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[2025] FWCFB 104
General information, not legal advice.
Fair Work Commission (Full Bench)
2025-05-20
Original judgment source is linked above.
s.604 - Appeal of decision
Australian Ultimate Training College Pty Ltd T/A Australian Ultimate Training College
Appeal by Mr D'Souza against decision [2025] FWC 747 and order PR785240 of Deputy President O'Keeffe at Perth on 14 March 2025 in matter number U2024/13795 - permission to appeal refused.
[1] Mr Christopher Lloyd D'Souza has lodged an appeal under s 604 of the Fair Work Act 2009 (Cth) (Act), for which permission to appeal is required. The appeal concerns a decision[1] and order[2] of Deputy President O'Keeffe issued on 14 March 2025. In the decision the Deputy President determined, in summary, as follows:
(a) Mr D'Souza was an employee of the respondent, Australian Ultimate Training College Pty Ltd (despite its contention that Mr D'Souza was an independent contractor);
(b) the respondent had not complied with the Small Business Fair Dismissal Code in respect of Mr D'Souza's dismissal;
(c) the respondent had a valid reason to dismiss Mr D'Souza in respect of his performance in the role of Chief Executive Officer, being concerns about which Mr D'Souza was aware;
(d) Mr D'Souza was not notified at the time of his dismissal of the reasons for the dismissal, nor given an opportunity to respond. Mr D'Souza did not receive a warning about unsatisfactory performance before the dismissal; and
(e) having regard to the other matters in s 387 of the Act to which he was to take into account, the Deputy President concluded that Mr D'Souza's dismissal was harsh and unjust, and therefore unfair. The respondent was ordered to pay Mr D'Souza an amount of compensation of $10,000 gross as a remedy.
[2] Notwithstanding this outcome, Mr D'Souza filed a notice of appeal. The matter was listed for permission to appeal only. The parties consented to the application being determined without holding a hearing pursuant to s 607(1)(b) of the Act. We are satisfied that the question of permission to appeal can be adequately determined without the need for oral submissions. For the reasons that follow, permission to appeal is refused.
[3] Mr D'Souza relies upon the following appeal grounds (unedited from original):
(1) The Deputy President instructed the Appellant that the hearing would focus solely on the unfair dismissal claim and the Appellant was directed not to submit or provide evidence regarding other aspects of employment, including CEO duties, the Absolute Leader course, salary reduction, superannuation, PAYG tax, holiday pay, and payment in lieu of notice. As a result, the Appellant was unable to present relevant evidence that could have supported the case.
(2) The Deputy President's narrow focus on the unfair dismissal claim excluded crucial aspects of the Appellant's employment, preventing a complete understanding of his role at AUTC from September 2023 to November 2024. This limitation barred substantial evidence, including the Appellant's CEO responsibilities, from being considered.
(3) The Appellant was denied leave to examine Mr. Abdulla, who served as the COO of AUTC from September 2023 to December 2024. Mr. Abdulla essentially managed the company during Mr. Posselt's one-year absence. This period spanned from September 2023 to December 2024. This denial prevented crucial evidence from being presented.
(4) Mr. Abdulla, the COO of AUTC, was fully aware of the Appellant's active involvement in critical operational and compliance matters from September 2023 to November 2024 and beyond. Mr. Abdulla's testimony was essential as he had direct knowledge of the Appellant's CEO responsibilities, including regulatory dealings with ASQA. This denial obstructed key evidence relevant to the case.
(5) On 22 July 2024, Mr. Abdulla directly contacted the Appellant, requesting the contact details of Mr. Shiju Mathews from AI Academy. This demonstrates Mr. Abdulla's and the Appellant's active role in AUTC matters, as well as his acknowledgment of the Appellant's ongoing involvement in organisational communications as CEO from September 2023 to November 2024.
(6) On 18 September 2024, Mr. Abdulla requested the Appellant to follow up with ASQA regarding AUTC's compliance audit. The Appellant's response emphasised a strategic approach to interactions with ASQA, referencing prior audit observations. This exchange demonstrates Mr. Abdulla's recognition of the Appellant's involvement in compliance matters and course development, further underscoring the Appellant's active role in key organisational affairs from September 2023 to November 2024 and beyond the alleged termination date.
(7) On 18 September 2024, Mr. Abdulla invited the Appellant to AUTC's staff Christmas dinner, scheduled for Friday, 29 November 2024, stating that the company would cover the cost for staff. This communication confirms Mr. Abdulla's recognition of the Appellant as an active member of the organisation as of September 2024, directly contradicting claims that the Appellant was no longer employed or that his role was "unsustainable."
(8) The Deputy President presumed the Appellant's employment was "unsustainable" without seeking input or making an evidence-based determination, leading to an unjust and unfounded conclusion.
(9) The Deputy President's disallowance of the examination of Mr. Abdulla prevented the revelation of substantial evidence. The Appellant's remote work between September 2023 and November 2024 demonstrates his ongoing commitment to significant CEO responsibilities, including the development and management of the Absolute Leader course. This involved extensive work and continuous engagement through emails, phone calls, and other forms of communication, all of which were excluded from consideration.
(10) Substantial documented evidence from September 2023 to November 2024 outlines the Appellant's duties, including regular communications, telephone discussions, and meetings with Ms. Rachel Wang, and Ms. Tegan Watson, ASQA's Senior Compliance Officers, to ensure regulatory compliance, as well as direct discussions with Mr. Abdulla, COO of AUTC, on operational and strategic matters. This significant evidence was denied due to the Deputy President's disallowance of the Appellant's examination of Mr. Abdulla, who was solely responsible for running AUTC during Mr. Posselt's absence.
(11) The Deputy President questioned the Appellant's contributions between December 2023 and July 2024, implying a lack of meaningful involvement. This conclusion was based on an incorrect assumption and a failure to account for the Appellant's restriction from submitting relevant evidence due to explicit instructions that the hearing was solely focused on the unfair dismissal claim. Furthermore, the disallowance of examining a crucial witness, Mr. Abdulla, who was fully involved in and ran the AUTC business during the period of September 2023 to November 2024 in the Respondent's absence, further hindered the Appellant's ability to present a complete case.
(12) In paragraph [59] of the Deputy President's ruling, it is suggested that the Appellant was no longer performing meaningful CEO duties while working on the Absolute Leader course. This reasoning is fundamentally flawed, as it relies on an incomplete evidentiary record due to restrictions imposed by the Deputy President, which prevented the presentation of evidence that would have demonstrated the Appellant's ongoing responsibilities as CEO from September 2023 to November 2024.
(13) The Deputy President's ruling relies on an oversimplified and flawed interpretation of the Appellant's role, erroneously suggesting that the Appellant's focus on the Absolute Leader course precluded him from fulfilling other essential CEO responsibilities. This is an inaccurate and misleading assumption, as the Absolute Leader course was only one aspect of the Appellant's broader executive functions and does not reflect a diminished role as CEO.
(14) While the Deputy President determined that the Appellant's dismissal was unjust, the Appellant submits that the compensation awarded was insufficient due to an incorrect calculation of his remuneration, which fails to reflect his full entitlement to compensation.
(15) The Deputy President's ruling on compensation was based on incorrect assumptions. The Appellant's actual pay rate was $2,670 per week, not $1,400 per week. Despite describing the pay reduction as "frankly, unconscionable" and unjustified in paragraph [80] and stating in paragraph [109] that the unilateral reduction of the Appellant's pay was "a particularly egregious act," the Deputy President incorrectly relied on this unlawful pay reduction in the ruling.
(16) The Deputy President's finding of "unsustainability" suggests that the Appellant's employment was effectively untenable, which limited the amount of back pay that could be awarded. However, if the Respondent genuinely believed the Appellant's employment was unsustainable, a critical inconsistency arises: Why did the Respondent proceed with signing the Service Level Agreement (SLA) with its Singapore partners on 4 March 2024? This action contradicts the claim of unsustainability and undermines the basis for the back pay calculation.
(17) In paragraph [129], the Deputy President arbitrarily restricts the Appellant's entitlement to lost earnings for six weeks, relying on an unsupported assumption that the Appellant's employment was already untenable. This conclusion is speculative and lacks concrete evidence. There is no factual basis or documentary proof to substantiate the claim that the Appellant's employment would have necessarily ended after six weeks. The absence of objective evidence regarding the imminent risk of termination renders this finding unfounded and legally questionable, unfairly limiting the Appellant's compensation without justification.
(18) The SLA agreement with the Singapore partner, as stated in clause [5.1], specifies that the SLA remains valid until further notice. The Appellant's intended long-term commitment was to work in partnership with the Singapore company alongside AUTC under a contract set to continue for an additional five years. This highlights the Appellant's ongoing role and the expectation of continued employment, contradicting claims of employment unsustainability.
(19) The Deputy President erroneously construed the Appellant's contributions to the Absolute Leader Course. The course was fully developed and ready for implementation in December 2023, including a comprehensive PowerPoint presentation, course materials, and 139 participant questions. Before signing the contract, the Singapore training company proposed conducting a preliminary test at their own expense to assess participant response. The positive feedback secured the partnership between AUTC and Training Edge International in Singapore.
(20) The contract's execution was contingent upon the course meeting quality, effectiveness, and professional standards, disproving the Deputy President's claim that the course was incomplete or ineffective. Following the successful evaluation, a Service Level Agreement (SLA) was signed by the Managing Director of Training Edge International Singapore, on March 1, 2024. The signed contract was then sent to the Appellant, and as per the agreement, the SLA became effective from the specified date and remains in force until further notice.
The Deputy President incorrectly stated that the Respondent requested an adjournment of the conciliation conference to obtain legal advice regarding jurisdictional objections. This assertion is factually incorrect.
The jurisdictional objection was never raised in any prior correspondence, forms, or submissions until the conciliation on 23 January 2025, when the Respondent's lawyer first suggested that the Respondent had a jurisdictional objection.
The Appellant was informed that the hearing would only concern the unfair dismissal claim and that additional matters - including leadership courses, CEO duties, PAYG tax, superannuation, salary reduction, holiday pay, and payment in lieu of notice - would not be addressed.
The Appellant was not allowed to cross-examine Mr. Abdulla, the COO of AUTC, who managed company operations from September 2023 to November 2024 while Mr. Posselt was on leave.
The Deputy President gave undue weight to the Respondent's assertions while disregarding available substantial documentary evidence.
The Deputy President's ruling is based on several significant factual errors, which have led to an unfair outcome for the Appellant, including an inadequate compensation award. The misrepresentation of the adjournment reason, the improper introduction of a jurisdictional objection, and the limitations on evidence and cross-examination undermined procedural fairness. It materially affected the financial remedy provided to the Appellant.
Had these errors not occurred, a fairer assessment of the Appellant's employment status and unfair dismissal claim would have resulted in a higher compensation award, reflecting the true nature of his role and entitlements. The Appellant seeks a review and correction of these errors to ensure a just determination of the matter.
A reassessment of the Deputy President's Decision and compensation awarded to the Appellant, ensuring it accurately reflects the unfair dismissal suffered and the financial losses incurred.
[4] Mr D'Souza contends that it is in the public interest for the Commission to grant permission to appeal, including to uphold procedural fairness, ensure accurate factual assessment, and ensure the proper application of compensation principles, thereby strengthening trust in the Commission's role in adjudicating unfair dismissal claims.
[5] There is no right to appeal, and an appeal may only be made with the permission of the Commission. Section 400 of the Act applies to this appeal, as it is from a decision made under Part 3-2 of the Act. By 400(1), 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 on the ground that the decision involved a significant error of fact. The test under s 400 is "a stringent one."[3]
[6] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[4] The public interest is not satisfied simply by the identification of error or a preference for a different result.[5] Considerations that may attract the public interest include that the matter raises issues of importance and general application, that the decision manifests an injustice or that the result is counterintuitive.[6] It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. However, that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.
[7] 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.[7] However, it is necessary to engage with the grounds to consider whether they raise an arguable case of appealable error.
[8] We do not consider that the grant of permission to appeal would be in the public interest. Of significance in this matter, Mr D'Souza was successful in his application for an unfair dismissal remedy. The Deputy President determined that Mr D'Souza's dismissal was harsh and unjust, and therefore unfair. Mr D'Souza has not challenged this finding in the appeal.
[9] At the heart of the appeal, having engaged with the appeal grounds and submissions, is Mr D'Souza's contention that the award of compensation he received is inadequate. Mr D'Souza says that without several significant factual errors being made by the Deputy President, a higher compensation order would have been made. We do not consider this to be arguable for reasons that may be briefly stated.
[10] First, the contention that the respondent did not raise its objection that Mr D'Souza was an independent contractor (and not an employee) in its Form F3 response is not directed to any alleged error of the Deputy President. The adjournment of the first conference from 9 January 2025 to 23 January 2025 was a matter for the Deputy President (see s 589 of the Act) and no arguable error arises from his reasons for it. In any event, we do not consider it to be arguable that Mr D'Souza was denied procedural fairness by reason of these matters; the respondent's contention that Mr D'Souza was an independent contractor was dismissed by the Deputy President in any event. Mr D'Souza has not explained how this matter could have unfairly impacted the compensation order when the point was determined in his favour.
[11] Second, Mr D'Souza seeks to adduce fresh evidence in the appeal. We understand this material to be responsive to the Deputy President's finding that there was a valid reason for his dismissal. We decline to exercise our discretion to receive this material into evidence (see
s 607(2) of the Act). We are not satisfied that the requirements for the admission of fresh evidence on appeal as set out in Akins v National Australia Bank[8] are met. Significantly, we do not consider that there is a high degree of probability that there would be a different decision. This is because the Deputy President determined that Mr D'Souza was unfairly dismissed despite the fact that there was a valid reason for his dismissal. There is no public interest in revisiting the valid reason finding in circumstances where Mr D'Souza was otherwise successful in his application for an unfair dismissal remedy.
[12] Third, Mr D'Souza's contention that he was precluded from cross examining Mr Abdulla does not appear to be connected to any arguable error of the Deputy President. While Mr D'Souza contends that Mr Abdulla's testimony was crucial to clarifying his employment status and responsibilities, Mr Abdulla was not called to give evidence by the respondent, so there was no basis for him to be cross-examined about these matters.
[13] Fourth, and related to the above, Mr D'Souza contends that the Deputy President failed to acknowledge the substantial documentary evidence before him in determining "employment status." However, this does not point to any arguable error. The Deputy President determined the "employment status" argument in Mr D'Souza's favour, finding that he was an employee of the respondent and that he was unfairly dismissed by it.
[14] Fifth, we record that the Deputy President's approach to the calculation of compensation was consistent with Full Bench authority in Sprigg[9] and appropriately conducted by reference to s 392 of the Act. An arguable case of error is not disclosed by reason of the Deputy President's conclusion that Mr D'Souza's future anticipated employment period amounted to no longer than six weeks. There appears to be an evidentiary foundation for this conclusion having regard to the Deputy President's findings about the unsustainable nature of the employment relationship between the parties, in part based on his observations of both parties at the hearing. Nor do we consider it to be arguable that the Deputy President erred by conducting such calculations by reference to Mr D'Souza's reduced salary, this being the remuneration that Mr D'Souza would have earned from the respondent had the dismissal not occurred (s 392(2)(c) of the Act). It follows that we are not persuaded that the compensation calculations are attended by any arguable error.
[15] Mr D'Souza's application for an unfair dismissal remedy was determined on the basis of its own particular facts and resulted in Mr D'Souza achieving a successful outcome. The appeal does not raise any issue of law or principle that might have a wider application. Because we are not satisfied that the grant of permission to appeal would be in the public interest, permission must be refused in accordance with s 400(1) of the Act.
[16] For the reasons given, permission to appeal is refused.
[3] Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54; 192 FCR 78; 207 IR 177 at [34] and [43]
[4] O'Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210 at 216-217 per Mason CJ, Brennan, Dawson and Gaudron JJ: applied in Hogan v Hinch (2011) 243 CLR 506 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [44]-[46]
[5] GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343; 197 IR 266 at [24]- [27]; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/ Warkworth [2010] FWAFB 10089 at [28], affirmed on judicial review; Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 178; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663; 241 IR 177 at [28]
[6] GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, 197 IR 266 at [24]- [27]
[7] Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]
[8] [1994] 34 NSWLR 155 at 160
Printed by authority of the Commonwealth Government Printer
Christopher Lloyd D'Souza
Australian Ultimate Training College Pty Ltd T/A Australian Ultimate Training College [2025] FWCFB 104
(2011) 192 FCR 78
(2011) 192 FCR 178
(1989) 168 CLR 210
(2011) 243 CLR 506
(1998) 88 IR 21