Ali v Chandler Macleod Group Ltd

BARKER J: 1 The applicant, Mr Sajid Ali, applies for judicial review of a decision of the Fair Work Commission (FWC) Full Bench dated 1 February 2016 (Full Bench's decision), which dismissed Mr Ali's application for an extension of time to appeal against the decision of Commissioner Cloghan (Commissioner's decision) refusing an extension of time to lodge an unfair dismissal remedy application under s 394 of the Fair Work Act 2009 (Cth) (FW Act).

Commissioner's decision 2 On 21 June 2013, Mr Ali applied to the FWC for a remedy for alleged unfair dismissal from his former employee, the first respondent in this proceeding, Chandler Macleod Group Ltd. Before the FWC, the date of the dismissal was disputed, with Mr Ali alleging 12 April 2013, and Chandler Macleod saying 13 February 2013 or, in the alternative, 13 March 2013. 3 Commissioner Cloghan noted that, as Mr Ali did not make the application within the period of 21 days prescribed by subs 394(2) of the FW Act, on either of these dates, Mr Ali required an extension of time to lodge the application. 4 Having considered the parties' written submissions, the Commissioner was not satisfied that exceptional circumstances existed for the application to be filed after the prescribed period of 21 days had expired. Accordingly, on 10 October 2013, he dismissed Mr Ali's application.

Full bench's decision 5 By notice of appeal dated 15 December 2015, Mr Ali sought to appeal against the Commissioner's decision. 6 The FWC Full Bench noted that, as the notice of appeal from the Commissioner's decision was filed 775 days after the expiry of the 21 day time period prescribed by s 604 of the FW Act and R 56(2) of the Fair Work Commission Rules 2013 (Cth), Mr Ali required an extension of time in order for the appeal to be competent. 7 In considering whether to grant an extension of time, the Full Bench had regard to the "usual principles" that govern the issue, as summarised in Jobs Australia v Eland [2014] FWCFB 4822: (1) whether there was a satisfactory reason for the delay; (2) the length of the delay; (3) the nature of the grounds of appeal and the likelihood of one or more of those grounds being upheld if time was extended; and (4) any prejudice to the respondent if time were extended. 8 The Full Bench did not consider Mr Ali's explanation for the "lengthy delay", being that he was in Pakistan at the time of the Commissioner's decision and so was not aware of it until his return on 22 January 2015, was reasonable. Further, Mr Ali did not provide a comprehensible explanation for the delay between returning to Australia and filing his notice of appeal on 15 December 2015. 9 The Full Bench also considered it was unlikely any of Mr Ali's grounds of appeal would be upheld if time were extended, noting that he did not seek to challenge Commissioner Cloghan's finding that Mr Ali did not provide a reason for the delay in filing his unfair dismissal remedy application. 10 Finally, in circumstances where Mr Ali's employment with Chandler Macleod ceased almost three years prior, the Full Bench considered that Chandler Macleod would be likely to suffer prejudice if time were extended, particularly in relation to its ability to adduce detailed evidence concerning Mr Ali's dismissal.

application to this court 11 By way of an attachment to his application for judicial review filed 17 February 2016, Mr Ali seeks review on the grounds that "[e]xceptional circumstances prevented application being made on time. As I was out of the & not being aware of the decision until returning to the country. so I request the commission to allow an extension of time to lodge an appeal". 12 When the Court asked Mr Ali, at a case management hearing on 27 April 2016, whether he wished to file an amended application and supporting submissions, he indicated that the Court had "everything" as it already had his submissions and the Full Bench's decision. 13 Consequently, in considering the application, in addition to parties' oral submissions made at the hearing, the Court relies on the application filed 17 February 2016, with attachments, and the affidavit of Mr Ali made 3 March 2016.

Has the applicant shown jurisdictional error? 14 In substance, Mr Ali requires the Court to review, on the merits, the Commissioner's decision and the Full Bench's decision and the matter of his original dismissal from employment with Chandler Macleod. That is not the function of this Court on a judicial review application. It is necessary for Mr Ali to identify jurisdictional error made by the Full Bench in its decision. No such error is demonstrated. The Full Bench, in determining whether or not it should grant an extension of time for Mr Ali to seek to appeal against the Commissioner's decision, regarded the relevant factors, including the length of the delay (775 days), the reasons for it (which were unconvincing) and the fact that none of the grounds of appeal were likely to be upheld if time was extended (for which the Full Bench cannot be faulted). Additionally, given the long time that had elapsed between the initial decision of the Commissioner, and the present, the Full Bench also reasonably observed that Chandler Macleod would be likely to suffer prejudice if the matter were to be reopened. 15 No error of law, let alone jurisdictional error, is identified by Mr Ali. 16 For that reason, the application before the Court is dismissed.

OrderS 17 For these reasons, the following orders should be made: (1) The name of the first respondent be amended to "Chandler Macleod Group Ltd". (2) The application for judicial review filed 17 February 2016 be dismissed. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Barker.