Shima Taheri v Macquarie University - [2025] FWCFB 89

[2025] FWCFB 89

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.604—Appeal of decision

Shima Taheri
v

Macquarie University

(C2025/1960)

DEPUTY PRESIDENT BELL
COMMISSIONER ALLISON
COMMISSIONER TRAN

MELBOURNE, 16 MAY 2025

Appeal against decision [2025] FWC 695 of Deputy President Roberts at Sydney on 11 March 2025 in matter number U2025/1139 – permission to appeal refused.

Dr Shima Taheri has lodged an appeal under s 604 of the Fair Work Act 2009 (Cth) (Act) against a decision[1] (the Decision) of Deputy President Roberts issued on 11 March 2025, for which permission to appeal is required. The Deputy President dismissed an application, brought by Dr Taheri under s 394 of the Act, for an unfair dismissal remedy. The Deputy President was required to determine whether “exceptional circumstances” were present for the purposes of s 394(3) of the Act, such that Dr Taheri could have been granted a further period to make her application 13 days outside of the 21-day period provided by s 394(2)(a). The Deputy President concluded that exceptional circumstances were not present, consequently refused to grant a further period, and dismissed Dr Taheri’s application.

For the reasons that follow, permission to appeal is refused.

Decision under appeal

Prior to the cessation of Dr Taheri’s employment, Dr Taheri had been employed under the terms of various contracts of employment at Macquarie University (the University) since March 2017. The terms of the most recent contract were expressed to be a fixed term contract, commencing on 1 December 2023 and automatically ending on 31 December 2024. It was the circumstances of the non-renewal of that contract or offering of a further contract that was the principal issue of controversy. In short, Dr Taheri contended (and the University denied) that she had been given misleading assurances about her contractual renewal, she relied upon those alleged assurances, and that the advertisement of her position that did occur was a mere ‘procedural’ requirement rather than a competitive process. In circumstances where Dr Taheri was not offered any further contract, she alleged she had been unfairly dismissed.

The salient parts of the Decision concerning the Deputy President’s conclusions on whether Dr Taheri ought to have been granted an extension of time addressed each of the statutory criteria in s 394(3)(a)-(f) of the Act. Those factors concern: the reason for delay (s 394(3)(a)); whether the applicant first became aware of the dismissal after it took effect (s 394(3)(b)); any action taken to dispute the dismissal (s 394(3)(c)); any prejudice to the employer if an extension was granted (s 394(3)(d)); the merits of the substantive unfair dismissal application (s 394(3)(e)); and any issues of fairness between the applicant and other persons in a similar position (s 394(3)(f)).

A particular facet of the Decision concerned whether Dr Taheri had been dismissed at all. Under the Act, only a person who was dismissed may bring an application for an unfair dismissal remedy. The term “dismissed” has a particular meaning under the Act and excludes certain circumstances where the employment comes…

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.

Continue reading Shima Taheri v Macquarie University

Details

AGLC: Shima Taheri v Macquarie University [2025] FWCFB 89
Case: [2025] FWCFB 89
Decision Date: 16 MAY 2025

CaseChat Overview and Summary

Shima Taheri appealed against a decision of Deputy President Roberts, who dismissed her application for an unfair dismissal remedy. The crux of the dispute was the non-renewal of Dr Taheri's fixed-term employment contract at Macquarie University. Dr Taheri argued she was misled about her contract renewal and unfairly dismissed, while the university maintained the contrary. The appeal focused on whether the Deputy President erred in determining that exceptional circumstances did not warrant an extension of time for Dr Taheri to apply for the unfair dismissal remedy.

The central legal issues were whether the Deputy President erred in his assessment of the statutory criteria under s 394(3) of the Fair Work Act 2009 (Cth), which determine if exceptional circumstances justify an extension of time for an unfair dismissal application. The Deputy President had considered factors such as the reason for the delay, Dr Taheri's awareness of the dismissal, actions taken to dispute the dismissal, prejudice to the employer, merits of the substantive unfair dismissal application, and fairness to others in similar positions. Dr Taheri challenged these findings, claiming errors in fact and law.

The Full Bench examined the grounds of appeal, noting that Dr Taheri's arguments included mischaracterisations of the Deputy President's conclusions and re-litigation of factual findings. The Full Bench found no arguable error in the Deputy President's assessment of the statutory criteria or his factual findings. Dr Taheri's complaints about the overall evaluative conclusions did not demonstrate arguable error. Additionally, the Full Bench found no public interest in granting permission to appeal, as the decision did not manifest an injustice, was not counterintuitive, and did not conflict with other recent decisions. Consequently, the Full Bench refused permission to appeal.

The Full Bench's decision to refuse permission to appeal was based on the absence of arguable error in fact or law and the lack of public interest in granting leave to appeal. Therefore, Dr Taheri's appeal was dismissed, and the original decision of Deputy President Roberts stood affirmed.

Orders