Abdul Jabbar Khan v NEC Australia Pty Ltd - [2025] FWCFB 98

[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
COMMISSIONER ALLISON
COMMISSIONER TRAN

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Abdul Jabbar Khan v NEC Australia Pty Ltd

Details

AGLC: Abdul Jabbar Khan v NEC Australia Pty Ltd [2025] FWCFB 98
Case: [2025] FWCFB 98
Decision Date: 15 MAY 2025

CaseChat Overview and Summary

Abdul Jabbar Khan has appealed against a decision of Deputy President Colman, who declined to grant an extension of time for the filing of Mr Khan's application for an unfair dismissal remedy against NEC Australia Pty Ltd. The appeal was lodged outside the 21-day timeframe required by the Fair Work Commission Rules 2024. Consequently, the matter was listed for permission to appeal and extension of time. The Deputy President found that the applicant had not established any exceptional circumstances that would warrant an extension of time for lodging his unfair dismissal application, which was made approximately 13 years after his dismissal.

The legal issues before the Commission were whether the application for permission to appeal was within time, and if not, whether an extension of time should be granted, and whether permission to appeal should be granted. The Commission considered the grounds of appeal, which related to the Deputy President's assessment of the reasons for delay, the existence of exceptional circumstances, and the public interest in granting permission to appeal.

The Commission concluded that the application for permission to appeal was not within time. However, even if it were, the Commission would not grant an extension of time because the applicant had not established any arguable case of appealable error. The Commission found that the Deputy President had properly considered the reasons for delay and had concluded that there were no exceptional circumstances warranting an extension of time. The Commission also found that the public interest did not support granting permission to appeal. The Commission noted that the 21-day statutory timeframe for lodging unfair dismissal applications reflects Parliament's intention that such applications are to be made promptly.

The appeal was dismissed, and the application for permission to appeal is dismissed on that basis. The Commission would otherwise refuse to grant permission to appeal for the reasons just given. The matter is concluded.

Orders