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…

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 Farooq Faridi v OM Security Pty Ltd

Details

AGLC: Farooq Faridi v OM Security Pty Ltd [2025] FWCFB 163
Case: [2025] FWCFB 163
Decision Date: 1 AUGUST 2025

CaseChat Overview and Summary

In the Fair Work Commission Full Bench decision of Farooq Faridi v OM Security Pty Ltd [2025] FWCFB 163, the Full Bench was required to determine whether to grant permission to appeal and, if so, to hear the appeal. The appeal was against a decision of Commissioner McKinnon refusing to extend the time for filing an application for an unfair dismissal remedy. The Full Bench found that no arguable case of appealable error had been demonstrated and that the appeal did not attract the public interest. The Full Bench concluded that Mr Faridi had not demonstrated that the Commissioner's decision involved a significant error of fact or that it was in the public interest to grant permission to appeal. The Full Bench held that the Commissioner's findings were open to her and not "glaringly improbable". The Full Bench was not persuaded that there was any arguable appealable error in the approach adopted by the Commissioner. The Full Bench refused permission to appeal.

Orders