s.604 - Appeal of decision

Appeal against decision [2025] FWC 1725 of Commissioner Riordan in matter U2024/13200 - whether factual findings made - requirement of a fair appellate reading of the decision - no appealable error - not in public interest to grant permission to appeal

[1] Caroline Cupitt has lodged an appeal under s 604 of the Fair Work Act 2009 (Act) against a decision of Commissioner Riordan on 27 August 2025 in which the Commissioner determined that Ms Cupitt's dismissal by Roper Gulf Regional Council (Council) was unfair and ordered that she be paid 4 weeks' wages in compensation. Ms Cupitt's appeal contends that the Commissioner erred in his determination of the quantum of compensation.

[2] The Commissioner's decision sets out a fulsome account of the relevant background and the evidence, which speaks for itself. We highlight the following. On 28 October 2024, Ms Cupitt received a letter from the Council alleging that she had wrongly rejected a portal access request from a manager, Anika Alam, and had deleted the user account of the chief executive officer, David Hurst. Ms Cupitt was asked to show cause why she should not be dismissed. On 30 October 2024, Ms Cupitt asked for further details of the allegations. On 1 November 2024, the Council declined the request and advised that it had concluded that the allegations were substantiated. The Council also said that it had become aware of other concerns about Ms Cupitt, namely: 'significant financial discrepancies in the Portal'; 'significant lack of performance reporting' in areas of Ms Cupitt's responsibility; 'unprofessional behaviour', including disparaging remarks about Mr Hurst; 'significant discrepancies between E-tools that don't match with Medicare claims submitted'; and 'further Portal access revocations'. The letter stated that, due to the seriousness of these matters, Ms Cupitt's employment was terminated with effect that day. This was later changed to 4 November 2024.

[3] Ms Cupitt and Mr Hurst filed witness statements and gave oral evidence before the Commissioner. In short, Ms Cupitt denied that she had interfered with the portal access of Mr Hurst or Ms Alam; raised concerns of her own about the conduct of the Council and Mr Hurst; refuted any responsibility for the financial irregularities; disputed many of the details in the evidence of Mr Hurst; and generally denied the Council's allegations against her. Mr Hurst gave evidence about his many concerns about Ms Cupitt's conduct since 2023; the removal of his portal access and Ms Cupitt's role as an administrator of the portal; and a complaint he received from Ms Alam alleging that Ms Cupitt had interfered with her portal access, that she had behaved unprofessionally in various ways, and that she was responsible for financial discrepancies that might cost the Council $600,000. Mr Hurst said that Ms Alam had provided information indicating the possibility of a large scale fraud. He said that in deciding to dismiss Ms Cupitt, he took into account the allegations and evidence of Ms Alam, the need to stop Ms Cupitt from causing further disruption, Ms Cupitt's vindictiveness, and that because of Ms Cupitt numerous staff had raised concerns about their wellbeing. Mr Hurst said that he concluded that it was in the best interests of the Council to dismiss Ms Cupitt.

[4] In his decision, the Commissioner addressed the contentions of the parties in some detail. In essence, Ms Cupitt had submitted that there was no valid reason for her dismissal because she had not done the things of which she was accused, and because the process that led to her dismissal was unfair. She asked the Commissioner to award her the maximum compensation available under the Act. The Council contended that its allegations against Ms Cupitt were substantiated, that the process was a fair one, and that in all the circumstances the dismissal was not harsh, unjust or unreasonable.

[5] The Commissioner commenced his consideration by framing the task before him, referring to relevant authorities. He noted that, where the facts are disputed, the question of whether the alleged conduct occurred and what it involved must be determined by the Commission, based on the evidence before it (King v Freshmore (Vic) Pty Ltd [2000] AIRC 1019 at [24] (Freshmore)). He referred to Briginshaw v Briginshaw (1938) 60 CLR 336 (Briginshaw), which stands for the proposition that although the standard of proof in civil matters is the balance of probabilities, serious allegations require serious proof, not 'inexact proofs, indefinite testimony, or indirect inferences' (per Dixon J at 362). It is clear that the Commissioner was aware that the matter before him entailed disputed facts that required factual findings, and that some of the allegations against Ms Cupitt were serious ones which engaged the principle in Briginshaw.

[6] The Commissioner then turned to the factual dispute about whether Ms Cupitt had interfered with the portal access of Mr Hurst and Ms Alam. The Commissioner noted that he had written to Services Australia asking for information about who might have interfered with Mr Hurst's account, and that Services Australia had replied that Mr Hurst had maintained access to the portal since May 2023. The Commissioner then stated that he had 'taken into account' the response from Services Australia, as well as the 'definitive evidence' of Ms Cupitt that she did not cut off Mr Hurst's or Ms Alam's access to anything (at [150]). Later, at [154], the Commissioner stated that he had also 'taken into account' Mr Hurst's evidence that he had spoken to an employee of Services Australia who said that Ms Cupitt had interfered with the portal accounts. The Commissioner made no explicit finding as to whether the allegation that Ms Cupitt had interfered with the portal accounts was substantiated. However, as discussed further below, we consider that it is clear from the context of the Commissioner's decision that he found the allegation to be unsubstantiated.

[7] At [151], the Commissioner said that he had taken into account the operational style of Ms Cupitt and that she was 'clearly an abrupt and demanding manager who was counselled for making derogatory remarks'. The Commissioner also noted that Ms Cupitt had been critical of the Council's human resources manager, despite having no human resources qualifications or experience herself.

[8] At [152], the Commissioner stated that he accepted Mr Hurst's evidence that he had placed Ms Cupitt on extended leave in an attempt to stop her engaging in vindictive behaviour. At [153], the Commissioner noted that Ms Cupitt had denied making comments to other staff about a meeting she had with Mr Hurst in August 2024, and that, while she claimed not to have known the meeting was confidential, she acknowledged that Mr Hurst had told her that 'no one need know' of it. The Commissioner found that Ms Cupitt had spoken to her colleagues about the meeting and had made inaccurate comments about the actions of Mr Hurst.

[9] The Commissioner then addressed the Council's concerns about the 'financial discrepancies' and said:

[155] I have taken into account the reporting and financial discrepancies that have allegedly occurred during the Applicant's employment. I note that the alleged financial irregularities have been referred to the Northern Territory Police. This notification occurred on 20 November 2024. The issue of financial irregularities, whilst not contained in the Show Cause Letter, was identified as a reason for the Applicant's dismissal in her Termination Letter of 4 November 2024.

[10] The Commissioner did not record any express finding about whether Ms Cupitt was at fault in respect of the financial irregularities, but again we consider, as discussed below, that from the context of the decision it is evident that he considered this allegation to be unproven.

[11] At [156], the Commissioner noted the evidence of Ms Cupitt that she used the same password for every login which was required to perform her role, and that she had testified that another employee knew her password. At [157], he found that Ms Cupitt's actions were inappropriate and did not protect sensitive information to a professional standard.

[12] The Commissioner then stated that, 'for the reasons and findings identified above', he was satisfied that the Council had a valid reason to dismiss Ms Cupitt within the meaning of s 387(a) of the Act.

[13] The Commissioner proceeded to address the other mandatory considerations in ss 387(b) to (h) and recorded the following: Ms Cupitt had been given a show cause letter and a termination letter (at [161]); she was not given an adequate opportunity to respond to the show cause letter (at [162]); the considerations in ss 387(d) and (e) were not applicable in the circumstances; and the Council was not a small business employer and had dedicated human resources staff. In relation to s 387(h) (other relevant matters), the Commissioner stated:

[169] I am satisfied and find that the Respondent believed that there were significant financial irregularities associated with the Applicant's actions which has resulted in a report being filed with the Northern Territory Police. The CEO has signed a Statutory Declaration with this police report, attesting to the phone call that he witnessed between Ms Alam and Services Australia, where they were advised of the actions of the Applicant in interfering with the CEO's and Ms Alam's access to the system. Apart from noting the existence of the issue, I make no finding or comment on the Respondent's report to the Police. I have taken this into account.

[14] The Commissioner then stated that Ms Cupitt had a very confrontational demeanour and did not accept criticism well, and that she believed that she was always right and superior to every other employee, including the CEO (at [170]). He further found that, contrary to Ms Cupitt's assertion, she had not been demoted, that she had complained to her colleagues about being disciplined, and that she had been engaged on a 3-year fixed term contract.

[15] The Commissioner stated that he was surprised by the 'lack of compelling witness evidence' and that witnesses could have been subpoenaed to support and confirm the competing evidence of the parties. He said that this failure had resulted in his decision being 'based on an assessment of the credibility of the Applicant and the CEO, which was questioned by both sides during the proceeding' (at [173]). The Commissioner did not record any credit findings.

[16] The Commissioner then turned to his overall conclusion. He stated that Ms Cupitt had been involved in inappropriate conduct in the workplace that warranted her termination (at [174]), that she had disparaged Mr Hurst (at [175]), that the Council had 'questions in relation to (her) workplace activity, which may have resulted in significant financial issues' (at [176]), but that Ms Cupitt was entitled to procedural fairness, including an appropriate period to respond to the show cause letter (at [177] and [179]). The Commissioner said that while the Council 'undoubtedly had a valid reason' for the dismissal, the lack of procedural fairness 'extinguishes that reason' (at [180]) and that the dismissal was harsh, unjust and unreasonable and therefore unfair (at [181]-[182]).

[17] In considering remedy, the Commissioner referred to s 392, which requires certain matters to be taken into account in determining compensation. The Commissioner then stated that, having previously found that the Council 'would have had a valid reason' but for the process failings, the appropriate compensation should reflect the time it would have taken the Council to conduct a fair process, which he considered to be 4 weeks ([188] to [190]).

[18] An appeal 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 under appeal was made under Part 3-2 of the Act, which pertains to unfair dismissal applications. Section 400(1) states that the Commission must not grant permission to appeal unless it is in the public interest to do so. The Full Federal Court has described this test as a 'stringent' one (Coal & Allied Mining Services Pty Ltd v Lawler and Others [2011] FCAFC 54 at 43). 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 necessary to engage with the appeal grounds to consider whether they disclose appealable error, as an appeal cannot succeed in the absence of error (Coal & Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 at 204).

[19] We have determined that permission to appeal must be refused. In our opinion the grounds of appeal do not reveal appealable error. There is a question about a matter that was not raised by Ms Cupitt in her appeal, namely whether the Commissioner failed to make factual findings on disputed facts, however we consider that on a fair reading of the decision he did so, even though he did not clearly articulate them. We do not consider that the appeal raises any matters that enliven the public interest.

[20] The notice of appeal advanced 15 grounds of appeal upon which Ms Cupitt elaborated in her written and oral submissions. The first ground contended that the Commissioner erred by taking into account an irrelevant matter, namely the existence of an allegation of major fraud, which the Council relied on as a valid reason for dismissal but which was not substantiated by the evidence. Ms Cupitt contended that the Commissioner had wrongly allowed the mere existence of this allegation to contribute to his conclusion that there was a valid reason for her dismissal. We reject this contention. The Commissioner did not state that the 'fraud' allegation constituted, or contributed to, a valid reason for dismissal. The Commissioner said that he had taken into account the financial discrepancies that had allegedly occurred during Ms Cupitt's employment, that the allegation had been referred to the police, and that the Council believed that there were financial irregularities associated with Ms Cupitt's actions. Nowhere does he state or suggest that the allegation had been proven. Plainly it had not been. It is not even clear precisely what the allegation against Ms Cupitt was.

[21] What then did the Commissioner mean when he stated that he had taken the financial irregularities allegation into account? Clearly, the fact that an employer believes that an employee has committed misconduct is not a valid reason for dismissal. It is well established that a valid reason for dismissal is one that is both a good reason and that is factually substantiated. This position may be contrasted with the first limb of the Small Business Fair Dismissal Code, where it is enough that an employer believes on reasonable grounds that an employee's conduct was sufficiently serious to warrant immediate dismissal. But the Commissioner was not suggesting that the Council's belief in the allegation was a valid reason for dismissal. Rather, he was simply noting his finding that the Council had a genuine belief that the allegation was true (see [169] and [176]); this was not a case where the accusation was malicious or made for an ulterior purpose. It was open to the Commissioner to take this into account in connection with s 387(h). The fact that the references in question appear in a part of the decision that is principally concerned with valid reason is a coincidental detail. A member is not required to observe a compartmentalised structure in addressing the mandatory considerations in s 387 (see for example Hill v Peabody Energy Australia PCI Pty Ltd [2017] FWCFB 4944).

[22] The first ground of appeal was framed as a contention that the Commissioner took into account an irrelevant consideration. The Council did not contend that the Commissioner had failed to make a factual finding about the 'fraud' allegation. To the extent that it might be suggested that this concern underlay the first ground of appeal, we will record our view of the matter, which is that although the Commissioner did not make an express finding of fact, it is clear from the context of the decision that he found the 'fraud' allegation to be unsubstantiated. This context includes the Commissioner's repeated references in his disposition to the Council's allegation, and his discussion of the legal framework, which bears out a correct understanding both of his obligation to make findings to resolve contested points of evidence in respect of matters at issue in the proceeding, and of the significance of Briginshaw in cases where serious allegations of misconduct are levelled against an employee. The context also includes the fact that the 'fraud' allegations were plainly not substantiated. For the Commissioner, this was nothing more than an allegation. It would have been preferable for the Commissioner to include a sentence to this effect in his decision. But the absence of an express finding does not negate the presence of the intellectual finding that in our view is apparent from the context. There was an omission of form, not substance. In this regard, a Full Bench will adopt a fair appellate reading of a decision, not one with 'an eye keenly attuned to the perception of error', nor will a Full Bench employ a 'fine appellate tooth-comb' (see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 and 291).

[23] By her second ground of appeal, Ms Cupitt contended that the Commissioner failed to apply the principle in Briginshaw which was engaged because the allegation of fraud was a serious one, and that the Commissioner failed to exercise jurisdiction because he did not find that the fraud allegations were unsubstantiated. We reject this contention. As we have said, it is apparent that the Commissioner understood exactly how serious the fraud allegation was, and that he considered that it had not been substantiated. Ms Cupitt's submissions contended, in apparent reference to the Commissioner's remarks at [173], that the Commissioner had adopted an approach of simply weighing the credibility of one witness against another and then picking the more credible of the two and accepting that person's case uncritically and without corroborative evidence. But there is no error in making findings based on witness credibility, to do so is not an uncritical approach, and corroboration is not a precondition of proof. Findings of fact are routinely made based on witness credibility both in civil and criminal matters. In any event, the Commissioner did not make any specific findings about witness credibility. But in our view it is apparent that he accepted Ms Cupitt's denial of the 'fraud' allegation.

[24] The third appeal ground contended that the Commissioner failed to consider a relevant matter, which was said to be Mr Hurst's admission that he had lied to Ms Cupitt about the existence of an investigation into her conduct, and that he did so out of what he considered to be the Council's best interests. Mr Hurst acknowledged that he had not told Ms Cupitt the truth. But the Commissioner did have regard to this, and the matter did not compel an adverse conclusion as to Mr Hurst's credit generally, as Ms Cupitt appeared to contend.

[25] Appeal grounds 4 to 6 concerned the Commissioner's treatment of Ms Cupitt's sharing of her password. Ground 4 submitted that the Commissioner's identification of the sharing of a password as contributing to a valid reason for dismissal was an error in circumstances where this matter was not raised until final submissions some months after the hearing, such that Ms Cupitt was denied the opportunity to cross-examine Mr Hurst about that matter. In this regard, on 24 June 2025, Ms Cupitt advised the Commissioner that if any new documents tendered by the Council were admitted, she would seek the opportunity to call further evidence and cross-examine Mr Hurst about them. On 26 June 2025, the Commissioner advised the parties that he would admit the Code of Conduct only, but did not address the request to call further evidence and cross-examine Mr Hurst about the Code. Ms Cupitt submitted that the Commissioner had found that the sharing of the password was a breach of policy, when there was no evidence of any prohibition of password sharing, and that the Commissioner had accepted the Council's submissions about the Code without allowing her to cross-examine Mr Hurst about it.

[26] However, the Commissioner's findings were that Ms Cupitt had used the same password for every login in her role, and that another employee knew what it was. These findings were consistent with Ms Cupitt's own evidence. They were not based on the Code or any other policy.

From these facts, the Commissioner then drew the evaluative conclusion that Ms Cupitt's actions had been inappropriate and had failed to protect sensitive information (at [156] and [157]), an assessment that was in our view open to him.

[27] Appeal ground 7 contended that the Commissioner erred in finding that Ms Cupitt lacked training in human resources because the finding was said to be unsupported by any evidence, and was in fact wrong, as Ms Cupitt had received training in human resources. There is no substance in this ground. First, what the Commissioner in fact said was that Ms Cupitt had been critical of the human resources manager despite having no human resources 'qualifications or experience'. The Commissioner said nothing about human resources training. In any event, this was a passing reference and a minor matter of little if any apparent consequence in the Commissioner's reasoning. No error on this count could reasonably be said to amount to a 'significant error of fact', as it would need to do in order to be amenable to appeal (see s 400(2)).

[28] Appeal grounds 8 and 9 contended that the Commissioner erred in finding that Ms Cupitt's demeanour in the workplace was a matter that could contribute towards a conclusion that there was a valid reason for dismissal; that the Commissioner's finding in relation to her demeanour was not open to him on the evidence; and that 'grossly disproportionate weight' was given to this matter of limited relevance. It was also suggested that the Commissioner wrongly drew adverse conclusions about Ms Cupitt's demeanour from her answers in cross-examination. We find no error to be revealed by these appeal grounds. Mr Hurst gave evidence of a wide range of matters concerning Ms Cupitt's conduct that were capable of founding factual findings about her demeanour. To the extent that the Commissioner also drew on his assessment of Ms Cupitt's demeanour in the witness box, there is no reason why this was not available to him. There is no indication that disproportionate weight was assigned to the factual finding about Ms Cupitt's demeanour, nor was it explained why a finding in relation to demeanour must necessarily be a matter of limited relevance.

[29] Appeal grounds 10 and 11 submitted that the Commissioner erred in concluding at [175] that Ms Cupitt had denigrated Mr Hurst as there was no evidence capable of supporting such a finding, given that Mr Hurst's account of the matter was hearsay. We reject this. Mr Hurst gave an account of his own discussions with numerous other people who related to him what Ms Cupitt had said to them about him. Ms Cupitt is wrong to say that the Commissioner erred in law in relying on hearsay evidence, because the Commission is not bound by the rules of evidence (see s 591), and in our opinion it was open to the Commissioner in the circumstances to have regard to this evidence and to reach the conclusions he did. Further, contrary to Ms Cupitt's submission, the fact that the disparagement occurred outside the workplace does not mean that the matter could not be taken into consideration by the Commissioner.

[30] Appeal ground 12 contended that the Commissioner erred in failing to draw Jones v Dunkel inferences in respect of the Council's alleged failure to lead witness evidence in relation to many of the allegations it had levelled against Ms Cupitt, and its decision to instead rely only on the evidence of Mr Hurst, which suggested that evidence from other witnesses would not have assisted the Council's case. But this appeal ground, and the submissions that accompanied it, did not present a cogent and assessable ground of appeal. It was not explained which witnesses were not called (reference was made generally to persons referred to in Mr Hurst's witness statement), nor was it explained in respect of which disputed facts the various witnesses could or should have been called. Further, a decision-maker is not compelled to draw a Jones v Dunkel inference even when it is available, and no error has been demonstrated in the Commission's approach.

[31] Ground 13 alleged that the Commissioner erred in refusing a request by Ms Cupitt to examine witnesses from Services Australia and to issue orders requiring Services Australia to produce the data necessary to positively exonerate her. Ms Cupitt said that instead, the Commissioner took over the role of investigator and wrote to Services Australia himself, but denied her the opportunity to prove her innocence and thereby denied her procedural fairness. But the orders that might have been directed to Services Australia would have related to the portal interference allegation (the notice of appeal also refers here to the 'fraud' allegations), yet as we have explained above, the Commissioner must be taken to have concluded that both of these allegations were unsubstantiated. Any error in connection with this ground of appeal was inconsequential.

[32] As to the question of whether the Commissioner made a factual finding in respect of the portal inference allegation (a matter not raised in the notice of appeal but which we will address for completeness), we note the following. The Commissioner said at [148] that he had 'taken into account' Services Australia's response to his letter, which advised that Mr Hurst had retained portal access throughout the relevant period. At [154], the Commissioner said that he had also 'taken into account' Mr Hurst's evidence of his conversation with an employee of Services Australia who said that Ms Cupitt had interfered with the portal. As with the 'fraud' allegation, the Commissioner did not expressly record his factual finding on this matter. But again we consider that on a fair reading of the decision as a whole, the Commissioner concluded that the allegation was not substantiated. As well as referring to Services Australia's response to his letter to the Commissioner, which turned up no evidence at all of any wrongdoing by Ms Cupitt, the Commissioner noted Ms Cupitt's 'definitive' denial of the allegation. And as with the 'fraud' allegation, it is clear that the allegation comes nowhere near being substantiated by the evidence. In our view, the Commissioner regarded the matter as an allegation only, and not as a proven fact. While the Commissioner said that he had 'had regard' to Mr Hurst's account of his telephone discussion with an employee of Services Australia, this is explicable as a finding in respect of Mr Hurst's subjective opinion. Mr Hurst had a genuine reason for his allegation about Ms Cupitt; he did not act arbitrarily or in bad faith. But the Commissioner did not consider the allegation to be proven.

[33] Appeal ground 14 submitted that the Commissioner acted in a manner giving rise to an apprehension of bias by making findings that were not open to him, that were derogatory of Ms Cupitt, and that suggested that he had formed such a negative opinion of her that he could not consider her evidence objectively. We disagree. Contrary to Ms Cupitt's contention, the fact that the Commissioner stated that Ms Cupitt thinks she is always right, and that she believes she is superior to others, does not mean that the Commissioner did not like her or that he does not like people who are like her, nor do his findings or the language employed in his decision even approach the level needed to sustain a contention of bias. We see no rational basis for the contention in this case.

[34] Ground 15 contended that the Commissioner erred by adopting a hypothetical approach to the assessment of compensation which contemplated the time it would have taken for a fair process to be implemented, and that the Commissioner was wrong to assume that such a process would have led to the conclusion that the password sharing was a valid reason for dismissal. Ms Cupitt further contended that it was impossible to know what the outcome of a hypothetical fair process would have been, and that it was possible that it might have exonerated Ms Cupitt from the major fraud allegations. We reject this ground of appeal. First, it overlooks the fact that s 392(2)(c) of the Act specifically requires the Commission, in assessing compensation, to consider a hypothetical situation: the Commission must take into account 'the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed'. Secondly, because in our opinion the Commissioner considered that the 'fraud' allegation was not substantiated, he must be taken to have proceeded on the basis that this would also have been the conclusion of the fair process contemplated in his reasoning. Thirdly, the fact that the outcome of the hypothetical process could not be known with certainty is obvious, and also irrelevant, because certainty is not required.

[35] Clearly, the Commissioner considered that despite the hypothetical fair process contemplated in his analysis, the Council would have proceeded to dismiss Ms Cupitt in any event. This accords with the Commissioner's view that the procedural defects 'extinguished' the valid reason and that the Council 'would have had a valid reason' but for the process failures (at [180] and [188]). A more orthodox formulation would have been that Council's process failures outweighed the valid reason, and that but for these failures the dismissal would not have been unfair. The point is however that in assessing compensation, members must consider the hypothetical matter in s 392(2)(c); they are required to reflect on what, in their reasoned opinion, might have occurred, had the successful unfair dismissal applicant not been dismissed when they were. Sometimes the conclusion is that the employment would have ended in any event. That was the case here. Ms Cupitt said that there was no reason to assume that the password sharing matter would have been substantiated had a fair process been adopted, because this was not raised at the time of termination. But as we have said, the Commissioner's factual finding on this point accorded with Ms Cupitt's own evidence. Further, the valid reason for dismissal was not based on this matter alone, but also on other findings, including in respect of Ms Cupitt's operational style and her comments about Mr Hurst. In addition to this, it is abundantly clear that the relationship between the parties had seriously broken down. In our view, the Commissioner's perspective that Ms Cupitt would have been dismissed even if a fair process had been implemented was one that was open to him on the evidence.

[36] We have addressed each of the 15 grounds of appeal, but on one view, it would have been sufficient for us only to consider the last ground. All of the others concerned alleged errors in the Commissioner's findings and conclusions on the merits of her unfair dismissal application. But Ms Cupitt agrees with the Commissioner's disposition of that matter, which was that her dismissal was harsh, unjust and unreasonable, and therefore unfair. She would prefer the Commissioner to have reached this conclusion in a different way, but her appeal has no utility in this respect, because no better substantive outcome could have been reached on the merits. A dismissal is either unfair or it is not. For Ms Cupitt's appeal to have utility, it had to engage with her contention that the Commissioner erred in his assessment of her compensation. Only the last appeal ground did so, and as we have explained, we do not consider it to reveal any error. The appeal grounds relating to the merits decision did not establish any link with the Commissioner's decision on remedy.

[37] The Commissioner accepted Ms Cupitt's claim that she had been unfairly dismissed. In assessing compensation, he took into account s 392, noted that Ms Cupitt had already received 3 weeks' pay in lieu of notice, and considered that she should be paid 4 weeks of compensation, reflecting the time that it would have taken to implement a fair process. The Commissioner did not consider that this could have affected the outcome, but believed that this was what would have been required to make the dismissal fair. This is a perfectly available standpoint from which to assess the hypothetical scenario in s 392(2)(c). We see no error in the Commissioner's approach to the question of remedy.

[38] The grounds of appeal do not reveal any appealable error. In any event, it is axiomatic that error is not a sufficient condition for the granting of permission to appeal and that not every error will engage the public interest. In our opinion, Ms Cupitt's appeal grounds concern matters that affect only private interests, not the public interest. None of the elements referred to in Makin is present in this case, nor are there any other factors that would make it in the public interest to grant permission to appeal. This was a misconduct case involving disputed facts. The Commissioner heard from the parties, considered the evidence, and made factual findings, even if some of these were not expressly recorded and were only evident from context. The Commissioner addressed the parties' arguments and exercised his discretion in respect of remedy in the usual way. Ms Cupitt's application for an unfair dismissal remedy was successful. She was awarded 4 weeks' pay, which was in addition to the 3 weeks' pay she had already received from the Council. The matters raised by Ms Cupitt in her appeal bear upon her interests, but in our opinion none of them engage the public interest.

[39] Ms Cupitt said that the decision was disharmonious with other decisions of the Commission and that it was counterintuitive. We find it to be neither of these things. Ms Cupitt said that the decision raised concerns about procedural fairness. We disagree. Ms Cupitt said the public interest was attracted by the fact that the matter related to issues of probity in local government. But any unfair dismissal case will have a particular sectoral setting. Invariably, appellants submit that the alleged errors that affected their case are of potential interest to other members of the public who may find themselves in circumstances similar to theirs. But on this reasoning, any appeal would engage the public interest. Plainly, this is not enough.

[40] Section 400 is a stringent test and it is our duty to give it full and proper effect. It directs that the Commission must not grant permission to appeal from a decision under Part 3-2 unless the Commission considers that it is in the public interest to do so. We are not so satisfied. Permission to appeal is therefore refused.

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