1
Fair Work Act 2009
s.604—Appeal of decisions
Panos Panayiotou
v
University of Adelaide
(C2019/5541 and C2019/6144)
JUSTICE ROSS, PRESIDENT
DEPUTY PRESIDENT MILLHOUSE
COMMISSIONER CIRKOVIC MELBOURNE, 20 DECEMBER 2019
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.
Context
[3] On 16 July 2019, Commissioner Hampton issued a decision in matter U2019/34301
(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.
1 [2019] FWC 4363 (document 167)
2 PR710237 (document 168)
3 [2019] FWCFB 6214
[2019] FWCFB 8487
DECISION
E AUSTRALIA FairWork Commission
[2019] FWCFB 8487
2
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 decision4 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 directions5 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
Background
[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
4 [2019] FWCFB 7325
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]
[2019] FWCFB 8487
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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:
There was no clear indication of when he was actually dismissed and that on April
19th 2018 his access card to the work place was cut with no notification or prior
warning. At that time, Mr Panayiotou was shocked and confused and had to call
security himself to find out his access was cut.
Mr Panayiotou was not familiar with Australian Government support systems and
was not provided with genuine support services from the University, which was the
only support service system he was familiar with. When trying to communicate
with the University they provided biased support and engaged in severe bullying.
There was prejudice toward him for being an international student and there was
biased support from the staff that were supposed to help.
Mr Panayiotou then tried to reach out by sending an email to the Fair Work
Commission (on 29 September 2018) well within the 21-day time frame of the
University’s claimed date of dismissal.
After Mr Panayiotou sent this email, his staff email account was again tampered
with which prevented further communication with the Fair Work Commission. He
tried to send the Commission many more emails and even tried sending official
applications for unfair dismissal from his staff email in October 2018 and that it
makes sense that the Fair Work Commission did not receive these communications
due to the tampering of his staff email account.
When Mr Panayiotou did not hear back from the Fair Work Commission, he
thought his only appeal option was the Office of the Training Advocate.
During the time period after he first attempted to reach out to the Fair Work
Commission in September 2018 there were several struggles such as stress,
confusion, and a feeling of isolation which inhibited Mr Panayiotou from being
able to properly engage in the support channels. I note that in cross-examination
Mr Panayiotou also referred to visits being made to his home by Counter-Terrorism
Police.
Even through the stress, fear, and confusion Mr Panayiotou made continual efforts
for conflict resolution and asked many departments for help or at least
recommendations of where he could go for help.
Through these efforts, there were no consistent answers provided. For example,
during his phone call with the Commonwealth Ombudsman he was informed that it
was impossible to have the Fair Work Commission evaluate the evidence after the
21-day period.
After this phone call and having already attempted to engage the Fair Work
Commission within the timeframe, Mr Panayiotou gave up the Fair Work
Commission option but continually tried to find support for conflict resolution
elsewhere.
[2019] FWCFB 8487
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On March 26th 2019 the AFP notified him that “The matters you have raised
should be referred to the Fair Work Commission in the first instance.” Further
communication with the AFP allowed Mr Panayiotou to discover that engaging
with the Fair Work Commission was possible with an extension of time
application. On the same day of receiving this email from AFP he launched an
application with the Fair Work Commission. His understanding was that
termination was only official after the outcome from Office of the Training
Advocate. This was only external agency provided to him by the University and
other agencies before trying to launch his second application with the Fair Work
Commission.
[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
[2019] FWCFB 8487
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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
[2019] FWCFB 8487
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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.
Extension of time
[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.
[2019] FWCFB 8487
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[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 201912 and the matters raised in oral argument before us,13 the issues Mr
Panayiotou raised before Commissioner Hampton as justifying exceptional circumstances
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) 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]
https://www.fwc.gov.au/documents/decisionssigned/html/2018fwcfb3815.htm
http://www.fwc.gov.au/decisionssigned/html/2016fwcfb3410.htm
http://www.fwc.gov.au/decisionssigned/html/2014fwcfb4822.htm
http://www.fwc.gov.au/alldocuments/PR923358.htm
[2019] FWCFB 8487
8
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
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
17 Document 59
18 Outline of submissions in [2019] FWC 4363 at p.1
19 Outline of submissions in [2019] FWC 4363 at document 52
[2019] FWCFB 8487
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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 candidature27 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
20 Ibid at document 50
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); Second and Third Appeal
Transcript [144]
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]
[2019] FWCFB 8487
10
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 life35 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.
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
38 Documents 301 and 302
39 Documents 301 and 302
40 Document 170 at [2]
[2019] FWCFB 8487
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[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…”42 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.43 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.
41 Second and Third Appeal Transcript [197]-[198]
42 Second and Third Appeal Transcript [166]
43 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) 203 CLR 194 at [17] per Gleeson CJ,
Gaudron and Hayne JJ
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[44] Based on the matters advanced in the notices of appeal44 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 Snyder45 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,46 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.47
44 Dated 7 September 2019 at [2.1] and 26 September 2019 at [2.1]
45 Jeremy Snyder v Helena College Council, Inc. t/as Helena College [2019] FWCFB 815 (Snyder) at [24]
46 (2002) 209 CLR 597 at [8], cited in Jeremy Snyder v Helena College Council, Inc. t/as Helena College [2019] FWCFB
815 at [24]
47 Snyder at [25]
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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.48 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.
Conclusion
[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.
48 Snyder at [28]
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[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.
Order
[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.
Other matters
[62] In oral submissions, Mr Panayiotou accepted that he had already challenged the
Decision before a Full Bench in the First Appeal.49 Despite this, Mr Panayiotou queried in
oral submissions before us whether he was able to lodge a further appeal in respect of the
Decision.50 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.
PRESIDENT
Appearances:
Mr P Panayiotou on his own behalf
Hearing details:
2019.
49 Second and Third Appeal Transcript [160], [168]
50 Second and Third Appeal Transcript [160]
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