Ali v Chandler Macleod Group Ltd

FEDERAL COURT OF AUSTRALIA

Ali v Chandler Macleod Group Ltd [2016] FCA 479

File number:

WAD 79 of 2016

Judge:

BARKER J

Date of judgment:

6 May 2016

Catchwords:

ADMINISTRATIVE LAW – application for judicial review – where Fair Work Commission Full Bench refused extension of time to appeal – whether jurisdictional error – application dismissed  

Legislation:

Fair Work Act 2009 (Cth) s 394, s 394(2), s 604

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

Cases cited:

Jobs Australia v Eland [2014] FWCFB 4822

Date of hearing:

6 May 2016

Registry:

Western Australia

Division:

General Division

National Practice Area:

Employment & Industrial Relations

Category:

Catchwords

Number of paragraphs:

17

Counsel for the Applicant:

The Applicant appeared in person

Counsel for the First Respondent:

Mr M Blatchford

Solicitor for the First Respondent:

Momentum Legal

ORDERS

WAD 79 of 2016

BETWEEN:

SAJID ALI

Applicant

AND:

CHANDLER MACLEOD GROUP LTD

First Respondent

FAIR WORK COMMISSION

Second Respondent

JUDGE:	BARKER J
DATE OF ORDER:	6 MAY 2016

THE COURT ORDERS THAT:

1.The name of the first respondent be amended to “Chandler Macleod Group Ltd”.

2.The application for judicial review filed 17 February 2016 be dismissed.

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

REASONS FOR JUDGMENT

BARKER J:

1. The applicant, Mr Sajid Ali, applies for judicial review of a decision of the Fair Work Commission (FWC) Full Bench dated 1 February 2016 (Full Bench’s decision), which dismissed Mr Ali’s application for an extension of time to appeal against the decision of Commissioner Cloghan (Commissioner’s decision) refusing an extension of time to lodge an unfair dismissal remedy application under s 394 of the Fair Work Act 2009 (Cth) (FW Act). 

   COMMISSIONER’S DECISION

2. On 21 June 2013, Mr Ali applied to the FWC for a remedy for alleged unfair dismissal from his former employee, the first respondent in this proceeding, Chandler Macleod Group Ltd.  Before the FWC, the date of the dismissal was disputed, with Mr Ali alleging 12 April 2013, and Chandler Macleod saying 13 February 2013 or, in the alternative, 13 March 2013.

3. Commissioner Cloghan noted that, as Mr Ali did not make the application within the period of 21 days prescribed by subs 394(2) of the FW Act, on either of these dates, Mr Ali required an extension of time to lodge the application.

4. Having considered the parties’ written submissions, the Commissioner was not satisfied that exceptional circumstances existed for the application to be filed after the prescribed period of 21 days had expired.  Accordingly, on 10 October 2013, he dismissed Mr Ali’s application.

   FULL BENCH’S DECISION

5. By notice of appeal dated 15 December 2015, Mr Ali sought to appeal against the Commissioner’s decision. 

6. The FWC Full Bench noted that, as the notice of appeal from the Commissioner’s decision was filed 775 days after the expiry of the 21 day time period prescribed by s 604 of the FW Act and R 56(2) of…