Fair Work Act 2009

s.604 - Appeal of decisions

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

[1] 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.

[2] 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).

[3] 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).

[4] 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).

[5] 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 v Lawler and others (2011) 192 FCR 78 at [44]). Matters that may engage the public interest include issues of importance and general application, a diversity of decisions at first instance, or where the decision manifests an injustice (GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343; (2010) 197 IR 266 at [27]). Where the public interest is not engaged, the Commission may grant permission to appeal on general discretionary grounds.

[6] 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.

Grounds of appeal and public interest contentions

[7] In his notice of appeal and written submissions, Mr Shamani advanced five grounds of appeal. First, he contended that the Commissioner erred in failing to give appropriate weight to his mental health condition, which he said had affected his capacity to file his application on time. Secondly, he submitted that the Commissioner misapplied the test for exceptional circumstances by 'discounting' the cumulative impact of his mental health condition and other factors that contributed to his late filing of the application, including what he said was misleading conduct by the respondent. Thirdly, Mr Shamani submitted that the Commissioner placed undue emphasis on the absence of any medical evidence other than a medical certificate from December 2024, despite his own evidence about the psychological effect on him of relevant events. Fourthly, he said that the Commissioner had failed to treat his ongoing engagement with the respondent as an attempt to resolve the dispute which entailed reasonable delay, and that his application was only 15 days late. Fifthly, he said that the Commissioner's conclusion that there were no exceptional circumstances was unreasonable and contrary to the evidence, especially when all of the factors were viewed cumulatively.

[8] We do not consider that the appeal grounds disclose an arguable case of appealable error. The first ground simply asserts that a different weight should have been given to Mr Shamani's mental health condition. This does not speak to any error. Reasonable minds may differ on appropriate weighting. There is no reason why the weight favoured by Mr Shamani had to be the appropriate one. The second ground of appeal, like the first, contends for a different evaluative conclusion, but there is no arguable case that the Commissioner erred in his approach to exceptional circumstances. The Commissioner considered each of the mandatory factors and their significance, both individually and cumulatively, in the usual way.

[9] As to the third ground, the Commissioner's identification of the limited extent of the medical evidence was a routine matter. Again, Mr Shamani challenges the weight that the Commissioner afforded to this matter by describing it as 'undue', but identifies no error, nor do we perceive any to exist. We see no merit in the fourth appeal ground. The Commissioner considered Mr Shamani's engagement with the respondent and concluded that waiting for a response from the employer was not a valid reason for delay. The fifth ground of appeal is a bare assertion of unreasonableness, which again simply insists on a different outcome. There is no plausible basis here for a contention of legal unreasonableness.

[10] Mr Shamani contended that it would be in the public interest to grant permission to appeal because: his case raised questions of how mental health conditions are assessed in the context of procedural deadlines; there was ambiguity in how exceptional circumstances should be applied; his case involved 'misuse of resignation' processes to avoid liability; there should be consistency, compassion and fairness in dealing with vulnerable applicants; and because this case could serve as guidance for others. We find no merit in these contentions. This matter involves the application of s 366 to a single case; we find no ambiguity in how the provisions should be applied; the contention of 'misuse of resignation' does not make sense; and it appears to us that the Commissioner engaged with Mr Shamani's contentions of mental illness with proper care. We see no potential guidance value in this appeal. In any event, no arguable case of error has been identified. It is not in the public interest, or otherwise desirable, for permission to appeal to be granted in such cases.

[11] The grounds of appeal do not disclose an arguable case of error. We are not satisfied that it is in the public interest to grant permission to appeal, nor do we consider that permission to appeal should be granted on general discretionary grounds.

[12] Permission to appeal is refused.

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