C2014/8475, Transcript of Proceedings [2015] FWCTrans 31 (23 January 2015)

TRANSCRIPT OF PROCEEDINGS

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Fair Work Act 2009 1051297-1

JUSTICE ROSS, PRESIDENT
VICE PRESIDENT HATCHER
COMMISSIONER CARGILL

C2014/8475

s.604 - Appeal of decisions

Galigalis v The Group of Four Pty Ltd
(C2014/8475)





Sydney

10.31AM, TUESDAY, 20 JANUARY 2015

PN1

JUSTICE ROSS: Yes.

PN2

MR C. GALIGALIS: Your Honour, Constantine Galigalis. I'm appealing against a decision for unfair dismissal.

PN3

JUSTICE ROSS: All right. You're representing yourself.

PN4

MR GALIGALIS: Yes.

PN5

JUSTICE ROSS: All right, thank you. I'll just go to the - - -

PN6

MR M. MOIR: If the commission pleases, I seek permission to appear for the respondent. My name is Moir.

PN7

JUSTICE ROSS: On what basis are you seeking permission?

PN8

MR MOIR: Your Honour, it's on the grounds that were set out in email correspondence to your Honour's chambers on 15 January. It was an email from my instructing solicitor, Mr McKell, and at the bottom of the one-page email it sets out four grounds. I rely upon those grounds, your Honour.

PN9

JUSTICE ROSS: All right, thank you. Do you oppose the application for permission to appear?

PN10

MR GALIGALIS: No, to appear for - because I was late for the 21 days, so I think I did everything - - -

PN11

JUSTICE ROSS: No. Just before we get to that, we'll get to that in a minute, Mr Moir is seeking permission to represent - - -

PN12

MR GALIGALIS: No, that's okay.

PN13

JUSTICE ROSS: You have got no objection to that.

PN14

MR GALIGALIS: No.

PN15

JUSTICE ROSS: We'll grant permission to appear on the basis that's been put.

PN16

MR MOIR: Thank you, your Honour.

PN17

JUSTICE ROSS: Thank you, Mr Galigalis.

PN18

MR GALIGALIS: So I think from the beginning, from the day I got dismissed from ex employers, from The Group of Four, the form they sent me was to inform the Fair Work and from that time they never informed me - I did everything proper. They never informed me that I have only 21 days to appear - to lodge a form for unfair dismissal.

PN19

VICE PRESIDENT HATCHER: When you say "Fair Work", did you go to the Fair Work Ombudsman, did you?

PN20

MR GALIGALIS: Yes, in the beginning because there's another matter and due - there's another court case for February, that's for my annual leave.

PN21

JUSTICE ROSS: An under payment issue.

PN22

MR GALIGALIS: Yes, that too. So it's due in February. So for the unfair dismissal because they asked me originally to give them seven days, after seven days to send an email from the Fair Work to determine that the actions - to ring them, so I did everything proper, then they (indistinct) 29th of the month and after that, after the seven days nobody called me. I called Fair Work and they said to me they're going to - "We have to do a mediation process."

PN23

VICE PRESIDENT HATCHER: That was about your under payment claim.

PN24

MR GALIGALIS: And everything, because I'm asking for under payment and for unfair dismissal because they dismissed (indistinct) so when I lodged the original form to (indistinct) Fair Work and I told them about the unfair dismissal, then they tell me, "You've got - you're out of the time line of 21 days." So then I started the process and they gave me the extension, so I lodged the form after the 21 days. So to me this is a technicality because I understand even if it was on the 15 days or on the (indistinct) days, it's unfair dismissal because they told me about the form and they just tell me that you have to stop. One of - like, the owners I was dealing, he admitted that on the mediation but in the mediation there is not a copy, so I can't prove that.

PN25

VICE PRESIDENT HATCHER: But the mediation was about your under payment claim.

PN26

MR GALIGALIS: About everything, to find a solution about everything. So I got the letter after the mediation that I have to pursue with the rest of the - - -

PN27

JUSTICE ROSS: When were you sent the forms by the Fair Work Ombudsman, the application form for the unfair dismissal matter?

PN28

MR GALIGALIS: The unfair dismissal, like the mediation finished on like 30 October. I was (indistinct) in November something. Everything is in the thing but I can't find it.

PN29

VICE PRESIDENT HATCHER: You said Fair Work Ombudsman sent you some forms. What forms did the ombudsman send you?

PN30

MR GALIGALIS: For the unfair dismissal. After I realised that when I had the forms for the payment and I was out of date, I ring up and they send me the form - I ring up the Fair Work for unfair dismissal and they send me the forms, what I have to do, because I was out of the time - - -

PN31

JUSTICE ROSS: So you rang up to get the forms.

PN32

MR GALIGALIS: The

PN33

JUSTICE ROSS: They were sent to you, what, straight away?

PN34

MR GALIGALIS: Mostly they came by mail. The first forms came after seven days or something.

PN35

VICE PRESIDENT HATCHER: But did you say you didn't ask for a form until the 21 days had already expired?

PN36

MR GALIGALIS: No, I thought - when I did the forms it was for the payment, but on the original form when I asked them I said, "It's unfair dismissal, and they don't agree to pay me the leave." I was 15 months I was working there. So they sent me one of the forms for the payment, for the annual leave. So when I went to lodge them, then I realised and they sent me to these offices here (indistinct) Elizabeth Street, so originally I went there and I said, "What about the unfair dismissal," and he said, "No. This is like 21 days," and probably I passed by one day when I give these forms and they sent me here, they said to me you have to go to William Street and get different forms, to show different forms to - - -

PN37

JUSTICE ROSS: Okay. So did you come down here to William Street on that day?

PN38

MR GALIGALIS: Not on that day. I asked for the forms. The forms came but - - -

PN39

JUSTICE ROSS: So you didn't do it on that day.

PN40

MR GALIGALIS: Yes - - -

PN41

JUSTICE ROSS: Just a minute.

PN42

MR GALIGALIS: Yes.

PN43

JUSTICE ROSS: I just want to go carefully through what you say is the time sequence.

PN44

MR GALIGALIS: Yes.

PN45

JUSTICE ROSS: So you went to the Fair Work Ombudsman. They told you, "No, no, your unfair dismissal, you have to come here to get your forms." You then - what, the next day rang here?

PN46

MR GALIGALIS: Yes, rang here. I don't have an actual record to show you that for sure. When - - -

PN47

JUSTICE ROSS: No, that's fine. So you rang here - - -

PN48

MR GALIGALIS: Yes.

PN49

JUSTICE ROSS: - - - the following day.

PN50

MR GALIGALIS: Yes.

PN51

JUSTICE ROSS: They said they would send you the forms.

PN52

MR GALIGALIS: Yes.

PN53

JUSTICE ROSS: They did that. Came in the post within seven days.

PN54

MR GALIGALIS: Maybe earlier, maybe, yes - - -

PN55

JUSTICE ROSS: Within a few days.

PN56

MR GALIGALIS: Yes.

PN57

JUSTICE ROSS: Your application was lodged 18 days outside the time period.

PN58

MR GALIGALIS: Yes, because - yes, I agree with that because first I do the other thing, but I never knew about the 21 days.

PN59

JUSTICE ROSS: No, but I'm just having trouble understanding why it was 18 days out. On what you say, you went to the ombudsman and at that stage you were around 21 days, you say.

PN60

MR GALIGALIS: Yes.

PN61

JUSTICE ROSS: Maybe a day out.

PN62

MR GALIGALIS: Yes.

PN63

JUSTICE ROSS: You then ring here the following day, so we're at 22 days, maybe two days outside the time period. It's been sent to you within the course of the mail, so within three days or so.

PN64

MR GALIGALIS: Yes. I sent the first one, but after the other one came it said the application was incomplete, I was missing F7 or something like that.

PN65

VICE PRESIDENT HATCHER: Yes, but the incomplete one was on 29 October.

PN66

MR GALIGALIS: Yes, but on 29 October I was still - I still had the - why they let me mediate for the mediation and they still - it was from then with this one.

PN67

COMMISSIONER CARGILL: In your application you say the mediation process broke down on 28 October.

PN68

MR GALIGALIS: Yes. So they sent me the email the next day, the 29th and - - -

PN69

COMMISSIONER CARGILL: The Fair Work Ombudsman sent you the email the next day.

PN70

MR GALIGALIS: Yes, I got the email. The email came, yes, on 30 October, that day we finished like the negotiation process and to continue with anything else I wanted to continue.

PN71

JUSTICE ROSS: All right. But what do you say - after you got that email on 30 October, what do you say you then did?

PN72

MR GALIGALIS: I tried to do the unfair dismissal forms. When I got them I complete them and I did the letters, even when they say to me in correspondence by his Honour (indistinct) that one of the letters that they stated that if I want a hearing I should request (indistinct) but I came here in person and I even made a phone call and it was regarding on (indistinct) but I gave him the letter that said to call (indistinct) so when I came here and asked, they said to me, "Nobody is here," like for the day, "Just do your letter. Just send your letter."

PN73

COMMISSIONER CARGILL: That's after you filed your application though, isn't it?

PN74

MR GALIGALIS: Yes, when they send the letter that it was incomplete. But they say to request the hearing in person by either telephone or even a telephone and I left a message on the answering machine and somebody called me and said the best thing to do is to do your letter. So that day they sent the letter I came here on the 10th floor.

PN75

VICE PRESIDENT HATCHER: Was this before you filed your final application on 3 November - - -

PN76

MR GALIGALIS: Before the final, but they sent me the letter that my application was incorrect and I have to do something else.

PN77

VICE PRESIDENT HATCHER: So when you said you came down here to ask for a hearing, that was before 3 November.

PN78

COMMISSIONER CARGILL: Mr Galigalis, the letter you're talking to that said you could ask for a hearing, is that the one that you provided that's dated 14 November.

PN79

MR GALIGALIS: Yes, probably.

PN80

COMMISSIONER CARGILL: There's a letter to you, in fact, from Drake SDP saying that you have lodged the application and setting out what the process will be and that letter says in it about that you could ask to - it says unless you request a hearing. Is that the letter you're talking about?

PN81

MR GALIGALIS: Yes.

PN82

COMMISSIONER CARGILL: Yes. So that's dated 14 November.

PN83

MR GALIGALIS: Yes, but when I got this letter - - -

PN84

COMMISSIONER CARGILL: Of 14 November?

PN85

MR GALIGALIS: Of 14th, I can't remember dates now, when I got this letter I came either the same day or the next day and asked to see somebody and I make a phone call, it says you can make a phone call, and they told me to continue with the letter, so to write all this.

PN86

COMMISSIONER CARGILL: But that's after you had actually lodged your application - - -

PN87

MR GALIGALIS: Yes.

PN88

JUSTICE ROSS: Which one is that - - -

PN89

MR GALIGALIS: They said to me it was incomplete so I have to lodge - - -

PN90

JUSTICE ROSS: No, we understand that.

PN91

COMMISSIONER CARGILL: Yes.

PN92

JUSTICE ROSS: We're looking at the period before you lodged your application and the reasons why you lodged your application outside the time period.

PN93

MR GALIGALIS: Yes. I will say that but I say this is a technicality, I know, but to me it's an unfair dismissal, I have (indistinct) regulations if it's 21 days or if it's five days, they do the same thing, they call me and said, "You're finished," and I finished - it's good to the public interest, like, to hear that previous employers, they abide and follow the regulations of the Fair Work.

PN94

JUSTICE ROSS: Okay. Is there anything else you want to say?

PN95

MR GALIGALIS: Not at the moment. Thank you.

PN96

VICE PRESIDENT HATCHER: Just before you sit down, Mr Galigalis, you did give to the Senior Deputy President a written submission which set out all the reasons why you say the (indistinct)

PN97

MR GALIGALIS: Yes. It's here on the letter.

PN98

VICE PRESIDENT HATCHER: Yes.

PN99

JUSTICE ROSS: That's your letter of 24 November, the six paragraphs.

PN100

MR GALIGALIS: Yes.

PN101

JUSTICE ROSS: Yes. All right. Thank you.

PN102

MR MOIR: Your Honour, I don't have that letter from the then applicant to the commission with the six paragraphs, but I assume it's correspondence - - -

PN103

JUSTICE ROSS: I can show it to you.

PN104

MR MOIR: Thank you, your Honour. I assume it's correspondence the applicant has sent in response to the letter from Drake SDP.

PN105

JUSTICE ROSS: Yes.

PN106

MR MOIR: Yes. Thank you for that. So it's clear that the applicant received the correspondence from the Senior Deputy President dated 14 November and that correspondence clearly identified that the appellant, if he so wished, could request a hearing either in person or by video conference or telephone and so on and so forth. So insofar as it's put in the application to appeal the decision of the Deputy President - I'm referring there to the form F7 filed by the appellant - insofar as it's put that there is a significant error of fact because he was effectively denied a hearing in person, that just cannot be right in view of both his correspondence and the commission's correspondence.

PN107

Insofar as the explanation for the delay given by the appellant, there's been no allegation made by him that the findings by the Deputy President in his Honour's decision are in any way erroneous in any specific detail. So if I refer the full bench to the decision of the Deputy President dated 16 January 2015, his Honour deals with the reason for the delay from paragraph 6. In paragraph 11 the Deputy President identifies that the appellant was aware of his dismissal on 20 September 2014. There's no challenge to that finding. The Deputy President also identifies at paragraph 1 that the appellant lodged his completed application on 3 November 2014 following the incomplete one lodged on 29 October. There's no contest about that factual matter. It's clear, therefore, that the application filed by the appellant, his original application, was at least 18 days late as identified at paragraph 1 by the Deputy President.

PN108

Now, in terms of the sequence or the timing, as your Honour was questioning the appellant, his Honour deals with this in some detail from paragraph 6, and again I stress there's no specific allegation that his Honour has fallen into error with regards to these factual findings. Of course his Honour was basing these matters upon the material which the appellant sent to the commission in response to the correspondence from Drake SDP. That includes the six-paragraph letter.

PN109

If I could just direction your Honours' attention to paragraph 6. His Honour found that the appellant contacted FWA without delay and he was advised to contact the respondent. We know that that's the ombudsman from the questions put this morning to Mr Galigalis. At the same paragraph it's identified that a week later the appellant was sent forms by the ombudsman, that's about seven days after the dismissal it would appear. I'm taking the appellant's case at its highest. I'm assuming in the absence of any contradiction by my client that the appellant acted promptly, so immediately after his dismissal and his awareness of the dismissal on 20 September, he took these steps.

PN110

So he contacted the ombudsman. He was advised to contact the respondent. About a week later he was sent the forms by the ombudsman, so we're about seven days after the dismissal. The Deputy President notes at paragraph 7 that according to the appellant the forms did not arrive from the ombudsman's office until the 20th day after the dismissal. So there was approximately - taking the appellant's case at its highest, there was approximately a 14-day delay in him being provided with the forms. So the forms would not have been received, again taking his case at the highest, until on or about 10 October, however, he did not lodge an application, whether a completed or incomplete application, for another 18 days or so. As his Honour has noted, there's a lack of any explanation for that period of delay taking, as I say, the appellant's case at its highest.

PN111

So in my submission it was reasonably open for his Honour to make the finding which he did in the last sentence of paragraph 9 which is that he has difficulty reconciling the applicant's explanation for the delay with the dates he has provided. Again, that's on the basis that it's uncontradicted by the respondent. It's also noted that there's no challenge to the findings by his Honour at paragraph 6 that it's unclear why the forms would take so long to be provided by the ombudsman, a delay of some 14 days, and there's no challenge to the finding also at paragraph 6 that the appellant did not assert in the materials he provided to the commission that he had any difficulty accessing the forms themselves on the commission's web site or directly from the commission through other means, for example, at the commission's premises.

PN112

So in those circumstances it's the respondent's submission that there's really no arguable case. There's certainly no significant error of fact concerning the applicant not being advised of his right to request a hearing and in that respect it can't be said that there be any substantial injustice if permission was refused in this instance. It's, of course, an appeal against a discretionary decision not to extend the time so all of the principles in House v King would come into play.

PN113

The grounds that one traditionally finds with respect to public interest have not been invoked by the appellant in his form F7. So, for instance, it's not suggested that this matter is one which raises issues of general application or general importance. It's not suggested that the Deputy President applied the wrong principles. In fact, if one refers to his Honour's decision once more, it's clear that his Honour has, before turning to the evidence or the material provided by the appellant, he has considered the relevant provisions, that's at paragraph 3.

PN114

He's then considered the relevant principles and he's cited the full bench decision in Nolte, and at page 4 of the reasons for decision his Honour has quoted paragraph 14 of the decision in Nolte where it's noted that:

PN115

Mere ignorance of the statutory time limit is not an exceptional circumstance.

PN116

He's also pointed out by reference to that quote, that the parliament has to be presumed that an employee in the situation of the appellant should seek out information and do so in a timely fashion, so there is an element of personal responsibility there that is to be presumed in the legislation and it's clear on the findings made by his Honour that that responsibility was not met. The fact that the appellant says today that he was unaware of the 21-day limit and he seeks to suggest that that was the fault of other parties such as the ombudsman or this commission is certainly not a valid reason and doesn't constitute an exceptional circumstance. Those are the respondent's submissions.

PN117

JUSTICE ROSS: Thank you. Is there anything you wanted to say in response to the respondent's submissions?

PN118

MR GALIGALIS: Yes. It's true (indistinct) about the 21 days. So the forms they came, I've got the email that the Fair Work advised me first to send an email and give them seven days to answer. So that email I sent it on the 29th. My dismissal, it was Friday - - -

PN119

JUSTICE ROSS: 29th of what?

PN120

MR GALIGALIS: Of September.

PN121

COMMISSIONER CARGILL: That's the email from the ombudsman, is it?

PN122

MR GALIGALIS: No. This is my email, the advice - - -

PN123

COMMISSIONER CARGILL: To the ombudsman?

PN124

MR GALIGALIS: No, from the Fair Work, they advised me to The Group of Four.

PN125

JUSTICE ROSS: Can we have a look at the email you're talking about?

PN126

MR GALIGALIS: Yes. So they have that email. They advise me from Fair Work, first thing you do is to give them seven days. Send an email, give them seven days to answer.

PN127

JUSTICE ROSS: Just let us look at the email.

PN128

MR GALIGALIS: Yes. 29 October - September, sorry.

PN129

JUSTICE ROSS: So that's an email you sent to the respondent.

PN130

MR GALIGALIS: Yes. So have to wait seven days after that. So after the seven days nobody gave me an answer. Yes. I have to call them back and I tell them, like, I send an email, nobody gave me an answer. Even then when I mentioned that it's for the leave and unfair dismissal, I say, "Can you send me the forms," they said, "Yes." Nobody told me for the second, the unfair dismissal, I've got 21 days like to lodge the forms, I've never done anything, I've never done it before. So after - - -

PN131

VICE PRESIDENT HATCHER: What were the forms the ombudsman sent you?

PN132

MR GALIGALIS: They sent me the first - the forms they send me, even if I ask for the unfair dismissal too, they send me forms just for the small court case. So I did that, and when I went to lodge it at Elizabeth Street and I asked for unfair dismissal they said, "No, no, this is not the office for unfair dismissal," and they send me here. They said to me to come here or ring up and get the forms. So that's why it was delayed. So I ring up here. I got the forms. I was already late, that's why they never granted me - it was incomplete and I have to do it again.

PN133

VICE PRESIDENT HATCHER: You lodged the form with Fair Work Ombudsman - - -

PN134

MR GALIGALIS: Yes.

PN135

VICE PRESIDENT HATCHER: - - - the 20th day after dismissal. Is that what you said?

PN136

MR GALIGALIS: No. When I ask, I said I was already late because I thought they were going to do the forms or I have to complete it from there.

PN137

VICE PRESIDENT HATCHER: You had lodged the form with the - you said you had lodged an application to the Fair Work Ombudsman and it was that - - -

PN138

MR GALIGALIS: For a different matter.

PN139

VICE PRESIDENT HATCHER: - - - was for your under payment claim and you said it was at that point that you were told that unfair dismissal, you had to come here.

PN140

MR GALIGALIS: Yes.

PN141

JUSTICE ROSS: What was that date?

PN142

MR GALIGALIS: I don't know, it was 20 days after, it should be in the records when I gave in the forms, I can't remember now. When I put the application because - - -

PN143

COMMISSIONER CARGILL: We don't have their records.

PN144

VICE PRESIDENT HATCHER: We don't have their records.

PN145

COMMISSIONER CARGILL: We're a different organisation.

PN146

MR GALIGALIS: Because even in the beginning I've got the email, I don't know if I have it here, with a different case number from Brisbane, with a different case number. So when I rung they said, "The notice you made," and I've got the originals (indistinct) so when they sent me the letter from Brisbane, so the same place for the same - - -

PN147

VICE PRESIDENT HATCHER: The information you gave to Drake SDP was that that occurred on or around the 20th day. That's what you told the Senior Deputy President.

PN148

MR GALIGALIS: Yes, the 20th day. So without being aware that for unfair dismissal I've got only 21 days to lodge a complaint, you know (indistinct) and I think there is, I'm just a worker, it's for public interest to hear about this company, you know.

PN149

JUSTICE ROSS: All right. Anything further? No.

PN150

MR GALIGALIS: I don't know if it's appropriate to say, but while I was working there the immigration came and arrested two people that were working there as illegal migrants. I've got the records (indistinct) about the (indistinct) because we were working together for one and a half year.

PN151

JUSTICE ROSS: All right. Okay, thanks for that. We'll adjourn and reserve our decision in relation to that matter and we'll adjourn generally and we'll reconvene shortly for the matters listed at 11.00. We'll begin with the Malacnina matter and Sydney University.

PN152

MR GALIGALIS: Thank you.

<ADJOURNED INDEFINITELY [10.59AM]