s.604 - Appeal of decision

Appeal against decision [2025] FWC 2918 of Commissioner Lim at Perth on 30 September 2025 in matter C2025/6636 - permission to appeal refused

[1] Adam Ashby has lodged an appeal under s 604 of the Fair Work Act 2009 (FW Act) against a decision of Commissioner Lim ( [2025] FWC 2918) made on 30 September 2025. The Commissioner dismissed Mr Ashby's application under s 365 after concluding that it was not made in accordance with the FW Act because it was contrary to the multiple applications rule in s 725. The matter was listed before us for permission to appeal only. The parties consented to the matter being determined without a hearing, and we are satisfied that it can be adequately determined without the parties making oral submissions (see s 607(1) of the Act).

[2] Section 725 of the FW Act provides that 'a person who has been dismissed must not make an application or complaint of a kind referred to in any one of ss 726 to 732 in relation to the dismissal if any other of those sections applies'. Section 727 is concerned with applications made under s 365 of the FW Act in relation to the dismissal. Section 732 applies if an application or complaint has been made in relation to the dismissal under another Commonwealth law or a law of a State or Territory and has not been withdrawn or failed for want of jurisdiction.

[3] In her decision, the Commissioner stated that on 29 May 2025, Mr Ashby made an unfair dismissal application under the Industrial Relations Act 1979 (WA) (WAIRC application), and that this was a complaint to which s 732 of the FW Act applied. She recorded that Mr Ashby made his application under s 365 of the FW Act on 9 July 2025, and that on 29 July 2025 he discontinued his WAIRC application. The Commissioner observed that when Mr Ashby lodged his s 365 application on 9 July 2025, he had not yet withdrawn his WAIRC application, nor had that application been dismissed for want of jurisdiction, and that his two applications related to the same dismissal. The Commissioner concluded that, as s 732 applied at the time Mr Ashby made his s 365 application, the latter application was not made in accordance with s 725. For this reason, the Commissioner dismissed the s 365 application under s 587(1)(a), which permits the Commission to dismiss applications that are not made in accordance with the FW Act.

[4] Mr Ashby requires the Commission's permission in order to appeal. Section 604(2) provides that the Commission must grant permission to appeal 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. 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 may have made an error is not necessarily a sufficient basis to grant permission to appeal.

[5] In his notice of appeal, Mr Ashby advanced four grounds upon which he elaborated in written submissions. First, Mr Ashby submitted that the Commissioner erred in finding that his s 365 application was barred by s 725, because his WAIRC application concerned unfair dismissal and was made under State legislation, whereas his general protections application was made under federal legislation and was a different claim seeking different remedies. Mr Ashby contended that s 725 did not prevent multiple claims that involved different causes of action in respect of the same dismissal. Mr Ashby is mistaken. This is precisely the effect of s 725. A person who has been dismissed must not make an application or complaint of any of the kinds referred to in ss 726 to 732 in relation to the dismissal if any other of those sections applies. The point of the section is to restrict the ability of a person to pursue multiple causes of action in respect of the same dismissal. It is clear that when Mr Ashby lodged his s 365 application, s 732 applied, because he had made the WAIRC application in relation to his dismissal, and that application had not been withdrawn or failed for want of jurisdiction. Mr Ashby contended that his argument was supported by the decision in Bing Du v University of Ballarat [2011] FWAFB 5225, but this decision provides no support at all for his contention. No arguable case of error is revealed by ground 1.

[6] Secondly, Mr Ashby submitted that the Commissioner failed to consider the purpose and scope of s 351, and that her interpretation of s 725 denied him an avenue of relief under s 351, which was contrary to the legislative purpose. This contention is devoid of merit. The legislative purpose of s 725 is to limit the pursuit of multiple causes of action in respect of the same dismissal. The reason Mr Ashby could not pursue a remedy under s 351 through his s 365 claim was because he had not complied with the requirement of s 725. Contrary to the commandment in that provision, Mr Ashby made an application of the kind referred to in s 727 (his s 365 application) at a time when s 732 applied; he had made the WAIRC application, and that claim had not been withdrawn or failed for want of jurisdiction. If Mr Ashby wanted to make a s 365 application, he should have first withdrawn his WAIRC application and then lodged the s 365 claim. He did not do so.

[7] Thirdly, Mr Ashby submitted that the Commissioner's decision produced an unjust and unreasonable result merely because of a procedural misstep. This contention is baseless. There is nothing unjust or unreasonable about applying the law. If Mr Ashby wishes to change s 725, he can write to his member of Parliament.

[8] Fourthly, Mr Ashby contended that the Commissioner failed to properly exercise her discretion under s 587(1)(a) because she failed to take into account the remedial objects of the FW Act. But it is simply not arguable that the Commissioner's discretion miscarried. The objects of the FW Act cannot override s 725. Further, although the Commissioner dismissed the matter under s 587, Mr Ashby's failure to comply with s 725 meant that the Commission had no jurisdiction to deal with his s 365 claim. Had she not dismissed the matter under s 587, the Commissioner would have been required to dismiss the application for want of jurisdiction.

[9] In written submissions, Mr Ashby raised various other arguments, including in response to submissions filed by the respondent. None of these speak to any arguable error in the Commissioner's decision. Among his various contentions, Mr Ashby suggested that the date of the s 365 application was 13 August 2025, not 9 July 2025. But the date of the s 365 application on the Commission's file is indeed 9 July 2025, not 13 August 2025. Mr Ashby said that no disability-appropriate accommodations were provided during the hearing to take account of his ASD and ADHD, but there is no indication that Mr Ashby was refused support or that he ever asked for support, and these matters could not affect the meaning and application of s 725, which is clear. Mr Ashby said that his extension of time application was not considered, but this was not necessary, because his claim was barred by s 725. A fifth appeal ground was raised which contended that the Commissioner failed to address 'substantive discrimination evidence' but this was not explained and has no bearing on the meaning of s 725. In considering an application for permission to appeal, the Full Bench is concerned to identify any arguable case of error, but this does not preclude the Full Bench from stating the obvious. This was a simple case of Mr Ashby's application being barred by s 725.

[10] Mr Ashby made various submissions as to why his appeal engaged the public interest, but none of them has merit, because the public interest favours the application of law, not the circumvention of law to accommodate outcome preferences.

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

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