Jaafar Zadeh v AWX Pty Ltd t/a AWX Group
[2015] FWCFB 8227
•9 December 2015
| [2015] FWCFB 8227 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
v
AWX Pty Ltd t/a AWX Group
(C2015/7099)
VICE PRESIDENT HATCHER |
|
Appeal against decision [2013] FWC 8322 of Commissioner Wilson at Melbourne on 28 October 2013 in matter number U2013/9722 - permission to appeal - extension of time.
[1] On 28 October 2013 Commissioner Wilson issued a decision 1 dismissing an unfair dismissal application made by Mr Zadeh under s.394 of the Fair Work Act 2009 (the Act). The Commissioner’s decision was made pursuant to s.399A of the Act, on the basis of Mr Zadeh’s failure to comply with directions issued requiring him to file material concerning his unfair dismissal application. On 29 October 2015 Mr Zadeh lodged an appeal, although it was somewhat unclear whether he was appealing the Commissioner’s decision or the “decision” of his former employer to dismiss him. On any view his appeal was more than two years out of time. Pursuant to rule 56(2) of the Fair Work Commission Rules 2013 an appeal must be filed within 21 days of the decision appealed against, or within such further time as the Commission allows:
[2] Rule 56(2) provides:
(2) The notice of appeal must be lodged:
(a) within 21 calendar days after the date of the decision being appealed against; or
(b) if the decision was issued in the form of an order - within 21 calendar days after the date of the order; or
(c) within such further time allowed by the Commission on application by the appellant.
[3] This matter was listed for hearing concerning the necessary extension of time to lodge the appeal in Sydney via video-link to Brisbane before the Full Bench on 27 November 2015. Mr Zadeh was directed to file and serve, by 20 November 2015, an outline of submissions addressing the requirements for an extension of time to file the appeal.
[4] Mr Zadeh did not file an outline of submissions by 19 November 2015. On 19 November 2015 a staff member of the Fair Work Commission contacted Mr Zadeh by telephone and, with the assistance of an interpreter in Mr Zadeh’s first language, the Commission waived the requirement to file submissions. The Commission also waived the requirement for Mr Zadeh to file an appeal book.
[5] On the day of the hearing, Mr Zadeh appeared for himself with an interpreter and Ms Giles appeared for the respondent. Mr Zadeh did not appear to have ready access to a copy of the Commissioner’s decision and as earlier stated it was unclear whether he considered that this was the decision he was appealing. To assist Mr Zadeh, the Commission asked the employer in Brisbane to provide Mr Zadeh with a copy of the decision, and adjourned proceedings to enable the interpreter to interpret the decision for him.
Consideration
[6] Time limits of the kind in Rule 56(2) are not simply 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 the 21 day period specified in the Rules will only be extended where there are good reasons for doing so. The Commission has considered the issue of an extension of time in a number of decisions 2, and matters which are relevant to the exercise of the Tribunal’s discretion under Rule 56(2) include:
- 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 would be upheld if time was extended; and
- any prejudice to the respondent if time were extended.
[7] Mr Zadeh’s appeal is significantly beyond the 21 day time period required for lodging an appeal. The time limits contained in the Fair Work Commission Rules are expected to be complied with and should only be departed from for good reasons, particularly where the delay is extremely lengthy, as it is here. Mr Zadeh has been given considerable assistance with his claim through the provision of government funded interpreter services on several occasions, the waiver of requirements of the Rules relating to an appeal book, and during the hearing before us. Mr Zadeh was asked to provide the reasons for his delay in filing his appeal. Mr Zadeh said that during the two year plus period since the decision was handed down he had been travelling overseas. However Mr Zadeh later said he had returned to Australia before the end of 2013. He did not take any action regarding the matter until filing his appeal in October 2015. We are not satisfied that there is a satisfactory reason for the delay. Mr Zadeh had access to legal advice and could have filed his appeal earlier. The length of the delay is considerable, and the employer is entitled to finalisation of a matter once the appeal period expires and should not be put to the expense of having to revisit the matter some two years later. The appeal grounds do not indicate any error made by the Commissioner in his decision.
[8] Overall we are not persuaded on the basis of the submissions put during the hearing that a case for such a significant extension of time has been made out. The application to lodge the appeal out of time is dismissed and the matter is dismissed.
VICE PRESIDENT
Appearances:
J. Zadeh on his own behalf.
M. Giles for AWX Pty Ltd t/a AWX Group.
Hearing details:
2015.
Sydney:
27 November.
1 [2013] FWC 8322
2 Stevenson-Helmer v Epworth Hospital, Print T2277 19 October 2000; SPC Ardmona Operations Ltd v Esam and Organ (2005) 141 IR 338; Tokoda v Westpac Banking Corporation[2012] FWAFB 3995; Jobs Australia v Eland[2014] FWCFB 4822
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