[2025] FWCFB 169

Fair Work Act 2009

s.604 - Appeal of decisions

Appeal against decision [2025] FWC 1608 of Commissioner Lim at Perth on 11 June 2025 in matter number U2025/3730 - permission to appeal refused

[1] Anthony Rabey has lodged an appeal under s 604 of the Fair Work Act 2009 (Act) against a decision of Commissioner Lim issued on 11 June 2025 ( [2025] FWC 1608). Mr Rabey requires the Commission's permission to appeal. The appeal was listed for hearing in relation to permission to appeal only.

[2] The Commissioner declined Mr Rabey's request for an extension within which to make his unfair dismissal application. Section 394(2) states that such applications must be made within 21 days after the dismissal took effect, or within such further period as the Commission allows. Section 394(3) permits the Commission to allow a further period if it is satisfied that there are exceptional circumstances, taking into account the matters in s 394(3)(a) to (e).

[3] The Commissioner considered Mr Rabey's arguments in respect of each of the matters in s 394(3). The Commissioner was not satisfied that Mr Rabey's reasons for the delay, namely his engagement with the respondent after his dismissal and his medical conditions, were an acceptable reason for the delay, and that this weighed against him. She recorded that Mr Rabey became aware of his dismissal when the termination letter was sent to him, and that he had taken minimal action to dispute the dismissal, which she regarded as neutral matters. She noted that no submissions were made as to prejudice to the employer, or fairness between the applicant and other persons in a similar position. As to the merits, which in an extension of time matter are considered on a preliminary basis, the Commissioner stated that, given the limited evidence and the contested facts, the merits were a neutral factor. The Commissioner was not satisfied that there were exceptional circumstances and dismissed the application.

[4] An appeal may only be brought with the permission of the Commission under 604(1). Section 400 of the Act applies to this appeal, because the Commissioner's decision was made under Part 3-2. Section 400(1) states that 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 made on the ground that the decision involved a significant error of fact. 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 (Makin) at [27]).

[5] 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 at first instance may have made an error is not necessarily a sufficient basis to grant permission to appeal.

[6] Mr Rabey's notice of appeal contains 6 appeal grounds on which he elaborated in written and oral submissions and correspondence to the Commission. Mr Rabey's first appeal ground contends that he was denied procedural fairness because the Commissioner made determinations about his medical capacity without the involvement of doctors, dismissed his medical certificate as insufficiently specific, and failed to take up his offer to provide a more detailed medical statement. This ground presents no case of arguable error. It appears to us that Mr Rabey had every opportunity to submit materials and put his case at the hearing on 5 June 2025. On 29 April 2025, he foreshadowed obtaining a medical report, but did not do so.

[7] The second appeal ground contends that the Commissioner wrongly inferred from Mr Rabey's ability to send emails to the respondent that he had the capacity to manage legal matters, and that this ignored his anxiety, executive dysfunction and irritable bowel syndrome, which affect his every-day capacity, and that these matters were not assessed by doctors. There is no arguable error here. The Commissioner concluded that Mr Rabey had not demonstrated how his conditions affected his capacity to file his application. This conclusion appears to have been entirely open on the evidence. Further, the Commissioner was not required to procure medical evidence. It was for Mr Rabey to prove his case.

[8] Thirdly, Mr Rabey contended that the Commissioner failed to consider the combination of factors that made his situation exceptional, including his medical conditions and efforts to engage with the respondent's internal processes. However we identify no arguable error in the Commissioner's consideration of the various matters said by Mr Rabey to constitute or contribute to exceptional circumstance. Mr Rabey simply argues for a different weighting and outcome. There is no arguable error.

[9] Fourthly, Mr Rabey submitted that the Commissioner mischaracterised his conduct by stating that he took insufficient action to contest his dismissal. In fact the Commissioner concluded that he took minimal action. Mr Rabey disputes this evaluation but presents no arguable case that it was erroneous. Fifthly, Mr Rabey asserted that the Commissioner failed to apply the considerations in s 394(3) appropriately by viewing all the circumstances holistically. But it appears to us that the Commissioner did consider all of the circumstances and that her approach was orthodox and in line with Full Bench authority. No arguable case of error is apparent. Sixthly, Mr Rabey said that the Commissioner's 'rigid' handling of his matter breached discrimination laws because he was not allowed to put on further evidence. But no arguable contravention is articulated or apparent. And again, it appears that Mr Rabey had every chance to present his case.

[10] Mr Rabey asked the Full Bench to take into account all previous materials and correspondence submitted to the Commission, including a medical certificate concerning his condition which he sent to the Commissioner after her decision was issued. The earlier materials and correspondence do not speak to any arguable error. As to the medical certificate, s 607(2) confers a discretion on us to admit further evidence on appeal. The Full Bench is guided by the principles set out in Akins v National Australia Bank [1994] 34 NSWLR 155 (Akins) (see Perry v Rio Tinto Shipping Pty Ltd [2016] FWCFB 6963 at [10]), which generally require, among other things, that the evidence could not have been obtained with reasonable diligence for use at first instance. There is no reason why this was so, nor is there any reason to depart from the principles in Akins. We refuse to admit further evidence.

[11] Mr Rabey said that it was in the public interest to grant permission to appeal for reasons intersecting with his appeal grounds and because the decision set a precedent for penalising workers based on assumptions about their capacity. But the decision does not penalise workers or set a precedent. The appeal does not raise issues of the kind discussed in Makin, or anything else that would engage the public interest. Further, there is no arguable error in the decision. It is not in the public interest for permission to appeal to be granted in such cases.

[12] The grounds of appeal do not disclose an arguable case of error, nor do we consider, for the purposes of s 400(1), that it is in the public interest to grant permission to appeal. Permission to appeal is therefore refused.

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