DECISION

Fair Work Act 2009
s.604—Appeal of decision

Dr Waqqas Ahmad
v
MPA Engineering Pty Ltd
(C2020/6663)

Appeal against decision ([2020] FWC 4475) of Commissioner Yilmaz at Melbourne on 26 August 2020 in matter number C2020/3095 – general protections claim lodged out of time – permission to appeal refused

[1] Dr Waqqas Ahmad has applied for permission to appeal and has appealed against a decision of Commissioner Yilmaz made on 26 August 2020 1 (Decision), in which she refused to grant an extension of time for Dr Ahmad to lodge a general protections dismissal application under s 365 of the Fair Work Act 2009 (Cth) (Act). The matter was listed for hearing before us in respect of permission to appeal only.

[2] Dr Ahmad’s general protections application contended that he had been dismissed from his employment with MPA Engineering Pty Ltd (MPA) on 12 November 2019 and that, over the three month period of his engagement with MPA, the company had misrepresented to him that he was a contractor, in contravention of the sham contracting provisions in ss 357, 358 and 359 of the Act. He also contended that he had been subjected to undue influence, contrary to s 344, and that the company had failed to pay him for work he performed as its employee. The application was lodged in the Commission on 1 May 2020, nearly five months outside the 21 day period prescribed by s 366(1)(a). Dr Ahmad asked the Commissioner to extend the period under s 366(2), on the basis that there were exceptional circumstances.

[3] MPA denied having contravened the Act and objected to Dr Ahmad’s request for an extension of time. It contended that Dr Ahmad was not its employee, but instead a short term contractor whom MPA had engaged through his business, ‘Doctors of Optimization Pty Ltd’ (DOO). MPA said that it terminated its contract with DOO on 12 November 2019 when Dr Ahmad failed to meet relevant milestones. MPA further submitted that Dr Ahmad’s application was lodged many months out of time, and that no extension should be granted, as there were no exceptional circumstances.

[4] Dr Ahmad’s request for an extension of time was heard by the Commissioner on 7 July 2020. In the Decision, the Commissioner noted that the application was made 150 days outside the required 21-day period, and that it was necessary for Dr Ahmad to obtain an extension of time under s 366(2) in order to make his application. The Commissioner then took into account each of the considerations referred to in s 366(2)(a)-(e). She concluded that Dr Ahmad’s reason for the delay was not credible and did not weigh in favour of an extension. She was not persuaded that Dr Ahmad had a meritorious case. The Commissioner then concluded, at [49], that she was not satisfied that there were exceptional circumstances warranting an extension of time under s 366(2).

[5] We note that the Decision proceeds on the assumption that Dr Ahmad was an employee of MPA and that his employment was terminated on 12 November 2019. The Commissioner did not make a finding as to whether Dr Ahmad was dismissed. This course was in line with the decision of the Full Bench of the Commission in Hewitt v Topero Nominees Pty Ltd t/a Michaels Camera and Video Digital 2, which had held that the Commission does not need to be satisfied that an applicant has been dismissed before dealing with an application under s 365, and that it was sufficient that the Commission have before it an application that alleged a dismissal in contravention of Part 3-1. However, this approach was disapproved by the recent decision of the Full Court of the Federal Court in Coles Supply Chain Pty Ltd v Milford,3 which was handed down after the Commissioner issued her decision. The Court noted that s 365 applies ‘if a person has been dismissed’, and s 366 imposes a time limit for lodgement of 21 days after the dismissal takes effect, allowing the Commission to extend that period in exceptional circumstances. In rejecting the approach in Hewitt, the Full Court said that it was difficult to comprehend why the Act would permit the Commission to make a finding about when a dismissal occurred, but not about whether a dismissal had occurred (at 71).

[6] In light of the Full Court’s decision in Coles, the Commissioner’s failure to make a finding about whether Dr Ahmad was dismissed from employment with MPA was an error. However, it was one that worked in Dr Ahmad’s favour. It was not an error that affected the Commissioner’s decision to refuse an extension of time.

The appeal

[7] An appeal under s 604 of the Act may only be made with the permission of the Commission. Section 604(2) requires the Commission to grant permission to appeal if it is satisfied that it is in the public interest to do so. The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment. 4 The public interest is not satisfied simply by the identification of error or a preference for a different result. In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench identified some of the considerations that may enliven the public interest:

‘... 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...’ 5

[8] Aside from the special case in s 604(2), the grounds for granting permission to appeal are not confined. Matters traditionally considered to justify the grant of permission include where a decision is attended with sufficient doubt to warrant its reconsideration, or that substantial injustice may result if leave is refused. 6 It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated, because an appeal cannot succeed in the absence of error.7 But the fact that a member at first instance has made an error is not necessarily a sufficient basis to grant permission to appeal.8 In deciding whether to grant permission, it is not necessary for the Full Bench to conduct a detailed examination of the grounds of appeal.9 However, it is necessary to engage with those grounds to consider whether they raise an arguable case of appealable error.

[9] We make some observations about the provisions that are relevant to this appeal. Section 366(1) provides that an application under s 365 must be made within 21 days after the dismissal takes effect, or within such further period as the Commission allows. Section 366(2) sets out the circumstances in which the Commission may grant an extension of time. It states:

‘The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) any action taken by the person to dispute the dismissal; and

(c) prejudice to the employer (including prejudice caused by the delay); and

(d) the merits of the application; and

(e) fairness as between the person and other persons in a like position.’

[10] The meaning of ‘exceptional circumstances’ in s 366(1) was considered by a Full Bench in Nulty v Blue Star Group Pty Ltd (Nulty), 10 where it was noted that, in order to be exceptional, the circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented. The Full Bench also noted that exceptional circumstances can include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together can be considered exceptional.

[11] Dr Ahmad’s notice of appeal raised 7 grounds. Grounds 1 to 6 variously contended that the Commissioner made significant errors of fact. The final ground concerned various contentions that the Decision was affected by errors of law.

[12] By grounds 1, 2 and 4, Dr Ahmad contended that the Commissioner misunderstood his evidence about some 400 emails he exchanged with the company during his three month engagement with MPA from 16 August 2019 to 12 November 2019. Dr Ahmad said that these emails were sent during his engagement with the company, whereas it is evident from [30], [32] and [34] of the Decision that the Commissioner thought these emails were sent after it ended. Dr Ahmad contended that the fact that these 400 emails were sent during his engagement with the company was significant, because it supported his contention that he was closely managed during this time, which he says is consistent with a conclusion that he was an employee of MPA, and not a contractor.

[13] We agree that the passages in question indicate that the Commissioner believed the emails were sent after the conclusion of Dr Ahmad’s alleged employment, when in fact they were sent beforehand. However, this factual error does not appear to have had any significant bearing on the Commissioner’s reasoning or affected the outcome. One effect of the error was that at [30], the Commissioner apprehended that Dr Ahmad advanced an additional explanation for his delay, which in fact he did not. The Commissioner nevertheless considered Dr Ahmad’s actual contentions about the reason for the delay, which she found unconvincing. Another apparent effect was that at [32], the Commissioner believed that Dr Ahmad had taken additional steps to dispute his dismissal. She found this consideration in principle to weigh in favour of an extension, although the sending of many emails was unhelpful. At [34], the Commissioner stated that the delay had caused disadvantage to MPA, and that the email correspondence had irritated and frustrated MPA. It appears to us that the latter remark was a general observation, rather than the basis for concluding that MPA had suffered ‘disadvantage’; that conclusion was founded, at [36], on the period of the delay and the fact that the company had expended effort and costs on arbitration during this period. Further, we do not consider that the timing of the 400 emails logically carries the significance that Dr Ahmed ascribed to it. The exchange of a large number of emails does not necessarily point to the existence of an employment relationship. It is also compatible with a contracting relationship, particularly if there is disputation between the parties, as was the case here.

[14] Dr Ahmad’s third ground of appeal contended that, at [33], the Commissioner wrongly stated that he had failed to participate in an independent commercial arbitration of his dispute, and that in fact he actively defended himself in the arbitration, because MPA had sued him for $700,000. However, we read the Commissioner’s reference to Dr Ahmad’s failure to participate in the arbitration as an overall, qualitative assessment of his participation in the arbitration. It is clear from later in the text of [33] that the Commissioner was aware that Dr Ahmad had participated in the arbitration to some extent, but that she considered him to have overly complicated the process. In any event, these observations formed part of the Commissioner’s analysis of the steps taken by Dr Ahmad to dispute the dismissal, a consideration that she considered in principle to weigh in his favour.

[15] Dr Ahmad’s fifth ground of appeal contended that MPA had misused the commercial arbitration proceeding to cause delay and impede him from bringing his own legal action. However, the Commissioner stated that, based on the submissions and materials before her, she did not consider MPA had frustrated the lodging of Dr Ahmad’s application under s 366. We discern no error in this conclusion. Indeed it is difficult to understand how Dr Ahmad’s involvement in a commercial dispute, even a bitter and protracted one, could have prevented him from lodging his application under s 365, which requires the completion of a simple form.

[16] The sixth ground of appeal contended that, once Dr Ahmad removed himself from the commercial arbitration proceedings, he immediately lodged his application under s 365 in the Commission. But this ground does not speak to any error on the part of the Commissioner.

[17] The final ground of appeal concerned ‘significant errors of law’. Dr Ahmad contended that although he did not lodge his application within the 21 day period, he nevertheless complied with the ‘spirit’ of s 366. But again, this contention does not identify any error. Dr Ahmad suggested that it is not practically or legally possible for two legal proceedings to be running at the same time. This is not the case. Concurrent legal proceedings are very common. Dr Ahmad said that natural justice required his extension of time hearing to be heard concurrently with his ‘actual unfair dismissal’ application. However, Dr Ahmad has not filed an unfair dismissal application, but an application under s 365 of the Act alleging a contravention of the general protections provisions. Even if Dr Ahmad had filed an unfair dismissal application, s 396 would have required his request for an extension of time to be decided before the merits of the application.

Conclusion

[18] We are not persuaded that the matters set out in the grounds of appeal and submissions raise an arguable case of a material error. The Commissioner’s mistaken understanding of the timing of the 400 emails was not an error of any apparent consequence. We do not consider that the decision to refuse an extension of time is attended with sufficient doubt to warrant its reconsideration, or that the decision manifests an injustice. It appears to us that the case put before the Commissioner for an extension of time was a weak one. Dr Ahmad’s application was filed well out of time for no apparent good reason, and he did not present convincing arguments of exceptional circumstances to support an extension of time. The appeal does not raise any issues of general application. We do not consider the grant of permission to be in the public interest, nor do we consider that there is any other basis upon which permission to appeal should be granted.

[19] Permission to appeal is therefore refused.

DEPUTY PRESIDENT

Appearances:

W. Ahmad for himself.
D. Miller for MPA Engineering Pty Ltd.

Hearing details:

2020.
Melbourne:
October 6.

Printed by authority of the Commonwealth Government Printer

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 1   [2020] FWC 4475

 2   [2013] FWCFB 6321 at [50]

 3   [2020] FCAFC 152 (11 September 2020)

 4   Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [44]-[46]

 5   [2010] FWAFB 5343, 197 IR 266 at [24] – [27]

 6   CFMEU v AIRC (1998) 89 FCR 200 at 220; and Wan v AIRC (2001) 116 FCR at 481 at [26]

 7   Wan, above, at [30]

 8   NSW Bar Association v Brett McAuliffe; Australian Taxation Office [2014] FWCFB 1663, 241 IR 177 at [28]

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

 10   [2011] FWAFB 975