Fady Abadear v Airservices Australia
[2025] FWCFB 51
•7 MARCH 2025
| [2025] FWCFB 51 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Fady Abadear
v
Airservices Australia
(C2025/616)
| DEPUTY PRESIDENT MILLHOUSE COMMISSIONER HUNT | MELBOURNE, 7 MARCH 2025 |
Appeal against decision [2024] FWC 3220 and order PR781635 of Commissioner Redford at Melbourne on 25 November 2024 in matter number C2024/7423 – extension of time refused.
Mr Fady Abadear has lodged an appeal under s 604 of the Fair Work Act 2009 (Cth) (Act) against a decision[1] and order[2] of Commissioner Redford issued on 25 November 2024. In the decision, the Commissioner dismissed Mr Abadear’s general protections application involving dismissal against the respondent, Airservices Australia. The Commissioner was satisfied that Mr Abadear was engaged by the respondent under a contract of employment for a specified period of time and his employment came to an end upon the conclusion of that period. The Commissioner upheld the respondent’s objection that Mr Abadear had not been dismissed.
The Notice of Appeal was filed outside the 21-day timeframe for lodging an appeal required by the Fair Work Commission Rules 2024 (FWC rules). Accordingly, the matter was listed for permission to appeal and an extension of time. The parties consented to the application being determined without holding a hearing under s 607(1)(b) of the Act. We are satisfied, having regard to s 607(1)(a), that the question of permission to appeal can be adequately determined without the need for oral submissions.
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.
Decision under appeal
After setting out the background to the application, and being satisfied that the employment relationship between Mr Abadear and the respondent had ended on 11 October 2024, the Commissioner turned to consider the terms of Mr Abadear’s employment contract, which relevantly provided as follows:
Your employment is for a fixed term. In accordance with the Agreement, you have been engaged to fulfil duties of SBASM Senior Engineering Specialist, which is a discrete project for a finite period, commencing on 11 April 2023 and ceasing on 11 October 2024. There is no prospect of ongoing employment in this role beyond the cessation date, nor any entitlement to permanent employment with Airservices after this time.
Notwithstanding Mr Abadear’s contentions otherwise, the Commissioner was satisfied that the terms of the employment contract reflected a genuine agreement that the employment relationship would not continue after 11 October 2024.
The Commissioner considered whether the employment contract was vitiated by some other matter and concluded that it was not. In this respect, the Commissioner declined to accept that there were any verbal representations given by the respondent prior to the commencement of the employment, or that Mr Abadear had made out a case of misrepresentation or misleading conduct engaged in by the respondent or its employees.
The Commissioner also considered Mr Abadear’s contentions concerning clause 70 (Career development) of the Airservices Australia Enterprise Agreement 2024-2026 (Airservices Agreement) which covered his employment, and s 333E of the Act dealing with limitations on fixed term contracts. The Commissioner did not accept Mr Abadear’s submissions that either of these matters led to Mr Abadear’s continued employment beyond the contract expiry date or otherwise vitiated his employment contract.
In light of his conclusions, the Commissioner recorded his satisfaction that Mr Abadear was engaged by the respondent under a contract of employment for a specified period of time, which concluded on the end date provided. As Mr Abadear was not dismissed within the meaning of the Act, the Commissioner dismissed the application.
Grounds of appeal and public interest
Having regard to the content of Mr Abadear’s Notice of Appeal and his written outline of submissions, we understand that Mr Abadear advances four grounds of appeal which we summarise as follows:
Mr Williams for the respondent contended in the hearing that clause 69 (Work performance) and clause 70 (Career development) of the Airservices Agreement are not applicable to fixed term employees. Mr Abadear contends that his team leader conducted a work performance review for two years in a row. The Career development aspect was confirmed at paragraphs [39]-[40] of the decision where the Commissioner stated that, “I was not taken to, nor could I find such an exception” for fixed term employees.
The assessment of whether a fixed term contract was a genuine legal agreement between the parties based only on the fixed term end date is not the correct legal assessment. The Airservices Agreement is also relevant. The respondent did not communicate to Mr Abadear the relevant policies and work conditions and accordingly there was no genuine agreement to such terms by Mr Abadear.
The respondent has unlawfully relied upon Mr Abadear’s fixed term status to make him ineligible to apply for permanent roles.
The conduct of the respondent prior to Mr Abadear signing the employment contract resulted in Mr Abadear entering the contract under false pretences and pursuant to misleading employment conditions and expectations. It follows that the Commissioner should have concluded that the employment contract was vitiated by the misrepresentations or misleading conduct of the respondent. The Commissioner did not place sufficient weight on the evidence that Mr Williams for the respondent did not intend to extend the fixed term contract, which was not communicated to Mr Abadear.
With respect to the public interest, Mr Abadear contends, in summary, that absent an appeal the decision will be used as a precedent. Mr Abadear submits that all contract conditions (not simply fixed term dates) should be transparent and clear to the parties prior to entry into the contract, allowing an individual to make an informed decision upfront.
Extension of time
Rule 128(2) of the FWC rules 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. In this case, the decision was issued on 25 November 2024, but the Notice of Appeal, while dated 23 January 2025, was not lodged until 24 January 2025 (39 days out of time).
As is frequently noted,[3] time limits of the kind in rule 128(2) 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 usual 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[4] 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 Abadear being granted an extension of time within which to lodge the Notice of Appeal.[5]
Consideration
To explain the delay, Mr Abadear contends as follows:
(a)Mr Abadear was not feeling well during the Commission process and in particular after the first instance proceeding on 21 November 2024, so he detached himself to clear his mind and recover.
(b)Mr Abadear travelled overseas from 18 December 2024 and returned on 15 January 2025.
(c)Mr Abadear attended mental health counselling through the respondent’s EAP program commencing from 24 August 2023. Further sessions were granted by the respondent from 18 June 2024. The last session Mr Abadear had was on 16 January 2025.
(d)Mr Abadear attended acupuncture treatment on 25 November, 28 November, 5 December, 12 December and 16 December 2024.
(e)Mr Abadear attended a doctor on 15 February 2025 and obtained a medical certificate which purports to say that Mr Abadear has been suffering from stress and recurrent headaches and was seen for the same issue multiple times “last year between September and December.” The medical certificate is provided in extract form, without a header, signature or indication of a treating practitioner’s name, treatment facility, address, or date.
To have filed the appeal within the 21-day timeframe required by the FWC rules, the Notice of Appeal needed to have been lodged by 16 December 2024. During the relevant period of the delay after 16 December 2024 and prior to lodging the appeal on 24 January 2025, Mr Abadear “detached” himself from the legal proceedings and travelled overseas between 18 December 2024 and 15 January 2025. Upon his return, he attended a counselling session on 16 January 2025. We do not consider that these matters provide a satisfactory or acceptable reason for the lengthy delay. The medical certificate – to the extent that it can be regarded as reliable – is not instructive. It post-dates the filing of the appeal and does not contain any probative information regarding Mr Abadear’s health, including his capacity or otherwise to lodge the appeal at any earlier time. Mr Abadear’s failure to provide an acceptable reason for the delay weighs against granting an extension of time to lodge the appeal.
Even if we were prepared to accept that there is a satisfactory reason for the lengthy delay – noting the respondent does not contend it will be prejudiced by an extension of time – the likelihood of one or more of the appeal grounds being upheld if time was extended is weak. In this respect, we note that there is no right to appeal, and an appeal may only be made with the permission of the Commission. Without limiting when the Commission might grant permission, s 604(2) of the Act provides that the Commission must grant permission if the Commission is satisfied that it is in the public interest to do so.
The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[6] The public interest is not satisfied simply by the identification of error or a preference for a different result.[7] 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.[8]
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.[9] However, it is necessary to engage with the grounds to consider whether they raise an arguable case of appealable error.
Having regard to the Notice of Appeal and submissions, we do not consider that Mr Abadear has raised any matter that gives rise to an arguable case of appealable error. Rather, Mr Abadear’s contentions demonstrate that he is seeking to reargue his case again, with a preference for a different result. This is not the function of an appeal bench in considering whether to grant permission to appeal.
In any event, the Commissioner’s approach to the consideration of a contract for a specified period of time under s 386(2)(a) of the Act is consistent with the recent judgment of the Full Court of the Federal Court in Alouani-Roby v National Rugby League Ltd,[10] which was handed down after the Commissioner issued his decision. Applying the reasoning of the Full Court to Mr Abadear’s circumstances means that Mr Abadear was not dismissed within the meaning of the Act, and no arguable error arises in the Commissioner’s decision.
To the extent that Mr Abadear’s appeal grounds seek to challenge the Commissioner’s factual findings, there is no arguable basis for concluding that such findings were not reasonably open on the evidence. The Commissioner dealt with each of Mr Abadear’s contentions and reached conclusions in the exercise of his discretion that appear to be supported by the volume of evidence before him. Any disagreement about the weight attributed to these matters, where they were otherwise the subject of proper consideration in the decision, is not a sustainable ground of appeal.
Nor are we persuaded, for the purposes of s 604(2) of the Act, that the appeal attracts the public interest. It does not raise any issue of law or principle that might have a wider application, nor does the decision manifest an injustice. These matters weigh against the grant of an extension of time to lodge the appeal.
Order and disposition
A satisfactory reason for the lengthy delay has not been advanced and the likelihood of one or more of the appeal grounds being upheld if time were extended is weak. Accordingly, the interests of justice do not favour Mr Abadear being granted an extension of time.
An extension of time to lodge the appeal is refused. Mr Abadear’s application for permission to appeal is dismissed on that basis.
DEPUTY PRESIDENT
Hearing details:
Matter determined on the papers.
Final written submissions:
Appellant, 26 February 2025
Respondent, 5 March 2025
[1] [2024] FWC 3220
[2] PR781635
[3] See Snyder v Helena College Council, Inc t/a Helena College[2019] FWCFB 815
[4] [2014] FWCFB 4822; see also Panayiotou v University of Adelaide[2020] FWCFB 1692 at [8] and the authorities cited therein; Andrew John Paul v Busways Pacific Pty Ltd & Others [2024] FWCFB 369 at [32]-[33]
[5] Brisbane South Regional Health Authority v Taylor [1996] HCA 25, 186 CLR 541
[6] 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]
[7] 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]
[8] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343, 197 IR 266 at [24]-[27]
[9] Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]
[10] [2024] FCAFC 161; see also Muria Roberts v TasTAFE[2025] FWCFB 3
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