//
[2019] FWCFB 8487
General information, not legal advice.
Fair Work Commission (Full Bench)
2019-12-20
Original judgment source is linked above.
s.604 - Appeal of decisions
Appeals against decision [2019] FWC 4363 of Commissioner Hampton at Adelaide on 16 July 2019 in matter number U2019/3430 - appeals filed out of time - extension of time refused.
[1] This decision relates to two appeals filed by Mr Panos Panayiotou, which have been allocated to this Full Bench. These appeals are the second and third occasions upon which Mr Panayiotou has sought review of a decision refusing to extend time within which to lodge his application for an unfair dismissal remedy against the University of Adelaide (University).
[2] The following outlines the context to the appeals presently before us.
[3] On 16 July 2019, Commissioner Hampton issued a decision in matter U2019/3430[1] (Decision) in which he refused Mr Panayiotou's application for an extension of time within which to lodge his unfair dismissal application. The Decision was accompanied by an order dismissing the application.[2]
[4] On 21 July 2019, Mr Panayiotou made an application to appeal the Decision (the First Appeal). The First Appeal was lodged within time and allocated matter number C2019/4461. On 6 September 2019, a differently constituted Full Bench issued a decision refusing permission for Mr Panayiotou to appeal the Decision.[3]
[5] On 7 September 2019, Mr Panayiotou lodged a second Notice of Appeal against the Decision (Second Appeal). The Second Appeal was filed outside the time period prescribed by the Fair Work Commission Rules 2013 (FWC Rules). It was lodged 32 days out of time. The Second Appeal was allocated matter number C2019/5541 and is one of the two appeals presently before us.
[6] On 25 September 2019, Mr Panayiotou lodged a third Notice of Appeal against the Decision (Third Appeal). The Third Appeal was also filed outside the time period prescribed by the FWC Rules. It was lodged 51 days out of time. The Third Appeal was allocated matter number C2019/6144 and is the second of two appeals presently before us.
[7] On 23 October 2019, this Full Bench issued an interlocutory decision[4] which confirmed, based on the position advanced by Mr Panayiotou, that the Second Appeal and the Third Appeal are separate appeals but would be dealt together by us. Relevantly, the interlocutory decision also:
(1) attached revised directions[5] for the filing and service of materials by the parties in respect of both the Second Appeal and the Third Appeal, and a revised Notice of Listing for the matters to be heard before us on 20 November 2019; and
(2) stated that the subject matter of the hearing on 20 November 2019 was only in respect of the application for an extension of time within which to institute the Second Appeal and the Third Appeal. We would not be dealing with whether to grant Mr Panayiotou permission to appeal or, if permission is granted, the merits of the appeals.
[8] While Mr Panayiotou contended in oral submissions before us that he had not read the interlocutory decision,[6] it is apparent from his conduct and other statements before us that he had.[7]
[9] Mr Panayiotou contends that he was employed by the University from 14 March 2017 until the termination of his employment on 10 October 2018. This was a contested matter before the Commissioner. The University denied that Mr Panayiotou was an employee. It said that Mr Panayiotou was an international student undertaking a Master of Philosophy (Surgery) on an International Wildcard Scholarship and the University terminated his candidature on 30 July 2018.
[10] Mr Panayiotou lodged an unfair dismissal application with the Fair Work Commission (Commission) on 26 March 2019. Section 394(2)(a) of the Fair Work Act 2009 (Cth) (Act) provides that an application for an unfair dismissal remedy must be made within 21 days after the dismissal took effect (or within such further period as the Commission allows under s.394(3) of the Act).
[11] In the Decision, the Commissioner was prepared to consider 10 October 2018 as the dismissal date for the purposes of the extension of time application. This meant that on Mr Panayiotou's case there was a delay of over four and a half months in filing the unfair dismissal application.
[12] In dealing with Mr Panayiotou's extension of time application, the Commissioner considered each of the matters specified in s.394(3)(a) to (f) of the Act. At paragraphs [46] to [58] of the Decision, the Commissioner dealt with the reasons advanced by Mr Panayiotou for the delay in lodging his unfair dismissal application. The Commissioner described Mr Panayiotou's rationale at [49]-[50]:
"[49] The elements relied upon by Mr Panayiotou include the following propositions:
[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." (endnote omitted)
[13] As to the reasons for the delay, the Commissioner concluded at [52]-[53] of the Decision:
"[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."
[14] The Commissioner proceeded to summarise the chronology of email exchanges between Mr Panayiotou and the Commission between 29 September 2018 and 19 February 2019, before the unfair dismissal application was lodged on 26 March 2019. The Commissioner concluded at [55]-[57]:
"[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."
[15] The Commissioner then dealt with the other relevant considerations in s.394(3) of the Act and made the following findings:
(1) As to s.394(3)(b), the Commissioner found that Mr Panayiotou was aware of what he considered to be a dismissal as at 10 October 2018 and accordingly, that paragraph did not weigh in favour of granting an extension.
(2) As to s.394(3)(c), the Commissioner found that Mr Panayiotou took some steps to dispute his dismissal and this weighed faintly in favour of granting an extension.
(3) As to s.394(3)(d), the Commissioner found that there was some prejudice to the University associated with the long day in bringing the matter and this weighed against a finding of exceptional circumstances, although offset to some degree by the fact that the University had been under notice of the contest for some time.
(4) As to s.394(3)(e), the Commissioner was not in a position to make a definitive finding about the merits of the application, but noted at [80] of the Decision that the weight of the evidence is consistent with the relationship between Mr Panayiotou and the University being that of a student studying with the University and not that of an employee being employed. The Commissioner treated this as a neutral consideration.
(5) As to s.394(3)(f), the Commissioner found this to be a neutral consideration, noting that the parties had not directly engaged with this consideration.
[16] The Commissioner was not satisfied that there were exceptional circumstances such as to warrant the exercise of his discretion to extend the time in which Mr Panayiotou could make his unfair dismissal application. The Commissioner's conclusion is set out at [88] of the Decision:
"[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."
[17] As earlier noted, Mr Panayiotou lodged the First Appeal on 21 July 2019 and this was within the time prescribed by the FWC Rules. The Full Bench refused permission to appeal, having determined that:
(1) Mr Panayiotou's grounds of appeal did not disclose any appealable error in the Decision and the public interest grounds raised matters unrelated to the subject matter of the Decision;
(2) Mr Panayiotou's oral submissions reagitated some of the matters argued before the Commissioner but did not identify any error of fact or law in the Decision; and
(3) independent of Mr Panayiotou's notice of appeal and submissions, the Commissioner had not erred in either his approach to the considerations under s.394(3) of the Act or the conclusions that he made on the facts.
[18] The hearing before us was only in respect of the application for an extension of time within which to institute the Second Appeal and the Third Appeal. Rule 56(2) of the FWC Rules requires that an appeal must be instituted within 21 days after the date of the decision appealed against, or within such time as is allowed by the Commission on application.
[19] The Decision was issued on 16 July 2019. For an appeal of the Decision to have been lodged within time, it must have been lodged on or before 6 August 2019. The Second Appeal and Third Appeal were lodged after this date on 7 and 26 September 2019 respectively and are therefore out of time.
[20] As is frequently noted, and most recently by a Full Bench in Snyder v Helena College Council Inc t/as Helena College (Snyder),[8] time limits of the kind in Rule 56 of the FWC Rules should not simply be extended as a matter of course. There are sound administrative and industrial reasons for setting a limit to the time for bringing an appeal and it should only be extended where there are good reasons for doing so.
[21] The following matters are relevant in considering whether to exercise the Commission's discretion to extend time for filing the Second Appeal and Third Appeal under Rule 56(2)(c):[9]
(1) whether there is a satisfactory reason for the delay;
(2) the length of the delay;
(3) the nature of the grounds of appeal and the likelihood that one or more of those grounds would be upheld if time was extended; and
(4) any prejudice to the respondent if time were extended.
[22] Taking these matters into account, the exercise of the discretion will be guided by a consideration of whether, in all the circumstances, the interests of justice favour Mr Panayiotou being granted an extension of the time within which to lodge the Second Appeal and the Third Appeal.[10] The arguments Mr Panayiotou advances are considered below.
(1) The length of the delay
[23] The Second Appeal was lodged on 7 September 2019. On 25 September 2019, the Commission issued Directions concerning the Second Appeal in which it was noted that the Second Appeal was out of time.
[24] Despite this, the next day (26 September 2019) Mr Panayiotou lodged the Third Appeal which he maintained is to be treated as separate from the Second Appeal.[11]
[25] The extent of the delay in each case is substantial. We consider the length of the delay weighs against allowing a further period of time to lodge the Second Appeal and Third Appeal.
(2) Whether there is a satisfactory reason for the delay
[26] Having regard to the "Complainant's concise outline of appeal grounds" dated 30 September 2019[12] and the matters raised in oral argument before us,[13] the issues Mr Panayiotou raised before Commissioner Hampton as justifying exceptional circumstances supporting an extension of time continue to cause him concern. We understand that Mr Panayiotou relies upon these matters to explain his delay in filing the two appeals before us.
[27] As part of his explanation, Mr Panayiotou specifically sought our review of various documents that he relied upon in his previous matters before the Commission.[14] We have had regard to these documents in our consideration of whether there is a satisfactory reason for the delay in lodging the appeals.[15] Where Mr Panayiotou's arguments give rise to material considerations, they are addressed in summary below. Beyond that, it is inappropriate for us to comment on these documents more broadly.
[28] Mr Panayiotou contended before the Commissioner that he was hired to work on a medical research project by the University. He presented a report that disagreed with the research group's previous data, being data that was used to receive further grant funding. Mr Panayiotou says that when he presented these discrepancies to the University he was dismissed from his employment.[16] However, as earlier noted, the University said that Mr Panayiotou's candidature as an international student was terminated effective close of business on 30 July 2018.[17]
[29] In his outline of submissions before the Commissioner, Mr Panayiotou said that the delay in filing the unfair dismissal application arose for the following reasons:
(a) there was prejudice towards him for being an international student;
(b) he was bullied, harassed, threatened and blackmailed;
(c) there was biased support and bribing from staff designed to help him; and
(d) there was neglectful support from departments appropriate for the issues, which caused immense stress and confusion.[18]
[30] In relation to item (a), Mr Panayiotou contends he was prejudiced for being an international student. His submissions in this respect included the following examples:
(a) His access to certain University facilities was cut off on or about 19 April 2018 without notification.[19]
(b) On 7 May 2018, he was directed not to contact University staff or access the research facility on account of the University's concerns regarding his behaviour. The correspondence said that a failure to comply may result in a referral to the student misconduct tribunal which may result in fines being imposed.[20] Mr Panayiotou said this was unfair as the direction prevented him from exploring a resolution to his access issue with relevant University personnel.[21] He also understood the correspondence to constitute a threat.
(c) The University's decision to revoke his access to the University's "staff" email system on or about 23 May 2018 and instead provide him with a "student" email address.[22]
[31] We note that in submissions before us, Mr Panayiotou accepted that the above issues arose prior to his dismissal date of 10 October 2018.[23]
[32] In relation to item (b), Mr Panayiotou's submissions included the letter from the University of 7 May 2018 (discussed above), which he said was an illustration of bullying or threatening behaviour by the University. He also submitted before the Commissioner that he had been threatened and felt bullied by colleagues for disagreeing with the research group's previous data.[24]
[33] Mr Panayiotou's submission at item (c) that he received biased support from the University included his concern that University IT staff were instructed not to assist him.[25] However, we note that this correspondence of 10 October 2018 post-dated the conclusion of Mr Panayiotou's candidature.[26] As to his contention of bribery, Mr Panayiotou claims that he was bribed to quit his candidature[27] and specifically referred us to a meeting he had with the University's Education Welfare Officer Manager.[28] A review of the audio recording filed by Mr Panayiotou in support of this contention goes no way towards supporting a claim that the Education Welfare Officer Manager bribed him to withdraw from the candidature.[29] We dismiss this as an entirely spurious claim.
[34] We turn now to item (d), being Mr Panayiotou's contention that he received "neglectful support" from the large number of state and federal departments and agencies that he contacted for assistance.[30] In his own submission, this involved approaching every government department except for the Australian Taxation Office.[31] Mr Panayiotou said he was receiving conflicting information which added to the confusion he felt.[32] Notwithstanding this, Mr Panayiotou accepted that in correspondence between he and the Commission from September 2018 to 19 February 2019, he was provided with a fair opportunity to lodge his unfair dismissal application within time.[33]
[35] The above arguments need to be considered within the prism of whether they constitute a satisfactory reason for the delay in filing the Second Appeal and the Third Appeal before us. While we accept Mr Panayiotou's submission that he felt shocked, confused and isolated by these events, when taken individually or collectively, they do not provide a satisfactory reason for the considerable delay in filing the two appeals. No persuasive submissions were advanced explaining how any of the above matters that were also agitated before the Commissioner had any bearing upon the late lodgement of the Second Appeal and Third Appeal. We fail to see how any of these matters can form the basis for any credible explanation for the delay.
[36] Mr Panayiotou also contended that there were exceptional circumstances justifying a delay in filing both his unfair dismissal application and the two appeals before us on account of counter-terrorism police attending his home. It is said that this occurred at or around the time his payments from the University ceased on 10 October 2018.[34] Mr Panayiotou said this caused him to fear for his life[35] and continued to keep him "under duress," thereby contributing to the delay in lodging these appeals.[36] In support of this concern, Mr Panayiotou referred us to a series of documents that he contends prove that police entered his residential premises. There is nothing in these documents that discloses the date that any such event occurred.[37] However, it appears that:
(a) a report in relation to a search of Mr Panayiotou's property by the Counter Terrorism and Security section was prepared to which Mr Panayiotou has been refused access;[38] and
(b) Mr Panayiotou attended an interview with South Australian police on 11 October 2018.[39]
[37] Mr Panayiotou also submitted that he was contacted by South Australian police "immediately after" the hearing before the Commissioner to discuss "closure options."[40] We are prepared to proceed on the basis that counter terrorism police attended Mr Panayiotou's residence on or about 10 October 2018 as contended by him and that he was contacted by them again some months later. However, notwithstanding his submission of the personal impact these events had on him, the First Appeal was lodged within time. Therefore, we do not accept that these events had any bearing upon Mr Panayiotou's capacity to observe and comply with the time requirements contained in the FWC Rules in the appeals before us.
[38] Finally, we understand that Mr Panayiotou contends that it was not appropriate that time be counted pursuant to the FWC Rules from the date of the Decision. Rather, time should be calculated from the date the First Appeal decision was issued on 6 September 2019.[41] Mr Panayiotou contends that he was advised by the Commission that he could not lodge an appeal in relation to the Decision until the First Appeal was disposed of. We note that the Second Appeal was lodged the day following the First Appeal decision. We are prepared to assume (without deciding the point) that Mr Panayiotou was so advised and that this provides an explanation for the length of the delay in relation to the filing of the Second Appeal.
[39] This consideration weighs in favour of allowing a further period of time to lodge the Second Appeal. However, we do not reach the same conclusion in respect of the Third Appeal, for the reasons which follow.
[40] Notwithstanding Mr Panayiotou's earlier stated position that the Second Appeal and Third Appeal were separate, he conceded before us that these appeals were in fact "one appeal." It was said that the Third Appeal was simply filed to prove that the Commission "didn't have a process, with no gaps..."[4] Accordingly, it is apparent that the Third Appeal was not lodged to seek redress for matters that Mr Panayiotou considers to give rise to appealable error in the Decision. Rather, it was lodged to challenge the approach of the Commission to the management of multiple appeal applications lodged in respect of the same decision. Further, even if we were to accept Mr Panayiotou's submission regarding the advice he is said to have received, that cannot explain the extent of the delay in relation to the Third Appeal. This weighs against allowing a further period of time to lodge the Third Appeal.
(3) Nature of appeal grounds and likelihood that one or more would be upheld if time were extended
[41] In considering the merits of the Second Appeal and the Third Appeal, it is relevant to observe that an appeal under s.604 of the 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.[42] There is no right to appeal and an appeal may only be made with the permission of the Commission.
[42] The Decision was made under Part 3-2 (Unfair Dismissal) of the Act. Section 400(1) of the Act provides that permission to appeal must not be granted from a decision made under Part 3-2 unless the Commission considers that it is in the public interest to do so. Further, in such matters, 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)).
[43] These matters were listed for hearing in respect of the extension of time application only (and not in respect of permission to appeal and the merits of the appeal). Accordingly, it is sufficient for us to engage with the appeal grounds only to the extent necessary in our determination of the extension of time application.
[44] Based on the matters advanced in the notices of appeal[43] for the Second Appeal and the Third Appeal, we discern that the appeal grounds are as follows:
(1) the Commissioner made errors of fact in his consideration of the factors in s.394(3) of the Act, requiring the re-examination and comparison of evidence; and
(2) the Full Bench that heard and determined the First Appeal arising from the Decision made errors of fact.
[45] While expressed differently, it seems apparent that the first ground of appeal was agitated by Mr Panayiotou in the First Appeal. We understand that Mr Panayiotou's complaint is that the first Full Bench decision did not expressly address these alleged issues and this informs the second ground of appeal.
[46] The University submits that the grounds of appeal raised by Mr Panayiotou either seek to re-agitate matters already argued before the Commissioner or relate to alleged irregularities in the decision of the first Full Bench. Neither of these provide a sound basis for the two appeals before us to succeed. It says that Mr Panayiotou has not demonstrated any error in the Decision warranting permission to appeal being granted and this weighs heavily against the grant of an extension of time.
[47] We are not persuaded that the Commissioner made errors of fact in the Decision as contended and so permission to appeal in respect of that ground is not likely to be granted if time were extended. There is another consideration which leads us to conclude that permission to appeal is unlikely to be granted.
[48] The Act establishes a process whereby a person aggrieved by a decision of a Commission Member may appeal the decision, with the permission of the Commission (see s.604). Appeals must be determined by a Full Bench (see s.613).
[49] As noted by a Full Bench in Snyder[44] there are sound public policy reasons why the Commission should not readily accede to an application for permission to appeal in circumstances where there has been a previous appeal of the same decision. The public policy benefits associated with providing finality in litigation tells against such a course. As Gleeson CJ observed in Minister for Immigration and Multicultural Affairs v Bhardwaj,[45] albeit in a different context:
"The requirements of good administration, and the need for people affected directly or indirectly by decisions to know where they stand, mean that finality is a powerful consideration."
[50] It may also erode public confidence in the administration of justice if conflicting decisions were obtainable by differently constituted Full Benches on the same matter.[46] Permitting multiple successive appeals in respect of the same decision is also inconsistent with the manner in which the Commission is directed to perform its functions and exercise its powers under s.577 of the Act.[47] It seems to us that the structure of the Act does not contemplate an aggrieved person lodging multiple appeals in respect of the same decision.
[51] Having regard to these considerations, the first appeal ground is not likely to be upheld.
[52] As to the second ground of appeal, the Act does not provide for appeal of a decision of a Full Bench of the Commission. Instead, a person aggrieved by a decision of a Full Bench may seek judicial review of the decision in the Federal Court of Australia, pursuant to s.39B of the Judiciary Act 1903 (Cth) and ss.562 and 563 of the Act. The appeals before us are not the appropriate vehicle to challenge the decision of the Full Bench in the First Appeal. Accordingly, permission to appeal in respect of that ground is not likely to be granted if time were extended.
[53] The nature of the grounds of appeal and the likelihood that one or more would not be upheld if time were extended weigh against extending time within which to lodge the appeals.
(4) Any prejudice to the respondent if time were extended
[54] The University contends that Mr Panayiotou has already had the benefit of an appeal to a Full Bench against the Decision. The First Appeal was dismissed but the University applied time and expense to its defence.
[55] The University submits that if an extension of time is granted, it would have to respond to further appeals, the substance of which has already been unsuccessfully agitated by Mr Panayiotou. We accept the University's argument that it would be prejudicial to it if an extension of time were granted in respect of the Second Appeal and the Third Appeal. This weighs against the grant of an extension of time within which to lodge the appeals.
[56] As set out above, the considerable length of the delay in lodging the two appeals before us, the likelihood that the appeal grounds would not be upheld if time was extended, and the prejudice to the University all weigh against allowing a further period of time within which to lodge each notice of appeal.
[57] As to the reasons for the delay, we are prepared to proceed on the basis of the explanation advanced for the delay in lodging the Second Appeal and that is a matter that weighs in favour of granting an extension of time. However, this consideration is outweighed by our findings in respect of each of the other factors, which taken together, weigh against a further period of time for the lodgement of the Second Appeal.
[58] As to the Third Appeal, there are no matters that weigh in favour of allowing a further period.
[59] We have concluded that, in all the circumstances, the interests of justice do not favour Mr Panayiotou being granted an extension of the time within which to lodge the Second and the Third Appeals.
[60] For the above reasons, we refuse Mr Panayiotou's application to extend the time in which to file the Second Appeal and the Third Appeal.
[61] Applications C2019/5541 and C2019/6144 are dismissed.
[62] In oral submissions, Mr Panayiotou accepted that he had already challenged the Decision before a Full Bench in the First Appeal.[4] Despite this, Mr Panayiotou queried in oral submissions before us whether he was able to lodge a further appeal in respect of the Decision.[48] As earlier noted, the Act does not expressly contemplate an aggrieved person lodging multiple appeals in respect of the same decision. Public policy reasons tell against such a course.
[63] Further, an application that is repeatedly pressed by an applicant in the Commission may be considered to be frivolous or vexatious pursuant to s.587(b) of the Act. It may also be the case that such an application is regarded as having no reasonable prospects of success under s.587(c). While each matter will turn on its own facts, the Commission may have regard to s.587 in considering such an application, either on its own initiative, or upon application by a party.
[64] For completeness, Mr Short attended the hearing on behalf of the University; however, in the circumstances it was not necessary for us to determine whether to grant permission to Mr Short to appear.
[1] [2019] FWC 4363 (document 167)
[5] Annexure A to [2019] FWCFB 7325
[6] Transcript of proceedings dated 20 November 2019 (Second and Third Appeal Transcript) at [196]
[7] Second and Third Appeal Transcript at [23]
[8] [2019] FWCFB 815; see also Tokoda v Westpac Banking Corporation T/A Westpac [2012] FWAFB 3995 at [3]
[9] See for example Fox v Kangan TAFE Print S0253, 25 October 1999 at [36]; Stevenson-Helmer v Epworth Hospital, Print T2277, 19 October 2000_; Dundovich v P&O Ports,_ Print PR923358, 8 October 2002; SPC Ardmona Operations Ltd v Esam and Organ (2005) 141 IR 338; Jobs Australia v Eland [2014] FWCFB 4822; Farnhill v Australian Business Academy Pty Ltd [2016] FWFBC 3410 and Logan City Electrical Services Division Pty Ltd t/as Logan City Electrical v Christopher Antonarkis [2018] FWCFB 3815
[10] Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541
[11] The 7 and 26 September 2019 notices of appeal are in substantially similar terms. Key differences are set out in the interlocutory decision of this Full Bench in [2019] FWCFB 7325 at [6]
[12] Complainant's concise outline of appeal grounds dated 30 September 2019 at [5a)]
[13] Second and Third Appeal Transcript [247]-[248]; [279] and [321]
[14] Document 50 (see Second and Third Appeal Transcript [72]); document 52 (see Second and Third Appeal Transcript [73]), audio recording concerning Education Welfare Officer Manager (see Second and Third Appeal Transcript [83], [84], [93]); status of University as public or private (see Second and Third Appeal Transcript [132], [133]); correspondence between the Department of Home Affairs and Mr Panayiotou (see Second and Third Appeal Transcript [138], [139]); PN277 of transcript of proceedings in U2019/3430 dated 25 June 2019 (see Second and Third Appeal Transcript [239]); document 314 (see Second and Third Appeal Transcript [239], [247], [248]); documents 301, 302, 303 (see Second and Third Appeal Transcript [247]); document 168 (see Second and Third Appeal Transcript [251])
[15] Document 190 was sought for review (see Second and Third Appeal Transcript [250]) but there is no document by this number within Mr Panayiotou's materials
[16] Attachment to the Form F2 unfair dismissal application, titled "Summary", p.7
[18] Outline of submissions in [2019] FWC 4363 at p.1
[19] Outline of submissions in [2019] FWC 4363 at document 52
[21] Second and Third Appeal Transcript [70]
[22] Outline of submissions in [2019] FWC 4363 at p.2, Table 1; document [1]
[23] Second and Third Appeal Transcript [71]
[24] Transcript of proceedings in U2019/3430 dated 25 June 2019 (document 166) at [144]; audio recordings [1]-[2] attached to email from Appellant to the Commission dated 17 May 2019 (being documents 63 and 64)
[25] Outline of submissions in [2019] FWC 4363 at document 3
[26] Outline of submissions in [2019] FWC 4363 at document 11
[27] Outline of submissions in [2019] FWC 4363 at p.2, p.9
[28] Outline of submissions in [2019] FWC 4363 at p.9; Second and Third Appeal Transcript [83]-[87]
[29] Audio recordings [5]-[6] attached to email from Appellant to the Commission dated 17 May 2019
[30] Second and Third Appeal Transcript [81]
[31] Second and Third Appeal Transcript [116]
[32] Outline of submissions in [2019] FWC 4363 at p.2 and documents [23]-[113]; Second and Third Appeal Transcript [117], [129]
[33] Second and Third Appeal Transcript [119]
[34] Second and Third Appeal Transcript [42], [47], [65]-[67]. See also transcript of proceedings in U2019/3430 dated 25 June 2019 (document 166) at [277]
[35] Second and Third Appeal Transcript [80], [248]
[36] Second and Third Appeal Transcript [239], [247]
[37] Documents 301, 302, 303 and 314. We note that these documents were not before the Commissioner
[41] Second and Third Appeal Transcript [197]-[198]
[42] This is so because on appeal, the Commission has power to receive further evidence, pursuant to s.607(2); see Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ
[43] Dated 7 September 2019 at [2.1] and 26 September 209 at [2.1]
[44] Jeremy Snyder v Helena College Council, Inc. t/as Helena College [2019] FWCFB 815 (Snyder) at [24]
[45] [2002] HCA 11; (2002) 209 CLR 597 at [8], cited in Jeremy Snyder v Helena College Council, Inc. t/as Helena College [2019] FWCFB 815 at [24]
[48] Second and Third Appeal Transcript [160]
Printed by authority of the Commonwealth Government Printer
Panos Panayiotou
University of Adelaide [2019] FWCFB 8487
(2005) 141 IR 338
(1996) 186 CLR 541
(2000) 203 CLR 194
(2002) 209 CLR 597