Fair Work Act 2009

s.604 - Appeal of decision

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.

[1] 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.

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

[3] 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.

[4] 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)).

[5] 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 to an end. One of those circumstances concern contracts for a specified period of time where the employment has terminated at the end of that period. The Deputy President was alive to that issue[2] but, to Dr Taheri's benefit, was prepared to assess her extension of time on the basis that she had been dismissed.

[6] Turning to the statutory factors, the Decision records the reasons for delay advanced by Dr Taheri were due to alleged misleading assurances and related matters referred to above. Dr Taheri states her expectations of a renewal were reinforced, as she had not had any performance issues and had been specifically named in a research collaboration agreement that was extending past the putative end date of her contract. Contrary to Dr Taheri's submissions, the Deputy President was not persuaded that there were representations or promises to the effect that her reappointment was a mere procedural matter. Nor was the Deputy President satisfied there were any representations to the effect that Dr Taheri would be appointed to a fresh contract if she applied for it. In the latter respect, the Deputy President accepted the evidence of a witness from the University who gave oral evidence about the matter. We note Dr Taheri challenges that witness evidence, which is a matter we will return to.

[7] The Deputy President's overall assessment of the reasons for delay was that the various circumstances advanced by Dr Taheri did not provide a satisfactory reason for the delay or otherwise was of assistance to her in relation to this criterion.

[8] As to the statutory factor concerning whether Dr Taheri became aware of the dismissal after it took effect, the Deputy President was clearly satisfied she was aware that her employment would end on 31 December 2024. Among other matters, the Deputy President referred to an inquiry from Dr Taheri two months before that date where she asked about obtaining an honorary position after 31 December 2024. Her email stated "I would like to follow up on my previous email regarding the possibility of obtaining an honorary position after my contract ends. This would allow me to access my email and the MQ library for a while until I find new employment." The Deputy President concluded that this statutory factor was a neutral matter in his overall consideration.

[9] As to the statutory factor concerning action taken to dispute the dismissal, the Deputy President concluded the circumstances of that factor weighed against a finding of exceptional circumstances. Primarily, the Deputy President observed that the employer was not on notice that an application of the kind before him was going to be made until they received the application.

[10] The Deputy President concluded there was no relevant prejudice to the employer if an extension of time was granted, and treated that statutory factor neutrally between the parties.

[11] As to the merits of the application, the Deputy President concluded they did not favour an overall conclusion that exceptional circumstances existed. In doing so, the Deputy President observed that Dr Taheri's 'outer limit' contract was a type likely to be caught by the exception in s 386(2)(a) of the Act, having referred to a recent Full Court decision about that issue: Alouani-Roby v National Rugby League Ltd [2024] FCAFC 161 (Alouani-Roby). Section 386(2)(a) of the Act excludes certain circumstances from constituting a "dismissal" and the Deputy President concluded Dr Taheri's claim would face serious difficulties in light of those circumstances.

[12] As to the statutory factor concerning fairness between Dr Taheri and other persons in a similar position, the Decision records the Deputy President's conclusion that there was no such matter he was aware of and he treated that factor neutrally between the parties.

[13] Finally, the Decision records that the Deputy President made an overall evaluative assessment of all those factors and concluded that "exceptional circumstances" did not exist. Having formed that conclusion, Dr Taheri's application for an unfair dismissal remedy was dismissed.

[14] An appeal under s 604 of the Act is an appeal by way of rehearing and the Commission's powers on appeal are only exercisable if there is error on the part of the primary decision maker.[3] There is no right to appeal, and an appeal may only be made with permission.

[15] It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated.[4] This is so because an appeal cannot succeed in the absence of appealable error.[5] 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.[6]

[16] An application for permission to appeal is not a de facto or preliminary hearing of the appeal. In determining whether permission to appeal should be granted, it is unnecessary and inappropriate for the Full Bench to conduct a detailed examination of the grounds of appeal.[7] However, it is necessary to engage with the appeal grounds to consider whether they raise an arguable case of appealable error. In Waters v Commonwealth (Australian Taxation Office) [2015] FCAFC 46 (Waters), the Full Court stated at [10] that "An indiscriminate "scatter-gun" approach on the part of an Applicant seeking leave upon each of the proposed Grounds of Appeal may well only divert attention away from the one (or a limited number of grounds) which really expose the reason why a primary judge's decision is truly open to "sufficient doubt" to warrant leave being granted" (original emphasis).

[17] Where an appeal concerns a discretionary decision, the principles in House v The King (1936) 55 CLR 499 apply. An appeal against such a decision must establish the decision maker acted upon a wrong principle, gave weight to irrelevant matters, failed to give weight or sufficient weight to relevant matters, made a mistake as to facts, or where the decision is so unreasonable or plainly unjust demonstrating a failure to properly exercise the discretion. Where an error of fact is alleged, it is well established that an appellate body will not interfere with the factual findings of a trial decision-maker unless it is concluded that a finding cannot stand because it was contrary to incontrovertible facts or uncontradicted testimony, glaringly improbable, or contrary to compelling inferences.[8] Additionally, an appeal alleging a factual error arising from an unfair dismissal decision can be made only on the ground that the decision involved a "significant" error of fact.

[18] As the appeal is one to which s 400 of the Act applies, the Commission "must not" grant permission to appeal unless it considers that it is in the public interest to do so. The public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters.[9]

[19] Dr Taheri's Notice of Appeal and submissions in support identify a multiplicity of alleged errors.

[20] With those observations, Dr Taheri's alleged grounds of appeal can be broadly grouped as follows: errors in assessing the reason for delay (including subsidiary errors about assessing "complexity and support"); errors in assessing prejudice; errors in assessing the merits evaluation; errors concerning her unfair dismissal criteria; errors of fact or matters said to have been overlooked (including by accepting evidence given by a witness for the employer and other alleged errors relating to the general handling of her contractual renewal process by her former employer).

[21] A number of the grounds of appeal allege errors pertaining to conclusions that the Deputy President simply did not make. For example, Dr Taheri asserts the Deputy President wrongly found that she was not "dismissed". The Deputy President did not make that conclusion. The Deputy President did conclude Dr Taheri's claim would face "serious difficulties" on this issue but that was in the context of his high-level assessment of Dr Taheri's claim.

[22] Dr Taheri also asserts various "errors" in the evaluative criteria of s 387 of the Act, which is a substantive criteria in an unfair dismissal claim concerned with whether the dismissal was harsh, unjust or unreasonable. The Deputy President also clearly made no findings about those matters. The Decision states that such matters would only be resolved "at a full hearing" in the event that was required. Dr Taheri alleges the Deputy President applied the wrong legal test concerning the issue of "dismissal" and referred to an earlier decision of a Full Bench decision of the Australian Industrial Relations Commission. Quite properly, the Deputy President instead referred to the much more recent decision of the Full Court of the Federal Court of Australia in Alouani-Roby, which has authoritatively determined a number of matters concerning what constitutes a dismissal for what are often called 'outer limits' contracts.

[23] A number of the alleged errors are in substance complaints about factual findings made by the Deputy President, which Dr Taheri seeks to reargue, such as the alleged "verbal confirmations" about her renewal that she purportedly received. The Deputy President rejected that there had been any misleading conduct and accepted oral evidence from a witness on behalf of the University that there had not been representations that Dr Taheri would be appointed to a fresh contract. These findings were available to him. There is no arguable basis to indicate the Deputy President's findings were contrary to incontrovertible facts or uncontradicted testimony, glaringly improbable, or contrary to compelling inferences let alone were significant errors of fact. Respectfully, the Deputy President's findings appear sound.

[24] Other alleged errors are, in substance, a complaint about the Deputy President's overall evaluative conclusions (and further conflate the factual findings that there was no misleading conduct concerning Dr Taheri's dismissal). While it is clear that Dr Taheri contends that a different overall conclusion ought to have been made, this does not demonstrate arguable error.

[25] As we are not satisfied that the grounds of appeal advance any sufficiently arguable error in fact or law, permission for leave to appeal would be refused on that basis. Having regard to the factors in GlaxoSmithKline Australia Pty Ltd v Makin, we are also not satisfied that the decision raises any of the public interest considerations identified in that decision. In circumstances where we are not persuaded that it is in the public interest to grant permission to appeal, permission to appeal must be refused in accordance with s 400(1) of the Act.

[26] Permission to appeal is refused.

[1] [2025] FWC 695 (Roberts DP), 11 March 2025.

[3] This is so because on appeal FWC has the power to receive further evidence, pursuant to s.607(2); see Coal and Allied v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.

[4] Re Coldham; Ex parte Brideson (No 2) [1990] HCA 36; (1990) 170 CLR 267 at 275.

[5] Wan v AIRC [2001] FCA 1803, 116 FCR 481 at [30].

[6] Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089, 202 IR 388 at [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 at [28].

[7] Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82].

[8] Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [27] - [29].

[9] [2010] FWAFB 5343, 197 IR 266 at [24] - [27].

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