1
Fair Work Act 2009
s.604—Appeal of decision
Mahmoud Dahbache
v
Prixcar Services Pty Ltd
(C2015/1206)
VICE PRESIDENT WATSON
DEPUTY PRESIDENT LAWRENCE
COMMISSIONER BULL
MELBOURNE, 5 MARCH 2015
Appeal against decision [[2014] FWC 7932] of Senior Deputy President Drake at Sydney on
14 November 2014 in matter number C2014/4492 - Extension of time to lodge an appeal -
Fair Work Act 2009, s.604.
Introduction
[1] This decision concerns an application for permission to appeal by Mahmoud
Dahbache against a decision of Senior Deputy President Drake handed down on 14 November
2014. The decision of the Senior Deputy President concerned an application to deal with a
dispute made by Mr Dahbache under s.739 of the Fair Work Act 2009 (the Act) concerning
flexible working arrangements at Prixcar Services Pty Ltd (Prixcar).
[2] Mr Dahbache lodged a Notice of Appeal at the Commission on 14 January 2015, more
than 5 weeks outside of the 21 day period prescribed by the Fair Work Commission Rules
2013 (the Rules). As a result, it is first necessary to determine whether the Commission will
allow Mr Dahbache’s appeal application to be filed outside of the prescribed 21 day period.
[3] The parties have agreed that this issue would be determined on the papers before any
hearing of the appeal against the decision of the Senior Deputy President. Written
submissions on this question have been filed on behalf of Mr Dahbache and Prixcar.
The relevant Rule and the approach to extending the time for filing an appeal
[4] Rule 56(2) provides as follows in relation to appeals against decisions of the
Commission:
“(2) The notice of appeal must be lodged:
(a) within 21 calendar days after the date of the decision being appealed against;
or
(b) if the decision was issued in the form of an order—within 21 calendar days
after the date of the order; or
[2015] FWCFB 1227
DECISION
E AUSTRALIA FairWork Commission
[2015] FWCFB 1227
2
(c) within such further time allowed by the Commission on application by the
appellant.
Note: Subsection 598(4) of the Act provides that a decision may be made as an
order.”
[5] A Full Bench of this Commission (then called ‘Fair Work Australia’) said the
following in relation to the predecessor to Rule 561:
“[3] Time limits of the kind in Rule 12 should not simply be extended as a matter of
course. There are sound administrative and industrial reasons for setting a limit to the
time for bringing an appeal and it should only be extended where there are good
reasons for doing so. The authorities2 indicate that the following matters are relevant to
the exercise of the Tribunal’s discretion under Rule 12.3(b):
whether there is a satisfactory reason for the delay;
the length of the delay;
the nature of the grounds of appeal and the likelihood that one or more
of those grounds being upheld if time was extended; and
any prejudice to the respondent if time were extended.
[4] In broad terms the issue for the Tribunal is whether, in all the circumstances and
having regard to the matters set out above, the interests of justice favour an extension
of the time within which to lodge the appeal.”
[6] This approach has been applied in other Full Bench decisions and we apply it in this
case.
Should the time for lodging the appeal be extended?
[7] In accordance with Rule 56 the appeal needed to be filed by Friday, 5 December 2014.
[8] The grounds that Mr Dahbache has relied upon in seeking an extension of time in
which to file his appeal are that he submitted the appeal within 21 days of the decision but the
size of the email was too large and was not able to be sent through. He waited until his
daughter returned and sent the appeal in a number of smaller files. He said that he could not
send the document by mail as he could not access his daughter’s computer whilst she was
away.
[9] The file in this matter indicates that on Monday, 15 December Mr Dahbache emailed
the Commission indicating that his emails attaching the notice of appeal were bouncing back.
He said “Can you please advise if I should contact other or send by mail?” Later the same day
a member of the administrative staff sent an email to Mr Dahbache which stated:
“Dear Mr Dahbache,
There are various methods available to an [sic] someone that is seeking to lodge an
application. If you are having problems sending through material, you may wish to
[2015] FWCFB 1227
3
send through the documents in a number of emails with a smaller number of
attachments to each email. You can also fax your application and any attachments
02 62092400 or 02 93806990. If these options are not available to you, you can hand
deliver the documents to the Sydney or Canberra Registry. I note that the timeframes
for lodgement of an appeal are strict, and failure to lodge within the 21 day timeframe
may result in your appeal being dismissed. You should therefore ensure that the
documents reach the Registry as a matter of urgency if you intend to pursue your
matter further.
Please feel free to call me if you require any further assistance.”
[10] The next communication from Mr Dahbache approximately one month later, was the
filing of his hand written Notice of Appeal on 14 January 2015. The Notice of Appeal was
dated 3 December 2014.
[11] The grounds of appeal advanced by Mr Dahbache allege that the decision was based
on lies from the Respondents and the situation was not investigated enough. No public
interest factors are alleged.
[12] Prixcar strongly opposes an extension of time being granted. It states that since the
decision has been handed down it has implemented the recommendation made by the Senior
Deputy President in her decision and dealing with the matter has required 3 trips from
Melbourne to Sydney to represent the company in the proceedings which date back to May
2014.
[13] We are not persuaded that an acceptable reason for the delay in excess of 5 weeks has
been advanced. In particular, there appears to be no reason why the hand written appeal
document could not have been forwarded by mail prior to 15 December, and especially after
15 December when the administrative staff member pointed out the alternative means of filing
and the importance of complying with time limits.
[14] Further, we are not persuaded that the appeal grounds have any realistic prospects of
success. No error of a type required to successfully appeal against a discretionary decision has
been advanced. We also consider that given the nature of the decision sought to be appealed,
the late filing does involve some prejudice to the employer.
[15] For these reasons we decline to allow the Notice of Appeal to be filed outside the 21
day time limit required by Rule 56. The Application to extend the time for filing the appeal is
dismissed.
VICE PRESIDENT WATSON
THE OF THE FAIR WORK C. SEN THE NOISS
[2015] FWCFB 1227
4
Final written submissions:
Mahmoud Dahbache on 6 February 2015.
Prixcar Services Pty Ltd on 11 February 2015.
Printed by authority of the Commonwealth Government Printer
Price code A, PR561257
1 Tokoda v Westpac Banking Corporation [2012] FWAFB 3995
2 Stevenson-Helmer v Epworth Hospital, Print T2277, 19 October 2000 per Ross VP, Acton SDP and Simmonds C;
Dundovich v P&O Ports, Print PR923358, 8 October 2002 per Ross VP, Hamilton DP and Eaves C; SPC Ardmona
Operations Ltd v Esam and Organ (2005) 141 IR 338.
