Fair Work Act 2009

s.604 - Appeal of decision

Appeal against decision [2024] FWC 2428 of Commissioner Connolly at Melbourne on 13 September 2024 in matter number U2024/9084 - permission to appeal refused.

[1] On 2 October 2024, JBS Australia Pty Ltd (JBS) lodged a notice of appeal against a decision of Commissioner Connolly issued on 13 September 2024. The decision concerned an application made by Mr Willie Bara for an extension of time under s 394(3) of the Fair Work Act 2009 (Cth) (FW Act) to file an unfair dismissal application in respect of his dismissal from his employment with JBS. The dismissal took effect on 2 May 2024 and Mr Bara filed his application on 5 August 2024, 74 days beyond the 21-day period prescribed by s 394(2)(a). The Commissioner determined to grant the application. JBS appeals the decision on a number of grounds which are discussed further below. Permission is required for the appeal under s 604(1) of the FW Act.

1. JBS and Mr Bara were directed to file written outlines of submissions addressing both the issue of permission to appeal and the merits of the appeal. The appeal was the subject of a hearing before us on 13 November 2024. We issued our decision at the conclusion of the hearing. We determined to refuse permission to appeal, and an order to that effect was published.[1] We advised that reasons for that decision would be published in due course. Our reasons are set out below.

[3] There was no factual contest in this matter. Mr Bara and Ms Vera Cheffers, the Solomon Islands Country Liaison Officer for the Pacific Island Australia Labour Mobility (PALM) scheme, gave evidence via witness statements and orally as to the circumstances of the delay in the filing of Mr Bara's application. Neither was cross-examined. JBS filed two witness statements made by Ms Pauline Rhodes, a JBS Manager. Ms Rhodes was not available to give sworn evidence in the proceedings and it was left unclear whether her statements were admitted as evidence at the hearing. In any event, she did not factually contradict any of the evidence given by Mr Bara and Ms Cheffers as to the circumstances of the delay.

[4] Based on the uncontradicted evidence given by Mr Bara and Ms Cheffers, the facts of this matter may be summarised as follows. Mr Bara was born in the Solomon Islands and his primary language is Solomon Islands Pijin. English is his second language, with which he has limited proficiency. He came to Australia in August 2023 under the PALM scheme to earn an income to support his family. He was employed by JBS as a meatworker at its abattoir in Brooklyn, Victoria pursuant to the scheme. Mr Bara's visa was tied to his employment with JBS, so that he needed to be employed by JBS or another PALM scheme employer to stay in Australia.

[5] Mr Bara's dismissal on 2 May 2024 arose from a physical altercation with a co-worker which occurred at his private residential accommodation outside of working hours. Mr Bara obtained assistance concerning his dismissal from Ms Cheffers on 16 May 2024 after finding out about her name and role on the PALM scheme website. Ms Cheffers advised Mr Bara that he could lodge a grievance with the PALM division of Department of Employment and Workplace Relations (DEWR). Mr Bara did so and, on 21 May 2024, DEWR sent Mr Bara an email stating, in effect, that it could not assist and advising him to contact his employer to resolve the situation. Mr Bara attempted this, but was advised that JBS could not help him and that he should contact 'PALM'.

[6] Mr Bara became aware from a friend that he could file an unfair dismissal application. He prepared his application by cutting and pasting material from his DEWR grievance, and lodged it on 21 May 2024 (within the 21-day period prescribed by s 394(2)(a)). On 30 June 2024, Ms Cheffers lodged a further grievance with DEWR on Mr Bara's behalf. On 3 June 2024, he was advised by the Commission that there would be a conciliation conference on 27 June 2024. Mr Bara was telephoned by a Commission staff member and asked whether he required an interpreter. He requested a Solomon Islands Pijin interpreter, but he was only offered a PNG Tok Pisin interpreter - a language which Mr Bara does not speak. As a result of various apprehensions about the Commission process, his difficulty in communicating and his fear of being deported from Australia, he withdrew his application on 4 June 2024. From about this point onwards, Mr Bara has been without stable housing and has only limited funds. He has left his previous accommodation and has been moving between Victoria, South Australia and Queensland seeking accommodation with friends. This means that he has struggled to maintain phone credit and internet access.

[7] On 20 June 2024, Ms Cheffers rang Mr Bara and informed him that, after she chased up DEWR concerning the second grievance lodged with them, DEWR had advised that Mr Bara should pursue his grievance via an unfair dismissal application to the Commission and that a successful unfair dismissal claim was a prerequisite for DEWR assisting him to be redeployed. Mr Bara thereupon emailed the Commission asking for his unfair dismissal case to be re-opened. On 21 June 2024, the Commission sent him an email which relevantly stated:

... a Full Bench of the Commission [has] determined that only a Court has the authority to set aside a discontinuance.

The Commission is not a Court, and it therefore does not have the authority to set aside your discontinuance and cannot reopen your unfair dismissal application.

If you consider that the discontinuance was filed by mistake or under duress, you must make an application to a Court if you would like it set aside. You may wish to seek legal advice.

[8] Mr Bara had no capacity to pay for legal advice. On 9 July 2024, Ms Cheffers rang Mr Bara to say that she had contacted the Migrant Workers Centre, which would try to find a community legal centre to assist him. On 18 July 2024, the Migrant Workers Centre told Ms Cheffers that it had not been able to find a community legal centre to provide assistance. On 19 July 2024, Ms Cheffers called Mr Bara and told him that the Migrant Workers Centre had advised that Mr Bara could file a new unfair dismissal application and an application for an extension of time. Mr Bara and Ms Cheffers then worked together over the next few days to prepare a new application. Mr Bara signed the completed application on 24 July 2024 on the understanding that Ms Cheffers would then file it in the Commission. However, Ms Cheffers did not file it until 5 August 2024 because she had a significant caseload at the time including two critical matters involving workers with pregnancies.

[9] In his decision, the Commissioner considered each of the matters required to be taken into account under s 394(3) of the FW Act. In respect of s 394(3)(a), the Commissioner found at [42] that Mr Bara had provided a credible reason for the delay in filing the application and that he was confronted with a combination of factors that, when considered together, were exceptional, rare and uncommon. This finding was based on his acceptance of the evidence given by Mr Bara and Ms Cheffers in their witness statements and orally at the hearing. The Commissioner therefore concluded that the s 394(3)(a) consideration weighed in favour of the grant of an extension of time. In respect of s 394(3)(b), the Commissioner found that Mr Bara became aware of his dismissal on the day it took effect and this weighed against an extension of time. As to s 394(3)(c), the Commissioner referred to the steps Mr Bara had taken action to contest his dismissal and found that this weighed in his favour. As to s 394(3)(d), the Commissioner was not persuaded that JBS had suffered any prejudice as a result of the delay and treated this as a neutral factor. The Commissioner considered there was insufficient evidence before him to make an assessment of the merits of Mr Bara's case and therefore treated the s 394(3)(e) factor as neutral. He likewise regarded the s 394(3)(f) factor as neutral because it was not relevant. The Commissioner's overall conclusion at [63] was that, on balance, he was persuaded that there were exceptional circumstances warranting the exercise of his discretion to allow him to grant an extension of time.

[10] JBS' notice of appeal, as amended, articulates eight grounds of appeal which may be summarised as follows:

(1) The Commissioner erred in finding at [25] that cultural factors contributed to Mr Bara's delay in filing his application, since Mr Bara's evidence concerning this only related to his discontinuance of his first application.

(2) The Commissioner erred in finding at [28] that Mr Bara had challenges in communicating in English and that this was a contributing factor in the delay, since there was no evidence which established that Mr Bara's language difficulties manifested as a reason for the delay in filing the second application.

(3) The Commissioner was guided by an irrelevant factor at [32] in finding that conflicting advice given by DEWR and JBS contributed to the delay, since such advice was given before the period of the delay between 4 June and 5 August 2024.

(4) The Commissioner acted on a wrong principle in finding that financial stress and hardship and the potential for deportation contributed to the delay and constituted, in combination with the other factors, exceptional circumstances.

(5) The Commissioner erroneously reversed the onus of proof when he said at [39]: 'However, it does not necessarily follow that I accept Mr Bara has not provided reasons for the delay that warrant the granting of an extension of time'.

(6) The Commissioner erred in finding at [46] that, once Mr Bara became aware that he could file a second application and seek an extension of time, he actively sought to do so with the necessary assistance, since the Commissioner failed to evaluate all the evidence bearing upon the action taken by Mr Bara from 4 June to 5 August 2024.

(7) The Commissioner failed to consider Mr Bara's explanation, or lack thereof, for the whole of the delay, including: the 16 days which passed between the discontinuance on 4 June 2024 and the attempt to revive the application on 20 June 2024; the 28 days between the advice from the Commission on 21 June 2024 and the further advice from the Migrant Workers Centre on 19 July 2024; and the 12 days between Mr Bara's signing of the application on 24 July 2024 and its lodgment on 5 August 2024.

[11] JBS contends in its notice of appeal and submissions that the grant of permission to appeal would be in the public interest because the identified errors manifest an injustice and the legal principles applied appear disharmonious compared with other recent decisions dealing with similar matters.

1. In considering whether JBS should be granted permission to appeal, it is necessary at the outset to make some general observations about the task facing an appellant in an appeal against a decision made under s 394(3) concerning an application for an extension of time. The process of decision-making under s 394(3) has two elements, both discretionary in nature. The decision-maker must first determine whether they can reach a state of satisfaction as to the existence of exceptional circumstances having regard to the matters specified in paragraphs (a)-(f) of the subsection. Because the provision requires the decision-maker to form an opinion about a matter involving a measure of subjectivity and value judgment, it is properly characterised as allowing a degree of latitude as to the choice of decision to be made and therefore discretionary in nature, albeit that the exercise of the discretion is guided by the matters required to be taken into account.[2] If the decision-maker is satisfied as to the existence of exceptional circumstances, then the discretion (signified by the use of the word 'may' in the subsection) to extend time is enlivened. Satisfaction as to the existence of exceptional circumstances does not necessarily mean that an extension of time will be granted.[3]

2. It follows that in an appeal against a decision made under s 394(3), it will be necessary for the appellant to demonstrate error of the type referred in House v The King,[4] namely (1) an error of law or principle, a material error of fact, a failure to take into account a relevant consideration or the taking into account of an irrelevant consideration, or (2) a determinative outcome that is unreasonable or plainly unjust. Mere preference for a different result is not sufficient.

3. Additionally, because such a decision is one made under Pt 3-2 of the FW Act, s 400 applies to such an appeal. Section 400(1) provides that, despite s 604(2), the Commission must not grant permission to appeal a decision made under Pt 3-2 unless the Commission considers it is in the public interest to do so. This criterion is a stringent one.[5] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[6] Some of the considerations that may attract the public interest are where a matter raises issues of importance and general application, or there is a diversity of decisions at first instance so that appellate guidance is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters.[7] It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated.[8] However, the fact that the member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.[9]

4. Section 400(2) also requires that an appeal on a question of fact from a decision made under Pt 3-2 can only be made on the ground that the decision involved a significant error of fact. To be characterised as 'significant' the alleged factual error must be one that vitiates the ultimate exercise of the discretion.[10]

[16] Having regard to these matters, we were not persuaded that it would be in the public interest to grant permission to appeal for the following reasons.

1. First, the submission advanced by JBS with respect to the public interest test for permission to appeal in s 400(1) is only nominal and does not advance any substantive case that permission to appeal would be in the public interest. JBS's submission proceeds on the premise that its contentions of appealable error are sufficient in themselves to demonstrate injustice and satisfy the public interest criterion but, as earlier stated, this is not the case. Nor has JBS identified any disparity between this decision and other recent decisions concerning the legal principles to be applied. The principles applying to the consideration of applications for extensions of time under s 394(3) (and s 366(2)) are well established by Full Bench decisions including Nulty v Blue Star Group Pty Ltd[11] and Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/a Richmond Oysters.[12] It is apparent on the face of the decision that the Commissioner understood and applied those principles. No issue of principle is raised by the appeal. A disparity between the legal principles applied in decisions is not established simply by pointing to cases with different factual matrices and different outcomes.

[18] Second, although the appeal grounds refer to various errors or defects in the Commissioner's fact-finding process, it is not alleged that there was any significant error of fact which vitiated the Commissioner's exercise of the discretion and would therefore satisfy the requirement in s 400(2). Nor, given the lack of any substantive factual contest at the hearing, is it reasonably likely that a significant error of fact could be established even if alleged.

1. Third, we consider that the non-contested facts of this case plainly disclose a combination of circumstances that, collectively considered, are out of the ordinary. It is well established that exceptional circumstances may be constituted by a combination of factors which, individually, may not be exceptional in character but when taken together may be seen as exceptional.[13] In this case, these circumstances principally include that:

(1) Mr Bara did file an unfair dismissal application within the prescribed 21-day period. He discontinued this application for a combination of reasons, including his perception of the Commission as a government agency in a context where he feared deportation by the government as a result of the loss of his PALM scheme employment, and the inability of the Commission to make available an interpreter who spoke Mr Bara's primary language.

(2) From early June 2024 (when he discontinued his application), Mr Bara had no fixed address, a lack of funds, and struggled to maintain phone credit and internet access.

(3) When Mr Bara sought to re-enliven his unfair dismissal application with the Commission on 20 June 2024, the Commission's communication in response failed to advise him that, although his earlier discontinuance could not be set aside by the Commission, he could lodge a second application and seek an extension of time to do so. He was advised to seek legal advice about his position but had no funds to enable this.

(4) It was not until 19 July 2024 that Mr Bara became aware, as a result of advice from the Migrant Workers Centre conveyed via Ms Cheffers, that he could file a new unfair dismissal application and an application for an extension of time. With Ms Cheffers' assistance, the application was promptly prepared and signed by Mr Bara by 24 July 2024.

(5) Mr Bara understood that Ms Cheffers would then file his application in the Commission on his behalf. However, Ms Cheffers did not file it until 5 August 2024 because of other pressing workload considerations.

[20] These matters made reasonably available a finding as to the existence of exceptional circumstances (noting that there was no issue as to the Commissioner's findings as to the considerations in s 394(3)(b)-(f)) and the exercise of the discretion in favour of the grant of an extension of time. JBS did not contend that the outcome determined by the Commissioner fell within the 'second limb' of House v The King in that it was unreasonable or plainly unjust.

[21] Accordingly, we ordered that permission to appeal was refused.

B Sakrzewski-Hetherington and W Murraylee for JBS Australia Pty Ltd.

1. [1]PR781206.
2. [2]Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47, 203 CLR 194 [19]-[20] and [28]; Moore (a pseudonym) v The King [2024] HCA 30 [15].
3. [3]Schneider v Apollo Motorhome Holidays Pty Ltd [2015] FWCFB 1259 [13].
4. [4] (1936) 55 CLR 499, 505.
5. [5]Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54, 192 FCR 78, 207 IR 177 [43] (Buchanan J, with whom Marshall and Cowdroy JJ agreed).
6. [6]O'Sullivan v Farrer [1989] HCA 61, 168 CLR 210, 216-17 (Mason CJ, Brennan, Dawson and Gaudron JJ), applied in Hogan v Hinch [2011] HCA 4, 243 CLR 506 [69] (Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ); Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54, 192 FCR 78, 207 IR 177 [44]-[46].
7. [7]GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, 197 IR 266 [27].
8. [8]Wan v AIRC [2001] FCA 1803, 116 FCR 481 [30].
9. [9]Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089, 202 IR 388 [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54, 192 FCR 78, 207 IR 177; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663, 241 IR 177 [28].
10. [10]Gelagotis v Esso Australia Pty Ltd [2018] FWCFB 6092 [43].
11. [11] [2011] FWAFB 975.
12. [12] [2018] FWCFB 901, 273 IR 156.
13. [13]Kurtev v KCB Australia Pty Ltd [2025] FWCFB 13 [20].

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