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[2025] FWCFB 179
General information, not legal advice.
Fair Work Commission (Full Bench)
2025-08-15
Original judgment source is linked above.
s.604 - Appeal of decision
Designer Life (Queensland) Pty Ltd As Trustee For The Designer Life (Queensland) Trust
Appeal against decision [2025] FWC 1897 of Commissioner Crawford at Sydney on 3 July 2025 in matter number C2025/3236 - permission to appeal refused.
[2] This matter was listed for hearing of the application for permission to appeal only, on 6 August 2025.
[3] Ms Miller commenced casual employment with Designer Life on 6 January 2025. On 14 March she filed applications for the Commission to make stop bullying orders and deal with a general protections dispute not involving dismissal. On 3 April 2025 Designer Life submitted that Ms Miller's casual role was no longer required. Ms Miller then filed her general protections application for contraventions involving dismissal on 7 April 2025. On 16 May 2025, Designer Life raised an objection on the basis that Ms Miller had not been dismissed. Ms Miller submitted a resignation letter on 24 May 2025. The Commission granted Ms Miller leave to amend her application to assert that she had been dismissed on that date.
[4] The Commission conducted a hearing in relation to Designer Life's objection on 1 July 2025. By operation of section 12 of the Fair Work Act, the meaning of dismiss in section 365 is defined by section 386. Commissioner Crawford dismissed the objection, finding that Ms Miller was dismissed, within the meaning of 386(1)(b) of the Fair Work Act.
[5] Designer Life's application lists ten grounds of appeal. They include grounds that the Commissioner misapplied section 386(1)(b) of the Fair Work Act, made findings not reasonably open on the evidence, had reversed the onus of proof as to the dismissal, had denied it procedural fairness, had engaged in jurisdictional error by allowing the application to be amended, had failed to consider relevant evidence and matters; had failed to give adequate reasons, had both conciliated the matter and then determined the objection, and had misapplied the definition of casual. Its final appeal ground is that together the errors it asserts render the decision unreasonable and plainly unjust.
[6] On the question of permission to appeal, Designer Life contends that the appeal raises several arguable errors of law and jurisdiction that warrant the Full Bench's intervention and therefore satisfy the public interest test in section 604(2) of the Fair Work Act.
[7] Both parties sought permission under s 596 of the Fair Work Act to be legally represented in the application for permission to appeal. We were satisfied that the requirement in s 596(2)(a) of the Fair Work Act was met as we would be assisted by counsel in dealing with the application and that we should exercise our discretion in favour of the grant of permission for legal representation.
[8] Under s 604(2) of the FW Act, we are required to grant permission to appeal if we are satisfied that it is in the public interest to do so. We may otherwise grant permission on discretionary grounds.
[10] 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 appealable error.[5]
[11] At hearing Designer Life's representative submitted that the primary appeal ground was that the Commission had allowed Ms Miller to amend her application to reflect her claim that the employment came to an end on 24 May 2025. We do not consider there to be an arguable case of appealable error. In its written submissions Designer Life took issue with the fact that the application to amend had not been made in accordance with the Fair Work Commission Rules 2024 (Cth) ("the Rules"). The Commission can waive irregularity in the form or manner in which an application has been made, and can dispense with the need for compliance with the Rules.[6] At the hearing Designer Life submitted it had not consented to the amendment being made, contradicting its written submission[7] that the amendment had been made by consent. Also, Designer Life's appeal notice refers to the application as having been made outside the 21 day time limit in s 366(1) of the Fair Work Act, which is to say, prematurely, and that an omission to consider a statutory extension power is a failure to consider a mandatory relevant matter.
[12] It is clear on the face of the transcript that the Commissioner gave Designer Life's legal representative an opportunity to be heard on the application to amend. He asked whether she wanted to say anything against him allowing the amendment. She said no.[8] The application was then amended. Designer Life did not raise any objection that as a consequence of that amendment the application had been made prematurely. If it had, the Commission would have had the power to cure this pursuant to section 586 of the Fair Work Act. The extension power in section 366 is, on its face, directed to late applications, not early ones. This much is clear from the considerations for extension which include the reasons for delay, action taken to dispute the dismissal, and prejudice to the employer, including prejudice caused by the delay. No arguable case of appealable error arises from the absence of consideration of section 366(2).
[13] We will now turn to the other appeal grounds. First, we do not consider Designer Life has established an arguable case of appealable error in relation to the Commissioner's application of section 386(1)(b) of the Fair Work Act, or in relation to the Commissioner's findings that Designer Life intended to end Ms Miller's employment, or that resignation was inevitable. These findings were open to the Commissioner.
[14] Nor do we consider Designer Life has established an arguable case of appealable error in relation to the onus of proof regarding whether the applicant was dismissed. In respect of this ground, Designer Life's application suggests that, pursuant to section 361, Ms Miller bore the burden of establishing that she had been dismissed. This is misconceived, as section 361 deals with the reasons for an action. More generally, references to onus are not necessarily of assistance. In relation to administrative tribunals which are not required to apply the rules of evidence, it has generally been held that no party bears a formal onus of proof.[9] The Commissioner had to determine, on the material before him, whether Ms Miller had been dismissed within the meaning of that term for the purposes of section 386(1)(b). He considered, on that material, that she had been.
[15] As to the ground that Designer Life had been denied procedural fairness, because unsworn statements were admitted, witnesses were not cross-examined, and the Commissioner made adverse findings, there is no arguable case of appealable error. Ms Miller tendered a statutory declaration. The Commissioner confirmed with Designer Life's representative his understanding that it did not require her for cross-examination. Designer Life tendered three unsworn witness statements. The Commissioner confirmed with Ms Miller's counsel that none were required for cross-examination. This is a common practice in the Commission, having regard to the manner in which it is to perform its powers and functions.[10] The statutory declaration and witness statements were admitted into the evidence. It was then necessary for the Commissioner to consider and weigh the evidence.
[16] We do not consider an arguable case to have been made that there was appealable error in the Commissioner's consideration of the evidence. The matters that the appeal notice refers to, the mutual obligation pause and the impending contract loss, are referred to at paragraph [11] of the decision and were taken into account.
[17] Nor do we consider such an arguable case to have been made as to whether the Commissioner had given adequate reasons. To be adequate the reasons "must articulate the essential grounds for reaching the decision and address material questions of fact and law in a manner which discloses the steps which lead to a particular result."[11] However, "the reasons need not be lengthy or elaborate and need not spell out every detail in the reasoning process or deal with every matter of fact or law which was raised in the proceedings."[12][18] And a decision-maker "is not expected to set out every consideration which passes through the decision-maker's mind,"[13] or to refer to "every piece of evidence and every contention" made by a party.[14] The Commissioner's decision addresses the material questions of fact and law and discloses his reasoning process.
[18] Appeal Ground 8 was said to relate to apprehension of bias on the basis of the Commissioner both conciliating and arbitrating, and on the basis of language used in the decision. Designer Life did not elaborate on this ground in the written outline filed in respect of the application for permission to appeal. It suffices to say the bare fact of conducting both conciliation and arbitration, if the former occurred in respect of this or Ms Miller's other applications, is not an adequate basis to raise this as a ground, having regard to the Full Bench decision in Amec Foster Wheeler Australia Pty Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia[15] and none of the language used in the decision give rise to any suggestion of a closed mind as is asserted in the appeal notice. No arguable case of appealable error has been made out in relation to this ground.
[19] It follows from the foregoing that we also do not consider an arguable case has been made that the decision is so affected by appealable error as to be unreasonable and plainly unjust.
[20] We do not consider there is an arguable case of appealable error in the Commissioner's decision. We are not satisfied that it would be in the public interest to grant permission to appeal. We also see no other basis to exercise our discretion to grant permission to appeal.
[21] For the foregoing reasons, permission to appeal is refused.
[5] Wan v Australian Industrial Relations Commission [2001] FCA 1803, 116 FCR 481 at [30].
[6] Fair Work Act 2009 (Cth) s 586; Fair Work Commission Rules 2024 (Cth) r 7.
[7] Outline of submissions filed xxxx, [18].
[9] Construction, Forestry and Maritime Employees Union v UGL Rail Services Pty Ltd [2024] FWCFB 468 citing Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 [2006] HCA 53; , 231 CLR 1 [40] per Gummow A-CJ, Callinan, Heydon and Crennan JJ; Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93; , 226 FCR 555 [115] per Flick and Perry JJ; Le v Commissioner of Taxation [2021] FCA 303; , 390 ALR 132 [5] (Logan J).
[10] Fair Work Act 2009 (Cth) s 577.
[11] Shop, Distributive and Allied Employees' Association v Lokrum Pty Ltd trading as Grill'd Norwood [2025] FWCFB 125, [26].
[12] Ibid, citing Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, 271-272 (McHugh JA); Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378, 386 (Mahoney JA); Barach v University of New South Wales [2010] FWAFB 3307; (2010) 194 IR 259, [16]; and Tenterfield Care Centre Ltd v Wait [2018] FWCFB 3844, [27].
[13] Ibid, citing Steed v Minister for Immigration and Ethnic Affairs [1981] FCA 197; (1981) 37 ALR 620, 621.
[14] Ibid, citing WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593, [46] (French, Sackville and Hely JJ); Linfox Australia Pty Ltd v Fair Work Commission [2013] FCAFC 157; (2013) 240 IR 178, [47] (Dowsett, Flick and Griffiths JJ).
[15] [2021] FWCFB 3191; (2021) 307 IR 119, 131-132, [2021] FWCFB 3191, [27]-[30].
Printed by authority of the Commonwealth Government Printer
Designer Life (Queensland) Pty Ltd As Trustee For The Designer Life (Queensland) Trust
Lisa Miller [2025] FWCFB 179
(1987) 10 NSWLR 247
(2010) 194 IR 259
(1981) 37 ALR 620
(2003) 236 FCR 593
(2013) 240 IR 178
(2021) 307 IR 119