DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Sajid Ali
v
Chandler Macleod Group Limited
(C2015/8152)

Permission to appeal against decision [2013] FWC 7899 of Commissioner Cloghan at Perth on 10 October 2013 in matter number U2013/10785.

Introduction

[1] Mr Sajid Ali has applied for permission to appeal a decision issued by Commissioner Cloghan on 10 October 2013 1 (Decision). The effect of the Decision was to refuse Mr Ali an extension of time to lodge an unfair dismissal remedy application under s.394 of the Fair Work Act 2009 (FW Act) and to dismiss the application that had been received by the Commission.

[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. Mr Ali’s notice of appeal was filed 775 days after the prescribed 21 day time period had expired. Accordingly it is necessary for Mr Ali to be granted an extension of time in order for the appeal to be competent.

[3] The usual principles applying to consideration of an application to extend time to lodge an appeal were summarised in the Full Bench decision in Jobs Australia v Eland² as follows (footnotes omitted):

“[5] 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. The authorities indicate that the following matters are relevant to the exercise of the Tribunal’s discretion under Rule 56(2)(c):

•  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.”

Consideration

[4] Having regard to the relevant matters identified in Jobs Australia v Eland, we do not consider that there is a proper basis to grant Mr Ali an extension of time to lodge his appeal, for the following reasons:

(a) First, Mr Ali’s explanation for his delay in filing his notice of appeal is that he was in Pakistan at the time the Decision was made (10 October 2013) and he did not return to Australia until 22 January 2015.  At that time Mr Ali saw the Decision for the first time.  Even if this was a reasonable explanation for the delay, which it is not, Mr Ali did not give any comprehensible explanation for the delay from 22 January 2015 until his notice of appeal was filed on 15 December 2015;

(b) Secondly, the delay can only be characterised as a lengthy one;

(c) Thirdly, it is unlikely that any of the grounds of appeal being pursued by Mr Ali would be upheld if time were extended. In this regard, it is relevant that Mr Ali has not sought to challenge Commissioner Cloghan’s finding 3 that he did not provide a reason for the delay in filing his unfair dismissal remedy application; and

(d) Fourthly, given that Mr Ali’s employment with the respondent came to an end almost three years ago (on 13 March 2013), the respondent would be likely to suffer prejudice if time were extended. In particular, the respondent would likely be prejudiced in relation to its ability to adduce detailed evidence concerning the circumstances relating to Mr Ali’s dismissal.

[5] Mr Ali's notice of appeal is therefore incompetent and is dismissed.

VICE PRESIDENT

Appearances:

S. Ali on his own behalf.

T. Kakoschke for Chandler Macleod Group Limited.

Hearing details:

2016.

Sydney:

20 January.

 1   [2013] FWC 7899

2 [2014] FWCFB 4822

 3   Decision at [15]

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