Mohammad Shamani v Wesfarmers Limited - [2025] FWCFB 138

[2025] FWCFB 138

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.604 - Appeal of decisions

Mohammad Shamani
v

Wesfarmers Limited

(C2025/4826)

DEPUTY PRESIDENT COLMAN
COMMISSIONER P RYAN
COMMISSIONER WALKADEN

MELBOURNE, 8 JULY 2025

Appeal against decision [2025] FWC 1282 of Commissioner Connolly at Melbourne on 8 May 2025 in matter number C2025/2044 – permission to appeal refused

Mohammad Shamani has lodged an appeal under s 604 of the Fair Work Act 2009 (Act) against a decision of Commissioner Connolly issued on 8 May 2025 ([2025] FWC 1282) in which the Commissioner declined to grant an extension of time for Mr Shamani’s application under s 365 of the Act, and dismissed the application.

The matter was listed for permission to appeal only. The parties consented to the Full Bench determining the application for permission to appeal without holding a hearing, and we are satisfied that this matter can be adequately determined without the parties making oral submissions (see s 607(1) of the Act).

Decision under appeal

Section 365 states that, if a person has been dismissed, and alleges that the dismissal was in contravention of Part 3-1, the person may make an application under s 365. Section 366(1) provides that an application under s 365 must be made within 21 days after the dismissal took effect, or within such further period as the Commission allows. Section 366(2) provides that the Commission may allow a further period if it is satisfied that there are exceptional circumstances, taking into account the matters in s 366(2)(a) to (e). Mr Shamani’s application was lodged 15 days after the end of the 21-day period. He asked the Commissioner to allow a further period under s 366(2).

In his decision, the Commissioner considered each of the matters in s 366(2), and the arguments that Mr Shamani advanced in respect of them. The Commissioner was not satisfied that Mr Shamani had an acceptable explanation for the delay, and that this weighed against an extension of time. He noted that Mr Shamani had taken action to dispute the dismissal, and that this weighed in his favour. The Commissioner considered that there was no relevant prejudice to the employer, and that the merits of the application, and the question of fairness as between Mr Shamani and other persons in a like position, were neutral considerations. The Commissioner concluded that he was not satisfied that there were exceptional circumstances in Mr Shamani’s case, either when the various circumstances were considered individually or together, and that there was no basis for him to allow a further period under s 366(2).

Permission to appeal

There is no right to an appeal from the Commissioner’s decision. An appeal may only be brought with the permission of the Commission under 604(1). Section 604(2) provides that the Commission must grant permission if it is satisfied that it is in the public interest to do so. Consideration of the public interest involves a broad value judgment (Coal & Allied Mining Services Pty Ltd…

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 138
Decision Date: 8 JULY 2025

CaseChat Overview and Summary

Mohammad Shamani has appealed a decision of Commissioner Connolly, who declined to grant an extension of time for Mr Shamani’s application for unfair dismissal. The application was filed 15 days beyond the 21-day statutory period allowed by section 366 of the Fair Work Act 2009. The Full Bench was asked to decide whether permission to appeal should be granted. The appeal grounds advanced by Mr Shamani did not disclose an arguable case of appealable error, and the contentions regarding the public interest did not engage with the Commission’s consideration of the appropriate standard of review.

The legal issues before the Full Bench were whether the appeal grounds established an arguable case of appealable error and whether it was in the public interest to grant permission to appeal. Mr Shamani argued that the Commissioner had not given appropriate weight to his mental health condition, misapplied the test for exceptional circumstances, placed undue emphasis on the absence of medical evidence, failed to consider his engagement with the respondent as reasonable delay, and that the conclusion that there were no exceptional circumstances was unreasonable. The Full Bench found that each of these grounds simply reflected a disagreement with the Commissioner’s evaluative conclusions, which is insufficient to establish an arguable case of error. The Full Bench also considered that there was no public interest in granting permission to appeal, as the matter involved the application of the statutory provisions to a single case, there was no ambiguity in how the provisions should be applied, and the contention of ‘misuse of resignation’ did not make sense. The Full Bench concluded that the appeal grounds did not establish an arguable case of error and that it was not in the public interest to grant permission to appeal.

The Full Bench refused permission to appeal, finding that the appeal grounds did not disclose an arguable case of appealable error and that it was not in the public interest to grant permission to appeal. The decision of the Commissioner stands, and Mr Shamani’s application for unfair dismissal will not proceed.

Orders