Ali v Chandler Macleod Group Ltd

Case [2016] FCA 1234


FEDERAL COURT OF AUSTRALIA

Ali v Chandler Macleod Group Ltd [2016] FCA 1234

Appeal from: Ali v Chandler Macleod Group Ltd [2016] FCA 479
File number(s): WAD 240 of 2016
Judge(s): SIOPIS J
Date of judgment: 11 October 2016
Catchwords: APPEAL – whether the appeal is incompetent because the grounds of appeal are defective – whether the appeal should be summarily dismissed on the grounds of incompetency.  
Legislation:

Federal Court of Australia Act 1976 (Cth) s 25(2B)(aa)

Fair Work Act 2009 (Cth) ss 394(2), 394(3), 604

Federal Court Rules 2011 (Cth) r 36.01

Fair Work Commission Rules 2013 (Cth) r 56(2)

Cases cited:

Zambini v Secretary, Department of Employment and Workplace Relations [2006] FCA 1773

Singh v Owners Strata Plan No 11723 (No 3) (2012) 207 FCR 390

Zegarac v Dellios [2007] FCAFC 58

Date of hearing: 11 October 2016
Registry: Western Australia
Division: General Division
National Practice Area: Employment & Industrial Relations
Category: Catchwords
Number of paragraphs: 32
Counsel for the Appellant: The Appellant appeared in person.
Counsel for the First Respondent: Mr M Blatchford
Solicitor for the First Respondent: Momentum Legal
Counsel for the Second Respondent: The Second Respondent did not appear.
Table of Corrections
14 October 2016

In paragraph 22, “29 August 2016” should read “17 August 2016”.

14 October 2016 In paragraph 23, “23 August 2016” should read “29 August 2016”.

ORDERS

WAD 240 of 2016
BETWEEN:

SAJID ALI

Appellant

AND:

CHANDLER MACLEOD GROUP LTD

First Respondent

FAIR WORK COMMISSION

Second Respondent

JUDGE:

SIOPIS J

DATE OF ORDER:

11 OCTOBER 2016

THE COURT ORDERS THAT:

1.The appeal is dismissed for lack of competency pursuant to r 36.72 of the Federal Court Rules 2011 (Cth).

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

SIOPIS J:

  1. This is an application by the first respondent, Chandler Macleod Group Ltd, for the dismissal of the appeal by the appellant, Mr Sajid Ali, from the decision of the primary judge on 6 May 2016.

  2. The primary judge dismissed Mr Ali’s application for judicial review of the decision of the Full Bench of the Fair Work Commission (the Commission), dated 1 February 2016, which had refused permission to Mr Ali to appeal against the decision of Commissioner Cloghan in the Commission.

  3. The first respondent contends that Mr Ali’s appeal is incompetent.

    BACKGROUND

  4. The background to the matter is as follows.

  5. Mr Ali was dismissed from his employment in a bakery.  There is some doubt as to the exact date on which he was dismissed, but the Commission approached it from the basis that he had been dismissed on 13 March 2013.

  6. On 21 June 2013, Mr Ali brought an application under the Fair Work Act 2009 (Cth) in the Commission alleging that he had been unfairly dismissed. The application came before Commissioner Cloghan, who found that the application had not been made within the 21 day period from the date of the dismissal which was prescribed by s 394(2) of…

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AGLC
Ali v Chandler Macleod Group Ltd [2016] FCA 1234
Case
[2016] FCA 1234
Decision Date

CaseChat Overview and Summary

The appeal in Ali v Chandler Macleod Group Ltd was brought by Mr Ali against Chandler Macleod Group Ltd. Mr Ali was dismissed from his employment and brought an application for unfair dismissal under the Fair Work Act 2009 (Cth). The application was dismissed as it was not made within the required 21-day period. Mr Ali then sought permission from the Full Bench of the Fair Work Commission to appeal against the dismissal of his application. The Full Bench refused to extend the time for Mr Ali to file his notice of appeal, and Mr Ali appealed to the Federal Court against the Full Bench’s decision.

The legal issues in the case were whether Mr Ali’s appeal was incompetent due to defective grounds of appeal and whether the appeal should be summarily dismissed for incompetency. The appeal was challenged on the basis that Mr Ali had failed to file his notice of appeal within the required 21-day period and had not provided a satisfactory explanation for the delay. The Full Bench had considered the relevant factors in deciding whether to extend the time for filing the notice of appeal and found that there was no satisfactory explanation for the delay. The Full Bench also found that the delay was lengthy and that there was no likelihood that the appeal would be successful.

The Federal Court found that Mr Ali’s appeal was incompetent because the grounds of appeal were defective. The Court held that there was no satisfactory explanation for the delay in filing the notice of appeal and that the appeal was therefore time-barred. The Court found that the Full Bench had exercised its discretion under r 56(2) of the Fair Work Commission Rules 2013 (Cth) correctly and that there was no error in law in its decision. The Court also held that there was no exceptional circumstance that warranted the extension of time for filing the notice of appeal. Accordingly, the appeal was dismissed for lack of competency.

The Court made an order that the appeal was dismissed for lack of competency pursuant to r 36.72 of the Federal Court Rules 2011 (Cth). The entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Orders

Orders of the court

1. The appeal is dismissed for lack of competency pursuant to r 36.72 of the Federal Court Rules 2011 (Cth).

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

The first respondent contends that Mr Ali’s appeal is incompetent.BACKGROUND The background to the matter is as follows. Mr Ali was dismissed from his employment in a bakery. There is some doubt as to the exact date on which he was dismissed, but the Commission approached it from the basis that he had been dismissed on 13 March 2013. On 21 June 2013, Mr Ali brought an application under the Fair Work Act 2009 (Cth) in the Commission alleging that he had been unfairly dismissed. The application came before Commissioner Cloghan, who found that the application had not been made within the 21 day period from the date of the dismissal which was prescribed by s 394(2) of the Fair Work Act, and that there were no exceptional circumstances which warranted the Commission exercising its power under s 394(3) to extend the time for the filing of Mr Ali’s unfair dismissal application. Accordingly, the application was dismissed on 10 October 2013. In finding that there were no exceptional circumstances, Commissioner Cloghan took into account each of the matters referred to in s 394(3) of the Fair Work Act and found, in particular, that there had been no explanation for the delay in filing the application. Then, more than two years later, Mr Ali made an application to the Full Bench of the Commission under s 604 of the Fair Work Act for permission to appeal against Commissioner Cloghan’s decision not to extend the time within which to bring the application for unfair dismissal. Relevantly, r 56(2) of the Fair Work Commission Rules 2013 (Cth), provided that a notice of appeal must be filed within 21 days of the date of the decision the subject of the appeal, or, within such further time as allowed by the Commission on application by the appellant. Mr Ali’s notice of appeal was filed 775 days after the prescribed 21 day period had expired. The Full Bench of the Commission considered whether it should exercise its power under r 56(2) and extend the time for Mr Ali to file his notice of appeal. In refusing to extend time, the Full Bench had regard to the considerations relevant to the exercise of its power under r 56(2), namely: whether there was a satisfactory explanation 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 would be upheld if the time limit was extended; and any prejudice to the respondent if the time was to be extended. The Full Bench observed that the delay could only be characterised as “lengthy”. The Full Bench found that there was no satisfactory explanation for Mr Ali’s delay in filing his notice of appeal. The Full Bench observed that Mr Ali had said that he had been in Pakistan at the time that Commissioner Cloghan’s decision was made and he did not return to Australia until 22 January 2015. The Full Bench went on to say that, even if this was a reasonable explanation for the delay, which it was not, Mr Ali had not given any comprehensible explanation for the delay from his return to Australia on 22 January 2015 until his notice of appeal was filed on 15 December 2015.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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