Fair Work Act 2009

s.604 - Appeal of decision

Appeal against decision [2022] FWC 1240 of Commissioner Matheson at Sydney on 23 May 2022 in matter number U2022/1364.

[1] Mr George Georgiou has lodged an appeal, for which permission is required, against a decision issued by Commissioner Matheson on 23 May 2022.[1] In the decision, the Commissioner refused to grant Mr Georgiou an extension of time under s 394(3) of the Fair Work Act 2009 (the FW Act) to lodge an application for an unfair dismissal remedy in relation to the termination of his employment by Transurban Ltd (Transurban). The Commissioner considered the factors set out in s 394(3) and determined that there were no exceptional circumstances warranting the extension of time sought.

[2] The Commissioner found that Mr Georgiou's dismissal by Transurban took effect on 8 December 2021.[2] This finding is not challenged in Mr Georgiou's appeal. Section 394(2) of the FW Act requires an application for an unfair dismissal remedy to be made within 21 days after the dismissal took effect or within such further period as the Commission allows under s 394(3). Mr Georgiou lodged his application for an unfair dismissal remedy on 30 December 2021, one day after expiry of the 21-day period. Accordingly, he required an extension of time under s 394(3) in order for his application to be permitted to proceed. 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:

(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

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

[3] Having found that Mr Georgiou had not lodged his unfair dismissal application within the prescribed timeframe, the Commissioner proceeded in her decision to consider each of the matters set out in s 394(3) of the Act.

[4] In relation to the reason for the delay (s 394(3)(a)), the Commissioner comprehensively analysed the parties' evidence and submissions in respect to the following reasons for the delay proffered by Mr Georgiou:[3]

• his alleged miscalculation of the lodgement deadline (that is, that he believed 30 December 2021 was the deadline and therefore that he had lodged his application within time before the Commission's staff advised him otherwise);

• the impact of his medical condition on his mental function - specifically, his calculation of the lodgement deadline and ability to prepare and lodge his application;

• the complexity involved in preparing his application, because it was unclear to him whether he should lodge a general protections or unfair dismissal application, and because he had to research the respondent's codes and policies in addressing "historical accusations"[4] that he believed were relevant to the circumstances of dismissal;

• the Commission's online lodgement system was allegedly not working around the time his application was due, the application was not actioned by the Commission until several weeks after he did lodge it, and the Commission's website did not include an example of how to calculate the lodgement deadline when he was preparing his application, but does now;

• the 21-day timeframe for lodging his application included the festive season;

• the duration of the delay in lodgement was "technically only half a day",[5] the application having been lodged shortly after noon on the 22nd day after dismissal;

• his inability to access company emails and Webex instant message conversations while preparing his application;

1. his former legal representative advised him on 24 December 2021 (five days before what he now concedes was the lodgement deadline) that it would not act for him in relation to his application, and he was unable to obtain alternate representation so close to Christmas, so he had to "go it alone";[6] and

• his caring responsibilities for his teenage son and elderly mother.

1. The Commissioner found that none of the above factors, either individually or when taken together, satisfactorily accounted for Mr Georgiou's delay in lodging his unfair dismissal application. She accordingly found that this matter weighed against granting an extension of time.[7]

2. The Commissioner then found that Mr Georgiou became aware of his dismissal on the same day it took place (s 394(3)(b)), which also weighed against granting him an extension of time.[8]

3. In respect of any action taken to dispute the dismissal (s 394(3)(c)), the Commissioner accepted that Mr Georgiou had informed Transurban shortly after the dismissal took effect that "he believed the dismissal was unreasonable and unjust and that he intended to explore his legal options",[9] but found that this factor was neutral in her consideration of whether to grant him an extension of time because there was no evidence that Mr Georgiou went any further than that.

4. In relation to any prejudice to the respondent, including prejudice caused by the delay in lodgement (s 394(3)(d)), the Commissioner found there was none, but noted that a lack of prejudice of itself did not necessarily demonstrate exceptional circumstances. She considered this to be a neutral factor.[10]

[9] The Commissioner then considered the merits of the application (s 394(3)(e)). Transurban had dismissed Mr Georgiou for alleged breaches of its Code of Conduct, its Equity in the Workplace Policy, and its Acceptable Use of Technology Policy.[11] More specifically, Transurban contended in response to Mr Georgiou's application that he had addressed a colleague inappropriately and disrespectfully in an email and a Webex instant message conversation, and that he had impermissibly accessed CCTV footage to impugn that colleague's timesheets. The Commissioner noted that Mr Georgiou did not deny either that this conduct occurred or that it was inappropriate,[12] but maintained that it was justified because he was a whistleblower who exposed his colleague's alleged timesheet fraud. The Commissioner found there were disputed facts that could only be resolved at a substantive hearing and considered the merits to be a neutral factor in the circumstances.[13]

[10] Finally, in relation to fairness as between the appellant and other persons in a similar position (s 394(3)(f)), the Commissioner reiterated her rejection of Mr Georgiou's submission that his medical condition had adversely impacted his ability to lodge his unfair dismissal application within time and noted that Mr Georgiou had not made her aware of any other employee in a similar position. The Commissioner therefore treated this a neutral factor in her consideration.[14]

[11] Having weighed the above matters as required by the FW Act, the Commissioner concluded that there were no exceptional circumstances either when the matters were considered individually or collectively. She accordingly refused to grant Mr Georgiou an extension of time and dismissed his application.[15]

Mr Georgiou's appeal grounds, submissions and further evidence

[12] Mr Georgiou set out some 15 appeal grounds in his notice of appeal. However, his outline of submissions condensed these to the following five particularised grounds:

(1) "The Commissioner erred in law by misconstruing the application of s 394(3)(a) by failing to consider the appellant's explanation for delay in totality". In respect of this ground, Mr Georgiou submitted that the Commissioner erred by assessing the reasons he gave for the delay individually and in isolation rather than in combination, notwithstanding that the Commissioner said (at [109]) that she had considered the matters "individually and in combination". He submitted that his primary reason for his delay was his miscalculation of the time, but the Commissioner failed to consider this explanation in light of the evidence concerning his mental health and that he had sought legal representation, only to be turned away on 24 December 2021. Mr Georgiou also submitted that the Commissioner failed to consider the length of the delay as a contextual matter in light of the explanation for the delay provided by him. It followed, it was submitted, that the Commissioner erred in law by failing to consider Mr Georgiou's explanation for the delay in totality, as was required in exercising the discretion under s 394(3) properly.

(2) "The Commissioner was legally unreasonable in finding that the [appellant] lacked a credible explanation for the delay". As to this ground, Mr Georgiou submitted that he had adduced evidence that, during the relevant period, he was suffering from adjustment disorder and anxiety which most likely contributed to the date miscalculation and decreased his overall mental functioning. This consisted of two medical certificates covering the period from 2 December 2021 to 18 December 2021, a certificate of incapacity dated 17 December 2021, and a letter from a psychologist dated 1 March 2022. Notwithstanding this, the Commissioner found (at [97]) that the medical evidence did not demonstrate that Mr Georgiou was prevented from or seriously impeded in lodging his unfair dismissal application. It was submitted that the substantial amount of evidence, when looked at in totality, provided a credible explanation for the delay, and it followed that no reasonable decision-maker would have arrived at a conclusion otherwise.

(3) "The Commissioner erred in law by misconstruing the consideration s 394(3)(b) of the FW [Act] to weigh against the appellant". Mr Georgiou submitted that the Commissioner erred in finding (at [110]), under s 394(3)(b), that the fact he became aware of the dismissal when it first took effect weighed against the exercise of the discretion to grant an extension. It was submitted that s 394(3)(b) does not permit knowledge of the termination date to be weighed against an applicant for an extension of time and, in this case, it was an irrelevant factor which either should not have been taken into account at all, or should have been given neutral weight.

(4) "Failure to provide adequate reasons as to why negative weight was given to s 394(3)(b)". It was submitted, further or in the alternative to ground 3, that the Commissioner's reasons as to her finding under s 394(3)(b) did not illuminate the basis on which the consideration weighed against Mr Georgiou by reference to any legal principle or case authority, and this did not articulate the essential grounds for reaching this conclusion.

(5) "The Commissioner erred in law by concluding that the existence [of] merits of the claim was [a] neutral factor in determining whether there are exceptional circumstances": As to this ground, Mr Georgiou submitted that s 394(3)(e) is binary in nature, in that an unfair dismissal claim either has merit and this consideration weighs in favour of an extension, or it does not and this weighs against an extension. The Commissioner's finding that this was a neutral consideration was, Mr Georgiou submitted, not open to her on a proper construction of the provision since what was involved was not an exercise in determining the strength of the merits of his case such that a higher or lower positive weight could be attributed.

[13] Mr Georgiou contended that granting him permission to appeal would be in the public interest because:

• the Commissioner gave insufficient weight to his medical evidence, the fact that he was "ignored and abandoned" by his solicitor in the last days of the 21-day period and the merits of his application;

• the Commissioner should not have found that the fact that he became aware of his dismissal on the same day it took effect weighed against granting him an extension of time;

• the Commissioner's decision not to grant him an extension of time was "not in keeping with the benevolent intent of the Act";

• the Commissioner's decision raises issues about the interpretation and application of s 394(3) of the FW Act; specifically, appeal grounds 1, 3 and 5 are about the questions to which a decision-maker should direct themselves when deciding whether to grant an extension of time and point to the Commissioner acting upon a wrong principle;

• appeal grounds 2 and 4 are about the Commissioner acting unreasonably; and

• the Commissioner's decision manifests an injustice to him.

[14] At the hearing of the appeal, we admitted into evidence the following documents that were tendered by Mr Georgiou:

(1) Emails sent by Mr Georgiou to a lawyer, Mr Taylor of Segelov Taylor Lawyers, dated 14, 17, 22 and 29 December 2021.

(2) A costs disclosure sent by Segelov Taylor Lawyers (undated).

[15] The Commissioner's decision is one to which s 400 of the FW Act applies. Therefore, permission to appeal must not be granted unless the Commission considers it is in the public interest to do so (s 400(1)). Further, appeals on a question of fact can only be made on the ground that the decision involved a significant error of fact (s 400(2)).

1. This test in s 400(1) a stringent one.[16] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[17] Some of the considerations that may attract the public interest are where a matter raises issues of importance and general application, or there is a diversity of decisions at first instance so that appellate guidance is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters.[18] It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated.[19] 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.[20]

[17] 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.[21] 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 King[22] - 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, as noted above, 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.

[18] The assessment required by s 394(3)(a) concerning the reason for the delay requires the exercise of a broad evaluative judgment. The judgment requirement is whether the reason for the delay, by itself or in combination with the other prescribed matters in s 394(3), points to the existence of the exceptional circumstances necessary to allow the grant of an extension of time.

[19] We are not satisfied that it would be in the public interest to grant permission to appeal, for three reasons. First, the additional evidence tendered by Mr Georgiou in this appeal destroys the credibility of the explanation for his delay in filing his application advanced by him at first instance. As he elucidated in his submissions, Mr Georgiou's core explanation was that he miscalculated by a day the last date for filing his application within the prescribed 21-day period, and he said that his judgment in this respect was affected by his mental health condition and his incapacity to secure lawyers to represent him. However, Mr Georgiou's emails to Mr Taylor demonstrate that in fact he did not miscalculate the date, but rather knew that the last day was 29 December 2021 - the day before he filed his application. Thus, in his email to Mr Taylor dated 17 December 2021, he said "I have less than 2 weeks to lodge legal proceedings with the Fair Work Commission", discussed sending an email to his former manager at Transurban requesting the rescission of his dismissal, and then stated "With the little time remaining, and the xmas break, I do not think I will receive a response from [manager's name] before the Fair Work deadline (29th Dec)." At the time this was sent, Mr Georgiou still had 12 days to file an in-time application. Again, in his 22 December 2021 email, Mr Georgiou said "We are running out of time to lodge the Unfair dismissal. Deadline is 29th Dec.", and in his email of 29 December 2021 (sent at 2.18am) said "As deadline for application is 29th Dec, I need clarification. Do I proceed with Unfair dismissal OR General Protections?"

[20] When we asked Mr Georgiou at the appeal hearing to explain these emails in light of his assertion that he had miscalculated the last day for filing his application, he said that at the time he believed that the last day was 30 December 2021 but stated in the emails that it was 29 December 2021 because he "needed time up my sleeve" in the event that Segelov Taylor would not represent him and he had to prepare the application himself. This explanation does not make any sense on a number of levels and we do not accept it. It is clear, we consider, that Mr Georgiou knew at the latest by 17 December 2021 that the last day for filing an unfair dismissal application in time was 29 December 2021, and that his assertion before the Commissioner that a date miscalculation was the reason advanced for the delay was discordant with what he knew to be the case.

[21] That being so, Mr Georgiou's contention that his judgment as to the calculation of the correct date was affected by his mental health and his inability to secure legal representation is rendered irrelevant. In any event, we note the following:

(1) Leaving aside that Mr Georgiou's medical evidence did not demonstrate that he was mentally unable to prepare an unfair dismissal application within the 21-day period or correctly calculate the 21-day period, the simple fact is that Mr Georgiou's application was completed and signed by him on 29 December 2021. That is, whatever his medical condition was, Mr Georgiou was in a position to file his application in time but did not do so. Why he delayed filing it for a further day has not been explained by him.

(2) The costs disclosure tendered by Mr Georgiou demonstrates that he never engaged Segelov Taylor to prepare and file an unfair dismissal application, but only to attend the disciplinary meeting with Transurban on 8 December 2021 (at which he was dismissed) and to prepare any follow-up document or submission. Mr Georgiou's emails to Mr Taylor did not request the preparation of any unfair dismissal application on his behalf but only sought gratuitous advice, and Mr Georgiou said that Mr Taylor rang him on 24 December 2021 and made it clear that Segelov Taylor would not be representing him in the matter. Accordingly, any suggestion of abandonment of him by his lawyers is without substance. Nor was there any failure to advise him as to the last date of the 21-day filing period since, as earlier explained, Mr Georgiou already knew what this was.

[22] Second, Mr Georgiou's grounds of appeal are entirely lacking in merit. Having regard to the matters addressed above, his first two grounds of appeal relating to the Commissioner's consideration under s 394(3)(a) of the reason for the delay fall away because the primary reason advanced by Mr Georgiou has been demonstrated before us to be specious. In relation to the third and fourth grounds, there is no textual basis to construe s 394(3)(b) as prohibiting a conclusion that knowledge of the dismissal immediately it comes into effect weighs against the grant of an extension. Each case will turn on its own facts, but there is no reason why a discretionary conclusion might not be reached that such knowledge weighs against the grant of an extension of time because the dismissed employee has had full advantage of the 21-day period in which to file an unfair dismissal application. The Commissioner gave her reason (at [110]) for her conclusion under s 394(3)(b), namely that "[t]here was no confusion or lack of clarity which could have contributed to the delay", and that in our view adequately explains how the conclusion was reached. As to the fifth ground of appeal, the proposition that s 394(3)(e) is "binary" in the way for which Mr Georgiou contends finds no support in the text of the provision, and a conclusion that this consideration is neutral in a case involving contested facts constitutes an entirely orthodox exercise of discretionary judgement.

[23] Third, we do not consider that Mr Georgiou's appeal raises any genuine issue of law, principle or general application which would render the grant of permission to appeal to be in the public interest.

[24] Because we do not consider that the grant of permission to appeal would be in the public interest, s 400(1) prohibits such permission being granted. Accordingly, permission to appeal is refused.

[1] [2022] FWC 1240

1. [6] Ibid at [74]
2. [7] Ibid at [109]
3. [8] Ibid at [110]
4. [9] Ibid at [114]
5. [10] Ibid at [117]

1. [16] Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54, 192 FCR 78, 207 IR 177 at [43] per Buchanan J (with whom Marshall and Cowdroy JJ agreed)
2. [17] 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 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]
3. [18] GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, 197 IR 266 at [27]
4. [19] Wan v AIRC [2001] FCA 1803, 116 FCR 481 at [30]
5. [20] 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]
6. [21] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288 at [21]

[22] [1936] HCA 40, 55 CLR 499

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