DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Panos Panayiotou
v
University of Adelaide
(C2019/4461)

Appeal against decision [[2019] FWC 4363] of Commissioner Hampton at Adelaide on 16 July 2019 in U2019/3430.

Introduction

[1] Mr Panos Panayioutou has applied for permission to appeal against a decision of Commissioner Hampton issued on 16 July 2019 1 (Decision) in which the Commissioner declined to grant an extension of time for Mr Panayioutou to file his unfair dismissal application against the University of Adelaide (University) pursuant to s 394 of the Fair Work Act 2009 (FW Act).

[2] Section 394(2) of the FW Act requires an unfair dismissal remedy application to be lodged within 21 days after the dismissal took effect or within such further period as the Commission allows under s 394(3). Section 394(3) provides:

(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.

[3] Mr Panayioutou’s application was lodged on 26 March 2019. It is unclear when the alleged dismissal from the University took place, or indeed whether there was a dismissal at all given that the University denied it ever entered into an employment relationship with Panayiotou. Mr Panayiotou contended before the Commissioner that he was dismissed effective from 10 October 2018, and the Commissioner was prepared to treat this as the relevant date for the purpose of the extension of time application even though, on one view, Mr Panayioutou’s relationship with the University terminated as early as May 2018. This meant that there was a delay of over four and a half months in filing the unfair dismissal application.

[4] In the Decision, the Commissioner gave separate consideration to each matter required to be taken into account under s 394(3). In relation to the reasons for the delay, the Commissioner found that there was no reasonable explanation for the lengthy delay in lodging the unfair dismissal application:

“[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.”

[5] In respect of the remaining considerations in s 394(3), the Commissioner found that paragraph (b) did not weigh in favour of granting an extension. Paragraph (c) was found to “faintly” support a finding of exceptional circumstances whilst paragraph (d) weighed against the finding of exceptional circumstances; however this was offset to some degree due to the University having been on notice of the contest for some time. Paragraphs (e) and (f) were both treated as neutral considerations.

[6] It is not possible to fairly summarise the grounds of appeal contained in Mr Panayioutou’s notice of appeal. They are set out in full in the attachment to this decision.

[7] Mr Panayioutou contended in his notice of appeal that the grant of permission to appeal was in the public interest because:

•  the matter involved prioritising the interests of public safety;

•  it involved medical research practices that do not uphold the safety, health and wellbeing standards of the community or adhere to government regulations;

•  it would bring to light evidence of poor public and private decision-making;

•  the research group did not communicate honestly and clearly to their employers or to the public in relation to safety, risk, cost, fitness for purpose, reliability, and community impact;

•  when the appellant presented research integrity concerns to the university, authorities at the university and departments outside the university did not comply with relevant government legislation or regulations;

•  when the appellant reported unlawful conduct, unethical behaviour and conflicts of interest, there was no system to provide natural justice or procedural fairness and this would undoubtedly impact past, present or future employees with the university; and

•  apart from the unfair dismissal, the appellant was allegedly subjected to bullying, harassment, assault, threats and blackmail. Additionally he receiving a trespassing ban from the University and was accused of being a terrorist and had his home infiltrated by counter-terrorism police.

[8] Mr Panayioutou’s oral submissions at the hearing of his application for permission to appeal on 2 September 2019 canvassed a range of diverse matters. From time to time he touched upon what he said were the reasons for his delay in filing his unfair dismissal application, including that the University blocked access to his emails, that his emails were hacked, and that he was given insufficient or misleading assistance by various Commonwealth authorities including this Commission, the “Ombudsman” and the Australian Federal Police. He did not at any stage turn to the Decision for the purpose of identifying error.

Consideration

[9] An appeal under s 604 of the FW Act is an appeal by way of rehearing and the Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision maker.² There is no right to appeal and an appeal may only be made with the permission of the Commission.

[10] This appeal is one to which s 400 of the FW Act applies. Section 400 provides:

(1) Despite subsection 604(2), the FWC must not grant permission to appeal from a decision made by the FWC under this Part unless the FWC considers that it is in the public interest to do so.

(2) Despite subsection 604(1), an appeal from a decision made by the FWC in relation to a matter arising under this Part can only, to the extent that it is an appeal on a question of fact, be made on the ground that the decision involved a significant error of fact.

[11] In the Federal Court Full Court decision in Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [43], Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s 400 as “a stringent one”. The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.³ A Full Bench of the Commission, in GlaxoSmithKline Australia Pty Ltd v Makin, identified some of the considerations that may attract the public interest:

“… the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters.” 4

[12] It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of appealable error.⁵ However, the fact that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.⁶

[13] An application for permission to appeal is not a de facto or preliminary hearing of the appeal. In determining whether permission to appeal should be granted, it is unnecessary and inappropriate for the Full Bench to conduct a detailed examination of the grounds of appeal. 7 However it is necessary to engage with those grounds to consider whether they raise an arguable case of appealable error.

[14] The test of “exceptional circumstances”, in relation to extensions of time to lodge applications under s 394(3), establishes a “high hurdle” for an application for an extension, and a decision as to whether to extend time under s 394(3) involves the exercise of a broad discretion.⁸ Therefore it will be necessary, in an application for permission to appeal against a decision made under s 394(3), to demonstrate that there is an arguable case and that there was appealable error in the exercise of the discretion. This will require the identification of error of the type described in House v The King⁹ – that is, that the decision-maker has acted on a wrong principle, has mistaken the facts, has taken into account an irrelevant consideration or failed to take into account a relevant consideration, or has made a decision which is unreasonable or manifestly unjust. Additionally, where an error of fact is alleged, s 400(2) requires that it must be a significant error of fact. The overriding public interest requirement of s 400(1) remains.

[15] Mr Panayioutou’s grounds of appeal do not contain any comprehensible let alone arguable contention of appealable error. His grounds for the grant of permission to appeal in the public interest raise matters which bear little or no relationship to the subject matter of the Decision. His oral submissions re-agitated some of the matters which he argued before the Commissioner, but he did not attempt to identify any error of fact or law in the Decision.

[16] Independent of Mr Panayioutou’s notice of appeal and submissions, we have carefully reviewed the Decision. It is apparent that the Commissioner considered all the matters required to be considered under s 394(3), made findings of fact that were firmly supported by the evidence, and made evaluative judgments that were reasonably open to him to make. No basis for an arguable contention of appealable error is ascertainable. Furthermore we wholly agree with the Decision. The Decision does not raise any question of law or general principle worthy of consideration at the appellate level.

[17] For these reasons, we are not satisfied that the grant of permission to appeal would be in the public interest. As required by s 400(1) of the FW Act, permission to appeal must therefore be refused. We so order.

VICE PRESIDENT

Appearances:

Mr P Panayioutou on his own behalf.

Hearing details:

2019.

Melbourne:

2 September.

<PR712074>

Attachment A

 1   [2019] FWC 4363

2 This is so because on appeal the Commission has power to receive further evidence, pursuant to s.607(2); see Coal and Allied v AIRC [2000] HCA 47, 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ

3 O’Sullivan v Farrer [1989], HCA 61, 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch [2011] HCA 4, 243 CLR 506, 85 ALJR 398 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54, 192 FCR 78, 207 IR 177 at [44]-[46]

 4   [2010] FWAFB 5343, 197 IR 266 at [24] – [27]

5 Wan v AIRC [2001] FCA 1803, 116 FCR 481 at [30]

6 Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089, 202 IR 388 at [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54, 192 FCR 78, 207 IR 177; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663, 241 IR 177 at [28]

 7   Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]

8 Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288 at [21]

9 [1936] HCA 40, 55 CLR 499

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