1
Fair Work Act 2009
s.604—Appeal of decision
Luciano Lombardo
v
Commonwealth of Australia as represented by the Department of
Education, Employment and Workplace Relations
(C2014/3249)
VICE PRESIDENT WATSON
JUSTICE BOULTON, SENIOR DEPUTY PRESIDENT
COMMISSIONER LEWIN
MELBOURNE, 1 JULY 2014
Appeal against decision [2013] FWC 9957 of Commissioner Deegan at Canberra on 18
December 2013 in matter number U2013/2400 - Permission to appeal - whether grounds of
appeal attract the public interest - Permission to appeal not granted - Fair Work Act 2009
ss394,400, 604.
Introduction
[1] This decision concerns an application for permission to appeal against a decision of
Commissioner Deegan handed down on 18 December 2013. The decision of the
Commissioner concerned an application by Dr Luciano Lombardo made in August 2013 for
an extension of time to file an unfair dismissal application under the Fair Work Act 2009 (the
Act) in relation to the termination of his employment by the Department of Education,
Employment and Workplace Relations (DEEWR) in August 2012.
[2] At the hearing of the application for permission to appeal Dr Lombardo appeared on
his own behalf and Mr W Spaul appeared on behalf of DEEWR. The parties relied on written
submissions filed in support of their respective positions and made supplementary oral
submissions at the hearing.
Background
[3] Dr Lombardo was a long standing employee of DEEWR and its predecessors for
approximately 25 years. In response to a request by DEEWR for expressions of interest in
voluntary redundancies he applied for a voluntary redundancy in December 2010. His
application was refused in February 2011. Dr. Lombardo reacted badly to that decision and
was diagnosed by his doctor on 1 February 2011 as having severe depression. His doctor
declared him unfit for work at the time and issued certificates to the same effect for all
subsequent ongoing absences.
[2014] FWCFB 2288
DECISION
E AUSTRALIA FairWork Commission
[2014] FWCFB 2288
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[4] Dr. Lombardo lodged a claim for workers compensation in May 2012. In July 2012
Comcare confirmed its decision to deny his claim. In August 2012, Dr Lombardo lodged an
application for review of Comcare’s decision with the Administrative Appeals Tribunal
(AAT). By decision dated 5 July 2013, the AAT affirmed Comcare’s decision.
[5] Over this period DEEWR wrote a series of letters to Dr Lombardo in relation to his
employment status. Letters dated 6 March and 15 March 2012 specifically directed him to
return to work. By letter dated 10 August 2012 DEEWR again directed Dr Lombardo to
return to work and advised him that unless he did so, his employment would be terminated
due to unauthorised absence. Dr. Lombardo did not return to work as directed, because of his
doctor’s medical advice, and on 22 August 2012 DEEWR formally terminated his
employment.
[6] In July 2013 after receiving the AAT decision, Dr Lombardo lodged an unfair
dismissal claim with the Commission three hundred and seventeen days out of time.
Commissioner Deegan directed that written submissions be filed on the application for an
extension of time and determined the matter on the basis of those submissions without
conducting a hearing.
[7] The decision under appeal concerned the extension of time for lodging an unfair
dismissal application. The relevant statutory provisions are contained in s.394 of the Act. This
section has been amended over the course of the relevant events in this case. The provision
that applied to the application was the form of s.394 in force at the time of Dr Lombardo’s
dismissal. The Commissioner was correct in applying that provision. At the time of the
dismissal s.394 read as follows:
“(2) The application must be made:
(a) within 14 days after the dismissal took effect; or
(b) within such further period as FWA allows under subsection (3).
(3) FWA may allow a further period for the application to be made by a person under
subsection (1) if FWA 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.”
[8] The Commissioner’s conclusions and reasons are recorded in the following extract
from the Commissioner’s decision of 18 December 2013:
“[18] I have considered the question of whether a further period should be allowed for
the lodgement of this application in light of those matters set out in s.394(3) of the
Act.
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[19] The main reason given by the applicant for his delay in filing is his pursuit of a
worker’s compensation claim which was eventually determined by the AAT on 5 July
2013. He claims that he was ‘fixated’ on that matter and that he was unable to pursue
an unfair dismissal case at the same time. He has submitted in evidence two letters,
one from his general practitioner and one from his psychologist, both advising that he
was unable in September 2012, due to his mental state at that time, to pursue his unfair
dismissal case in addition to his Comcare application. I accept the advice of both
doctors that the applicant was, in September 2012, unable to pursue his unfair
dismissal case. I do not accept, however, that from September 2012 until 19 July 2013
the applicant was incapable of either deciding on whether to make an unfair dismissal
application or lodging such an application. Neither of the letters from his doctors
supplied by the applicant supports such a conclusion.
[20] There is nothing exceptional in the circumstances that applied to the applicant. It
is not unusual for a person whose employment is terminated to pursue or continue
with a worker’s compensation claim. Nor is it exceptional for a person whose
employment has been terminated to be stressed or anxious. While it would be unusual
for a person’s mental condition to prevent him from lodging an unfair dismissal claim
for almost a year, there is no evidence that this was the case in this instance. I note the
differing assessments made by the various doctors of the applicant’s mental state in
the weeks leading up to the termination. I also note that the applicant was clearly
capable of responding to the employer about his reasons for refusing to return to work
and to press his workers compensation claim. The applicant’s submissions make it
clear that he took a reasoned decision to pursue his compensation claim rather than an
unfair dismissal claim and only decided to lodge the unfair dismissal application when
his compensation claim both failed and he received publicity he was concerned about.
None of these matters constitute exceptional circumstances.
[21] The applicant was dismissed with effect from 22 August 2012. He took no action
to dispute the dismissal until he lodged this application on 19 July 2013.
[22] I accept that while there may be some prejudice caused to the employer if a
further period were allowed for lodgement I do not consider such prejudice would be
sufficient, of itself, to refuse the application for a further period within which to lodge.
[23] On the limited evidence as to the circumstances of the termination I am unable to
conclude that the application is totally without merit and is therefore a neutral
consideration. I make no further finding on that matter.
[24] The matter of fairness as between the applicant and other persons in a similar
position is of little relevance to my decision in the circumstances of this case.
Conclusion
[25] Taking all the matters set out in s.394(3) into account I am not satisfied that there
are exceptional circumstances in this matter such that I should allow a further period
for the filing of the application.”
The Appeal and Grounds of Appeal
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[9] Dr Lombardo lodged an appeal against the Commissioner’s decision on 3 March 2014.
An extension of time for lodging an appeal is therefore required because the appeal was not
filed within 21 days of the decision in accordance with Rule 56(2) of the Fair Work
Commission Rules 2013 (Rules).
[10] The grounds of appeal and public interest factors raised by Dr Lombardo include the
context of his mental illness, the conflict between medical advice, DEEWR’s processes for
dealing with an employee suffering from a mental illness, alleged suppression of evidence
concerning the medical advice, and various alleged errors of fact in the decision of the
Commissioner.
Permission to Appeal
[11] In unfair dismissal matters, permission to appeal can only be granted if the
Commission considers that it is in the public interest to do so: s.400(1) of the Act. The way in
which the public interest may be attracted has been described as follows1:
“... 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.”
[12] The decision under appeal is of a discretionary nature. Such a decision can only be
challenged on appeal if it is shown that the discretion was not exercised correctly2. It is not
open to an appeal bench to substitute its view on the matters that fell for determination before
the Commissioner in the absence of error of an appealable nature in the decision at first
instance.
[13] As the High Court said in House v The King3:
“The manner in which an appeal against an exercise of discretion should be determined
is governed by established principles. It is not enough that the judges composing the
appellate court consider that, if they had been in the position of the primary judge, they
would have taken a different course. It must appear that some error has been made in
exercising the discretion. If the judge acts upon a wrong principle, if he allows
extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he
does not take into account some material consideration, then his determination should
be reviewed and the appellate court may exercise its own discretion in substitution for
his if it has the materials for doing so. It may not appear how the primary judge has
reached the result embodied in his order, but, if upon the facts it is unreasonable or
plainly unjust, the appellate court may infer that in some way there has been a failure
properly to exercise the discretion which the law reposes in the court of first instance.
In such a case, although the nature of the error may not be discoverable, the exercise of
the discretion is reviewed on the ground that a substantial wrong has in fact occurred.”
[14] We have considered the grounds of appeal and the arguments advanced in relation to
them. The Commissioner clearly adopted and applied the correct test under s.394(3) of the
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Act. That task required a consideration of whether there were exceptional circumstances
justifying a further period for making the unfair dismissal application taking into account the
specified factors in that subsection.
[15] The Commissioner considered the medical advice provided by Dr Lombardo
concerning his ability to make an unfair dismissal application while his workers compensation
appeal was being considered. The Commissioner accepted that medical advice as far as it
went, but found that it did not establish that Dr Lombardo was incapable of deciding to make
an unfair dismissal application or lodging an application from September 2012 to July 2013.
In our view that finding is consistent with the evidence.
[16] The Commissioner also considered the merits of the unfair dismissal application but
was not able to form a view of the strength of the case other than to find that the application
was not totally without merit. In the appeal proceedings it was submitted by Dr Lombardo
that in reaching this conclusion the Commissioner had ignored medial evidence central both
to the case to dismiss and the need for an extension of time.
[17] The conflicting medical advice about Dr Lombardo’s availability for work was noted
by the Commissioner in her decision. This factor clearly had relevance to the merits of the
unfair dismissal application because DEEWR acted on the advice of one doctor in preference
to the advice of four others in making a direction to return to work. This is so especially as the
reliability of the advice relied upon by DEEWR was undermined by the decision of the AAT.
[18] However the merits of the unfair dismissal application also included the circumstance
that Dr Lombardo had been absent from work for almost 18 months and Comcare had
declined his workers compensation claim. It was not alleged that the absence from
employment was a temporary absence because of illness within the meaning of s.352 of the
Act and the Regulations. DEEWR considered that the absence arose from Dr Lombardo’s
disappointment in not being offered a redundancy package. Dr Lombardo accepts this but
says further that this circumstance contributed to an ongoing medical incapacity to return to
work. DEEWR characterised the circumstances as an abandonment of employment. But even
if it was wrong in that characterisation, and different medical advice should have been
accepted, there was still a lengthy and ongoing incapacity to return to work that could well
have amounted to a valid reason for termination.
[19] In considering the merits of the matter as part of determining whether to grant an
extension of time the Commission is not making a detailed and definitive finding on the
merits. It was inevitably a tentative, initial view that was but one factor in the consideration of
whether exceptional circumstances exist and whether those circumstances warrant an
extension of time, to the extent sought.
[20] The Commissioner said that this was a neutral consideration in the present case as she
was unable on the limited evidence as to the circumstances of the termination to conclude that
the application was totally without merit. Having regard to all the circumstances of the matter,
we consider that the Commissioner’s approach was entirely reasonable.
[21] The test for granting an extension of time involves both a broad discretion and a high
hurdle of exceptional circumstances. The longer the delay in making the application the more
difficult it will generally be to get over that hurdle. Different decision-makers will inevitably
place greater or lesser reliance on certain factors. In our view Dr Lombardo has not
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established that the discretion exercised by the Commissioner was exercised in an erroneous
manner, or that the finding that there were no exceptional circumstances in this matter was
obviously wrong. It is not our task to reconsider the questions that arose for determination
before the Commissioner in the absence of appealable error. We are not of the view that the
decision of the Commissioner is attended by error.
[22] Dr Lombardo raised his personal circumstances and the impact of the dismissal on him
as grounds for finding it is in the public interest to grant permission to appeal. While these
matters are no doubt significant to Dr Lombardo personally, we are not of the view that they
establish that it is in the public interest to grant permission to appeal.
Conclusion
[23] For these reasons, we are not of the view that the grounds of appeal have substance.
Nor do we believe that, individually or collectively, the grounds attract the public interest. We
therefore decline to grant permission to appeal and dismiss the application for permission to
appeal. It is unnecessary for us to consider whether an extension of time for lodging the
appeal should be granted.
VICE PRESIDENT
Appearances:
Dr L Lombardo appeared on his own behalf.
Ms C Barbary and Mr W Spaul appeared on behalf of the Department of Education,
Employment and Workplace Relations.
Hearing details:
2014.
Canberra.
3 April.
Printed by authority of the Commonwealth Government Printer
Price code A, PR549381
1 GlaxoSmithKline Australia Pty Ltd v Colin Makin [2010] FWAFB 5343, at [27].
2 House v King (1936) 55 CLR 499 at [504]-[505] per Dixon, Evatt and McTiernan JJ.
3 Ibid.
http://www.fwc.gov.au/FWAISYS/isysquery/036e2245-8295-421c-82a9-179d201f8dfe/1/doc/
