s.604 - Appeal of decision

DEPUTY PRESIDENT WRIGHT COMMISSIONER CRAWFORD COMMISSIONER SLOAN

Appeal against the extempore decision of Deputy President Saunders at Newcastle on 3 February 2025 in matter number U2024/12018

[1] Mr Brian Fisher has lodged an appeal pursuant to s.604 of the Fair Work Act 2009 (Cth) (FW Act) for which permission to appeal is required against a decision[1] (the Decision) of Deputy President Saunders issued on 10 February 2025. The decision dealt with an application made by Mr Fisher against Swetha International Pty Ltd (Swetha) pursuant to s.394 of the FW Act for an unfair dismissal remedy.

[2] Mr Fisher's appeal was listed for hearing regarding whether permission to appeal should be granted. On 21 February 2025, directions were made for the filing of material by Mr Fisher. Mr Fisher filed written submissions in relation to permission to appeal. On 8 April 2025, we conducted a hearing, by video conference, in relation to permission to appeal. At that hearing Mr Fisher was afforded an opportunity to present oral submissions to supplement his written submissions in relation to the appeal.

[3] For the reasons that follow, we have decided to refuse permission to appeal.

[4] Mr Fisher was employed by Swetha from February 2024 on a casual basis until he alleges he was dismissed on 4 October 2024. Swetha denied that a dismissal took place.[2] The matter was listed for hearing in relation to jurisdiction and merit on 30 January 2025.[3]

[5] One of Swetha's proposed witnesses had a bereavement in the family and was unable to attend the hearing on 30 January 2025. That witness proposed to give evidence relevant to the merits of the alleged dismissal, but their proposed evidence was not relevant to the question of whether there was a dismissal. The Deputy President listed the matter for directions on 28 January 2025. At the directions hearing the parties agreed to participate in a hearing on 30 January 2025 in relation to the jurisdictional question of whether or not Mr Fisher was dismissed within the meaning of the FW Act.[4]

[6] Swetha conducts a labour hire business. Swetha's rail division supplies skilled casual rail staff to clients such as Australian Rail Track Corporation (ARTC) for work in a high-risk rail operational environment.[5]

[7] The Swetha International Pty Ltd Rail Safeworking Personnel NSW Agreement 2018 (Enterprise Agreement) covered Mr Fisher and applied to him in relation to his employment with Swetha.[6]

[8] Mr Fisher worked 63 days for clients of Swetha during 2024, comprised of 5 days in February 2024, 7 days in March 2024, 9 days in April 2024, 3 days in May 2024, 8 days in June

2024, 3 days in July 2024, 7 days in August 2024, 11 days in September 2024, and 10 days in

[9] In July 2024, Swetha received an engagement request from ARTC to provide a Protection Officer to work at the Muswellbrook Provisioning Centre. The engagement request had a forecast end date of 30 January 2025.[8] In the period between 16 July 2024 and 23 September 2024, Swetha placed two different casual Protection Officers into this role. Both of those employees were taken out of the role of Protection Officer at the Muswellbrook Provisioning Centre as a result of different allegations being made against them.[9]

[10] In September 2024, after the removal of one of these employees, Mr Fisher was offered work at ARTC Muswellbrook. Mr Fisher commenced in this role on 23 September 2024 and submits that he migrated to full time employment, working at ARTC on an indefinite basis, at least to 30 January 2025. Swetha contends that Mr Fisher remained a casual employee of Swetha, working on a short-term engagement with ARTC.[10]

[11] From 1 to 3 October 2024, Mr Fisher undertook work as an employee of Swetha for Derryville Rail Services which was unrelated to Mr Fisher's role at the Muswellbrook Provisioning Centre.[11] On 3 October 2024, Ms Lynette Stevens, ARTC Safeworking Manager received a verbal report from Mr Dean Fullbrook of Derryville Rail Services that Mr Fisher had engaged in misconduct and safety issues. The report was in relation to an incident with another worker at the facility, Mr Hudson.[12]

[12] According to Mr Fisher, he was told by Mr Lou Tropea, Director of Swetha during a telephone call at 10:45am on 4 October 2024 that he was suspended from Swetha and would be stood down pending an investigation. Mr Tropea denies this account of the conversation with Mr Fisher and instead says that he informed Mr Fisher that, until the report was received from Derryville and reviewed by Swetha, as a duty of care for everyone's safety he would need to replace Mr Fisher at the Muswellbrook Provisioning Centre. Mr Tropea also says that he informed Mr Fisher that he would look for suitable duties in other engagements if available, to which Mr Fisher said, 'thank-you' and hung up the phone.[13]

[13] On 6 October 2024, Mr Fisher exchanged text messages with Ms Stevens in which Ms Stevens asked him not to sign on for duty at the Muswellbrook Provisioning Centre on 8 October 2024 and advised that the role was an allocation of casual ad hoc work. Mr Fisher concluded the text exchange with Ms Stevens by asking Ms Stevens to communicate with his lawyer.[14] On 8 October 2024, Mr Fisher filed an unfair dismissal application in the Commission.[15]

[14] Swetha's business records, as at 20 January 2025, show that Mr Fisher is regarded as a

casual employee and his employment has not been terminated. [16]

[15] In the Decision, the Deputy President made the following findings in relation to the evidence before him:

• The Deputy President accepted that Ms Stevens did not offer Mr Fisher full-time employment at ARTC for six months for the following five reasons:

  • the work was only available for a period of 4.5 months;

  • Ms Stevens sent Mr Fisher an email on 20 September 2024 which advised that "there is no 6 months works agreement here this is a short term engagement...";

  • the engagement request could have been terminated by ARTC at any time;

  • ARTC had the right to have the employee placed by Swetha into the role at the Muswellbrook Provisioning Centre replaced at any time; and

o Swetha sometimes needs to move its labour hire employees from one job to another to suit the business needs of Swetha and its clients.[17]

• The Deputy President preferred Mr Tropea's account of the conversation on 4 October 2024 over Mr Fisher's but in any event found that Mr Fisher was not dismissed during this discussion based upon Mr Fisher's version of events.[18]

• The Deputy President accepted Mr Tropea's and Ms Stevens' evidence that Swetha has not undertaken an investigation into the incident involving Mr Fisher and Mr Hudson or offered Mr Fisher any work since Friday, 4 October 2024 because Mr Fisher:
  • moved very quickly after 4 October 2024 to send aggressive communications to them over the long weekend;
  • instructed them on 6 October 2024 to communicate only with Mr Fisher's lawyer; and

o on Tuesday, 8 October 2024, filed an unfair dismissal claim in the Commission contending that he had been dismissed on 4 October 2024.[19]

[16] The Deputy President made the following additional findings:

• ARTC needed the Protection Officer role filled from Monday to Friday, starting on 16 July 2024.[20]

• Swetha only had the right to provide an employee to undertake that work for so long as its engagement request from ARTC remained on foot.[21]

• Although ARTC had a need for a Protection Officer to work from Monday to Friday in the Muswellbrook Provisioning Centre, that did not necessarily mean that the Swetha employee placed in that role had a full-time or permanent position.[22]

• In the role at the Muswellbrook Provisioning Centre, Swetha paid Mr Fisher the same casual rate of pay he had received when undertaking other casual employment, which included the 25% loading.[23]

• Mr Fisher's argument that he was classified under the terms of the Enterprise Agreement as a full-time employee from 23 September 2024 because he was offered, and accepted, five days' work, Monday to Friday, each week was rejected.[24]

• Mr Fisher was a casual employee at all times during his employment with Swetha from February 2024 until his alleged dismissal on 4 October 2024 because:
  • There was no dispute between the parties that Mr Fisher was specifically engaged by Swetha as a casual employee in February 2024.
  • At no time was Mr Fisher specifically engaged by Swetha as a full-time employee.
  • There is no provision of the Enterprise Agreement which has the effect of converting a casual employee into a full-time employee because a casual employee works for Swetha from Monday to Friday in one or more particular weeks, or is told that their placement with a client is expected to run from Monday to Friday.

o Mr Fisher's employment relationship with Swetha was, at all times up to 4 October 2024, characterised by an absence of a firm advance commitment to continuing and indefinite work and he was entitled to (and paid) a casual loading.[25]

[17] The Deputy President concluded by stating that he was satisfied that Mr Fisher's employment with Swetha was not terminated on Swetha's initiative because:

• There was no action on the part of Swetha which was the principal contributing factor which resulted, directly or consequentially, in the termination of the employment of Mr Fisher.

• Swetha did not communicate by its actions or words that Mr Fisher was terminated or dismissed.

• Swetha removed Mr Fisher from his placement into the role of Protection Officer for ARTC at the Muswellbrook Provisioning Centre because allegations had been made by a Derryville supervisor about Mr Fisher and Swetha needed to understand those allegations and Mr Fisher's response to them in order to decide what to do.

• Mr Fisher had no right to continue working in the role of Protection Officer for ARTC at the Muswellbrook Provisioning Centre.

• Mr Fisher was a casual employee of a labour hire company (Swetha) and could have been removed from the role of Protection Officer at the Muswellbrook Provisioning Centre at any time.

• Mr Tropea informed Mr Fisher that Swetha would look for suitable duties in other engagements while the matter was dealt with.

• Mr Fisher gave Swetha no time to find out the details of the allegations or discuss them with him. He went immediately into "attack mode" and filed his unfair dismissal application in the Commission on 8 October 2024, one business day after 4 October 2024.[26]

[18] An appeal under s.604 of the Act is an appeal by way of rehearing and the Commission's powers on appeal are only exercisable if there is error on the part of the primary decision maker.[27] There is no right to appeal, and an appeal may only be made with the permission of the Commission.

[19] This appeal is one to which s.400 of the Act applies. Section 400 provides:

• (1) Despite subsection 604(2), the FWC must not grant permission to appeal from a decision made by the FWC under this Part unless the FWC considers that it is in the public interest to do so.

• (2) Despite subsection 604(1), an appeal from a decision made by the FWC in relation to a matter arising under this Part can only, to the extent that it is an appeal on a question of fact, be made on the ground that the decision involved a significant error of fact.

[20] In the decision of the Full Court of the Federal Court in Coal & Allied Mining Services Pty Ltd v Lawler and others, Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s.400 as 'a stringent one'.[28] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[29] In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of the Commission identified some of the considerations that may attract the public interest:

... the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters.[30]

[21] It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of an appealable error.[31] However, the fact that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.[32]

[22] 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.[33] However, it is necessary to engage with

the grounds to consider whether they raise an arguable case of appealable error.

[23] Having regard to the F7 Notice of Appeal and Mr Fisher's oral and written submissions, the grounds of appeal may be summarised as follows:

1. The Deputy President erred in confining the hearing to the issue of whether Mr Fisher was dismissed.
2. The Deputy President erred in refusing to accept additional submissions from Mr Fisher after reserving his decision 30 January 2025.
3. The Deputy President erred in failing to find that Ms Stevens and Mr Tropea gave false evidence in numerous respects.
4. The Deputy President erred in failing to consider the significance of Ms Stevens offering Mr Fisher reduced entitlements and specifically that this may have been in exchange for permanent employment.
5. The Deputy President erred in relying upon the payment of casual loading in finding that Mr Fisher was employed on a casual basis when working at the Provisioning Centre.
6. The Deputy President erred in finding that there was no firm advance commitment to ongoing work at the Muswellbrook Provisioning Centre.
7. The Deputy President erred in finding that Mr Fisher was not dismissed.
8. The Deputy President erred in refusing to give Mr Fisher leave to call evidence from witnesses who would have confirmed that there was ongoing work at the Muswellbrook Provisioning Centre until the end of January 2025.
9. The Deputy President erred in finding that Mr Tropea would have offered Mr Fisher alternative duties when this was not possible as he had been stood down from safeworking duties.
10. The Deputy President erred in not allowing Mr Fisher to test new evidence provided by Mr Tropea during the hearing where Mr Tropea claimed that an unnamed ARTC representative terminated his role at the Muswellbrook Provisioning Centre.
11. That the Deputy President erred in finding that Mr Tropea or Ms Stevens knew about Mr Fisher's unfair dismissal application before 15 October 2024, and that Mr Fisher's engagement of a lawyer or commencement of an action in the Commission prohibited Mr Tropea offering work, commencing an investigation, or putting a decision in writing that communicated the reasons, process and rights of Mr Fisher.

[24] We do not consider that the grounds of appeal demonstrate an arguable case of appealable error for reasons that may be briefly stated.

[25] In relation to Appeal Ground 1, the Deputy President was required by s.385(a) of the FW Act to be satisfied that Mr Fisher had been dismissed as part of his consideration as to whether Mr Fisher was unfairly dismissed. The Deputy President decided to deal with this matter as a preliminary issue with the agreement of the parties, after hearing from the parties at a directions conference on 28 January 2025. Having determined that there was no dismissal, it was not necessary for the Deputy President to consider whether the dismissal was harsh, unjust or unreasonable under s.385(b) or any other matters under s.385. Accordingly, this is not a matter that gives rise to any arguable case of appealable error by the Deputy President.

[26] In relation to Appeal Ground 2, Mr Fisher did not seek leave to file the additional material which he sent to the Deputy President's Chambers on 1 and 2 February 2025. The Deputy President did not consider that it would be in the interests of justice to grant leave to Mr Fisher to rely on submissions made after the hearing on 30 January 2025 in light of the extensive opportunities afforded to the parties prior to, and during, the hearing on 30 January 2025 to make written and oral submissions. In any event, the Deputy President read the additional submissions and noted that the reasons in the Decision addressed the issues raised in Mr Fisher's additional submissions because those issues were apparent on the documentary material filed by the parties prior to the hearing.[34] In our view, the approach taken to the additional submissions was available to the Deputy President. Accordingly, this is not a matter that gives rise to any arguable case of appealable error by the Deputy President.

[27] In relation to Appeal Ground 3, the Deputy President had the benefit of seeing and hearing the witnesses who gave evidence in the proceedings before him. The Deputy President made findings in relation to the evidence provided by Mr Fisher, Mr Tropea and Ms Stevens after considering their oral evidence and other evidence, including documentary material, that was tendered during the proceedings. In our view, the findings made by the Deputy President in relation to the evidence were available to him having regard to the oral and written evidence adduced during the proceedings. Accordingly, this is not a matter that gives rise to any arguable case of appealable error by the Deputy President.

[28] Appeal Grounds 4, 5 and 6 all relate to the Deputy President's finding that Mr Fisher was a casual employee. In the Decision, the Deputy President considered Mr Fisher's argument that he traded-off, in his negotiations with Ms Stevens, his "full casual rate entitlements" in relation to the living away from home allowance, on-site travel allowance and travel time from his home to Muswellbrook each week in exchange for full-time, ongoing employment with Swetha at the Muswellbrook Provisioning Centre. The Deputy President noted that Mr Fisher's entitlement to a living away from home allowance and travel time from his home to Muswellbrook each week were governed by clauses 22 and 23 respectively of the Enterprise Agreement, that those clauses do not differentiate between full-time and casual employees and that the entitlements concerning the living away from home allowance and travel time under the Enterprise Agreement apply to both full-time and casual employees.[35]

[29] The Deputy President concluded that Mr Fisher was not trading-off any "full casual rate entitlements" when communicating with Ms Stevens about how much he would be paid for those entitlements.[36] The Deputy President considered it likely that those matters were addressed in the emails between Ms Stevens and Mr Fisher because the other two casual employees of Swetha who had previously worked in the Protection Officer role at the Muswellbrook Provisioning Centre had agreed to be paid particular amounts for those entitlements, including two days living away from home allowance.[37] It is not correct that the Deputy President failed to consider the significance of the entitlements which Ms Stevens offered Mr Fisher. The Deputy President considered these matters and the submissions which Mr Fisher made about these matters but ultimately rejected Mr Fisher's submissions. Such a finding was open to the Deputy President based on the evidence before him. Accordingly, this is not a matter that gives rise to any arguable case of appealable error by the Deputy President.

[30] In relation to the Deputy President's reliance on the payment of casual loading to Mr Fisher, we observe that this is a matter which the Deputy President was required to have regard to by s.15A(1)(b) of the FW Act when considering whether Mr Fisher was a casual employee. Accordingly, this is not a matter that gives rise to any arguable appealable error by the Deputy President.

[31] In relation to the Deputy President's finding that there was no firm advance commitment to continuing and indefinite work, the Deputy President referred to Ms Stevens' email to Mr Fisher sent at 4:02pm on 20 September 2024. The Deputy President found the email made it clear that the work offered to Mr Fisher at the Muswellbrook Provisioning Centre was a short-term engagement pending the return of another employee and that the communication was the antithesis of a firm advance commitment to continuing and indefinite work.[38] Such a finding was open to the Deputy President based on the evidence before him. Accordingly, this is not a matter that gives rise to any arguable case of appealable error by the Deputy President.

[32] In relation to Appeal Ground 7, the issue that the Deputy President was required to determine was whether Mr Fisher was dismissed by Swetha on 4 October 2024. We observe that the Deputy President correctly described the legal test that he was required to apply in the Decision.[39] The Deputy President then considered all of the evidence before him and the submissions made by both parties and made findings in relation to matters that were relevant to his consideration about whether Mr Fisher had been dismissed on 4 October 2024. The Deputy President took into account numerous matters in concluding that Mr Fisher was not dismissed by Swetha on 4 October 2024, including that Swetha did not communicate by its actions or words that Mr Fisher was terminated or dismissed, Mr Fisher was a casual employee of a labour hire company and that Mr Fisher could have been removed from the role of Protection Officer at the Muswellbrook Provisioning Centre at any time. The approach taken and the findings made by the Deputy President were available on the evidence before him. Accordingly, this is not a matter that gives rise to any arguable case of appealable error by the Deputy President.

[33] In relation to Appeal Ground 8, Mr Fisher did not submit that during the proceedings before the Deputy President he sought Orders to Attend to be issued to specific witnesses. It is therefore not clear to us the basis upon which Mr Fisher claims that the Deputy President erred in refusing to give Mr Fisher leave to call evidence from witnesses who would have confirmed that there was ongoing work at Muswellbrook until the end of January 2025. In any event, this is a matter that does not appear to be in dispute as the Decision records that in July 2024, Swetha received an engagement request from ARTC to provide a Protection Officer to work at the Muswellbrook Provisioning Centre which had a forecast end date of 30 January 2025.[40] That there may have been ongoing work at the Muswellbrook Provisioning Centre is not a matter which was determinative of whether Mr Fisher was a casual employee and a dismissal occurred. Accordingly, this is not a matter that gives rise to any arguable case of appealable error by the Deputy President.

[34] In relation to Appeal Ground 9, Mr Fisher has not explained in the appeal the reason that he claims it was not possible for Mr Tropea to offer Mr Fisher alternative duties as he had been stood down from safeworking duties. If Mr Fisher is correct about this matter, we do not regard this as a significant error of fact by the Deputy President as it was open to the Deputy President to conclude that Mr Fisher was not dismissed without considering this matter. Accordingly, this is not a matter that gives rise to any arguable case of appealable error by the Deputy President.

[35] In relation to Appeal Ground 10, there is no indication in the Decision that the Deputy President took into account any evidence that an unnamed ARTC representative terminated Mr Fisher's role at the Muswellbrook Provisioning Centre in determining the matter. Accordingly, this is not a matter that gives rise to any arguable case of appealable error by the Deputy President.

[36] Appeal Ground 11 mischaracterises the findings made by the Deputy President. The Deputy President accepted Mr Tropea's and Ms Stevens' evidence that Swetha has not undertaken an investigation into the incident involving Mr Fisher and Mr Hudson or offered Mr Fisher any work since 4 October 2024 because of Mr Fisher's subsequent actions[41] and that Mr Fisher gave Swetha no time to find out the details of the allegations or discuss them with him.[42] These findings were open to the Deputy President based on the evidence before him. Accordingly, this is not a matter that gives rise to any arguable case of appealable error by the Deputy President.

[37] We are not persuaded that permission to appeal should be granted. We do not consider that an arguable case has been advanced that the decision of the Deputy President was attended by appealable error.

[38] We have considered whether this appeal attracts the public interest, and we are not satisfied, for the purposes of s.604(2), that the appeal raises any legal or factual issue of significance or general application, that there is a diversity of decisions at first instance, or that the legal principles applied by the Deputy President are disharmonious when compared with other decisions. Further, we do not consider that the Deputy President's decision is counter intuitive or manifests an injustice.

[39] We order that permission to appeal is refused.

[1] [2025] FWC 380

[27] This is so because on appeal the Commission has power to receive further evidence, pursuant to s.607(2); see Coal and Allied v AIRC (2000) 203 CLR 194, [17] per Gleeson CJ, Gaudron and Hayne JJ

[29] O'Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch (2011) 85 ALJR 398, [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78, [44] -[46]

[30] [2010] FWAFB 5343, 197 IR 266, [27]

[31] Wan v AIRC [2001] FCA 1803; (2001) 116 FCR 481, [30]

[32] GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, [26]-[27], 197 IR 266; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089, [28], 202 IR 388, affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663, [28]

[33] Trustee for The MTGI Trust v Johnston [2016] FCAFC 140, [82]

[34] [2025] FWC 380, [7]

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