s.604 - Appeal of decision

Appeal against decision [2025] FWC 2864 of Commissioner Matheson at Sydney on 26 September 2025 in matter number U2025/3372 - permission to appeal refused

[1] Bloodstock Auction Pty Ltd (appellant) has lodged an appeal under s 604 of the Fair Work Act 2009 (Act) against a decision of Commissioner Matheson on 26 September 2025 ( [2025] FWC 2864) in which the Commissioner determined that the dismissal of Todd Curran was unfair and ordered the appellant to pay him compensation of $18,000. The matter was listed before us in relation to the question of permission to appeal only.

[2] In her decision, the Commissioner determined that the appellant did not have a valid reason for the dismissal, because she was unable to find that the misconduct for which Mr Curran had been dismissed - bullying and aggressive behaviour - had occurred. The Commissioner found that Mr Curran could be direct and abrupt, and that certain matters weighed against a finding that the dismissal was unfair, including that Mr Curran did not acknowledge how aspects of his behaviour impacted on others. Ultimately however, having regard to all the circumstances, including the absence of a valid reason for dismissal, the Commissioner was satisfied that Mr Curran had been unfairly dismissed.

[3] 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).

[4] The appellant's notice of appeal advances four appeal grounds. These were considered by Colman DP in a decision which dismissed the appellant's application for a stay of the Commissioner's order ( [2025] FWC 3047, 10 October 2025). In that decision, the Deputy President concluded that, based on the material before the Commission at that time, the appellant did not have an arguable case and that there appeared to be nothing in the appeal that could engage the public interest (at [8]). One would think that this would indicate to the appellant that its appeal grounds required substantial refinement. However the appellant failed to comply with the Commission's directions to file an outline of submissions, despite being granted an extension of time, and at the hearing it presented oral submissions that merely reiterated various appeal grounds without advancing them in any meaningful way.

[5] We find the analysis of the grounds of appeal in the stay decision from [4] to [7] to be applicable to the disposition of the application for permission to appeal. It is unnecessary to repeat these passages here. We adopt them, mutatis mutandis. In our opinion, none of the appeal grounds presents an arguable case of appealable error in the Commissioner's decision for the purposes of the application for permission to appeal.

[6] The appellant submitted that its appeal raised a number of public interest considerations, but these largely presupposed the validity of the appeal grounds and sought to emphasise their importance. In our assessment, none of these matters engage the public interest. The appeal does not raise issues of broader significance. The Commissioner's decision turned on its own facts. It appears to us to have entailed an orthodox approach to a dismissal involving contested facts, one which was ultimately determined to be unfair after misconduct allegations were found to be unsubstantiated. In our opinion, 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.

[7] The grounds of appeal do not disclose an arguable case of error. We do not consider that it is in the public interest to grant permission to appeal. Section 400(1) therefore requires us to refuse permission to appeal, and we do so.

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