s.604 - Appeal of decision

Appeal against decision [2025] FWC 437 and order PR784399 of Commissioner Schneider at Perth on 14 February 2025 in matter number U2024/10593 - permission to appeal refused.

[1] Mr Alex Cokic has lodged an appeal under s 604 of the Fair Work Act 2009 (Cth) (Act) against a decision[1] and order[2] of Commissioner Schneider issued on 14 February 2025. In the decision, the Commissioner declined to grant Mr Cokic an extension of time to file his application for an unfair dismissal remedy against the respondent, Tronix Management Pty Ltd. The Commissioner ordered that Mr Cokic's application be dismissed.

[2] The matter was listed for permission to appeal only. The parties consented to the application being determined without holding a hearing pursuant to s 607(1)(b) of the Act. We are satisfied, having regard to s 607(1)(a), that the question of permission to appeal can be adequately determined without the need for oral submissions.

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

[4] Mr Cokic's unfair dismissal application was made pursuant to s 394 of the Act. Section 394(2) requires that the application be made within 21 days after the dismissal took effect. However, the Commission may allow a further period beyond 21 days if it is satisfied that there are exceptional circumstances warranting an extension of time for making the application, taking into account the matters set out in s 394(3).

[5] The date of dismissal recorded in Mr Cokic's application is 15 August 2024, and this is the date recorded in the decision as the effective date of dismissal.[3] The Commissioner determined that to have been made within the 21-day statutory timeframe, the application needed to have been filed by midnight on Thursday 5 September 2024. The Commissioner recorded that Mr Cokic's unfair dismissal application was filed on 8 September 2024 and was out of time.

[6] The Commissioner turned to consider the matters set out in s 394(3) of the Act. The Commissioner acknowledged the number of medical appointments attended by Mr Cokic in the relevant period but did not accept that these appointments, or Mr Cokic's state of health, rendered him unable to attend to the filing of his application at an earlier time. Nor did the medical information relied upon by Mr Cokic demonstrate that he was "meaningfully hindered," noting that Mr Cokic was capable of engaging in other tasks.[4] The Commissioner was satisfied that Mr Cokic was aware of his dismissal on the date that it took effect and therefore had the benefit of the full 21-day period to contest his dismissal, which he did in correspondence with the respondent.[5] Neither the merits of the application, nor the questions of prejudice to the respondent or the consideration of fairness, carried significant weight in the Commissioner's overall assessment.[6]

[7] Taking into account the above matters, the Commissioner was not satisfied there were exceptional circumstances warranting an extension of time and the application was dismissed.[7]

[8] In Mr Cokic's Form F7 Notice of Appeal, he relies upon a 28-page document that addresses four matters; the public interest test, whistleblower protections, disability discrimination and grounds of appeal.

[9] Mr Cokic's grounds of appeal are as follows:

• (1) The Commissioner made a significant error of fact in failing to comply with the Interpretation Act 1984 (WA) in calculating whether Mr Cokic's unfair dismissal application was filed within the 21-day statutory timeframe.

• (2) The Commissioner made a significant error of fact in determining Mr Cokic attended an appointment on the date his application was made, when the appointment was in 2023 and not 2024.

• (3) The Commissioner is not medically trained and made significant errors of fact in his assessment of the medical evidence relied upon by Mr Cokic.

• (4) The Commissioner made a series of factual findings for which he was not medically qualified to make, and in doing so discriminated against Mr Cokic on the basis of disability and breached his human rights.

[10] Mr Cokic contends that it is in the public interest to grant permission to appeal, including because the appeal raises questions as to whether the Commission and the respondent engaged in disability discrimination and the issue of whistleblower protection. Further, the application was dismissed on a technicality, and this manifests an injustice to Mr Cokic.

[11] There is no right to appeal, and an appeal may only be made with the permission of the Commission. This appeal is from a decision made under Part 3-2 of the Act. Therefore, s 400 of the Act applies. By s 400(1), the Commission must not grant permission to appeal unless it is in the public interest to do so. Section 400(2) provides that an appeal on a question of fact can only be on the ground that the decision involved a significant error of fact. The test under s 400 is "a stringent one."[8]

[12] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[9] The public interest is not satisfied simply by the identification of error or a preference for a different result.[10] Considerations that may attract the public interest include that the matter raises issues of importance and general application, that the decision manifests an injustice or that the result is counterintuitive.[11]

[13] It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. However, that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.

[14] An application for permission to appeal is not a preliminary hearing of the appeal. In determining whether to grant permission to appeal, it is unnecessary and inappropriate to conduct a detailed examination of the appeal grounds.[12] However, it is necessary to engage with the grounds to consider whether they raise an arguable case of appealable error.

[15] We are not satisfied that the grant of permission to appeal would be in the public interest. Our reasons may be briefly stated.

[16] As to ground (1), Mr Cokic's reliance upon the Interpretation Act 1984 (WA) is misplaced. The Act is to be interpreted by reference to the Acts Interpretation Act 1901 (Cth) as in force at 25 June 2009 (see s 40A of the Act). Mr Cokic's further submissions dated 9 April 2025 addressing the Acts Interpretation Act 1901 (Cth) do not take his argument further. This is because in calculating the date that the 21-day timeframe for lodgment lapsed, the Commissioner was correct not to exclude weekends.[13] The Commissioner otherwise correctly recorded in the decision that:

(a) the 21-day period does not include the day on which the dismissal took effect;[14] and

(b) if the final day of the 21-day period falls on a weekend or public holiday, the prescribed time will be extended until the next business day.[15]

[17] Mr Cokic appears to concede that the potentially erroneous factual finding upon which appeal ground (2) is based arises from an error in his own timeline, which he relied upon in the proceedings at first instance. To the extent that the Commissioner was mistaken at [54] of the decision when he indicated that it appeared that Mr Cokic lodged his application on the same day that he attended a medical appointment, such error does not rise to the significance required by s 400(2) of the Act.

[18] As to ground (3), an arguable case of error has not been disclosed in relation to the Commissioner's assessment of the medical evidence. The contention that the assessment was erroneous by reason of the assumption that the Commissioner is not medically trained is not a sustainable ground of appeal. To the extent that it is inferred that the Commissioner lacked impartiality, the matters upon which Mr Cokic relies do not demonstrate that Mr Cokic was denied the opportunity for a fair hearing.

[19] In relation to ground (4), Mr Cokic challenges a series of factual findings made by the Commissioner in his assessment of the medical evidence. No significant error of fact is disclosed. The weight to be assigned to the conclusions that the Commissioner reached in respect of the medical evidence, noting it was the subject of consideration in the decision, was a matter for the Commissioner. We do not consider it to be arguable that the Commissioner's findings were discriminatory or breached Mr Cokic's human rights.

[20] Mr Cokic's submissions address a series of other matters not dealt with in his grounds of appeal. Mr Cokic also filed supplementary submissions with the Commission on 9 April 2025. While we have considered Mr Cokic's submissions, we are not otherwise satisfied that the further matters advanced demonstrate an arguable case of appealable error in the decision or in the exercise of the Commissioner's discretion.

[21] Mr Cokic's application for an extension of time was determined on the basis of its own particular facts. The appeal does not raise any issue of law or principle that might have a wider application. Because we are not satisfied that the grant of permission to appeal would be in the public interest, permission must be refused in accordance with s 400(1) of the Act.

[1] [2025] FWC 437

[2] PR784399

[8] Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54; 192 FCR 78; 207 IR 177 at [34] and [43]

[9] O'Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210 at 216-217 per Mason CJ, Brennan, Dawson and Gaudron JJ: applied in Hogan v Hinch (2011) 243 CLR 506 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [44]-[46]

[10] GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343; 197 IR 266 at [24]- [27]; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/ Warkworth [2010] FWAFB 10089 at [28], affirmed on judicial review; Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 178; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663; 241 IR 177 at [28]

[11] GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, 197 IR 266 at [24]- [27]

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

[13] See the approach in Stedman v Transdev NSW Pty Ltd T/A Transdev Buses [2015] FWCFB 1877

[15] Decision at [7]; Singh v Trimatic Management Services Pty Ltd [2020] FWCFB 553

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