Lama Charab v University of New South Wales Trading AS UNSW Sydney, Brooke White
[2025] FWCFB 230
•16 OCTOBER 2025
| [2025] FWCFB 230 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Lama Charab
v
University of New South Wales Trading AS UNSW Sydney, Brooke White
(C2025/8295)
| DEPUTY PRESIDENT GRAYSON COMMISSIONER CRAWFORD COMMISSIONER SLOAN | SYDNEY, 16 OCTOBER 2025 |
Appeal against decision [2025] FWC 2378 of Deputy President Roberts at Sydney on 14 August 2025 in matter C2025/3047 – Application under s 365 of the Fair Work Act 2009 (Cth) alleging dismissal in contravention of Part 3-1 – Jurisdictional objections on grounds that appellant was not dismissed and that application was filed outside of 21-day statutory time period – Permission to appeal refused.
Introduction
Lama Charab has lodged an appeal under s 604 of the Fair Work Act 2009 (Cth) (the Act) against a decision of Deputy President Roberts on 14 August 2025. In the decision the Deputy President determined that there were no exceptional circumstances that would warrant granting an extension of time for Ms Charab’s application under s 365 of the Act and accordingly held that there was no basis to extend the time for filing Ms Charab’s application. As a result, Ms Charab’s application was dismissed. The appeal was listed for hearing in respect of permission to appeal only on 7 October 2025.
Ms Charab says that her dismissal occurred in contravention of s 351 of the Act. Ms Charab’s employment ended on 21 January 2025. On 15 April 2025, Ms Charab filed an application under s 365 of the Act for the Commission to deal with a general protections dispute involving dismissal. It was accordingly 63 days outside of the 21-day time limit under s 366(1)(a) of the Act.
Ms Charab was employed by the University of New South Wales (the University) on a series of fixed term contracts. Prior to the end of the last contract Ms Charab asked for ongoing employment after the expiry of her contract. The University denied this request. Ms Charab raised queries with the University regarding a part-time role at a lower level which was advertised in the final week of her employment and asserted that this cast doubt on the legitimacy of the University’s refusal to offer her further work. Ms Charab also raised concerns regarding the University’s decision to offer a new casual employee a role within its IT Department.
Following the end of her employment on 21 January 2025, Ms Charab applied for other jobs with the University and made a formal written complaint to the University regarding various matters. Ms Charab was advised that this complaint had been finalised on 19 March 2025.
The University raised jurisdictional objections that the application had been made out of time and that Ms Charab had not been “dismissed” for the purposes of s 386(1) of the Act. It argued that her employment had ended because she was engaged under the terms of a fixed term contract which reached the end of its term.
Ms Charab seeks permission to appeal and to appeal from the decision of the Deputy President and relies on a notice of appeal dated 25 August 2025. For the reasons that follow, permission to appeal should not be granted and the appeal dismissed.
Permission to appeal
An appeal under s 604 of the Act is an appeal by way of rehearing and the Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision maker.[1] There is no right to appeal, and an appeal may only be made with the permission of the Commission. Section 604(2) requires the Commission to grant permission if the Commission is satisfied that it is in the public interest to do so.
The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[2] In GlaxoSmithKline Australia Pty Ltd v Makin,[3] a Full Bench of the Commission identified some of the considerations that may attract the public interest:[4]
“... the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters.”
It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of an appealable error.[5] However, the fact that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.[6]
An application for permission to appeal is not a de facto or preliminary hearing of the appeal. In determining whether permission to appeal should be granted, it is unnecessary and inappropriate for the Full Bench to conduct a detailed examination of the grounds of appeal.[7]
It is well established that an appellate body will not interfere with the factual findings of a first instance decision-maker unless it concludes that a finding cannot stand because it was contrary to incontrovertible facts or uncontradicted testimony, glaringly improbable, or contrary to compelling inferences.[8]
Where a finding or conclusion involves the exercise of a discretion, where some latitude is afforded, an appellate body will also generally not interfere with the conclusions of the decision-maker. As stated by the High Court in Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission:[9]
“Discretion” is a notion that “signifies a number of different legal concepts”. In general terms, it refers to a decision-making process in which “no one [consideration] and no combination of [considerations] is necessarily determinative of the result.” Rather, the decision-maker is allowed some latitude as to the choice of the decision to be made. The latitude may be considerable as, for example, where the relevant considerations are confined only by the subject-matter and object of the legislation which confers the discretion. On the other hand, it may be quite narrow where, for example, the decision-maker is required to make a particular decision if he or she forms a particular opinion or value judgment.[10]
(citations omitted)
For there to be legal error, it would need to be shown that the Deputy President acted on a wrong principle, took into account irrelevant matters, mistook facts, or that the outcome was unreasonable or plainly unjust.[11] It is not enough that a different member or an appellate body might have reached a different conclusion.
Decision under Appeal
The Deputy President’s decision records that Ms Charab’s employment came to an end on 21 January 2025. As such, Ms Charab’s application was filed 63 days outside of the 21-day statutory timeframe prescribed by s366(1) of the Act.
The Deputy President, in his decision, then went on to consider whether to allow a further period of time beyond the 21-day statutory timeframe prescribed by s 366(1) of the Act. In doing so he considered each of the factors in s 366(2) of the Act. The Deputy President considered, at length, Ms Charab’s submissions as to the reasons for the delay, including the University’s delay in responding to her internal complaint and her genuinely held belief that she would be reinstated, her hopes that she would be offered a new role given the alleged misleading conduct engaged in as part of a post dismissal recruitment process and her “emotional distress following more than two years of marginalisation and discrimination”. The Respondents’ submissions were considered before the Deputy President reached the conclusion that Ms Charab’s reasons for the delay were not satisfactory. In reaching this conclusion he had regard to Ms Charab’s conduct post dismissal including contact with the Commission. He also considered that Ms Charab did not have a credible explanation for the delay in filing her application for 27 days after being advised that her internal complaint had been unsuccessful and for almost two weeks after she was advised that she had not been successful in obtaining a new role. He considered that the reason for the delay did not support a finding of exceptional circumstances.
The Deputy President considered that Ms Charab’s active steps to dispute her dismissal weighed marginally in her favour. The Deputy President determined that the considerations of whether there was any prejudice to the employer and fairness as between Ms Charab and other persons in a like position were both neutral factors in his assessment.
In relation to the merits of Ms Charab’s application the Deputy President recounted Ms Charab’s submissions, paying close regard to her contentions as to the operative cause of her employment ending and that she had been dismissed within the meaning of the Act. He summarised her submissions regarding the reason for her dismissal including that it was for discriminatory and exclusionary reasons and/or was down to the University’s failure to consider her for redeployment and the appointment of others into roles with a significant overlap to her duties.
The Deputy President recounted the evidence of the Respondents including witnesses who had knowledge of the reason for the dismissal and whose evidence was that it was due to budgeting and resourcing reasons and not for reasons proscribed by Part 3-1 of the Act, including any discriminatory reasons. The Deputy President then made clear that it was “not appropriate for the Commission to resolve contested issues of fact going to the ultimate merits for the purpose of taking into account the merits of the matter in s.366(2)(d)”. He then concluded that Ms Charab’s case had “significant difficulties” including that she must succeed in an argument that her employment ended as a result of a dismissal and not through the ordinary expiration of a fixed term contract. He considered that the merits were a neutral factor in his assessment. Having considered the matters set out in s 366(2) the Deputy President dismissed Ms Charab’s application.
Appeal Grounds
Ms Charab’s Notice of Appeal raises five appeal grounds:
That the Deputy President erred in finding that the contract ended by the effluxion of time under a fixed-term contract in circumstances where she had been “dismissed” as the role was ongoing and materially the same position was available for her to perform;
That the Deputy President failed to take into account relevant evidence that Ms Charab’s role had been advertised while she was employed and that she had been rejected for that role which was said to demonstrate that the role was ongoing and the fixed term contract had not ended due to the “effluxion of time”;
That Ms Charab had been denied procedural fairness as the Deputy President had accepted the Respondents’ submissions and evidence without giving proper weight to Ms Charab’s submissions and evidence;
That the Deputy President had erred in dealing solely with the question of whether to accept her application out of time and not engaging with the substance of her claim;
That the Deputy President made significant errors of fact including that:
a.He determined that Ms Charab’s role was a temporary back-fill despite evidence that it continued on beyond the end of her employment; and
b.He failed to determine that Ms Charab’s exclusion from redeployment opportunities and casual work demonstrated an ongoing need for her duties to be performed.
By her appeal submissions, Ms Charab raises that the Deputy President erred in evaluating exceptional circumstances including by:
Failing to give proper weight to the internal complaint process, reasonable expectation of reinstatement and Ms Charab’s distress;
Failing to consider the allegations of adverse action raised by Ms Charab;
Giving incorrect weight to Ms Charab’s job applications in forming an opinion that this demonstrated proof of her capacity; and
concluding that “fairness” was a neutral factor.
As to the public interest, Ms Charab submits that:
The decision risks setting a precedent that employers can avoid their obligations by simply re-labelling or reposting ongoing roles as different positions in order to deny employees continuity and access to protections under the Act.
The decision undermines the principle that fixed-term contracts should not be used to disguise ongoing work, and failure to properly scrutinise rolling fixed-term arrangements will affect thousands of employees in the higher education sector and beyond.
By overlooking evidence that Ms Charab’s role was reposted and ongoing, the original decision has the potential to diminish trust in the Commission’s ability to safeguard fairness.
By granting permission, the Full Bench will be able to correct these errors, reinforce that dismissal cannot be avoided through technical manoeuvres and ensure that the statutory protections of the Act are applied consistently.
It is in the public interest both to correct the injustice and provide guidance for future matters involving the use of fixed-term contracts, in circumstances where the Government is working to protect fixed-term employees.
The matter raises important issues about pregnancy and parental leave protections, ensuring employees are not disadvantaged by fixed-term contract expirations post-conversion requests.
Clarification is needed that reliance on internal complaint processes is a valid ground for delay, encouraging workplace dispute resolution before external escalation.
The case provides an opportunity to clarify the test for “exceptional circumstances” under s 366(2) where discrimination and psychological harm are involved.
Consideration
Section 365 provides that, if a person has been dismissed and alleges that the dismissal was in contravention of Part 3-1, the person may apply to the Commission to deal with the dispute. If a jurisdictional objection is raised to the Commission’s authority to deal with an application, the Commission must determine that objection before dealing with the dispute.[12]
Section 366 sets out the circumstances which the Commission must consider when determining whether to extend the time for the filing of an application under s 365. It provides as follows:
366 Time for application
(1) An application under section 365 must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (2).
(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) any action taken by the person to dispute the dismissal; and
(c) prejudice to the employer (including prejudice caused by the delay); and
(d) the merits of the application; and
(e) fairness as between the person and other persons in a like position.
The time limit that applies to the exercise of a person’s right to bring an application under s 366(2) of the Act reflects Parliament’s intention that this right be exercised promptly. However, the Act recognises that there are some cases where a late application should be accepted, namely where there are exceptional circumstances.
The test of exceptional circumstances in relation to extensions of time to lodge applications under s 366(2) of the Act establishes a ‘high hurdle’ for an applicant for an extension.[13] A decision to extend time under s 366(2) involves the exercise of a broad discretion.
Appeal Grounds 1 and 2
Ms Charab submits that the Deputy President erred in finding that the contract ended by the effluxion of time under a fixed-term contract in circumstances where she had been “dismissed” as the role was ongoing and materially the same position was available for her to perform.
We consider that this submission proceeds upon a misunderstanding of the Deputy President’s decision. The Deputy President recorded that there was a dispute regarding whether Ms Charab had been dismissed. When considering the merits of Ms Charab’s application the Deputy President acknowledged that Ms Charab would need to overcome the argument that she had not been dismissed in order to succeed. The Deputy President was at pains not to resolve the dispute about whether Ms Charab had been dismissed given the evidence before him and the interlocutory nature of the decision. This approach was correct and orthodox given that the sole issue that he was determining at the time was whether to accept Ms Charab’s application out of time. That determination was made in circumstances where the date of the end of the employment relationship (howsoever described) was not disputed.
Ms Charab submitted that the Deputy President failed to consider the allegations of adverse action she had raised and relevant evidence that her role had been advertised while she was employed and that she had been rejected for that role. She submitted that the latter demonstrated that the role was ongoing and the fixed term contract had not ended due to the “effluxion of time”. However, these matters are relevant to assessing the merits of Ms Charab’s substantive application. In any event, it is clear that the Deputy President had regard to Ms Charab’s evidence and submissions regarding her duties and that a similar role had been advertised while she was employed and that she had been rejected for that role when assessing the merits of the application.[14]
As the Full Bench noted in Johansson v Edge Early Learning Administration Pty Limited:[15]
“While the merits of the substantive application form a part of the consideration of whether to grant an extension of time under s 366(2)(d), the Commission does not embark on a detailed consideration of the substantive case. There are cogent reasons why the Commission should not receive evidence and make factual findings on contested issues at this stage of the proceedings: most notably because parties should not have to present their evidentiary case twice. This is especially important when considering the merits of a general protections claim as the role of the Commission in dealing with these applications is ordinarily limited to conciliation.”[16]
It is apparent from a plain reading of the decision that the Deputy President understood that the issue of whether there was a dismissal (or not) was contested. In our view, the Deputy President properly formed a view that, at the interlocutory stage of the proceedings, he should not determine the factual contest between the parties on this issue, nor the merits of the application. This approach is correct as the Deputy President was not dealing with Ms Charab’s substantive application. He was determining a threshold issue, being whether to grant Ms Charab an extension of time.
Having had regard to these matters, we do not consider that an arguable case of appealable error in the Deputy President’s approach has been identified.
Appeal Ground 3
Ms Charab submits that she has been denied procedural fairness as the Deputy President had accepted the Respondents’ submissions and evidence without giving proper weight to Ms Charab’s submissions and evidence. Ms Charab has not particularised what factual findings are said to have been affected by a denial of procedural fairness. Indeed, there was limited factual contest in the proceedings before the Deputy President and only limited factual findings made. The clearest factual contest (other than whether Ms Charab was dismissed or not) relates to the reason for the dismissal. The Deputy President’s reasoning recounts both Ms Charab’s and Ms White’s evidence and submissions on this issue. However, he makes no findings as to whose evidence he prefers. For the reasons outlined above, this approach was entirely appropriate.
In relation to the submission that the Deputy President did not give proper weight to Ms Charab’s submissions, this appears to us to essentially be a complaint that the Deputy President preferred the submissions of the Respondents over those of Ms Charab. We consider that the argument advanced by Ms Charab amounts to little more than a preference for a different outcome. We consider that the Deputy President’s reasoning discloses that he carefully considered the submissions and evidence of Ms Charab and the Respondents in determining whether to grant an extension of time.
Appeal Ground 4
Ms Charab submits that the Deputy President erred in dealing solely with the question of whether to accept her application out of time and not engaging with the substance of her claim. We reiterate our comments above regarding the limitations on the role of the Commission in considering the merits of an application at the time that the Commission is considering whether to accept a s 365 application out of time. As outlined above, we consider that the approach to considering the merits of the application was legally correct - it would not have been appropriate for the Deputy President to determine the merits of the application, including whether Ms Charab had been discriminated against, as part of the preliminary assessment of the merits to be conducted at this stage of the proceedings. In any event, it is clear that the Deputy President considered the arguments advanced by Ms Charab in support of her application when considering the merits of her application for the purposes of s 366(2)(d). We are not persuaded that there is any arguable appealable error in the approach adopted.
Appeal Ground 5
Ms Charab contends that the Deputy President made significant errors of fact in:
a.determining that Ms Charab’s role was a temporary back-fill despite evidence that it continued on beyond the end of her employment; and
b.failing to determine that Ms Charab’s exclusion from redeployment opportunities and casual work demonstrated an ongoing need for her duties to be performed.
Firstly, we cannot identify any factual finding to the effect of the first of these alleged errors in the Deputy President’s decision.
Secondly, for the reasons outlined above, we do not consider that it was necessary or appropriate for the Deputy President to make findings regarding whether there was an ongoing need for Ms Charab’s duties to be performed in circumstances where he was determining whether to accept her application out of time.
Further Submissions
In her written submissions Ms Charab advanced several additional arguments including that the Deputy President erred in evaluating exceptional circumstances including by failing to give proper weight to the internal complaint process, reasonable expectation of reinstatement and her distress. These matters are relevant to consideration of the reason for the delay. The first of these was also considered by the Deputy President as part of his consideration of whether Ms Charab had taken any action to dispute her dismissal.
We consider that the Deputy President properly considered the facts of Ms Charab’s case, having recorded these matters in the decision. The three matters raised in the preceding paragraph were all considered by the Deputy President when considering the reason for Ms Charab’s delay in filing her application. As were other matters that Ms Charab and the Respondents had raised. Ultimately, having considered these matters he was not satisfied that these matters supported an overall conclusion of exceptional circumstances. In relation to the distress and stress experienced following the dismissal and whether this contributed to any delay in filing on behalf of Ms Charab, whilst we accept that she was distressed, no medical evidence was advanced at first instance. Responses of stress and anxiety following a dismissal are not unusual and do not, in and of themselves, necessarily constitute exceptional circumstances.[17]
We consider that it was reasonable for the Deputy President to have regard to Ms Charab’s numerous job applications in the intervening period between her dismissal and filing the application in reaching his conclusion that he was not persuaded that ‘she was somehow unable to file the application on time’. We consider that the Deputy President conducted a thorough assessment of the statutory considerations in s 366(2), having regard to the conclusions reached on the available evidence before determining that there were no exceptional circumstances. We do not consider that an arguable case of appealable error has been identified in the Deputy President’s approach.
Finally, Ms Charab submits that the Deputy President erred in concluding that “fairness” was a neutral factor. We consider that this submission proceeds on a misapprehension. The Act requires consideration of “fairness as between the applicant and other persons in a like position.” Ms Charab’s submissions appear to focus on unfairness arising from the Deputy President’s decision not to allow an extension of time in circumstances where Ms Charab had first sought internal resolution of her complaint. We do not consider that this is relevant to the consideration under s 366(2)(e) of the Act in the circumstances of this matter.
Conclusion, order and disposition
We consider that the Deputy President made correct relevant factual findings. He then considered those findings as part of an overall discretionary assessment of whether exceptional circumstances existed so as to warrant further time being allowed for Ms Charab to make her application. The Deputy President considered each of the criteria in s 366(2) 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.
For the reasons given, we do not consider that an arguable case has been advanced that the decision of the Deputy President was attended by appealable error. Nor are we satisfied that the appeal attracts the public interest. The appeal does not raise any genuine issue of law, principle or wider application. It follows that we must refuse permission to appeal.
Permission is refused.
DEPUTY PRESIDENT
Appearances:
L. Charab on her own behalf
M. Caile and B. Reman on behalf of the Respondent
Hearing details:
2025.
By Video using Microsoft Teams.
7 October.
[1] This is so because on appeal the Commission has power to receive further evidence, pursuant to s.607(2); see Coal and Allied v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne J.
[2] O’Sullivan v Farrer (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch (2011) 85 ALJR 398, [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78, [44]-[46].
[3] [2010] FWAFB 5343.
[4] Ibid [27].
[5] Wan v AIRC (2001) 116 FCR 481 [30].
[6] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343 [26]-[27], 197 IR 266; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth[2010] FWAFB 10089 [28], 202 IR 388, affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663, [28].
[7] Trustee for The MTGI Trust v Johnston [2016] FCAFC 140, [82].
[8] Fox v Percy (2003) 214 CLR 118; [2003] HCA 22, [27]-[29].
[9] [2000] HCA 47; 203 CLR 194.
[10] Ibid [19].
[11] House v The King (1936) 55 CLR 499, 505.
[12] Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152; (2020) 279 FCR 591, [67] (Rares, Collier J and Charlesworth JJ).
[13] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288, [21], cited in Charles v Anglican Care[2016] FWCFB 5502, [6].
[14] Charab v University of New South Wales & Brooke White [2025] FWC 2378, [5], [24].
[15] [2024] FWCFB 426.
[16] Ibid [51] citing Kyvelos v Champion Socks Pty Ltd (2000) Print T2421, [14], Long v Keolis Towner t/a Yarra Trams [2018] FWCFB 4109, [72] and Fair Work Act 2009 (Cth) s.368(1) and (2).
[17] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 [21], cited in Charles v Anglican Care[2016] FWCFB 5502, [6].
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