Merhi v Commonwealth of Australia

In the case of Merhi v Commonwealth of Australia, the applicant, Ms Merhi, sought judicial review of a decision by the Full Bench of the Fair Work Commission. The Full Bench had refused her application for permission to appeal from the Commission’s decision to refuse to extend the time for her to apply for an order granting a remedy for unfair dismissal. The central legal issues before the court were whether the Full Bench of the Fair Work Commission had committed a reviewable error in refusing Ms Merhi’s application for permission to appeal and whether the Full Bench had erred in its assessment of the factors under section 394(3) of the Fair Work Act 2009.

The court found that the Full Bench had not committed a reviewable error in refusing Ms Merhi’s application for permission to appeal. The court observed that the Full Bench had carefully considered the factors outlined in section 394(3) of the Fair Work Act, including Ms Merhi's awareness of the dismissal, the reason for the delay, action taken to dispute the dismissal, the merits of the application, and the prejudice to the Commonwealth. The Full Bench concluded that the delay following Ms Merhi’s release from custody weighed heavily against her and that there was no acceptable reason to extend the time beyond 15 December 2019. The court accepted the Full Bench’s reasoning and found no error in its assessment of the statutory factors.

As a result of this finding, the court dismissed the application for judicial review. The Full Bench’s decision to refuse permission to appeal was upheld as there was no basis for the court to interfere on the grounds of jurisdictional error or error of law.