s.604 - Appeal of decision

Appeal against decision [2025] FWC 2185 of Commissioner Sloan in matter number U2025/8790 - application dismissed - minimum employment period - small business employer - calculation of employees - no arguable error - no public interest - permission to appeal refused.

[1] Mr Colin McKerlie commenced working for Private Fleet Pty Ltd on 1 May 2024. On 1 November 2024 the business and employees of that company were transferred to Private Fleet Group Pty Ltd (Respondent). On 2 May 2025, the Respondent dismissed Mr McKerlie.

[2] Mr McKerlie applied to the Commission pursuant to s. 394 of the Fair Work Act 2009 (Cth) (FW Act) for an unfair dismissal remedy. The Respondent opposed the application on the ground that Mr McKerlie was not protected from unfair dismissal as he had not served the minimum employment period. The minimum employment period is defined in s. 383 as 6 months, or, if the employer is a small business employer, one year. A small business employer is defined in s. 23 as an employer who employs fewer than 15 employees. Commissioner Sloan found that as the Respondent employed 14 employees at the time of Mr McKerlie's dismissal it was a small business employer. As Mr McKerlie had not served a minimum employment period of 12 months, the Commissioner ordered that Mr McKerlie's application be dismissed.[1]

[3] Mr McKerlie has lodged an appeal under s.604 of the FW Act against Commissioner Sloan's decision and order. Section 604(1) provides that an appeal may only be brought with the permission of the Commission. This decision deals with whether Mr McKerlie should be given permission to appeal. For the reasons that follow we refuse permission to appeal.

[4] The Commission has a general discretion under s. 604(2) to grant permission but "must grant permission if the FWC is satisfied that it is in the public interest to do so." Section 400(1) of the Act applies to appeals from decisions made under Part 3-2 of the Act. Part 3-2 deals with unfair dismissal. Section 400(1) provides that the Commission "must not" grant permission to appeal a decision made under Part 3-2 "unless the FWC considers that it is in the public interest to do so." Section 400(2) states that an appeal on a question of fact in relation to a decision made under Part 3-2, can only be made on the ground that the decision involved "a significant error of fact." The test under s.400 is a "stringent one."[2]

[5] Consideration of the public interest involves a broad value judgment.[3] Matters that may engage the public interest include issues of importance and general application, a diversity of decisions at first instance, or where the decision manifests an injustice.[4]

[6] In deciding whether to grant permission to appeal, it is unnecessary and inappropriate to conduct a detailed examination of the appeal grounds.[5] 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 an arguable case of appealable error to be granted permission to appeal, as an appeal cannot succeed in the absence of error.[6] However, the fact that a member at first instance may have made an error is not necessarily a sufficient basis to grant permission to appeal.

[7] During the hearing of the matter Mr McKerlie sought to rely upon fresh evidence and information in the appeal. He sought to be sworn in for the purpose of stating on oath that everything he said at first instance was true and correct. He sought to do this to cure the asserted deficiency arising from the Commissioner not proceeding by way of hearing. He also sought to make a statement on oath that he did not receive a notice of termination from the Respondent at the time he was dismissed. He also invited Mr Varone of the Respondent to give evidence before us, on oath, attesting that what was said at first instance was true, so as to enable that account to be tested by cross examination. Finally, he sought to tender a bundle of media clippings in which criticisms are made about the process of appointments to the Commission.

[8] Section 607(2) of the Act confers a discretion on the Commission to admit further evidence and take into account other information or evidence on appeal. However, the Commission must be satisfied it is appropriate to do so.[7] The Respondent opposed the Full Bench receiving further evidence and Mr Varone declined Mr McKerlie's invitation to give evidence under oath. We note that the Commissioner did not take evidence on oath at first instance. Mr McKerlie has made submissions on that matter and there is no need to follow the process requested. We also note Mr McKerlie's assertion that he was not provided with a written notice of termination. That is sufficient for the purposes of these proceedings. That matter, for the reasons below is ultimately of no consequence. The media articles that Mr McKerlie sought to rely upon had no relevance at all to the proceedings. We refused to receive the further evidence as it was not appropriate to do so.

[9] Mr McKerlie's notice of appeal contains four grounds. They assert that:

1. The Commissioner conducted the hearing in a biased, corrupt, and incompetent manner, including by conducting a "determinative conference."

2. The Commissioner erred in failing to give weight to statements made by employees and agents of the Respondent.

3. The Commissioner erred in giving weight to certain documents and failed to compel the Respondent to comply with an order to produce documents.

4. The Commissioner erred in not counting a temporarily vacant position when counting the number of employees employed by the Respondent for the purposes of the definition of a "small business employer" in s. 23 of the FW Act

[10] Mr McKerlie made application and was granted leave to add an additional appeal ground. It was that his dismissal was unlawful because the Respondent did not provide him with written notice of the termination as required by s.117 of the FW Act.

[11] Mr McKerlie's submissions in support of his first ground are discursive and are littered with irrelevant and immaterial attacks on Commissioner Sloan, other members of the Commission, including the members of this Full Bench, and the Commission more generally. We reject those submissions. They are intemperate, irrelevant, and immaterial to the appeal. As to the submissions that go to the procedure followed by the Commissioner of conducting a determinative conference rather than a hearing, we note that s. 399 provides that the Commission must not hold a hearing in an unfair dismissal matter unless it considers it appropriate to do so, taking into account the views of the parties and whether a hearing would be the most effective and efficient way to resolve the matter. The Commission also has the general power in s. 590 to inform itself in relation to any matter before it in such manner as it considers appropriate. Mr McKerlie acknowledges that he did not object to the Commissioner proceeding by way of determinative conference. Mr McKerlie has not made out an arguable case of appealable error that the Commissioner made any error whatsoever in proceeding in the manner he did.

[12] Mr McKerlie's second and third grounds go the weight given to statements and documents relied on by the Respondent during the conference. The third ground also goes to the manner in which the Commissioner dealt with documents produced by the Respondent in response to an order for production. Matters of weight are matters for the first instance decision maker and will not be disturbed on appeal lightly. Mr McKerlie's submission is that the Respondent should simply not have been believed. He does not establish why that should be the case. The complaint about the receipt of documents is that the Commissioner accepted unexecuted contracts where the order for production should have resulted in the production of executed contracts. This matter is dealt with by the Commissioner at [32] to [34] of his reasons. The contracts went to whether some who worked in the business of the Respondent were employees or independent contractors. The Commissioner noted that reliance on unexecuted contracts was a matter of weight but ultimately determined the issue by finding that there was nothing before him that cast doubt on the contention that those persons were independent contractors. Whether the documents provided were signed or not had no bearing on this finding. We see no error in the approach taken by the Commissioner.

[13] Mr McKerlie's fourth ground is that the Commissioner should have counted a temporarily vacant position when calculating the number of employees employed by the Respondent at the time of dismissal. The decision records that an employee ended employment on 4 April 2025. The decision also records that a new employee commenced in the same position on 19 May 2025. Mr McKerlie has not argued that the Commissioner erred in relation to these dates for the two employees. The Commissioner was required to determine the number of employees as at the time that Mr McKerlie was dismissed, which was 2 May 2025. It cannot be said that either the former employee, or the new employee, was employed, or on Mr McKerlie's preferred construction was 'usually employed', on 2 May 2025. Consequently, the Commissioner was correct not to include either employee in the calculation of the number of employees. Section 23 of the FW Act is directed at employees rather than roles or positions. Mr McKerlie did not develop this ground in his submissions other than to repeat the argument presented at first instance. His submissions do not identify an arguable case of appealable error.

[14] Mr McKerlie's additional ground goes to the operation of s.117 of the FW Act. Mr McKerlie's asserts that the Respondent did not comply with the requirement in s.117 to provide written notice of his termination. Even if it is assumed that Mr McKerlie is correct and that the Respondent did not comply with s.117 of the FW Act, that would not establish an arguable case of appealable error. There was no dispute before the Commissioner that Mr McKerlie's employment ended on 2 May 2025. A failure to comply with the notice requirement in s.117 does not mean that there was no dismissal.[8] The issue to be determined was whether Mr McKerlie had served the minimum employment period. Whether that period was 6 months or 12 months turned on the issue of whether the Respondent was a "small business employer". The Respondent's compliance or otherwise with the notice requirement in s.117 did not have any bearing on the assessment of how many employees it had when Mr McKerlie was dismissed.

[15] Mr McKerlie contended that his appeal was in the public interest due to the procedural failures associated with the manner in which the Commissioner conducted the proceedings and his failure to enforce the order for production. These matters are simply complaints about the procedures followed by the Commissioner. They do not raise any genuine issue of law, principle or wider application. Mr McKerlie also asserts the appeal raises a novel issue concerning the construction of s. 23 of the FW Act. While the construction issue raised has not been considered at appellate level before; the manner in which it is raised does not suggest error on the part of the Commissioner. There is no public interest in granting permission to argue the point where Mr McKerlie has not established arguable error. Finally, Mr McKerlie asserts that the decision is fundamentally unfair and contrary to the FW Act because it sets a precedent that an employee can lose protection from unfair dismissal where an employer deliberately refuses to fill a vacant position to keep the number of persons it employs beneath 15. The Commissioner's decision dealt with facts specific to the case. It does not set a precedent of general application. Mr McKerlie's strong sense that the outcome was unjust in his circumstances does not attract a broader public interest.

[16] For the reasons given, we do not consider that an arguable case has been advanced that the decision was attended by appealable error. Nor are we satisfied, for the purposes of s 400(1) of the Act, that the appeal attracts the public interest. It follows that we must refuse permission to appeal.

[1] Colin McKerlie v Private Fleet Group Pty Ltd [2025] FWC 2185.

[2] Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78, [43].

[3] Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78, [44].

[4] GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343; (2010) 197 IR 266 (Makin), [27]).

[5] Trustee for the MTGI Trust v Johnston [2016] FCAFC 140, [82].

[6] Coal & Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194, 204.

[7] See, for example, Mining and Energy Union v Specialised Mine Services Pty Ltd [2025] FWCFB 103 at [54]- [55] referring to the approach in Akins v National Australia Bank (1994)34 NSWLR 155 at 160.

[8] Metropolitan Fire and Emergency Services Board v Duggan [2017] FWCFB 4878 at [32] - [33] and Farooq Faridi v OM Security P/L [2025] FWCFB 163

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