1
Fair Work Act 2009
s.604 - Appeal of decisions
Logan City Electrical Service Division Pty Ltd T/A Logan City Electrical
v
Mr Christopher Antonarakis
(C2018/2938)
JUSTICE ROSS, PRESIDENT
DEPUTY PRESIDENT MASSON
COMMISSIONER LEE MELBOURNE, 14 AUGUST 2018
Appeal against decision [2017] FWC 3801 of Commissioner Simpson at Brisbane on 21 July
2017 in matter number U2017/918 – extension of time to file appeal – whether public interest
enlivened – application for extension of time refused.
[1] Logan City Electrical Service Division Pty Ltd t/a Logan City Electrical (the
Appellant) has applied for permission to appeal and has appealed against a decision1 made by
Commissioner Simpson on 21 July 2017 (the Decision). In the Decision the Commissioner
found that Mr Antonarakis had been unfairly dismissed from his employment with the
Appellant and ordered that the Appellant pay Mr Antonarakis $19,640 compensation (the
Order).
[2] Rule 56(2) of the Fair Work Commission Rules 2013 relevantly provides that a notice
of appeal under s.604 must be filed within 21 calendar days after the date of the decision the
subject of the appeal or within such further time allowed by the Commission on application
by the Appellant. The Appellant lodged its notice of appeal on 31 May 2018, some 294 days
after the expiry of the prescribed 21-day time period. Rule 56(2)(c) confers a discretion on the
Commission to extend the time within which the appeal is to be lodged.
[3] Time limits of the kind in Rule 56 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.
[4] The authorities2 indicate that the following matters are relevant in considering whether
to exercise the Commission’s discretion to extend time under Rule 56(2)(c):
1 [2018] FWC 3801.
2 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
[2018] FWCFB 3815
DECISION
E AUSTRALIA FairWork Commission
http://www.fwc.gov.au/alldocuments/PR923358.htm
[2018] FWCFB 3815
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whether there is a satisfactory reason for the delay;
the length of the delay;
the nature of the grounds of appeal and the likelihood that one or more of those
grounds being upheld if time was extended; and
any prejudice to the respondent if time were extended.
[5] As mentioned earlier, the Appellant seeks an extension of the time within which an
appeal is to be filed. The matters relevant to such an application are those set out at [4] above.
In broad terms the issue for the Commission is whether, in all the circumstances and having
regard to the matters set out above, the interests of justice favour an extension of the time
within which to lodge the appeal.
[6] The application to extend time was heard on 11 July 2018. At the conclusion of the
hearing we informed the parties that we had decided to refuse the Appellant’s application to
extend time and that we would issue our reasons in due course; these are those reasons.
[7] The relevant background may be shortly stated.
[8] Mr Antonarakis commenced employment with the Appellant on 6 March 2012 as an
apprentice refrigeration mechanic and became a qualified tradesperson in 2014. He was
dismissed by the Appellant for ‘unsatisfactory conduct’ on 17 January 2017. The alleged
unsatisfactory conduct related to the Appellant’s belief that Mr Antonarakis had done a “cash
job” which was regarded by the Appellant as stealing. Mr Antonarakis lodged an application
for relief from unfair dismissal on 31 January 2017 (the Application).
[9] Following the filing of the Application the Commission attempted to communicate
with the Appellant about the programming and conduct of the matter. The Commission’s
Case Management System (CMS) records identify the following attempts to communicate
with the Appellant:
(i) 2 February 2017 - A copy of the form F2 filed by Mr Antonarakis along with a
blank F3 employer response form was served on the Appellant via general
email address service@lceqld.com.au addressed to Mr Peter Burnitt, the
Director and Secretary of the Appellant as listed on the ASIC company extract
(Mr Burnitt).
(ii) 2 February 2017 – Notice of Listing for conciliation sent to the Appellant via
email to service@lceqld.com.au and post. Conciliation listed for 11.15am,
Friday 3 March 2017.
(iii) 27 February 2017 – follow up letter sent to the Appellant noting that no F3 had
been received and no contact number for conciliation had been provided.
Esam and Organ (2005) 141 IR 338; Jobs Australia v Eland [2014] FWCFB 4822; Farnhill v Australian Business
Academy Pty Ltd [2016] FWFBC 3410.
http://www.fwc.gov.au/decisionssigned/html/2016fwcfb3410.htm
http://www.fwc.gov.au/decisionssigned/html/2014fwcfb4822.htm
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(iv) 28 February 2017 – Commission staff member phoned the Appellant and left
message for Mr Burnitt to call the Commission to provide a phone number for
the scheduled conciliation.
(v) 3 March 2017 – Conciliation listed for 11.15am. While Mr Antonarakis was
available Mr Peter Burnitt of the Appellant was not available when contacted
by the Conciliator. A message was left for Mr Burnitt to call back.
(vi) 3 March 2017 – Letter sent by email to service@lceqld.com.au advising that
conciliation listed that day did not proceed and requesting that advice as to
alternate dates of Mr Burnitt’s availability be provided within two working
days.
(vii) 8 March 2017 – Letter sent by email to service@lceqld.com.au advising that
the matter had been referred for arbitration.
(viii) 10 March 2017 – Notice of Listing and Directions sent via email to
service@lceqld.com.au and post. Matter listed for arbitration 22 & 23 May
2017. The Appellant was directed to file its material by 12pm Monday 24 April
2017.
(ix) 26 April 2018 – Commission staff member called the Appellant following up
on submissions and material due on 24 April 2017. Mr Burnitt was unavailable
to take the call and a message was left.
(x) 28 April 2017 - Commission staff member called the Appellant following up
on submissions and material due on 24 April 2017. Commission staff member
was advised that Mr Burnitt was out of the office and would not be back for a
week but a message would be passed on.
(xi) 2 May 2017 – An amended Notice of Listing sent via email to the Appellant at
service@lceqld.com.au noting matter only listed for one day on 22 May 2017.
(xii) 9 May 2017 – Commissioner Simpson’s Chambers contacted the Appellant in
relation to the matter. Mr Burnitt was unavailable and a message was left
requesting that he call back.
(xiii) 15 May 2017 – Notice of Listing for non-compliance hearing at 3.00pm on 17
May 2017 sent to the Appellant at service@lceqld.com.au.
(xiv) 17 May 2017 – Non-compliance hearing conducted. Commissioner notes that
the respondent may not be properly identified and advises Mr Antonarakis to
undertake a company search.
(xv) 18 May 2018 – Cancellation of Notice of Listing for 22 May 2017 sent via
email to the Appellant at service@lceqld.com.au.
(xvi) 29 May 2018 – Mr Antonarakis filed a form F1 seeking to amend his F2
application in respect of the identification of the respondent. The Appellant
was copied via email on the correspondence.
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(xvii) 19 June 2017 – Commission issued decision allowing amendment of Mr
Antonarakis’ application to correctly identify the Appellant. Decision sent via
email to the Appellant at service@lceqld.com.au.
(xviii) 19 June 2017 – Notice of Listing for Mention at 2.00pm 5 July 2017 sent via
email to the Appellant at service@lceqld.com.au
(xix) 5 July 2017 – Mention held. Mr Antonarakis appeared but the Appellant did
not. The Commissioner’s Associate attempted to contact Mr Burnitt by
telephone but was told he was unavailable and that the message would be
passed on.
(xx) 5 July 2017 - Notice of Listing for hearing on 10.00am 20 July 2017 sent via
email to the Appellant at service@lceqld.com.au and post.
(xxi) 20 July 2017 – Hearing conducted. The Appellant did not appear.
(xxii) 21 July 2017 – The Decision was issued and sent to the Appellant via email to
service@lceqld.com.au and post.
[10] The Appellant failed to respond to numerous attempts by Commission staff to contact
it by telephone, email and post. The correspondence included directions and notices of listing
with respect to the matter. The Appellant failed to file any material in the proceedings, nor did
it appear at any conferences or hearings conducted in relation to the matter.
[11] In the Decision the Commissioner makes the following observation in relation to the
Appellants’ failure to respond to contact from the Commission or to participate in the
proceedings:
‘[15] I am satisfied that the Respondent’s failure to engage with the Commission has not been
due to a lack of awareness of the application against it, but rather due to a conscious decision
not to participate in the proceedings. Multiple attempts have been made by the Commission to
notify the Respondent of the proceedings, by way of emails, letters and telephone calls. I am
satisfied that the Respondent has been aware of this matter, and that it has had ample
opportunity to respond to this application, however has chosen not to do so. On that basis I am
prepared to treat the application as being uncontested.’
[12] We propose to deal with each of the matters set out in [4] above, in turn.
Reason for the delay
[13] The Appellant’s explanation for the delay is set out in a witness statement filed by Mr
Burnitt3. Mr Burnitt is the sole director of Logan City Electrical. The relevant extract from Mr
Burnitt’s witness statement is as follows:
‘9 From June 2017 to March 2018, I had been engaged in multiple projects out of the office
and out of mobile range or with poor mobile reception. It was not unusual for me to only
be in the office twice per week.
3 Exhibit A1, Witness Statement of Mr Peter Burnitt, dated 26 June 2018
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10 LCE was served with an application made by the Fair Work Ombudsman under covering
letter dated 22 March 2018, on 26 March 2018 in respect of compliance with the Order
made on 21 July 2017.
11 Consequently, I engaged Simmonds Crowley Galvin on 27 March 2018 as my solicitors
to look into this matter and to review and respond to matters relating to the Decision. On
18 May 2018, I was advised of the potential to appeal against the Decision and order and
accordingly instructed my solicitors to prepare the relevant notice of appeal.
12 In early October 2017, in a telephone discussion with a female person from the
Ombudsman’s office I first became aware that an Order against LCE had been made, but
I did not understand how this occurred or fully appreciate what it meant. I understood that
this was not final and could be argued against.
13 Upon these enquiries in paragraph 8 herein having been made, it is apparent that LCE has
received certain communications between October 2017 and March 2018 from the Fair
Work Ombudsman’s office about the order, but I was personally unaware of them at the
time and consequently, I did not action the matter as quickly as I should have.’
[14] In explaining his out of office work commitments in the period of September 2017 to
March 20184 Mr Burnitt’s evidence was that mail received by the Appellant’s office was
personally delivered to him each day but in some circumstances he may not receive it until the
following day due to the mail either not being picked up or his being out of the office at the
end of the day5.
[15] In respect of email correspondence since identified as having been received by the
Appellant Mr Burnitt stated that the email address service@lceqld.com.au was not his
personal email address but was a general email address used for quoting and similar enquiries.
[16] As to his evidence about the contact from the Fair Work Ombudsman (FWO), Mr
Burnitt was uncertain as to when he actually first spoke with the FWO6. He claimed that when
he did speak with the FWO it was in relation to a ‘possible order’ that was to be made7. He
further claimed that as a consequence of the FWO phone call he understood he would have an
opportunity to respond to it (the possible order) and was expecting further information to be
sent to him by the FWO8.
[17] Mr Burnitt further stated during oral evidence that he had referred the matter of the
FWO proceedings to his legal representatives in the wake of the FWO contacting him in
September 20179, although when pressed Mr Burnitt confirmed that he didn’t meet with his
solicitors until 27 March 2017 following receipt of the correspondence form the FWO dated
22 March 201810.
4 Ibid Paragraph [9]
5 Transcript PN67 – PN77
6 Transcript PN87 – PN91, PN118
7 Transcript PN122 – PN130
8 Transcript PN131
9 Transcript PN 95-PN102
10 Transcript PN106
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[18] As regards the delay in instructions to the Appellant’s lawyers for filing an appeal
following the receipt of the FWO correspondence dated 22 March 2018, Mr Burnitt gave
evidence that it took his lawyers ‘a little bit more time’ to find out about the Order and how it
had come about11. The Appellant also submitted that the delay in filing was explained by the
Appellant’s legal representative’s review and preparation of the Appellant’s defence in the
FWO proceedings launched against it.
[19] The following timeline of events may be discerned from Mr Burnitt’s evidence:
21 July 2017 Decision and Order issued.
October 2017 Staff member of FWO contacts and speaks directly with Mr Burnitt
regarding the Order.
26 March 2018 Appellant served with proceedings by the Fair Work Ombudsman by
way of correspondence dated 22 March 2018 in relation to the failure
of the Appellant to comply with the Order.
27 March 2018 Appellant engages solicitors Simmons Crowley Galvin to represent
them in matters relating to the Decision and Order and, Mr Burnitt
meets with them in respect to the matter.
18 May 2018 Appellant instructs its solicitor to file an appeal against the Decision
31 May 2018 Appellant files appeal of Decision.
[20] Mr Burnitt was not a credible witness. His evidence was internally inconsistent12 and
he changed his evidence under questioning. For example, Mr Burnitt initially said that in
early October 2017 he was contacted by someone from the Fair Work Ombudsman and that
was when he became aware of the Order13.
[21] He later changed his evidence and asserted that the person from the FWO he spoke to
in October 2017 only referred to a ‘Possible order getting made’.14 Mr Burnitt’s evidence had
the character of being crafted to best support the Appellant’s case. When it became apparent
that an aspect of his evidence did not achieve that objective, he changed his evidence.
[22] We reject Mr Burnitt’s evidence as to the reasons for the delay in filing the appeal. In
support of this conclusion we make three points, in addition to our general finding as to Mr
Burnitt’s credit.
[23] First, Mr Burnitt claims that he was regularly out of the office on multiple projects
with poor mobile coverage in the period June 2017 to March 2018 and advances this as an
explanation for why he was personally unaware of the Decision and the contact from the
FWO. For the Appellant’s explanation to be credible it would require us to accept that in
working away from the office at times in areas with poor mobile phone coverage, that on
11 Transcript PN 110
12 For example, see Transcript 11 July 2018 at [78] to [91]
13 Ibid at [92] to [98] and [118] to [119]
14 Ibid at [122] to [130]
[2018] FWCFB 3815
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return to the office or to areas with reasonable mobile phone coverage, no messages or
correspondence were either passed on or received by the Appellant. This is patently
implausible.
[24] Second, the Appellant’s explanation of his inaction in responding to contact from the
FWO in October 2017 regarding the Order lacks credibility. While acknowledging that he
received contact from the FWO in early October 2017 he claimed that he was told by the
FWO staff member during that telephone conversation of a ‘possible order’ and believed as a
consequence of that conversation that he would have an opportunity to challenge it.
[25] It is most unlikely that the FWO would take the time to contact the Appellant directly
by phone in relation to an actual Order issued on 21 July 2017 and then describe the Order
only as a ‘possible order’. The more likely explanation is that Mr Burnitt chose to simply
ignore the FWO’s contact regarding the Order and its implications.
[26] In our view Mr Burnitt was on notice about the fact that an order had been made
against the Appellant since at least in October 2017 and took no steps to inform himself of the
implications of the Order or to seek legal advice. At the very least some enquiries by the
Appellant ought to have been made; and none were.
[27] Third, even if we were to accept Mr Burnitt’s evidence that the first time at which he
received a copy of the Order was on 26 March 2018, no adequate explanation was proffered
as to why it then took a further two months for an appeal to be filed.
[28] The Appellant engaged legal representation on 27 March 2018 but only gave
instructions to file an appeal on 18 May 2018, after which there was a further delay of almost
two weeks before the appeal was lodged on 31 May 2018. Mr Burnitt’s suggestion that it took
his lawyers ‘a little bit more time’ to review the origins and implications of the Order
discloses a lack of urgency or diligence on the part of the Appellant in circumstances where
the seriousness of the matter ought to have been abundantly clear from the correspondence
from the FWO dated 22 March 2018.
[29] Finally, Mr Burnitt acknowledges that a search of the Appellant’s general email
account, service@lceqld.com.au, conducted at the request of his solicitor revealed the receipt
of several pieces of email correspondence from the FWO in the period October 2017 to March
2018. Mr Burnitt in his evidence claims that he was personally unaware of that
correspondence at the time of its receipt but nonetheless acknowledges that he failed to action
the matter as quickly as he should have.
[30] Mr Burnitt’s explanation of his inaction is not credible. Such an explanation requires
us to accept that while mail collected by the Appellant’s staff is personally delivered to Mr
Burnitt on an almost daily basis, all of the FWO correspondence now admitted as having been
received in the Appellant’s general email account in the period October 2017 and March 2018
was either not reported to Mr Burnitt or simply ignored by the Appellant’s staff who were
charged with the responsibility of managing the email account to which the correspondence
was sent. Such a circumstance is entirely implausible. We reject this aspect of Mr Burnitt’s
evidence.
[31] We are not satisfied that the Appellant has provided a satisfactory reason for the delay
in filing the appeal. This is a factor which weighs against granting an extension of time.
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[2018] FWCFB 3815
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Length of delay
[32] The length of the delay is substantial. The appeal was lodged some 294 days outside
the prescribed 21 day period. This factor weighs against granting an extension of time within
which to allow the Appellant to institute the appeal.
Prejudice to Respondent
[33] The Appellant concedes that Mr Antonarakis will suffer prejudice if an extension of
time is granted as he will have to respond to the appeal and, if the appeal is successful, face a
further hearing of his application. We agree; this weighs against granting an extension of
time.
Prospects of appeal
[34] The Appellant presses only one ground of an appeal, that the Commissioner erred by
deciding the Application was uncontested because the Appellant had not been served with the
Application and had not received any written notification from the Commission of the
Application or concerning the hearing of the Application.
[35] The Appellant led evidence from Mr Burnitt that while he recalled some contact from
the Commission during the period leading up to hearing of Mr Antonarakis’ Application and
issuing of the Decision he did not receive any material relevant to the Application. This
included the Application filed by Mr Antonarakis and notices of hearing dates.15
[36] Some specific contact from the Commission in respect to the Application was
conceded by Mr Burnitt in his evidence and included that;
(i) A recent inspection of the Appellant’s service email account
service@lceqld.com.au revealed receipt of a notice of the conciliation
conference dated 27 February 2017, but Mr Burnitt says that he was not aware
of it at the time.
(ii) Mr Burnitt recalled receiving a message from a staff member regarding
telephone contact from the Commission on or about 26 April 2017 but that he
was out of the office at the time and on the basis of a subsequent telephone
conversation he had with a member of the Commission he believed he had
nothing further to do.16
(iii) Mr Burnitt also recalled receiving a telephone message from a staff member
regarding contact from the Commission on 9 May 2017 about the Mention
scheduled for 17 May 2018. He explained that his inaction in response to that
message was due to there having been multiple persons temporarily engaged
by the Appellant at that time.17
15 Exhibit A1, Paragraph [8j]-[8k]
16 Ibid Paragraph 8[d]
17 Ibid, Paragraph 8[e]
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[37] We do not accept that correspondence from the Commission about the Application and
the hearing were not received. We make three points in this regard.
[38] First, the correspondence sent by the Commission to the Appellant via email was sent
to the same email address, service@lceqld.com.au, that the FWO correspondence was sent to.
It is inexplicable that correspondence sent by the FWO was received by the Appellant yet
correspondence sent from the Commission to that same email address was not received with
the exception of the notice of conciliation conference of 27 February 2017.
[39] Second, the Commission’s records confirm that correspondence was sent to the
Appellant via post, in addition to email, in respect of:
the notice of listing of the conciliation conference on 2 February 2017;
the notice of listing for arbitration hearing on 10 March 2017;
an amended notice of listing for arbitration hearing on 5 July 2017; and
the Decision and Order of 21 July 2017.
[40] The Appellant’s claim that the Commission correspondence sent by post to the
Appellant was not received would require us to accept that the Appellant’s processes for
handling and personal delivery of correspondence to Mr Burnitt on a daily basis failed to
ensure that a single piece of the relevant correspondence was drawn to Mr Burnitt’s attention.
Such a circumstance is simply implausible.
[41] Third, on Mr Burnitt’s own evidence attempted telephone contact by Commission staff
with the Appellant was passed on to him on at least two occasions. His explanations as to why
no action was taken by him in response to those messages were unconvincing.
[42] We do not accept that the Appellant was unaware of Mr Antonarakis’ Application and
the subsequent proceedings. To the contrary, we are satisfied that the Appellant was aware of
the Application and the proceedings but simply chose to ignore it.
[43] Consequently we have concluded that the Appeal has little prospect of success and
this weighs against the granting of an extension of time.
[44] After considering all of the circumstances we are not persuaded that it is in the
interests of justice to extend time to institute the appeal. Accordingly, the application to
extend the time for the institution of the appeal was dismissed.
PRESIDENT
Printed by authority of the Commonwealth Government Printer
PR608522
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[2018] FWCFB 3815
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Appearances
J W Merrell (instructed by Simmonds Crowley & Galvin) on behalf of the appellant
Mr Antonarakis (respondent) appeared in person
Hearing details
2018.
Melbourne, VC to Brisbane.
11 July.
