s.604 - Appeal of decision

Appeal against decision [2025] FWC 2780 of Deputy President Clancy at Melbourne on 17 September 2025 in matter number U2025/13372 - permission to appeal refused

[1] Bharat Pahuja has lodged an appeal under s 604 of the Fair Work Act 2009 (Act) against a decision of Deputy President Clancy on 17 September 2025 ( [2025] FWC 2780). Mr Pahuja requires the Commission's permission in order to appeal. The matter was listed for hearing in relation to permission to appeal only. The parties consented to the matter being determined without a hearing, and we are satisfied that it can be adequately determined without the parties making oral submissions (see s 607(1) of the Act).

[2] In his decision, the Deputy President declined Mr Pahuja's request for an extension of time within which to make his unfair dismissal application against Westpac Banking Corporation (respondent), and dismissed the application. Section 394(2) states that such applications must be made within 21 days after the dismissal took effect, or within such further period as the Commission allows. Mr Pahuja's unfair dismissal application was lodged 3 days out of time. Section 394(3) permits the Commission to allow a further period if it is satisfied that there are exceptional circumstances, taking into account the matters in s 394(3)(a) to (f). The Deputy President considered Mr Pahuja's arguments in respect of each of the matters in s 394(3). As to the reason for the delay, Mr Pahuja contended that the respondent had lured him into thinking that he would face no issues in securing new work in the banking industry following his dismissal, when in fact the respondent's participation in an industry protocol that affects former employees meant that this was not the case. The Deputy President did not accept that the respondent was responsible for Mr Pahuja's belief that he would have no difficulty finding work and noted a letter from the respondent which referred to the significance of the industry protocol. Further, the Deputy President stated that he was not persuaded that Mr Pahuja's stress and anxiety following the dismissal was so debilitating as to preclude him from taking steps to prepare his application. The Deputy President concluded that the absence of an acceptable or reasonable explanation for the delay weighed against a conclusion that there were exceptional circumstances.

[3] In respect of the other mandatory considerations, the Deputy President noted that Mr Pahuja was aware of his dismissal on the day it took effect, and that this was a neutral factor; that Mr Pahuja had taken some steps to dispute his dismissal, which weighed in his favour, but not to a significant degree; and that there was no identifiable prejudice to the employer, which was a neutral factor, as was the question of fairness between the applicant and other persons in a similar position. In respect of the merits, which in an extension of time matter are considered on a preliminary basis, the Deputy President noted that Mr Pahuja contended that he was wrongly accused of dishonesty, whereas the respondent submitted that he committed serious breaches of its code of conduct, and that the matter would turn on factual findings made at a final hearing. He assessed the merits as a neutral factor. Having regard to the mandatory considerations, the Deputy President stated that he was not satisfied that there were exceptional circumstances and that there was no basis to extend time.

[4] An appeal may only be brought with the permission of the Commission under s 604(1). Section 400 of the Act applies to this appeal, because the decision under appeal was made under Part 3-2 of the Act, which pertains to unfair dismissal applications. Section 400(1) states that the Commission must not grant permission to appeal unless it is in the public interest to do so. Consideration of the public interest involves a broad value judgment. Matters that may engage the public interest include issues of importance and general application, or where the decision manifests an injustice (GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343; (2010) 197 IR 266 (Makin) at [27]). In deciding whether to grant permission to appeal, it is unnecessary and inappropriate to conduct a detailed examination of the appeal grounds (Trustee for the MTGI Trust v Johnston [2016] FCAFC 140 at [82]). However, it is necessary to engage with the appeal grounds to consider whether they raise an arguable case of appealable error. An appellant must ordinarily demonstrate that there is such a case in order to be granted permission to appeal, as an appeal cannot succeed in the absence of error (Coal & Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 at 204). However, the fact that a member at first instance may have made an error is not necessarily a sufficient basis to grant permission to appeal.

[5] Mr Pahuja's notice of appeal states that the Deputy President erred in finding that his application was lodged out of time because he did not give adequate consideration to the medical evidence about his mental health condition which rendered him incapable of lodging his claim within the 21-day period. This ground of appeal is not arguable. First, it is clear that the application was indeed lodged out of time. What Mr Pahuja appears to mean is that the Deputy President erred in not granting him an extension of time. Secondly, the Deputy President found that the evidence did not establish that Mr Pahuja was so debilitated as to be unable to prepare his application. It is well-established that the factual findings of a member at first instance should generally stand on appeal unless they are shown to be wrong by incontrovertible facts or are glaringly improbable (see Australian Education Union v Bendigo Kangan Institute of TAFE [2021] FWCFB 3649 at [37] - [39]). There is no arguable case to this effect here. The Deputy President's findings appear to us to have been comfortably open to him on the evidence.

[6] Mr Pahuja contended that the Deputy President overlooked evidence that the respondent was aware of his health challenges and medical treatment at the time of his dismissal, but we fail to see how this contention pertains to any arguable error in the Deputy President's decision. Mr Pahuja further contended that the decision did not account for the fact that his medical condition was temporary and that he acted promptly to file his claim as soon as he could, but whether his condition was temporary appears to us to be irrelevant and unconnected to any arguable error, and as we have explained above, the Deputy President did not accept that Mr Pahuja was unable to file his application within time.

[7] Mr Pahuja submitted medical certificates issued to him after the Deputy President's decision was made, and we infer that Mr Pahuja seeks to adduce them as new evidence on appeal under s 607(2) of the Act. We decline to accept them. The Full Bench is guided by the principles set out in Akins v National Australia Bank [1994] 34 NSWLR 155 (Akins) (see also Perry v Rio Tinto Shipping Pty Ltd [2016] FWCFB 6963 at [10]), which generally require, among other things, that the evidence be of such a high degree of probative value that there is a probability that there would have been a different result at first instance. We do not consider that this is the case here. Further, no reason is given as to why the new evidence could not have been obtained for the proceeding at first instance.

[8] Mr Pahuja has not presented an arguable case of error in the Deputy President's decision. We do not consider that it is in the public interest to grant permission to appeal, whether by reference to the considerations identified in Makin or otherwise. We are therefore required by s 400 of the Act to refuse permission to appeal.

Printed by authority of the Commonwealth Government Printer