, including attempts to contact the Applicant on 31 January and 6 February and repeats, in effect, the requirement to file an application and that no action will be taken until an application has been received.

•  6 February 2019 - PP to FWC - The Applicant repeats the earlier question, and suggests that the Commission’s previous response “does not answer the question.”

•  13 February 2019 - FWC to PP - Response from Complaints line, Executive Director, confirming information provided by Adelaide Registry. Makes clear material provided by the Applicant to date does not constitute an application. Explains unfair dismissal, general protections and anti-bullying jurisdictions. Provides F2 and F8 and F80 forms. Mentions time limit. Mentions ability to file outside 21-day timeframe.

•  13 February 2019 - FWC to PP - Confirms there has been no application in accordance with FWC rules and that no action can be taken until an application has been received. In addition, confirms that materials provided to date does not constitute a valid application and application forms were again provided to the Applicant.

•  Between 13 February 2019 and 18 February 2019, the Applicant communicated the same position, provided some further material, but did not provide any document purporting to be an application form.

•  19 February 2019 - FWC to PP - Information previously provided was repeated, together with further invitation for the Applicant to call the Commission.

•  The application was lodged with the FWC on 26 March 2019 together with information that he had been advised by the Australian Federal Police (AFP) to make the application and could seek an extension of time.

[55] There is no plausible evidence that Mr Panayiotou was unable, for any reason, to complete or send an unfair dismissal application to the Commission at almost any point in the above sequence of events. All of the other circumstances alleged by Mr Panayiotou to be creating stress and confusion, taken at their highest, fall well short of providing an explanation or sufficient context to explain most of the delay in lodging the application, particularly given the above events and the evidence before the Commission. The fact that Mr Panayiotou finally did apply after being advised by the AFP may be the case, but ignores the fact that the Commission itself directly advised him on multiple occasions that he needed to lodge an application, had not done so and that he could now do so, together with information about how to lodge and with the offers of further assistance, none of which were properly taken up. At least in and from December 2018, even on Mr Panayiotou’s best case about access to his university email account – which is not supported by the evidence, the information from the Commission was received by him at his personal email account and not acted upon.

[56] I do not accept Mr Panayiotou’s contention that his engagements with the Commission were “cookie cutter” responses. He did have a series of engagements with various bodies and these have a pattern of raising concerns or requests and then tending to be adversarial with the agency if/when responses are not to his liking. However, when considered in context, many of the responses to the Commission were expressly dealing with issues and requirements raised by the Commission, including references to exceptional circumstances and at one point attempting to debate whether he had already filed, and at another point whether he should have to file at all. As early as 13 December 2018, Mr Panayiotou informed the Commission that he intended to lodge an unfair dismissal application by post, but did not file until 26 March 2019. All of this took place in the context of repeated explicit information about the time limit and the need, and capacity, to lodge an unfair dismissal application if he sought the Commission’s intervention.

[57] Even allowing for all of the mitigating circumstances, including those pertaining to Mr Panayiotou’s personal situation, there is no proper or reasonable explanation for the very lengthy delay in lodging the unfair dismissal application. He is largely the author of his own uncertainty in connection with making the unfair dismissal application and fundamentally responsible for the delay in its lodgment.

[58] This is a factor strongly militating against a finding of relevant exceptional circumstances given these particular circumstances.

Whether Mr Panayiotou first become aware of the alleged dismissal after it had taken effect – s.394(3)(b)

[59] I have earlier set out the circumstances of the alleged dismissal and this includes that Mr Panayiotou was advised that his “candidature” had been cancelled on 30 July 2018. I do however accept that the status of the relationship between himself and the University was unclear from May 2018 and that the internal review process meant that many of the elements of the relationship (including access to some university systems and the “stipend” payment) continued until October 2018. 17

[60] It seems reasonably clear that with the cessation of the payments and the advice that Mr Panayiotou’s role as Postgraduate Research Student would end, even if Mr Panayiotou continued to agitate against the conclusion of his arrangements, objectively he was aware that it had taken effect by the date cited in his application; namely 10 October 2018. In that regard, I have taken into account that the advice provided to Mr Panayiotou of the outcome of the internal appeal was titled “Preliminary Assessment of Appeal Application”. 18 When considered in context, it is clear that this stage involves a preliminary assessment to determine whether there is any merit in the internal appeal application. Where there is no merit, the appeal does not proceed. The advice provided to Mr Panayiotou was that internal appeal application was “without merit” and that “no further internal review is available in relation to the determination made by the Dean.” The potential for an external review was also advised.19

[61] I have also taken into account that the University advised Mr Panayiotou that it was “obliged to maintain [his] Confirmation of Enrolment (CoE) whilst any external review is in progress.” 20 The advice also makes it clear that the maintenance of the CoE was related to his student visa and the capacity to remain in Australia whilst any external review was being conducted.

[62] As a result, even if I were to accept that there remained some continuing uncertainty in the mind of Mr Panayiotou beyond October 2018, Mr Panayiotou himself has claimed to have been contesting his dismissal in and from October 2018. In the words of the consideration, Mr Panayiotou was aware of what he considers to be the dismissal at that point.

[63] On that basis, and given my view that any dismissal took effect no later than October 2018, this factor does not assist Mr Panayiotou’s claim of exceptional circumstances.

Any action taken by Mr Panayiotou to dispute the alleged dismissal – s.394(3)(c)

[64] It is clear that Mr Panayiotou was taking some actions to dispute the cessation of his relationship with Adelaide University. This included engaging with various government agencies including the South Australian Office of the Training Advocate, the FWO and (albeit in a problematic manner) the Commission.

[65] Those actions did alert the University to understand that the “dismissal” was, and continued to be, disputed in various forums. The fact that these actions overlooked, for a long period, the most obvious means of disputing, what Mr Panayiotou contends to be, a dismissal in the circumstances discussed above, must also be taken into account.

[66] This is a factor faintly supporting a finding of relevant exceptional circumstances.

Prejudice to Adelaide University (including prejudice caused by the delay) – s.394(3)(d)

[67] This factor includes, but is not limited to, consideration of any additional difficulty imposed on an employer in responding to an unfair dismissal application due to the increased passage of time since the critical date(s) leading to the dismissal. Generally, prejudice to the respondent party will militate against the grant of an extension of time, though the absence of prejudice itself is not, of itself, sufficient to grant an extension. 21

[68] Adelaide University contends that Mr Panayiotou seeks to be able to graduate and that this will not be possible. Further, it contends that if an EOT is granted, it faces having to deal with further proceedings that have no merit and this would involve significant time, effort and expense for no useful purpose.

[69] In submissions on this aspect, Mr Panayiotou raised issues of prejudice to himself (including being an international student and his “bullying” and other unreasonable conduct allegedly experienced after raising issues about research integrity) rather than to the University as is contemplated by this particular consideration. I have had regard to those matters under the other relevant considerations.

[70] In general terms, a long delay will give rise to general presumption of prejudice. 22 However, an employer must produce some evidence to demonstrate particular prejudice.23 In this case, the University relies on what it contends to be absence of merit in the unfair dismissal application and the costs and inconvenience that would flow from having to continue to defend the matter.

[71] I deal with the merit proposition below.

[72] As a result, I accept that there is some prejudice associated with the long delay in bringing the matter, offset to some degree by the fact that the University has been under notice of the contest for most of that time.

The merits of Mr Panayiotou’s unfair dismissal application – s.394(3)(e)

[73] This factor requires the Commission to consider whether an applicant seeking an EOT has, based on the material supplied, a sufficient or prima facie case to run. This does not involve any findings on contested matters not subjected to proper testing by evidence. 24

[74] In general terms, Mr Panayiotou contends that:

● He began working for Adelaide University on 14 March 2017;

● He was hired by Adelaide University to work on a medical research project;

● Was paid remuneration (described in the bank transfers as being “salary”) for over a year and had access to staff emails and other systems relevant to staff of the University;

● Used significant tool and equipment provided by the University and was provided with a uniform or business cards;

● Otherwise had the characteristics applicable to an employee according to the Australian Tax Office guidelines (on-line survey) and decisions of the Commission;

● A disagreement arose between Mr Panayiotou and other researchers regarding data discrepancies;

● After presenting the data discrepancies he was subjected to “bullying, unfair dismissal, and a range of other procedural errors that have occurred in Government departments”;

● He was subjected to threats, blackmail and physical contact by Adelaide University staff; and

● He was dismissed from Adelaide University and this was unfair given the absence of natural justice, procedural fairness and other factors.

[75] In general terms, Adelaide University contends that:

● Mr Panayiotou was an international student undertaking a master of Philosophy (Surgery) at Adelaide University;

● Mr Panayiotou was paid a “stipend” as a contribution to expenses and was not paid a salary or wage and had access to some staff systems only due to the nature of his scholarship;

● Mr Panayiotou began studying at Adelaide University on 15 March 2017, having accepted a University of Adelaide International Wildcard Scholarship offer on 2 October 2016;

● There was no contract of employment, there was no offer or acceptance of employment and Mr Panayiotou was not an employee;

● After problems arose regarding Mr Panayiotou’s behaviour and progress as a student, Adelaide University terminated his candidature on 30 July 2018;

● That decision was subject to an (unsuccessful) internal review; and

● There is no utility in granting an EOT as the application has no merit.

[76] Merit, at least in the sense contemplated under s.394(3)(e), requires consideration of whether the application, including any potential jurisdictional hurdles, appears to have some substance. As is common with an EOT matter of this kind, there is little material presently before the Commission about the substantive merit of the decision to end the relationship. Mr Panayiotou will contend that he was removed for reasons including that he raised issues of research integrity. The University will contend that it removed Mr Panayiotou’s scholarship role as a result of conduct and an alleged lack of progress in completing his studies. I can make no findings about these matters however it cannot be said that either proposition is without merit.

[77] Despite the scope of this matter, the parties have both advanced submissions and some evidence that might inform the question as to whether Mr Panayiotou was an employee. However, most of this involves what might be described as the symbols of the relationship rather than the substance. For instance, there is some material before the Commission about the formation of the relationship, the payments made by the University to Mr Panayiotou and the general context in which that occurred. There is very little evidence about the actual activities undertaken by Mr Panayiotou and their practical context beyond this framework.

[78] The objective evidence about that framework supports the following conclusions:

•  Mr Panayiotou applied for and was successful in being granted an International Wildcard Scholarship to undertake postgraduate studies at Adelaide University;

•  The value of the scholarship was stated to be (the waiver of) the full international tuition fees plus an (annual) living allowance of (in 2016 terms) $26,288 tax free for a Master of Philosophy with a once-only establishment allowance of $1,000;

•  The scholarship required Mr Panayiotou to obtain and comply with a Student Visa (Subclass 500) or temporary visa with study rights;

•  The purpose of the scholarship was for research of up to two years towards a Master of Philosophy subject to satisfactory progress;

•  The payments under the scholarship were described in the University’s documentation as being a “stipend” to be paid fortnightly in arrears into a bank account;

•  The payments were made to Mr Panayiotou were administered by the University through a payroll processing service operated by a financial institution as part of a process involving salaries, wages and “stipend” payments which were recorded by the financial institution in Mr Panayiotou’s accounts as being a salary payment;

•  There was no taxation deducted from the payments;

•  Mr Panayiotou did have access to some internal systems that were for staff and not normally available to students but this was due, for the most part, to the fact that the scholarship payments and related arrangements meant that some additional access was required; and

•  The offer accepted 25 by Mr Panayiotou contained the following statement:

“EMPLOYMENT:

The University does not require a candidate to undertake employment and the Graduate Scholarships Committee must be satisfied that part-time work does not interfere with the study program. Candidates should refer to the regulations governing work permit visas, defined by the Department of Immigration and Border Protection (DIBP).

University of Adelaide scholarship holders are only permitted to work up to 8 hours per week during business hours at all times of the academic year and should check with the Conditions and with the Adelaide Graduate Centre to confirm the terms of the scholarship.” 26

[79] Mr Panayiotou confirmed during the hearing that there was only one relationship between himself and the University and that he was not claiming to have a separate relationship outside of his research activities. 27 In my view, the stated purpose of the scholarship, the level and nature of the payments, the apparent absence of any other of the normal employee entitlements, and the arrangements more generally are much more consistent with the notion that the relationship was not one of employment.

[80] Given the nature of this present matter and in the absence of more complete evidence about the actual research activities undertaken by Mr Panayiotou and their relationship to the scholarship, I do not consider that it is appropriate to make a definitive finding on this aspect. However, I observe that the overwhelming body of evidence is consistent with the relationship between Mr Panayiotou and the University being that of a student studying with the University under a scholarship arrangement and not that of an employee being employed.

[81] It is appropriate in all of the circumstances, including the nature of the consideration established by s.394(3)(e), to treat this factor as being neutral in terms of a finding of relevant exceptional circumstances.

Fairness as between Mr Panayiotou and other persons in a similar position – s.394(3)(f)

[82] This factor requires the Commission to consider Mr Panayiotou’s claim to be given an EOT by reference to fairness with other persons in a similar position.

[83] Mr Panayiotou contends that there is unlikely to be anyone else in his situation where “as an international employee, they have continually reached out to multiple departments for help and assistance and received so many multi layered discrepancies from state and federal department. I therefore believe that the government’s inability to deal with the issues in this case demonstrates that the application itself (is) exceptional.” 28

[84] Adelaide University accepted that it was not aware of any other applicant in a similar position being “any other scholarship student having asserted the termination of their candidature constituted unfair dismissal.” 29

[85] Neither party has directly engaged with this consideration as contemplated by the FW Act and it does not appear to arise in this case. The submissions they advanced, where relevant to other considerations, have been taken into account in that context.

[86] To the extent that this consideration contemplates the circumstances of “similar” employees more broadly, the consistent application of principles adopted by the Commission in s.394(3) matters is in line with this factor and I have adopted that approach in this case. 30

[87] This factor is a neutral consideration in terms of a finding of relevant exceptional circumstances.

7. Conclusions and Order

[88] In the end result there is a factor which faintly weighs in favour of a finding of exceptional circumstances and Mr Panayiotou’s EOT claim. There is a factor which strongly militates against a finding of relevant exceptional circumstances, a factor that marginally does so, and the other factors are neutral. Having taken into account all the factors referred to in s.394(3)(a) to (f) of the FW Act, I am not persuaded that there are exceptional circumstances warranting the exercise of a discretion to allow a further period within which an unfair dismissal remedy application may be lodged by Mr Panayiotou against Adelaide University.

[89] As a result, it is appropriate to dismiss the unfair dismissal application and an Order 31 to that effect is being issued in conjunction with this Decision.

COMMISSIONER

Appearances:

P Panayiotou, the Applicant, on his own behalf, with support from J Williams.

A Short and D Hunt, of Minter Ellison with permission, for the University of Adelaide.

Hearing details:

2019

Adelaide

26 June.

Printed by authority of the Commonwealth Government Printer

<PR709634>

 1   [2019] FWC 4071 (the Permission Decision).

 2   Exhibit CM1.

 3   Transcript PN258.

 4   Section 397 of the FW Act.

 5   The Commission is not able to grant an order under s.10, and is not a relevant investigative body under the SD Act; an unfair dismissal application before the Commission under the FW Act would not appear to fall within the scope of relevant investigation or proceedings as defined and the exclusion in 9(1)(e) would need to be made out by reliable objective evidence.

 6   Acts Interpretation Act 1901 (Cth) s.36.

 7   See Woolworths Limited v Lin [2017] FWCFB 5081 at [53].

 8   [2018] FWCFB 901.

 9   Exhibit A2, Document 14, page 3.

 10   Exhibit CM1 page 125.

 11   Exhibit CM1 pages 83, 89, 95, 104

 12   Exhibit CM1 page 12.

 13   Woolworths Limited v Lin [2017] FWCFB 5081 at [54].

 14   Drawn for Mr Panayiotou’s oral evidence and written submissions.

 15   Taken from exhibit CM1 and the Applicant’s evidence about these events.

 16   All subsequent email exchanges have been with the Applicant’s personal Outlook account.

 17   Mr Panayiotou retained access to some systems after that time (as a “visitor”) for a period that permitted him to continue to engage with the University about his dispute.

 18   Exhibit A2, Document 73.

 19   Exhibit A2, Document 73 at pages 4 and 5.

 20   Exhibit A2, Document 73 at page 5.

 21   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299-300.

 22  Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 556 (McHugh J).

 23   Jervis v Coffey Engineering Group Pty Limited PR927201 (AIRCFB, Marsh SDP, Duncan SDP, Harrison C, 3 February 2003) at [16].

 24   Kyvelos v Champion Socks Pty Ltd Print T2421 (AIRCFB, Giudice J, Acton SDP, Gay C, 10 November 2000) at [14].

 25   Exhibit R1 at DG-4.

 26   Exhibit R1 at DG-2

 27   Transcript PN217 – 222.

 28   Written outline and submission of the Applicant – exhibit A1 at page 15.

 29   Written submissions of the Respondent,14 June 2019 at page 5.

 30   See Brodie-Hanns v MTV Publishing Ltd 67 IR 298 at 301 in connection with what is now s.394(3)(f). See also Perry v Rio Tinto Shipping Pty Ltd [2016] FWCFB 6963 at [41].

 31   PR710237.