1
Fair Work Act 2009
s.604—Appeal of decision
George Georgiou
v
Transurban Ltd
(C2022/3485)
VICE PRESIDENT HATCHER
DEPUTY PRESIDENT ANDERSON
DEPUTY PRESIDENT COLMAN
SYDNEY, 15 AUGUST 2022
Appeal against decision [2022] FWC 1240 of Commissioner Matheson at Sydney on 23 May
2022 in matter number U2022/1364.
Introduction
[1] Mr George Georgiou has lodged an appeal, for which permission is required, against a
decision issued by Commissioner Matheson on 23 May 2022.1 In the decision, the
Commissioner refused to grant Mr Georgiou an extension of time under s 394(3) of the Fair
Work Act 2009 (the FW Act) to lodge an application for an unfair dismissal remedy in relation
to the termination of his employment by Transurban Ltd (Transurban). The Commissioner
considered the factors set out in s 394(3) and determined that there were no exceptional
circumstances warranting the extension of time sought.
[2] The Commissioner found that Mr Georgiou’s dismissal by Transurban took effect on 8
December 2021.2 This finding is not challenged in Mr Georgiou’s appeal. Section 394(2) of the
FW Act requires an application for an unfair dismissal remedy to be made within 21 days after
the dismissal took effect or within such further period as the Commission allows under s 394(3).
Mr Georgiou lodged his application for an unfair dismissal remedy on 30 December 2021, one
day after expiry of the 21-day period. Accordingly, he required an extension of time under
s 394(3) in order for his application to be permitted to proceed. Section 394(3) provides:
(3) The FWC may allow a further period for the application to be made by a person
under subsection (1) if the FWC is satisfied that there are exceptional circumstances,
taking into account:
(a) the reason for the delay; and
1 [2022] FWC 1240
2 Ibid at [29]
[2022] FWCFB 155
DECISION
AUSTRALIA FairWork Commission
[2022] FWCFB 155
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(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.
The decision under appeal
[3] Having found that Mr Georgiou had not lodged his unfair dismissal application within
the prescribed timeframe, the Commissioner proceeded in her decision to consider each of the
matters set out in s 394(3) of the Act.
[4] In relation to the reason for the delay (s 394(3)(a)), the Commissioner comprehensively
analysed the parties’ evidence and submissions in respect to the following reasons for the delay
proffered by Mr Georgiou:3
his alleged miscalculation of the lodgement deadline (that is, that he believed 30
December 2021 was the deadline and therefore that he had lodged his application
within time before the Commission’s staff advised him otherwise);
the impact of his medical condition on his mental function – specifically, his
calculation of the lodgement deadline and ability to prepare and lodge his
application;
the complexity involved in preparing his application, because it was unclear to him
whether he should lodge a general protections or unfair dismissal application, and
because he had to research the respondent’s codes and policies in addressing
“historical accusations”4 that he believed were relevant to the circumstances of
dismissal;
the Commission’s online lodgement system was allegedly not working around the
time his application was due, the application was not actioned by the Commission
until several weeks after he did lodge it, and the Commission’s website did not
include an example of how to calculate the lodgement deadline when he was
preparing his application, but does now;
the 21-day timeframe for lodging his application included the festive season;
3 Ibid at [38]-[108]
4 Ibid at [62]
[2022] FWCFB 155
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the duration of the delay in lodgement was “technically only half a day”,5 the
application having been lodged shortly after noon on the 22nd day after dismissal;
his inability to access company emails and Webex instant message conversations
while preparing his application;
his former legal representative advised him on 24 December 2021 (five days before
what he now concedes was the lodgement deadline) that it would not act for him in
relation to his application, and he was unable to obtain alternate representation so
close to Christmas, so he had to “go it alone”;6 and
his caring responsibilities for his teenage son and elderly mother.
[5] The Commissioner found that none of the above factors, either individually or when
taken together, satisfactorily accounted for Mr Georgiou’s delay in lodging his unfair dismissal
application. She accordingly found that this matter weighed against granting an extension of
time.7
[6] The Commissioner then found that Mr Georgiou became aware of his dismissal on the
same day it took place (s 394(3)(b)), which also weighed against granting him an extension of
time.8
[7] In respect of any action taken to dispute the dismissal (s 394(3)(c)), the Commissioner
accepted that Mr Georgiou had informed Transurban shortly after the dismissal took effect that
“he believed the dismissal was unreasonable and unjust and that he intended to explore his legal
options”,9 but found that this factor was neutral in her consideration of whether to grant him an
extension of time because there was no evidence that Mr Georgiou went any further than that.
[8] In relation to any prejudice to the respondent, including prejudice caused by the delay
in lodgement (s 394(3)(d)), the Commissioner found there was none, but noted that a lack of
prejudice of itself did not necessarily demonstrate exceptional circumstances. She considered
this to be a neutral factor.10
[9] The Commissioner then considered the merits of the application (s 394(3)(e)).
Transurban had dismissed Mr Georgiou for alleged breaches of its Code of Conduct, its Equity
in the Workplace Policy, and its Acceptable Use of Technology Policy.11 More specifically,
Transurban contended in response to Mr Georgiou’s application that he had addressed a
colleague inappropriately and disrespectfully in an email and a Webex instant message
conversation, and that he had impermissibly accessed CCTV footage to impugn that colleague’s
timesheets. The Commissioner noted that Mr Georgiou did not deny either that this conduct
5 Ibid at [68]
6 Ibid at [74]
7 Ibid at [109]
8 Ibid at [110]
9 Ibid at [114]
10 Ibid at [117]
11 Ibid at [125]
[2022] FWCFB 155
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occurred or that it was inappropriate,12 but maintained that it was justified because he was a
whistleblower who exposed his colleague’s alleged timesheet fraud. The Commissioner found
there were disputed facts that could only be resolved at a substantive hearing and considered
the merits to be a neutral factor in the circumstances.13
[10] Finally, in relation to fairness as between the appellant and other persons in a similar
position (s 394(3)(f)), the Commissioner reiterated her rejection of Mr Georgiou’s submission
that his medical condition had adversely impacted his ability to lodge his unfair dismissal
application within time and noted that Mr Georgiou had not made her aware of any other
employee in a similar position. The Commissioner therefore treated this a neutral factor in her
consideration.14
[11] Having weighed the above matters as required by the FW Act, the Commissioner
concluded that there were no exceptional circumstances either when the matters were
considered individually or collectively. She accordingly refused to grant Mr Georgiou an
extension of time and dismissed his application.15
Mr Georgiou’s appeal grounds, submissions and further evidence
[12] Mr Georgiou set out some 15 appeal grounds in his notice of appeal. However, his
outline of submissions condensed these to the following five particularised grounds:
(1) “The Commissioner erred in law by misconstruing the application of s 394(3)(a)
by failing to consider the appellant’s explanation for delay in totality”. In respect
of this ground, Mr Georgiou submitted that the Commissioner erred by assessing
the reasons he gave for the delay individually and in isolation rather than in
combination, notwithstanding that the Commissioner said (at [109]) that she had
considered the matters “individually and in combination”. He submitted that his
primary reason for his delay was his miscalculation of the time, but the
Commissioner failed to consider this explanation in light of the evidence
concerning his mental health and that he had sought legal representation, only to
be turned away on 24 December 2021. Mr Georgiou also submitted that the
Commissioner failed to consider the length of the delay as a contextual matter in
light of the explanation for the delay provided by him. It followed, it was
submitted, that the Commissioner erred in law by failing to consider Mr
Georgiou’s explanation for the delay in totality, as was required in exercising the
discretion under s 394(3) properly.
(2) “The Commissioner was legally unreasonable in finding that the [appellant]
lacked a credible explanation for the delay”. As to this ground, Mr Georgiou
submitted that he had adduced evidence that, during the relevant period, he was
suffering from adjustment disorder and anxiety which most likely contributed to
the date miscalculation and decreased his overall mental functioning. This
12 Ibid at [133]
13 Ibid
14 Ibid at [139]
15 Ibid at [140]-[144]
[2022] FWCFB 155
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consisted of two medical certificates covering the period from 2 December 2021
to 18 December 2021, a certificate of incapacity dated 17 December 2021, and a
letter from a psychologist dated 1 March 2022. Notwithstanding this, the
Commissioner found (at [97]) that the medical evidence did not demonstrate that
Mr Georgiou was prevented from or seriously impeded in lodging his unfair
dismissal application. It was submitted that the substantial amount of evidence,
when looked at in totality, provided a credible explanation for the delay, and it
followed that no reasonable decision-maker would have arrived at a conclusion
otherwise.
(3) “The Commissioner erred in law by misconstruing the consideration s 394(3)(b)
of the FW [Act] to weigh against the appellant”. Mr Georgiou submitted that the
Commissioner erred in finding (at [110]), under s 394(3)(b), that the fact he
became aware of the dismissal when it first took effect weighed against the
exercise of the discretion to grant an extension. It was submitted that s 394(3)(b)
does not permit knowledge of the termination date to be weighed against an
applicant for an extension of time and, in this case, it was an irrelevant factor
which either should not have been taken into account at all, or should have been
given neutral weight.
(4) “Failure to provide adequate reasons as to why negative weight was given to
s 394(3)(b)”. It was submitted, further or in the alternative to ground 3, that the
Commissioner’s reasons as to her finding under s 394(3)(b) did not illuminate the
basis on which the consideration weighed against Mr Georgiou by reference to
any legal principle or case authority, and this did not articulate the essential
grounds for reaching this conclusion.
(5) “The Commissioner erred in law by concluding that the existence [of] merits of
the claim was [a] neutral factor in determining whether there are exceptional
circumstances”: As to this ground, Mr Georgiou submitted that s 394(3)(e) is
binary in nature, in that an unfair dismissal claim either has merit and this
consideration weighs in favour of an extension, or it does not and this weighs
against an extension. The Commissioner’s finding that this was a neutral
consideration was, Mr Georgiou submitted, not open to her on a proper
construction of the provision since what was involved was not an exercise in
determining the strength of the merits of his case such that a higher or lower
positive weight could be attributed.
[13] Mr Georgiou contended that granting him permission to appeal would be in the public
interest because:
the Commissioner gave insufficient weight to his medical evidence, the fact that he
was “ignored and abandoned” by his solicitor in the last days of the 21-day period
and the merits of his application;
the Commissioner should not have found that the fact that he became aware of his
dismissal on the same day it took effect weighed against granting him an extension
of time;
[2022] FWCFB 155
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the Commissioner’s decision not to grant him an extension of time was “not in
keeping with the benevolent intent of the Act”;
the Commissioner’s decision raises issues about the interpretation and application
of s 394(3) of the FW Act; specifically, appeal grounds 1, 3 and 5 are about the
questions to which a decision-maker should direct themselves when deciding
whether to grant an extension of time and point to the Commissioner acting upon a
wrong principle;
appeal grounds 2 and 4 are about the Commissioner acting unreasonably; and
the Commissioner’s decision manifests an injustice to him.
[14] At the hearing of the appeal, we admitted into evidence the following documents that
were tendered by Mr Georgiou:
(1) Emails sent by Mr Georgiou to a lawyer, Mr Taylor of Segelov Taylor Lawyers,
dated 14, 17, 22 and 29 December 2021.
(2) A costs disclosure sent by Segelov Taylor Lawyers (undated).
Consideration
[15] The Commissioner’s decision is one to which s 400 of the FW Act applies. Therefore,
permission to appeal must not be granted unless the Commission considers it is in the public
interest to do so (s 400(1)). Further, appeals on a question of fact can only be made on the
ground that the decision involved a significant error of fact (s 400(2)).
[16] This test in s 400(1) a stringent one.16 The task of assessing whether the public interest
test is met is a discretionary one involving a broad value judgment.17 Some of the considerations
that may attract the public interest are where a matter raises issues of importance and general
application, or there is a diversity of decisions at first instance so that appellate guidance is
required, or where the decision at first instance manifests an injustice, or the result is counter
intuitive, or the legal principles applied appear disharmonious when compared with other recent
decisions dealing with similar matters.18 It will rarely be appropriate to grant permission to
appeal unless an arguable case of appealable error is demonstrated.19 However, the fact that the
16 Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54, 192 FCR 78, 207 IR 177 at [43] per Buchanan
J (with whom Marshall and Cowdroy JJ agreed)
17 O’Sullivan v Farrer [1989] HCA 61, 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v
Hinch [2011] HCA 4, 243 CLR 506 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied
Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54, 192 FCR 78, 207 IR 177 at [44]-[46]
18 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, 197 IR 266 at [27]
19 Wan v AIRC [2001] FCA 1803, 116 FCR 481 at [30]
[2022] FWCFB 155
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member at first instance made an error is not necessarily a sufficient basis for the grant of
permission to appeal.20
[17] The test of “exceptional circumstances”, in relation to extensions of time to lodge
applications under s 394(3), establishes a “high hurdle” for an application for an extension, and
a decision as to whether to extend time under s 394(3) involves the exercise of a broad
discretion.21 Therefore it will be necessary, in an application for permission to appeal against a
decision made under s 394(3), to demonstrate that there is an arguable case and that there was
appealable error in the exercise of the discretion. This will require the identification of error of
the type described in House v The King22 – that is, that the decision-maker has acted on a wrong
principle, has mistaken the facts, has taken into account an irrelevant consideration or failed to
take into account a relevant consideration, or has made a decision which is unreasonable or
manifestly unjust. Additionally, as noted above, where an error of fact is alleged, s 400(2)
requires that it must be a significant error of fact. The overriding public interest requirement of
s 400(1) remains.
[18] The assessment required by s 394(3)(a) concerning the reason for the delay requires the
exercise of a broad evaluative judgment. The judgment requirement is whether the reason for
the delay, by itself or in combination with the other prescribed matters in s 394(3), points to the
existence of the exceptional circumstances necessary to allow the grant of an extension of time.
[19] We are not satisfied that it would be in the public interest to grant permission to appeal,
for three reasons. First, the additional evidence tendered by Mr Georgiou in this appeal destroys
the credibility of the explanation for his delay in filing his application advanced by him at first
instance. As he elucidated in his submissions, Mr Georgiou’s core explanation was that he
miscalculated by a day the last date for filing his application within the prescribed 21-day
period, and he said that his judgment in this respect was affected by his mental health condition
and his incapacity to secure lawyers to represent him. However, Mr Georgiou’s emails to Mr
Taylor demonstrate that in fact he did not miscalculate the date, but rather knew that the last
day was 29 December 2021 – the day before he filed his application. Thus, in his email to Mr
Taylor dated 17 December 2021, he said “I have less than 2 weeks to lodge legal proceedings
with the Fair Work Commission”, discussed sending an email to his former manager at
Transurban requesting the rescission of his dismissal, and then stated “With the little time
remaining, and the xmas break, I do not think I will receive a response from [manager’s name]
before the Fair Work deadline (29th Dec).” At the time this was sent, Mr Georgiou still had 12
days to file an in-time application. Again, in his 22 December 2021 email, Mr Georgiou said
“We are running out of time to lodge the Unfair dismissal. Deadline is 29th Dec.”, and in his
email of 29 December 2021 (sent at 2.18am) said “As deadline for application is 29th Dec, I
need clarification. Do I proceed with Unfair dismissal OR General Protections?”
20 Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089, 202 IR
388 at [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54, 192 FCR 78,
207 IR 177; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation
Office [2014] FWCFB 1663, 241 IR 177 at [28]
21 Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace
Relations [2014] FWCFB 2288 at [21]
22 [1936] HCA 40, 55 CLR 499
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[20] When we asked Mr Georgiou at the appeal hearing to explain these emails in light of
his assertion that he had miscalculated the last day for filing his application, he said that at the
time he believed that the last day was 30 December 2021 but stated in the emails that it was 29
December 2021 because he “needed time up my sleeve” in the event that Segelov Taylor would
not represent him and he had to prepare the application himself. This explanation does not make
any sense on a number of levels and we do not accept it. It is clear, we consider, that Mr
Georgiou knew at the latest by 17 December 2021 that the last day for filing an unfair dismissal
application in time was 29 December 2021, and that his assertion before the Commissioner that
a date miscalculation was the reason advanced for the delay was discordant with what he knew
to be the case.
[21] That being so, Mr Georgiou’s contention that his judgment as to the calculation of the
correct date was affected by his mental health and his inability to secure legal representation is
rendered irrelevant. In any event, we note the following:
(1) Leaving aside that Mr Georgiou’s medical evidence did not demonstrate that he
was mentally unable to prepare an unfair dismissal application within the 21-day
period or correctly calculate the 21-day period, the simple fact is that Mr
Georgiou’s application was completed and signed by him on 29 December 2021.
That is, whatever his medical condition was, Mr Georgiou was in a position to file
his application in time but did not do so. Why he delayed filing it for a further day
has not been explained by him.
(2) The costs disclosure tendered by Mr Georgiou demonstrates that he never engaged
Segelov Taylor to prepare and file an unfair dismissal application, but only to
attend the disciplinary meeting with Transurban on 8 December 2021 (at which
he was dismissed) and to prepare any follow-up document or submission. Mr
Georgiou’s emails to Mr Taylor did not request the preparation of any unfair
dismissal application on his behalf but only sought gratuitous advice, and Mr
Georgiou said that Mr Taylor rang him on 24 December 2021 and made it clear
that Segelov Taylor would not be representing him in the matter. Accordingly,
any suggestion of abandonment of him by his lawyers is without substance. Nor
was there any failure to advise him as to the last date of the 21-day filing period
since, as earlier explained, Mr Georgiou already knew what this was.
[22] Second, Mr Georgiou’s grounds of appeal are entirely lacking in merit. Having regard
to the matters addressed above, his first two grounds of appeal relating to the Commissioner’s
consideration under s 394(3)(a) of the reason for the delay fall away because the primary reason
advanced by Mr Georgiou has been demonstrated before us to be specious. In relation to the
third and fourth grounds, there is no textual basis to construe s 394(3)(b) as prohibiting a
conclusion that knowledge of the dismissal immediately it comes into effect weighs against the
grant of an extension. Each case will turn on its own facts, but there is no reason why a
discretionary conclusion might not be reached that such knowledge weighs against the grant of
an extension of time because the dismissed employee has had full advantage of the 21-day
period in which to file an unfair dismissal application. The Commissioner gave her reason (at
[110]) for her conclusion under s 394(3)(b), namely that “[t]here was no confusion or lack of
clarity which could have contributed to the delay”, and that in our view adequately explains
how the conclusion was reached. As to the fifth ground of appeal, the proposition that
[2022] FWCFB 155
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s 394(3)(e) is “binary” in the way for which Mr Georgiou contends finds no support in the text
of the provision, and a conclusion that this consideration is neutral in a case involving contested
facts constitutes an entirely orthodox exercise of discretionary judgement.
[23] Third, we do not consider that Mr Georgiou’s appeal raises any genuine issue of law,
principle or general application which would render the grant of permission to appeal to be in
the public interest.
Conclusion
[24] Because we do not consider that the grant of permission to appeal would be in the public
interest, s 400(1) prohibits such permission being granted. Accordingly, permission to appeal
is refused.
VICE PRESIDENT
Appearances:
G Georgiou, the appellant, in person.
B Rauf of counsel for the respondent.
Hearing details:
2022.
Sydney with video links to Melbourne and Adelaide:
19 July.
Printed by authority of the Commonwealth Government Printer
PR744779
OF THE FAIR WORK COMMISSION THE
