JBS Australia Pty Ltd v Willie Bara - [2025] FWCFB 15

[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
DEPUTY PRESIDENT SAUNDERS

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…

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.

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Details

Case: [2025] FWCFB 15
Decision Date: 28 JANUARY 2025

CaseChat Overview and Summary

JBS Australia Pty Ltd appealed against a decision of Commissioner Connolly, who granted Willie Bara an extension of time to file an unfair dismissal application under section 394(3) of the Fair Work Act 2009. Bara's dismissal from JBS took effect on 2 May 2024, and he filed his application on 5 August 2024, 74 days beyond the prescribed 21-day period. The appeal focused on whether the Commissioner erred in determining that exceptional circumstances warranted an extension of time. The Fair Work Commission, comprising Justice Hatcher, Vice President Gibiande, and Deputy President Saunders, considered the appeal and ultimately determined to refuse permission to appeal.

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