Farooq Faridi v OM Security Pty Ltd
[2025] FWCFB 163
•1 AUGUST 2025
| [2025] FWCFB 163 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
Farooq Faridi
v
OM Security Pty Ltd
(C2025/1854)
| VICE PRESIDENT GIBIAN | SYDNEY, 1 AUGUST 2025 |
Appeal against decision [2025] FWC 572 of Commissioner McKinnon at Sydney on 25 February 2025 in matter U2024/15489 – Application under s 394 of the Fair Work Act 2009 (Cth) for an unfair dismissal remedy – Application made out of time – Commissioner held that there were no exceptional circumstances justifying a further period being allowed to make the application – Whether error in decision refusing to extend time to make the application – Whether the Commissioner made erroneous factual findings – No arguable case that the decision was attended by appealable error – Permission to appeal refused.
Introduction
Farooq Faridi seeks permission to appeal and to appeal from a decision of Commissioner McKinnon made on 25 February 2025 in which the Commissioner refused to extend time for the filing of Mr Faridi’s application for an unfair dismissal remedy.
On 22 December 2024, Mr Faridi applied to the Commission for an unfair dismissal remedy in respect of his employment as a Security Guard at the Embassy of the State of Qatar (the Embassy) from 14 June 2020 until 31 October 2024. Section 394(2)(a) of the Fair Work Act 2009 (Cth) (the Act) requires that an application under s 394 be made within 21 days after the dismissal took effect. As a result, the application was 31 days late.
The Commission retains a discretionary power to extend the time for filing in s 394(3) of the Act if it is satisfied that there are exceptional circumstances taking into account the considerations set out in the subsection. At first instance, Commissioner McKinnon considered the factors set out in s 394(3) and held that there were not exceptional circumstances which warranted the extension of time and Mr Faridi’s application was dismissed.
Having considered the fresh evidence filed by Mr Faridi, together with the written and oral submissions made by the parties, we have determined that we must decline Mr Faridi’s application for permission to appeal. We do not consider that Mr Faridi has demonstrated arguable grounds of appealable error with respect to the decision of the Commissioner. Our reasons for this conclusion are as follows.
The decision under appeal
The decision records the factual background to Mr Faridi’s dismissal including the details of his employment and various disputes between the parties that the Commissioner considered it unnecessary to resolve in order to issue her decision. The Commissioner determined to proceed on the assumption that Mr Faridi had been dismissed for the purposes of the decision without deciding whether Mr Faridi was engaged as an employee or contractor. The decision goes on to set out the relevant statutory framework and considerations pursuant to s 394(3) of the Act before turning to consider each of the factors in s 394(3) in turn.
The Commissioner first considered Mr Faridi’s submissions in support of his contention that his reason for the delay in filing the application was because he had not been given written notice of his termination, had engaged with Embassy staff, the Fair Work Ombudsman and the Commission and was not aware of the time limit for filing his application. The Commissioner found that the dismissal had occurred during a phone call on 31 October 2024 between Mr Mishra (Chief Operational Officer of Mantr Group) and Mr Faridi. The Commissioner found that Mr Faridi was told that his shift that day would be his last, that he had not worked in the business since and was subsequently removed from the WhatsApp group chat where rosters were published.[1] The Commissioner detailed Mr Faridi’s subsequent attempts to contest or clarify the alleged complaints against him and his dismissal.
The Commissioner considered whether Mr Faridi first became aware of the dismissal after it had taken effect and found that he knew of his dismissal on 31 October 2024 even though it was not confirmed in writing.[2] The Commissioner went on to consider whether Mr Faridi took any action to dispute the dismissal. In relation to Mr Faridi’s actions to dispute the dismissal, the Commissioner found that, Mr Faridi had emailed Mr Mishra to ask for information about the complaints against him, putting him on notice that the alleged complaints were in dispute. The Commissioner also found that Mr Faridi spoke to people at the Embassy and his supervisor that same week. The Commissioner found that approximately six weeks then passed during which Mr Faridi did not dispute the dismissal until he made enquiries with the Fair Work Ombudsman on 19 December 2024 and then applied to the Commission on 22 December 2024. [3]
The Commissioner found that there was no significant prejudice to the respondent if the application was allowed to proceed.[4] The Commissioner then considered the merits of the application and found that Mr Faridi had a reasonable case although he would need to establish his relationship with the respondent and whether he was an employee rather than a contractor as submitted by the respondent. The Commissioner held that there was insufficient material to form a view about whether the dismissal was for a valid reason, found that “procedural fairness was absent”, found that the personal circumstances of Mr Faridi would likely weigh in his favour and also noted the failure to provide written notice of termination.[5] Fairness as between Mr Faridi and other persons was held to be irrelevant.[6]
The Commissioner found that, although there was no significant prejudice to the respondent and there was merit in the case, if Mr Faridi could overcome the jurisdictional hurdles and establish that there was no valid reason for dismissal, none of the reasons given or circumstances explained by Mr Faridi for the later filing of his application were out of the ordinary or uncommon either when considered individually or in combination.[7] In the absence of exceptional circumstances, additional time could not be allowed to Mr Faridi to make the application.[8]
Grounds of Appeal
On 13 March 2025, Mr Faridi filed a Form 7 (Notice of Appeal) and an attachment which set out the grounds of appeal. The Notice of Appeal and attachment are discursive and were significantly expanded on in subsequent submissions. Accordingly, to properly characterise the grounds of appeal, it is necessary to read Mr Faridi’s Notice of Appeal in conjunction with his written submissions and the oral submissions made at the hearing.
Mr Faridi submits that the Commissioner made a number of significant factual errors in upholding the jurisdictional objection and dismissing his application. First, Mr Faridi submits that the Commissioner erred in finding that he was terminated on 31 October 2024 (Appeal Ground 2). Instead, Mr Faridi says that there was confusion about whether he had been “legally terminated” arising from the respondent’s failure to comply with s 117 of the Act by not providing written notice of termination. In his filed submissions, Mr Faridi argues, based on fresh evidence, that he was still employed at least as late as 9 December 2024. Mr Faridi further submits that the Commissioner erred in finding that Mr Faridi had been dismissed in the call on 31 October 2024 given the language used.
It was also submitted that the Commissioner erred in finding that Mr Faridi took “no further steps for about 6 weeks before finally deciding to act”[9] in circumstances where he had made a number of efforts to contact the respondent, was repeatedly ignored and due to the geographic distance between the respondent (in Sydney) and Mr Faridi’s home in Canberra, there was nothing further he could do (Appeal Ground 4). It was submitted that the Commissioner had erred in not taking these matters into account.
While Mr Faridi’s written submissions also contest the actions of the respondent in the proceedings before the Commissioner, and made broad submissions about the merits of the Application, his further submissions can be described as follows:
1. That the Commissioner erred in finding that Mr Faridi was only employed by the respondent from 17 July 2022 (Appeal Ground 1);
2. That the Commissioner erred in failing to conclude that the absence of written notice as required by s 117 of the Act amounted to an exceptional circumstance (Appeal Ground 3); and
3. That the Commissioner failed to properly consider various matters relevant to the merits of Mr Faridi’s application including that he was not afforded due process, was repeatedly ignored by the respondent and that the Commissioner had been misled arising from various inconsistent or false statements made by Mr Mishra to Mr Faridi, the Embassy and the Commission (Appeal Ground 5).
It was submitted that, taken together, the matters raised by Mr Faridi constituted exceptional circumstances and that the Commissioner should have granted Mr Faridi an extension of time.
In relation to whether the appeal enlivens the public interest, Mr Faridi contends that the Commission should grant permission to appeal:
1. Given the alleged dubious and illegal employment practices of the respondent (including those visited on Mr Faridi and other employees);
2. To ensure that the respondent and other employers do not act without regard to the law, resulting in a loss of confidence in the legal system; and
3. To ensure that other employees who act lawfully are not undercut by competitors like the respondent or hindered in their competitiveness.
Permission to Appeal
Section 604(1) of the Act makes clear that there is no right to appeal, and an appeal may only be made with the permission of the Commission. Generally, a Full Bench must grant permission to appeal if satisfied that is in the public interest to do so.[10] Otherwise, the Full Bench has a broad discretion as to whether permission to appeal should be granted.[11]
The discretion of the Commission to grant permission is more confined in the case of an application for permission to appeal from a decision made in unfair dismissal proceedings under Part 3-2 of the Act. To that end, s 400 of the Act provides:
(1) Despite subsection 604(2), the FWC must not grant permission to appeal from a decision made by the FWC under this Part unless the FWC considers that it is in the public interest to do so.
(2)Despite subsection 604(1), an appeal from a decision made by the FWC in relation to a matter arising under this Part can only, to the extent that it is an appeal on a question of fact, be made on the ground that the decision involved a significant error of fact.
Both subsections (1) and (2) of s 400 of the Act demonstrate an intention that the avenue to appeal a decision in unfair dismissal proceedings is to be limited. Section 400(1) imposes a higher threshold for permission to appeal in respect of unfair dismissal appeals.[12] Permission to appeal can only be granted if the Full Bench is satisfied it is in the public interest to do so, and no residual discretion exists if that threshold is not met. Section 400(1) requires that the Commission not grant permission to appeal from a decision under Part 3-2 of the Act unless the Commission considers it is in the public interest to do so. The task of assessing whether the public interest arises on appeal is a discretionary task which involves a broad value judgment.[13] It may be in the public interest to grant permission to appeal, for example, where a matter raises issues of importance and general application, or where guidance from an appellate court is required, or the first instance decision manifests an injustice or displays a counterintuitive result.[14] Section 400(2) applies to further limit the discretion in circumstances where the appeal is on a question of fact, requiring that such an appeal may only be granted if the decision involved a significant error of fact. A person may not appeal on grounds of an alleged error of fact that does not reach the significance threshold.[15]
Mr Faridi’s grounds of appeal, as set out previously, hinge on the Commissioner having made a number of factual errors. This is therefore a decision which requires satisfaction of both limbs of s 400, meaning that the Commission must be satisfied that it is in the public interest to grant permission to appeal and the Commission must be satisfied that the decision involved a significant error of fact.
Submissions on Appeal
Mr Faridi’s Submissions
Mr Faridi submits that the decision has numerous errors of fact and that these errors led to an incorrect finding that exceptional circumstances did not exist to warrant an extension of time to file the application.
The first of these errors is said to be that the Commissioner got the date of commencement of Mr Faridi’s employment wrong and that it was June 2020 and not 17 July 2022 as found by the Commissioner at [1] of the decision. At issue in the proceedings before the Commissioner was whether Mr Faridi had been employed by the respondent or, potentially, some other company or sub-contractor. In support of his submissions, Mr Faridi refers to his dealings with Mr Mishra of the respondent and notes that Mr Faridi was not told that Mr Mishra was acting on behalf of any other company or sub-contractor. He also identifies deficiencies in his employment documentation.
Secondly, Mr Faridi argues that the Commissioner erred in finding that the date of dismissal was 31 October 2024. Mr Faridi relies on the content of the relevant conversation with Mr Mishra, noting that he had disputed the allegations against him including by reason of the employees and diplomats of the Embassy having never expressed any dissatisfaction with Mr Faridi’s performance or operations. Mr Faridi also draws the Commission’s attention to the content of the conversation where it is contended that Mr Mishra only stated that the respondent “is considering [whether] to move the Appellant on”.[16]
Intertwined with this submission is an argument that, even if this phone conversation constituted notice that Mr Faridi was being dismissed, that the dismissal was not effective by virtue of s 117 of the Act which requires that “an employer must not terminate an employee’s employment unless the employer has given the employee written notice of the day of the termination (which cannot be before the day the notice is given)”. Mr Faridi submits that s 123 of the Act, which provides exceptions to the requirement to provide written notice, did not apply to the dismissal and that he was not given written notice of the termination in contravention of the requirement of s 117. This was not considered by the Commissioner in her decision. Mr Faridi submits that this was a significant error of fact.
Further, Mr Faridi submits that a dismissal without written notice is “out of the ordinary course, unusual and special” and, in and of itself, constitutes an “exceptional circumstance” and can constitute a reason for delay and impact on filing an application in the Commission in a timely manner. It is contended that the alleged failure of the Commissioner to take this into account is a significant error of fact and manifests an injustice to Mr Faridi.
Mr Faridi makes submissions about various events which took place on and following 31 October 2024 including recounting various attempts to contact Mr Singh, his supervisor, and conversations with Mr Singh, on and following 31 October 2024 including on 4 November 2024. He submits that the respondent could not be contacted at all and that this resulted in a lack of procedural fairness to Mr Faridi, constituting unusual and out of the ordinary behaviour from the respondent and demonstrating that the dismissal was harsh, unjust and unreasonable. Accordingly, Mr Faridi agitated his dismissal with the Embassy. Mr Faridi then makes submissions regarding discussions with members of the Embassy and the alleged responsive conduct of Mr Mishra. That conduct relates to alleged inconsistent statements made by Mr Mishra, to the Commission, to the Embassy and to Mr Faridi, regarding the underlying factual matrix of the events leading up to the dismissal. It is contended that this misled the Commissioner and/or led to an error of fact.
Further, fresh evidence and submissions regarding the contact between Mr Faridi and the Embassy, and interactions between Embassy staff and the respondent, are relied upon to support Mr Faridi’s argument that he was not terminated until 9 December 2024, which is when an exchange occurred between Mr Mishra and Ms Fatima of the Embassy and/or, that this demonstrated a reason for his delay and constituted an exceptional circumstance. Mr Faridi also contends that this demonstrates that the Commissioner’s findings that Mr Faridi “took no further steps for about 6 weeks before finally deciding to act” is categorically incorrect.
Mr Faridi contends that that these matters constituted “exceptional circumstances” that warranted the Commissioner granting him an extension of time to file his application for an unfair dismissal remedy.
Respondent’s submissions
The respondent submits that the reasons of the Commissioner do not disclose error and that she correctly identified the question for her consideration, being whether to grant Mr Faridi additional time to file the application. It submits that she methodically considered whether there were exceptional circumstances that would warrant an extension by reference to the statutory considerations found at s 394(a)-(f) of the Act. It further submits that the Commissioner’s findings in relation to the date of dismissal, Mr Faridi’s knowledge regarding his dismissal and the steps taken by him to dispute the dismissal were correct. It says that these findings were balanced against her findings on prejudice and merits and that the Commissioner properly concluded, within the bounds of her discretion, that Mr Faridi had not made out his case that exceptional circumstances existed. It submitted that, having made these findings, the Commissioner correctly dismissed the Application given that there was no power to extend time, absent a finding that exceptional circumstances existed.
The respondent submits, pursuant to s 400(1) of the Act, that the Commission must not grant permission to appeal a decision made under Part 3-2 unless the Commission considers it is in the public interest to do so. It notes the observations in JBS Australia Pty Ltd v Bara [2025] FWCFB 15 that the “criterion is a stringent one”, and that “[s]ome of the considerations that may attract the public interest are where a matter raises issues of importance and general application, or there is a diversity of decisions at first instance so that appellate guidance is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters”. [17]
The respondent submits that the issues raised in this appeal cannot be described as matters raising issues of importance and general application given that Mr Faridi’s arguments on public interest appear to be that the appeal could result in generalised findings concerning the respondent’s relationships with an unidentified group of workers. It was submitted that this appeal is not an appropriate vehicle to determine such issues. In response to Mr Faridi’s submissions alleging dubious and illegal employment practices and that dismissing the appeal would embolden the respondent to disregard the law, it submits that the submissions are inappropriate, without any factual or legal foundation and should be disregarded by the Full Bench.
Finally, on the question of permission, the respondent submits that there is no diversity of decisions or disharmony in the legal principles applied by the Commissioner such that appellate guidance is required. Nor was the result of the Commissioner’s decision counterintuitive or manifest any injustice.
Turning to the significant errors of fact relied upon by Mr Faridi, the respondent submits that to be characterised as “significant” the alleged factual error must be one that vitiates the ultimate exercise of the discretion, and that Mr Faridi would need to demonstrate error of the type referred to in House v The King,[18] which relevantly includes a material error of fact. It is said that no such error is contained within the decision of the Commissioner.
Turning to the first alleged error of fact, the respondent says that, setting aside the question of whether Mr Faridi was even employed by the respondent, the Commissioner’s findings regarding the date of commencement of Mr Faridi’s employment were irrelevant to the outcome of the first instance decision, immaterial to the decision and would not give rise to the appeal being upheld.
In relation to the second alleged error of fact, the respondent submits that the Commissioner’s findings that the dismissal occurred during the phone call between Mr Faridi and Mr Mishra on 31 October 2024, that Mr Faridi “was told that his shift that day would be his last” in that conversation, that Mr Faridi did not work after 31 October 2024 and lost his access to the WhatsApp roster were correct and consistent with the evidence. In relation to Mr Faridi’s submission that he was still an employee as at 9 December 2024, the respondent submits that the text message relied upon to ground this argument is new evidence. It is further said that the message is irrelevant, not from the respondent and accordingly cannot found a belief in Mr Faridi as to the status of his employment or the need to challenge his dismissal. It is said to follow that the Commissioner’s conclusion that there was an unexplained period of six weeks before the application was filed was correct. The respondent further contends that for a dismissal to have occurred for the purposes of unfair dismissal proceedings the question is not whether it is communicated in writing but whether it is communicated in such a way that an employee has a reasonable chance of understanding or finding out that he or she has been dismissed. Such communication can be oral, despite s 117 of the Act. The respondent argues that this is exactly what occurred.
In relation to the third alleged significant error, being that the Commissioner erred in failing to conclude that the absence of written notice amounted to an exceptional circumstance, it is said that no one factor is determinative in considering whether exceptional circumstances exist and that the Commissioner’s approach was correct. This was not a matter that was overlooked by the Commissioner, and she made a correct finding in determining that Mr Faridi was not informed of the dismissal in writing but knew of it on the day that the dismissal took effect. Given this finding, written notice would not have changed Mr Faridi’s state of knowledge as to his dismissal. The Commissioner’s findings that written notice would not have served to alter Mr Faridi’s state of knowledge as to his dismissal and the absence of written notice not being a single determinative factor that amounted to exceptional circumstances were correct.
In response to the fourth alleged error in the Commissioner’s reasoning which is said to be that the Commissioner failed to consider Mr Faridi’s attempts to contact the respondent after 31 October 2024, the respondent contends that the Commissioner expressly considered these matters and balanced them against the period during which Mr Faridi is said to have taken no steps to agitate his claim. The respondent notes that, in support of this submission, Mr Faridi refers to material before the Commissioner which did not refer to any conversation or enquiries allegedly made to Mr Singh of the respondent on or after 31 October 2024. It is argued that Mr Faridi’s uncorroborated assertion that Mr Singh told Mr Faridi he would contact Mr Mishra does not provide an explanation for the delay and does not constitute an exceptional circumstance. To the contrary, it is said that this demonstrates an awareness of Mr Faridi that he had been dismissed. The respondent says that the evidence before the Commissioner demonstrates that Mr Faridi made no direct queries with the respondent regarding the termination of his engagement from around 4 November 2024. It is further said that contact with the Embassy does not assist Mr Faridi and that there is no evidence before the Commission that the respondent was aware of such contact, if it occurred.
The respondent argues that, in any event, the Commissioner had regard to the steps that Mr Faridi took following his dismissal and resolved the factual question of whether Mr Faridi took those steps in his favour. The Commissioner then went on to correctly conclude at [18] that “Mr Faridi did not take reasonable steps to protect his position by making enquiries about the options available to him following his dismissal. He took initial steps of this kind in the week after dismissal, and then no further steps for about 6 weeks before finally deciding to act". Mr Faridi’s ignorance of the statutory time limit within which to commence proceedings is not an exceptional circumstance.
Finally, the respondent argues that the Commissioner’s findings in relation to the merits of the underlying application were in Mr Faridi’s favour, given the Commissioner’s determination that Mr Faridi had a reasonable case that he was unfairly dismissed. Whilst disputing those findings, the respondent argues that from the perspective of Mr Faridi’s case, this has the meaning that it cannot be said that the Commissioner erred in giving weight to the question of the merits of the application.
Fresh Evidence
Mr Faridi seeks to rely upon fresh evidence in the appeal, being a document described by Mr Faridi as an email from Mr Mishra to Ms Fatima dated 9 December 2024 and a bundle of documents, including correspondence from Mr Faridi to the respondent dated 3 April 2025 outlining his concerns regarding the respondent’s conduct and employment practices and making various enquiries regarding his employment, an email from 5 May 2025 from Mr Faridi to Mr Mishra following up on a response to the 3 April letter, excerpts from the Embassy log book from 28 October 2024, an excerpt from a Standard Operating Procedure and a copy of an express post envelope to the Commission.
Section 607(2) of the Act confers a discretion on the Full Bench to admit further evidence and take into account any other information on appeal. However, the Commission must be satisfied it is appropriate to do so.[19] Ultimately, the respondent did not oppose the Full Bench receiving these documents as further evidence on appeal for the purposes of s 607(2) of the Act subject to having the opportunity to make submissions as to their relevance. In the circumstances, the Full Bench determined to receive the further documents on the appeal.
Consideration
Appeal Ground 1
There is a dispute between the parties as to whether Mr Faridi had been an employee of the respondent at all. However, for the purposes of determining whether Mr Faridi’s application was out of time and, if so, whether to accept it, the Commissioner proceeded on an assumption that Mr Faridi had been an employee. Mr Faridi contended in his application that he had been employed by the respondent since June 2020 and made oral submissions to this effect at the hearing at first instance. He did not file evidence in relation to his start date with the respondent. Mr Mishra of the respondent gave evidence that the respondent had been the principal contractor at the Embassy since June 2020 and that another entity, Home Security (an entity unrelated to the respondent), had been the subcontractor to the respondent for the services contract with the Embassy since around mid-2023. He also gave evidence that Mr Faridi had been engaged with Home Security since on or around 17 July 2023 and engaged on site for an unspecified period prior to this by various subcontractors to the respondent.[20]
In her decision, the Commissioner recorded that Mr Faridi had worked at the Embassy from June 2020 and that from 17 July 2022 he worked under the nomenclature of the respondent. The Commissioner recorded that there was a dispute regarding whether Mr Faridi was engaged as contractor or employee and by which entity. The Commissioner was at pains not to resolve that dispute given the evidence before her and the interlocutory nature of the decision.[21] This approach was orthodox given that the sole issue that she was determining at the time was whether to accept the application out of time. However, the Commissioner clearly acknowledged that Mr Faridi had been engaged at the Embassy by one entity or another since June 2020. This was the commencement date contended for by Mr Faridi in the application. To the extent that the Commissioner made findings in relation to Mr Faridi working “under the nomenclature of the respondent’s trading name” from 17 July 2022, we accept that these dates do not reflect the evidence filed by the respondent (who said that he was never their employee and was an employee of another entity from July 2023 not July 2022) or the submissions of the applicant (who said he had been employed by the respondent since June 2020).
However, even if this date was wrong, we do not consider that this is an error which could have had any bearing on the decision to refuse to extend time given that the Commissioner was not deciding whether Mr Faridi was an employee of the respondent or the duration of any employment relationship. The Commissioner’s language is carefully chosen to not refer to the employment of Mr Faridi, and only to a period “working under the nomenclature” of the respondent. Accordingly, no reasonable argument could be made that any incorrect date materially bore upon the Commissioner’s consideration of the criteria under s 394(3) of the Act or the outcome of the decision. We do not consider that the decision was affected by a significant error of fact.
Appeal Ground 2
The Commissioner’s analysis of the effective date of the dismissal is set out in her decision at [8]. In reaching her decision she had regard to the evidence filed by the parties. Mr Faridi’s account of this conversation varied. At times he recalled that Mr Mishra had said (as recorded) “'We are considering to move you on”,[22] and at others “I am moving you on, due … due to your conduct with a client, client of the embassy”.[23] Similarly, Mr Mishra’s recollection varied. Ultimately, the Commissioner accepted the evidence of Mr Mishra in relation to the conversation between Mr Faridi and Mr Mishra on 31 October 2024 including that Mr Faridi was told that his shift that day would be his last. The Commissioner found that Mr Faridi had not worked after 31 October 2024 and had been taken off the WhatsApp roster group. Given the findings of the Commissioner as to the content of the telephone conversation between Mr Faridi and Mr Mishra on 31 October 2024, the conclusion that Mr Faridi’s employment had been terminated on that day was plainly open to the Commissioner.
In his written submissions, Mr Faridi contended that he had been dismissed after this date and that he was an employee as at 9 December 2024. This argument appears to be premised on an alleged email exchange that was said to have occurred between Ms Fatima of the Embassy and Mr Mishra regarding the employment of Mr Faridi. A copy of a screenshot of a message from an unknown person containing an excerpt of text, said to be an email, from 9 December 2024 is relied upon to found this submission (the 9 December message). This was not in evidence before the Commissioner but was admitted into evidence on the appeal. Ms Fatima was not called to give evidence in support of this submission. Having considered the text of the 9 December message, we do not consider that it supports Mr Faridi’s argument that he was not dismissed until 9 December 2024. Firstly, it was not sent to Mr Faridi by the respondent. Secondly, its content is vague and does not further elaborate on the state of his employment. In our view, it could not prompt any change to Mr Faridi’s state of knowledge regarding his employment status or the need to challenge his dismissal, given the Commissioner’s findings regarding the 31 October 2024 conversation.
Whilst Mr Faridi further contends that he was not dismissed on 31 October 2024 as notice of termination was not communicated in writing as required by s 117 of the Act, we do not consider that the failure to provide written notice, in and of itself, has the consequence that the dismissal was not effective. In Byrne v Australian Airlines Ltd (1995) 185 CLR 410, the High Court noted with approval the reasoning of Chief Justice Latham in Automatic Fire Sprinklers Pty Ltd v Watson (1946) 72 CLR 435, where he said “The fact that a statute prohibits the doing of an act under a penalty does not show that the act cannot be done”.[24] In Metropolitan Fire and Emergency Services Board v Duggan[2017] FWCFB 4878; (2017) 270 IR 240, the Full Bench held, in circumstances akin to the current ones, that:[25]
In summary, it is clear in our view that if an employer terminates the employment of an employee without giving notice, or payment in lieu thereof, in accordance with an obligation owed by the employer under a contract, award, enterprise agreement or s. 117 of the Act, the result is that the employer has acted unlawfully and/or wrongfully and the employee will have one or more causes of action available to him under the contract, award, enterprise agreement and/or the Act to remedy the deficiency of the notice. However, an unlawful or wrongful dismissal does not invalidate or render the void the termination of the employment relationship. Whether the employment relationship has been terminated is a question of fact.
Accordingly, a notice of termination which does not comply with s. 117 of the Act may be effective to bring about the termination of the employment relationship and may constitute notice of dismissal within the meaning of s. 383(a)(i) of the Act.
Generally, and at least in the absence of an express contractual provision to the contrary, notice of termination can be given orally or in writing. If an employer terminates an employee’s employment without complying with s 117, a contravention of the Act may have occurred. It does not mean, however, that the employer has not terminated the employment. For the purposes of an unfair dismissal proceeding, the issue is not whether notice of dismissal is communicated in writing but whether it is communicated in such a way that an employee has a reasonable chance of understanding or finding out that he or she has been dismissed.[26]
Given the evidence before the Commissioner and her factual findings in relation to the 31 October 2024 conversation between Mr Faridi and Mr Mishra, we consider that this is what transpired. On appeal, the factual findings made by a member at first instance should generally stand, unless it can be shown that the member has failed to use the advantage of the hearing of the evidence or has acted on evidence which was inconsistent with facts incontrovertibly established by the evidence or which was “glaringly improbable”[27] at least where the findings are likely to have been influenced by the decision-maker having directly seen and heard the evidence being given.[28] The impugned findings of the Commissioner were open to her and not “glaringly improbable”. We consider, based on the evidence before the Commission that the Commissioner’s finding that the date of the dismissal was 31 October 2024 was correct.
Appeal Ground 3
In relation to the third appeal ground, being that the Commissioner erred in failing to conclude that the absence of written notice as required by s 117 of the Act amounted to an exceptional circumstance, it is apparent from [13] of the decision that the Commissioner had regard to the fact that Mr Faridi was not notified of his dismissal in writing. Whilst the Commissioner did not expressly refer to s 117 in the decision, ultimately, she determined, correctly in our view, that Mr Faridi knew of his dismissal on the day that it took effect, being 31 October 2024. To that end, in our view, if he had been provided with written notice this would have not made a difference to the Commissioner’s consideration of any of the factors in s 394(3) of the Act.
Appeal Ground 4
Mr Faridi argues that the Commissioner failed to consider his attempts to contact the respondent after 31 October 2024 and in doing so made an erroneous finding that “Mr Faridi took no further steps for 6 weeks before finally deciding to act.”[29] Mr Faridi’s submissions on the appeal recount contact with an employee of the Embassy, Ms Fatima, on unspecified dates and averts to her returning from overseas in “late November” and contacting Mr Faridi via email, providing a response in relation to Mr Faridi’s case. This email is described above as the 9 December message. Mr Faridi filed the application only thirteen days later, on 22 December 2024. Mr Faridi submits that this demonstrates that he was actively looking to resolve the allegations via contacting Ms Fatima and the respondent and that it was not resolved due to the lack of cooperation of the respondent and external factors such as Ms Fatima’s leave. Accordingly, the impugned finding of the Commissioner is submitted to be a significant error of fact.
The 9 December message was not in evidence before the Commissioner. The Commissioner had regard to the endeavours of Mr Faridi in the decision at [11] and [14]. The evidence before the Commissioner traversed the steps taken by Mr Faridi up until 4 November 2024. It establishes that Mr Faridi made no direct enquiries with the respondent regarding the termination of his engagement from around 4 November 2024. This is understandable given the lack of communication from the respondent. The steps taken by Mr Faridi between early November and mid-December are not matters that are in evidence other than the 9 December message.
We infer from the 9 December message that Mr Faridi was still engaging with the Embassy during December in relation to his dismissal. Other than the 9 December message, the exact timing and nature of those discussions are not in evidence before the Commissioner or the Full Bench. It is not suggested that the Embassy was the employer of Mr Faridi. To that extent, any engagement between the Embassy and the respondent on Mr Faridi’s behalf could be no more than persuasive and was unlikely to result in the overturning of the dismissal. Regardless, the Commissioner had regard to Mr Faridi’s conduct in “asking the embassy to help with restoring his job”[30] shortly after his dismissal. The Commissioner considered the steps taken by Mr Faridi to dispute his dismissal and the 9 December message would not have had any material impact on the Commissioner’s reasoning.
Appeal Ground 5
Finally, Mr Faridi appears to cavil with the Commissioner’s findings in relation to the merits of the underlying application. The first of these concerns appears to be that the Commissioner wrongly determined that Mr Faridi had engaged in misconduct or serious misconduct. Mr Faridi infers that the Commissioner found that he was dismissed due to serious misconduct on the basis that she did not determine that s 117 had not been complied with and assumes that this is because she had found that s 123(1)(b) applied. Section 123(1)(b) does not require notice to be provided or a payment in lieu thereof in the case of serious misconduct. However, the Commissioner did not make any finding that Mr Faridi had engaged in misconduct or serious misconduct. The Commissioner did not need to, and did not, determine whether the respondent had breached s 117 of the Act in failing to give Mr Faridi notice of his dismissal nor whether s 123 applied to his dismissal.
Mr Faridi’s submissions further traverse, in a discursive manner, the lack of procedural fairness afforded to Mr Faridi before and after 31 October 2024 and various alleged inconsistencies in the statements made by Mr Mishra to the Commission, to the Embassy and to Mr Faridi regarding the underlying factual matrix of the events leading up to his dismissal. These matters would likely be relevant to any consideration of the merits of Mr Faridi’s application for an unfair dismissal remedy. However, at [16] of the decision, the Commissioner made findings that procedural fairness was absent and that Mr Faridi had a reasonable case that he was unfairly dismissed. These findings were in favour of Mr Faridi and the Commissioner gave them appropriate weight in balancing those considerations in exercising her discretion at [18] of the decision. We can discern no error in her approach.
Conclusion
In our opinion, the Commissioner made relevant factual findings and considered those findings as part of an overall discretionary assessment of whether exceptional circumstances existed so as to warrant further time being allowed for Mr Faridi to make his application. The Commissioner was required to consider each of the criteria in s 394(3) of the Act, individually and collectively, in order to determine whether exceptional circumstances exist that would warrant a grant of further time to file the application. That is what the Commissioner did, and we are not persuaded that there is any arguable appealable error in the approach adopted.
We acknowledge that Mr Faridi has filed evidence and made submissions regarding alleged unscrupulous employment practices of the respondent. The respondent denies these allegations. However, these are not matters that are relevant to the disposition of this appeal given that the appeal relates only to Mr Faridi’s application for a remedy for unfair dismissal and whether it should be accepted out of time. For the reasons given, we do not consider that an arguable case has been advanced that the decision was attended by appealable error. Nor are we satisfied that the appeal attracts the public interest. It follows that we must refuse permission to appeal.
The Full Bench orders that permission to appeal is refused.
VICE PRESIDENT
Appearances:
F Faridi appeared for himself.
S McIntosh, of counsel, instructed by HWL Ebsworth Lawyers appeared for the respondent.
Hearing details:
13 May 2025.
Sydney (in person).
<PR790296>
[1] [2025] FWC 572 at [8].
[2] [2025] FWC 572 at [13].
[3] [2025] FWC 572 at [14].
[4] [2025] FWC 572 at [15].
[5] [2025] FWC 572 at [16].
[6] [2025] FWC 572 at [17].
[7] [2025] FWC 572 at [18].
[8] [2025] FWC 572 at [19].
[9] [2025] FWC 572 at [18].
[10] Fair Work Act 2009 (Cth), s 604(2).
[11] Wan v Australian Industrial Relations Commission [2001] FCA 1803; (2001) 116 FCR 481 at [30]; Ferrymen Pty Ltd v Maritime Union of Australia[2013] FWCFB 8025; (2013) 238 IR 258 at [9]-[12].
[12] Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54; (2011) 192 FCR 78 at [34]; Workpac Pty Ltd v Bambach [2012] FWAFC 3206; (2012) 220 IR 313 at [14]; Barwon Health – Geelong Hospital v Colson[2013] FWCFB 4515; (2013) 233 IR 364 at [6].
[13] Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54; (2011) 192 FCR 78 at [44].
[14] GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343; (2010) 197 IR 266 at [27].
[15] BP Refinery (Kwinana) Pty Ltd v Tracey [2020] FCAFC 89; (2020) 276 FCR 9 at [22].
[16] Appellant Outline of Submissions, 9 April 2025, [8].
[17] JBS Australia Pty Ltd v Bara [2025] FWCFB 15 at [14], citing GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, (2010) 197 IR 266 at [27].
[18] House v The King (1936) 55 CLR 499 at 504-505.
[19] See, for example, Mining and Energy Union v Specialised Mine Services Pty Ltd[2025] FWCFB 103 at [54]-[55] referring to the approach in Akins v National Australia Bank (1994) 34 NSWLR 155 at 160.
[20] Statement of Mishra [17]-[18].
[21] [2025] FWC 572 at [1].
[22] Transcript, 24 February 2025, PN13, PN23, PN34 and PN48.
[23] Transcript, 24 February 2025, PN10.
[24] Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 428, quoting Automatic Fire Sprinklers Pty Ltd v Watson (1946) 72 CLR 435 at 454.
[25] Metropolitan Fire and Emergency Services Board v Duggan[2017] FWCFB 4878; (2017) 270 IR 240 at [32]-[33].
[26] Ayub v NSW Trains[2016] FWCFB 5500; (2016) 262 IR 60 at [43]-[48].
[27] Blagojevic v AGL Macquarie Pty Ltd [2018] FWCFB 4174; (2018) 279 IR 380 at [48] and the decisions at footnote 45 and Australian Education Union v Bendigo Kangan Institute of TAFE[2021] FWCFB 3649 at [38].
[28] Lee v Lee [2019] HCA; (2019) 266 CLR 129 at [55].
[29] [2025] FWC 572 at [18].
[30] [2025] FWC 572 at [14].
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