| [2025] FWCFB 15 |
| FAIR WORK COMMISSION |
| REASONS FOR DECISION |
Fair Work Act 2009
s.604—Appeal of decision
JBS Australia Pty Ltd
v
Willie Bara
(C2024/6978)
| JUSTICE HATCHER, PRESIDENT VICE PRESIDENT GIBIAN | SYDNEY, 28 JANUARY 2025 |
Appeal against decision [2024] FWC 2428 of Commissioner Connolly at Melbourne on 13 September 2024 in matter number U2024/9084 – permission to appeal refused.
On 2 October 2024, JBS Australia Pty Ltd (JBS) lodged a notice of appeal against a decision of Commissioner Connolly issued on 13 September 2024. The decision concerned an application made by Mr Willie Bara for an extension of time under s 394(3) of the Fair Work Act 2009 (Cth) (FW Act) to file an unfair dismissal application in respect of his dismissal from his employment with JBS. The dismissal took effect on 2 May 2024 and Mr Bara filed his application on 5 August 2024, 74 days beyond the 21-day period prescribed by s 394(2)(a). The Commissioner determined to grant the application. JBS appeals the decision on a number of grounds which are discussed further below. Permission is required for the appeal under s 604(1) of the FW Act.
JBS and Mr Bara were directed to file written outlines of submissions addressing both the issue of permission to appeal and the merits of the appeal. The appeal was the subject of a hearing before us on 13 November 2024. We issued our decision at the conclusion of the hearing. We determined to refuse permission to appeal, and an order to that effect was published.[1] We advised that reasons for that decision would be published in due course. Our reasons are set out below.
There was no factual contest in this matter. Mr Bara and Ms Vera Cheffers, the Solomon Islands Country Liaison Officer for the Pacific Island Australia Labour Mobility (PALM) scheme, gave evidence via witness statements and orally as to the circumstances of the delay in the filing of Mr Bara’s application. Neither was cross-examined. JBS filed two witness statements made by Ms Pauline Rhodes, a JBS Manager. Ms Rhodes was not available to give sworn evidence in the proceedings and it was left unclear whether her statements were admitted as evidence at the hearing. In any event, she did not factually contradict any of the evidence given by Mr Bara and Ms Cheffers as to the circumstances of the delay.
Based on the uncontradicted evidence given by Mr Bara and Ms Cheffers, the facts of this matter may be summarised as follows. Mr Bara was born in the Solomon Islands and his primary language is Solomon Islands Pijin. English is his second language, with which he has limited proficiency. He came to Australia in August 2023 under the PALM scheme to earn an income to support his family. He was employed by JBS as a meatworker at its abattoir in Brooklyn, Victoria pursuant to the scheme. Mr Bara’s visa was tied to his employment with JBS, so that he needed to be employed by JBS or…
Keep reading for free
Create a free CaseChat account to read JBS Australia Pty Ltd v Willie Bara and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
- Case
- [2025] FWCFB 15
- Decision Date
CaseChat Overview and Summary
The legal issues revolved around whether the Commissioner made an error in finding that exceptional circumstances existed, warranting an extension of time, and whether the grant of permission to appeal was in the public interest under section 400 of the Fair Work Act. JBS contended that the Commissioner erred in various aspects of his findings and that the grant of permission to appeal would be in the public interest due to the perceived injustice and disharmonious legal principles applied. The Commission had to assess these contentions against the stringent public interest criterion and the requirement for an arguable case of appealable error.
The Commission found that JBS failed to demonstrate that the Commissioner's decision involved a significant error of law or principle, a material error of fact, or a failure to consider a relevant matter. The Commission highlighted that the Commissioner applied well-established principles in his decision and that the facts of the case plainly disclosed a combination of circumstances that were out of the ordinary, justifying the grant of an extension of time. The non-contested facts showed that Bara faced a unique set of challenges, including his perception of the Commission in the context of his fear of deportation, his struggle to maintain communication due to a lack of funds and unstable housing, and the delay in the re-filing of his application caused by Ms Cheffers' workload. The Commission concluded that the Commissioner's exercise of discretion was not unreasonable or plainly unjust, and therefore, permission to appeal was refused.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.