s.604 - Appeal of decision

Appeal against decision [2025] FWC 2686 of Commissioner Sloan at Sydney on 11 September 2025 in matter number U2025/3120

[1] Artisan Pools Pty Ltd (Artisan) has lodged an appeal under s 604 of the Fair Work Act 2009 (Act) against a decision of Commissioner Sloan made on 11 September 2025 ( [2025] FWC 2686) which concluded that Anthony Mutton had been unfairly dismissed and ordered that Artisan pay him compensation. The matter was listed before us in relation to the question of 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] In his decision, the Commissioner recorded that there were three reasons given for the dismissal. The first was that Mr Mutton had told a colleague that he knew of three pools that would 'fail', but refused to provide details. The Commissioner noted that Artisan chose to respond to this concern by giving Mr Mutton a request for information, to which he responded, and that Artisan had not challenged the adequacy of his response. The second reason for dismissal was that Mr Mutton had refused to attend a meeting with his manager on 6 February 2025. The Commissioner found that Mr Mutton had disobeyed a direction to meet his manager, but noted that Artisan had responded to this by giving Mr Mutton a warning, and that the company clearly had not believed that any further sanction was warranted at that time. The Commissioner stated that the third and most serious reason for dismissal was that Mr Mutton had sabotaged pools on which he was working. The Commissioner found that the evidence fell short of proving that any faults with the relevant work could be attributed to Mr Mutton alone. The Commissioner further found that even in the absence of Mr Mutton's evidence, he would require cogent evidence to support the serious allegation that he had sabotaged work, and that no such evidence had been adduced.

[3] The Commissioner concluded that the dismissal did not comply with the Small Business Fair Dismissal Code, as there were no reasonable grounds for Artisan to believe that Mr Mutton had engaged in conduct that was sufficiently serious to justify immediate dismissal. The Commissioner then addressed the merits of the application and the mandatory considerations in s 387. Based on his factual findings, the Commissioner concluded that there was no valid reason for the dismissal (s 387(a)), and that therefore the considerations in s 387(b) and (c) had no application. The Commissioner found that there was no unreasonable refusal to allow Mr Mutton to have a support person, and that the small size of Artisan's enterprise, and the absence of human resources expertise, likely contributed to the procedures the company adopted in effecting the dismissal, which he found to have lacked procedural fairness. The Commissioner stated that he was satisfied that the dismissal was harsh, unjust and unreasonable and that Mr Mutton had been unfairly dismissed. He awarded Mr Mutton compensation.

[4] An appeal from the Commissioner's decision may only be brought with the permission of the Commission under s 604(1). Section 400 of the Act applies to this appeal, because the decision was made under Part 3-2 of the Act, which relates to unfair dismissals. Section 400(1) states that the Commission must not grant permission to appeal unless it is in the public interest to do so. Consideration of the public interest involves a broad value judgment. Matters that may engage the public interest include issues of importance and general application, or where the decision manifests an injustice (GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343; (2010) 197 IR 266 (Makin) at [27]). 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).

[5] Artisan's notice of appeal advanced four grounds, upon which it elaborated in its written submissions. The first appeal ground submitted that Mr Mutton had submitted falsified evidence in the proceedings, namely exhibit R1, which set out an exchange of text messages. Artisan sought to lead fresh evidence in the appeal in the form of a forensic analysis of the texts, which was said to demonstrate that they had been falsified. We decline to receive the evidence pursuant to s 607(2), having regard to the usual considerations (see Akins v National Australia Bank [1994] 34 NSWLR 155 and Perry v Rio Tinto Shipping Pty Ltd [2016] FWCFB 6963 at [10]). In our view the evidence is not of such probative value that it could lead to a different outcome, nor is there any reason why the evidence could not have been obtained with due diligence at first instance. Further, the notice of appeal conceded that exhibit R1 was not central to the events leading to dismissal. Artisan argued that the issue went to Mr Mutton's credibility, but it did not identify any issue which was decided on the basis of a credibility finding in respect of Mr Mutton, and the Commissioner's finding on the most serious matter was that even without Mr Mutton's evidence, the allegation was not substantiated. Artisan said that the Commissioner erred by failing to address the authenticity of R1 because s 678 makes it an offence to provide false information, but this is not logical. Section 678 does not raise the evidentiary burden in a matter before the Commission or impose any procedural obligation on the Commission. Any contravention of s 678 is a matter for a court. Ground 1 discloses no arguable error in the Commissioner's decision.

[6] The second ground of appeal contended that the Commissioner erred in finding that Mr Mutton had not engaged in misconduct because this was contrary to the evidence. But it is well-established that the factual findings made by a member at first instance should generally stand on appeal unless they are shown to be wrong by incontrovertible facts or are glaringly improbable (see Australian Education Union v Bendigo Kangan Institute of TAFE [2021] FWCFB 3649 at [37] - [39]). There is no arguable case to this effect here. The Commissioner's factual findings appear to us to have been comfortably open to him on the evidence.

[7] The third ground is that Artisan was denied procedural fairness by reason of the failure of Mr Mutton and the Commissioner to examine a witness, Ms Fields, who had submitted statutory declarations. This ground does not make sense to us. Neither Mr Mutton nor the Commissioner had any obligation to ask questions of Ms Fields. Artisan submitted that Mr Mutton had told the Commissioner that he did not object to Ms Fields' statutory declarations, but clearly what he meant was that he did not object to them being received by the Commissioner. This did not signify that he agreed with what Ms Fields said, or that the Commissioner should accept her evidence over his.

[8] The fourth appeal ground submitted that the Commissioner failed to consider Mr Mutton's misconduct in relation to the alleged false document when assessing compensation, contrary to s 392(3). This provision states that, if the Commission is satisfied that the misconduct of a person contributed to the employer's decision to dismiss the person, the Commission must reduce the amount that it would otherwise order by an appropriate amount on account of the misconduct. But the Commissioner was not satisfied that Mr Mutton had committed misconduct. Section 392(3) was not engaged. This ground reveals no arguable error.

[9] Artisan's written submissions raised various other contentions. It said that the Commissioner had made significant errors of fact, including by mischaracterising certain matters that occurred early in the chronology of events, and by failing to identify various alleged inconsistencies in Mr Mutton's evidence. But if there were any factual errors, which we doubt, we do not consider that they could be described as significant, as they would need to be in order to found an appeal from an unfair dismissal decision (see s 400(2)). Artisan also contended that Mr Mutton had given misleading evidence in various respects, but this is not a valid basis on which to appeal because it does not allege any error in the Commissioner's decision. To the extent that Artisan raises these matters in aid of a submission that the Commissioner ought to have made credit findings against Mr Mutton, they are in substance an assertion that the Commissioner should not have accepted his evidence and instead made different factual findings. In this regard, we refer to our earlier observations about the approach of an appeal bench to the factual findings of a member at first instance and record that in our view all of the findings appear to have been comfortably open to the Commissioner. And again, the Commissioner concluded that even disregarding Mr Mutton's evidence, cogent evidence would be required to substantiate the serious allegation of deliberate sabotage and that none had been produced. In our view the decision reflects an orthodox application of the principle in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. There is no arguable case of appealable error.

[10] Artisan submitted that its appeal raised a number of public interest considerations. We will not recite them here. In our view, none of them engages the public interest. The matter does not raise issues of broader significance. It involves the particular circumstances of a single dismissal that was determined to have been unfair after a serious allegation of misconduct was found not to have been substantiated on the evidence. We also note that Artisan accepts that the dismissal was procedurally flawed. In our view the appeal does not give rise to any considerations that enliven the public interest, whether in the various ways referred to in Makin or otherwise.

[11] The grounds of appeal do not disclose an arguable case of error, and we do not 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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