Abdul Jabbar Khan v NEC Australia Pty Ltd
[2025] FWCFB 98
•15 MAY 2025
| [2025] FWCFB 98 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Abdul Jabbar Khan
v
NEC Australia Pty Ltd
(C2025/2365)
| DEPUTY PRESIDENT BELL | MELBOURNE, 15 MAY 2025 |
Appeal against decision [2025] FWC 390 of Deputy President Colman at Melbourne on 11 February 2025 in matter number U2024/11710 - extension of time refused - permission to appeal refused.
Mr Abdul Jabbar Khan has lodged an appeal under s 604 of the Fair Work Act 2009 (the Act) against a decision[1] of Deputy President Colman (the Decision) delivered on 11 February 2025. In the Decision, the Deputy President declined to grant an extension of time for the filing of Mr Khan’s application for an unfair dismissal remedy against the respondent, NEC Australia Pty Ltd (NEC).
The Notice of Appeal was filed outside the 21-day timeframe for lodging an appeal required by the Fair Work Commission Rules 2024. Accordingly, the matter was listed for permission to appeal and extension of time. For the reasons that follow, we decline to allow a further period of time for the lodgement of the appeal and the application for permission to appeal is dismissed on that basis. We would otherwise refuse to grant permission to appeal.
Decision under appeal
In paragraph [1] of the Decision the Deputy President succinctly articulated his key findings:
“Earlier today, I dismissed an application for an unfair dismissal remedy made by Abdul Jabbar Khan under s 394 of the Fair Work Act 2009 (Act), because it was not lodged within the 21-day period following dismissal as required by s 394(2)(a), and I declined to grant an extension of time under s 394(2)(b), for the following reasons. Mr Khan was dismissed on 1 July 2011. His application was lodged on 2 October 2024. The Commission can only extend time if it is satisfied that there are ‘exceptional circumstances’, taking into account the matters in ss 394(3)(a) to (f). As to these, Mr Khan advanced numerous reasons for the delay in lodging the application (s 394(3)(a)), including that he had been receiving psychiatric and other medical treatment, but I did not consider that these matters provided an acceptable explanation for the 13-year delay. This weighed against an extension of time. Mr Khan did not contend that he became aware of the dismissal after it took effect (s 394(3)(b)), and it appeared that he had taken a number of steps to dispute his dismissal (s 394(3)(c)). I considered these to be neutral matters. It was clear that the respondent would suffer prejudice from the delay (s 394(3)(d)), as its ability to respond to the claim had been compromised: it no longer possesses relevant documents and systems, and managers who dealt with Mr Khan left the respondent many years ago. Further, witness recollection of events long ago was likely to be dim. The prejudice to the respondent told against an extension of time. I regarded the merits (s 394(3)(e)) as a neutral factor, because although much of the claim was not stated coherently, the basic contention of unfairness associated with the dismissal was clear enough and appeared to be arguable. Finally, I did not consider there to be any matter relevant to the consideration in s 394(3)(f). Taking these matters into account, I did not consider there to be exceptional circumstances in this case. My discretion to extend time was not enlivened.”
Permission to appeal – principles
There is no right to appeal, and an appeal may only be made with the permission of the Commission. Section 400 of the Act applies to this appeal, as it is from a decision made under Part 3-2 of the Act. By s 400(1), the Commission must not grant permission to appeal unless it is in the public interest to do so. Section 400(2) provides that an appeal on a question of fact can only be on the ground that the decision involved a significant error of fact. The test under s 400 is “a stringent one.”[2]
The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[3] The public interest is not satisfied simply by the identification of error or a preference for a different result.[4] Considerations that may attract the public interest include that the matter raises issues of importance and general application, that the decision manifests an injustice or that the result is counterintuitive.[5]
It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. However, that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal. An application for permission to appeal is not a preliminary hearing of the appeal. In determining whether to grant permission to appeal, it is unnecessary and inappropriate to conduct a detailed examination of the appeal grounds.[6] However, it is necessary to engage with the grounds to consider whether they raise an arguable case of appealable error.
Grounds for Appeal
Mr Khan’s written submissions and associated documentation in support were voluminous. Many of the documents submitted by Mr Khan referred to other legal claims and proceedings. The Grounds for Appeal identified in Mr Khan’s Notice of Appeal, supplemented by written submissions and oral submissions, predominantly go to Mr Khan’s assertion that his treatment by NEC was unfair and allegations that NEC did not treat him appropriately in relation to a medical condition.
Mr Khan also submits that the Deputy President did not properly consider his reasons for delay including that Mr Khan:
· was unwell, receiving intensive psychiatric treatment, and on high dosages of medication;
· was preoccupied with fighting other legal claims;
· had concerns regarding the issuing of an intervention order; and
· had no legal representation and was not aware of the legal opportunity.
Mr Khan also took issue with the Deputy President’s finding that NEC would be prejudiced by the delay on the basis that NEC is a large company, with significant data centre to retain relevant documentation and witnesses who had left NEC could be contacted through social media platforms like LinkedIn.
In relation to the public interest test, Mr Khan’s primary submission related to his position that he has a very strong unfair dismissal case.
Extension of time
Rule 128(2) of the Fair Work Commission Rules 2024 requires that an appeal must be filed within 21 days after the date of the decision appealed against, or within such further time allowed by the Commission on application.
The principles applying to consideration of an application to extend time to lodge an appeal were summarised in the Full Bench in Jobs Australia v Eland[7] as follows:
· 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.
Taking these matters into account, the exercise of discretion will be guided by a consideration of whether, in all the circumstances, the interests of justice favour Mr Khan being granted an extension of time within which to lodge the notice of appeal.
Consideration
We are prepared to accept that Mr Khan has provided a satisfactory reason for the relatively short delay in lodging the appeal, and that there is no apparent prejudice to the respondent if time were extended for the application to appeal. However, in the assessment of whether to extend time, it is necessary to consider the nature of the grounds of appeal and the likelihood that one or more of those grounds would be upheld if time was extended. Having regard to the Notice of Appeal and submissions, we do not consider that Mr Khan has alleged any matter that demonstrates an arguable case of appealable error or any matter that would enliven the public interest, each of which weigh heavily against his application.
Turning now to whether there is any arguable case of appealable error, the 21-day statutory timeframe for lodging unfair dismissal applications in the Commission reflects Parliament’s intention that such applications are to be made promptly. While the Act recognises that there are some cases where a late application should be accepted, the Commission must be satisfied that there are exceptional circumstances for doing so. Mr Khan has not been able to establish any arguable appeal error in the Decision, including in relation to the key finding that no exceptional circumstances exist that warranted an extension of time of approximately 13 years.
In relation to Mr Khan’s submissions to the effect that his dismissal was unfair and that NEC did not treat him appropriately in relation to a medical condition – these matters go to Mr Khan’s substantive unfair dismissal case, if his application had been allowed to proceed. These matters do not raise an arguable appealable error in the Decision and we note the Deputy President treated the substantive merits of Mr Khan’s claim as a neutral factor.
We are not persuaded by Mr Khan’s contention that the Deputy President did not properly consider reasons for delay. The Deputy President considered the “numerous” reasons advanced by Mr Khan for his delay in lodging his application and concluded that none of these matters provided an acceptable explanation for the significant delay of 13 years. We agree with the Deputy President. In fact, on the material before us it is clear that Mr Khan has pursued other legal actions within the 13-year time frame but chose not to pursue an unfair dismissal application. This ground does not reveal any arguable appealable error.
Nor are we persuaded that the Deputy President erred by finding that NEC would suffer prejudice from the delay if Mr Khan was granted permission to run his unfair dismissal claim. This finding was clearly open to the Deputy President on the factual scenario before him. Thirteen years is a significant amount of time. Even if NEC was able to “track down” witnesses for events that happened 13 years ago via social media, the reliability of the recollection of such witnesses of events that occurred over a decade ago is clearly questionable. This ground does not reveal any arguable appealable error.
Finally, we are not satisfied that the grant of permission to appeal would be in the public interest. Mr Khan’s application for an extension of time was determined on the basis of its own specific facts. We are not satisfied that the appeal raises any issue of importance or general application to enliven the public interest. As we are not satisfied that the grant of permission to appeal would be in the public interest, permission to appeal must be refused in accordance with s 400(1) of the Act.
Having regard to the likelihood that the appeal grounds would not be upheld if time were extended and the public interest does not support any permission to appeal being granted, we conclude that in all the circumstances, the interests of justice do not favour Mr Khan being granted an extension of time and his application will be dismissed on that basis. Finally, even if Mr Khan’s application for appeal was within time or we extended time for that application, we would not grant permission to appeal for the reasons just given.
Order and disposition
For reasons given above, the application for permission to appeal is dismissed.
DEPUTY PRESIDENT
Appearances:
A. Khan on his own behalf.
P. McNulty of Ashurst, for the Respondent.
Hearing details:
2025.
Melbourne (by video using Microsoft Teams):
May 7.
[1] Abdul Jabbar Khan v NEC Australia Pty Ltd [2025] FWC 390.
[2] Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54; 192 FCR 78; 207 IR 177 at [34] and [43].
[3] O’Sullivan v Farrer (1989) 168 CLR 210 at 216-217 per Mason CJ, Brennan, Dawson and Gaudron JJ: applied in Hogan v Hinch (2011) 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) 192 FCR 78 at [44]-[46].
[4] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343; 197 IR 266 at [24]-[27]; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/ Warkworth[2010] FWAFB 10089 at [28], affirmed on judicial review; Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 178; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663; 241 IR 177 at [28].
[5] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343, 197 IR 266 at [24]-[27].
[6] Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82].
[7] [2014] FWCFB 4822.
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