Fair Work Act 2009

s.604 - Appeal of decision

Appeal against decision [2025] FWC 670 and order PR785007 of Commissioner Schneider at Perth on 6 March in matter number U2024/9905 - extension of time to file appeal not required - permission to appeal refused.

[1] Mr Eduardo Dias Madureira has lodged an appeal under s 604 of the Fair Work Act 2009 (Act) against a decision[1] and order[2] of Commissioner Schneider issued on 6 March 2025. The decision relates to an unfair dismissal application made by Mr Madureira against the respondent, ISS Security Pty Limited. In the decision, the Commissioner determined that Mr Madureira was not dismissed by the respondent but voluntarily resigned.

[2] Mr Madureira seeks to challenge this conclusion in the appeal. 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.

[3] The Commission recorded the appeal as having been lodged outside the 21-day period prescribed by rule 128(2) of the Fair Work Commission Rules 2024, at 2:53am (AEDT) on 28 February 2025. Mr Madureira's position is that his notice of appeal was lodged on 27 February 2025. Having regard to Mr Madureira's submissions and supporting material, we accept that the notice of appeal was emailed by Mr Madureira and received in the Perth registry at 11:53pm on 27 February 2025. Consistent with s 37 of the Acts Interpretation Act 1901 (Cth) (which provides for the application of "local time"[3]) and s 585 of the Act (which requires applications to be in accordance with the procedural rules) we are satisfied that Mr Madureira lodged the appeal within time and an extension of time is not required.

[4] For the reasons that follow, permission to appeal is refused.

[5] Mr Madureira was employed by the respondent as an Aviation Protection Officer. On 22 July 2024, Mr Madureira sent a written resignation to the respondent, relevantly stating the following:

Please accept this as notice of my resignation from the position of Aviation Protection Officer at ISS Facility Services Australia Ltd. Since my notice period is 2 weeks, I believe my last day will be 04/08/2024.

[6] Before the Commissioner, Mr Madureira relied upon three events that he says led to his resignation. On 19 November 2023, Mr Madureira says he was harassed and coerced to perform alternative duties by his supervisor; on 20 January 2024 Mr Madureira says he was harassed by his supervisor in relation to his heritage; and on 4 February 2024 Mr Madureira says that the conduct of the service duty manager was unreasonable and left him feeling shocked and disturbed.

[7] The Commissioner considered Mr Madureira's argument that he had been forced to resign from his employment, such that the resignation amounted to a dismissal within the meaning of s 386(1)(b) of the Act. However, the Commissioner was not persuaded, on balance, that the respondent's conduct was such that it left Mr Madureira with no effective or real choice but to resign. While the Commissioner considered there to have been conduct of the respondent that contributed to Mr Madureira's feeling of discontent with his employment, and while Mr Madureira may have been aggrieved by interpersonal issues in the workplace with his supervisor and the service duty manager, the Commissioner was ultimately satisfied that his resignation was voluntary. Having regard to these findings, the Commissioner dismissed Mr Madureira's application.

[8] In his notice of appeal, Mr Madureira contends that the Commissioner made five significant errors of fact:

• (1) The Commissioner did not find any evidence that a complaint regarding harassment and bullying was made against his supervisor. However, Mr Madureira contends that the respondent's own incident report confirms that he raised concerns about bullying and harassment, which were minimised and reframed as "disgruntlement with supervisor Green and ISS."

• (2) The Commissioner did not take into full consideration that Mr Madureira communicated in more than one situation the ongoing bullying and harassment he suffered with Mr Aldoski, where he verbally reported bullying in two different instances.

• (3) Paragraph [24] of the decision incorrectly states that Mr Madureira resigned on 20 July 2024 after being denied a request for full-time work on 12 July 2024. Mr Madureira contends that this misrepresents the timeline and multiple requests he made to be a full time and have more hours. The Commissioner failed to take in account evidence for the real motivation behind the resignation.

• (4) The conclusion at paragraph [49] of the decision that Mr Madureira's employment "turned sour" and he "understandably chose to leave" lacks factual foundation and overlooks Mr Madureira's repeated attempts to stay employed despite distressing circumstances.

• (5) Mr Madureira contends that he was certified totally unfit for work after the resignation due to psychological injuries sustained from the employer's conduct.

[9] Mr Madureira submits that the public interest is enlivened, including because the appeal raises concerns about workplace bullying**,** misuse of internal investigations, and failure to comply with Commission processes (including filing various materials outside the compliance deadlines or in an incomplete form) which are broader issues of concern for all employees.

[10] 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."[4]

[11] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[5] The public interest is not satisfied simply by the identification of error or a preference for a different result.[6] 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.[7] 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.

[12] 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.[8] However, it is necessary to engage with the grounds to consider whether they raise an arguable case of appealable error.

[13] We are not satisfied that it would be in the public interest to grant permission to appeal. With the exception of ground (5), Mr Madureira's grounds of appeal are comprised solely of contentions of alleged errors of fact. An appeal on a question of fact can only be on the ground that the error is significant (s 400(2)).

[14] The Commissioner concluded that there was no evidence before him that Mr Madureira made a complaint of harassment against his supervisor. This conclusion appears to have been available to the Commissioner on the evidence, noting the competing testimony between the witnesses before him; Mr Madureira's position was that he made verbal complaints to his managers upon handing over his resignation letter, whereas Mr Madureira's managers denied that Mr Madureira made reference to any recent or prior complaint or grievance. In circumstances where the Commissioner's factual finding appears to be supported by the evidence of the respondent's witnesses, there is no arguable basis to conclude that the Commissioner's findings were contrary to incontrovertible facts or uncontradicted testimony. Nor was the conclusion glaringly improbable or contrary to compelling inferences, as would be necessary to interfere with the Commissioner's first instance factual findings.[9] No arguable error is disclosed.

[15] The contention that the Commissioner erred at paragraph [24] of the decision does not disclose any arguable appealable error. It is not in dispute that the resignation email was sent on 22 July 2024, as the Commissioner correctly recorded at paragraph [15] of the decision. Further, there appears to be an evidentiary foundation for the Commissioner's conclusion that this post-dated an email from the people and culture coordinator regarding Mr Madureira's request to convert from part time to full time employment. To the extent this timeline is arguably erroneous, including because the Commissioner referred to the resignation letter being sent on 20 July 2025, such error does not rise to the level of significance required by s 400(2). Further, the Commissioner's conclusion that the employment relationship had soured does not, of itself, demonstrate a significant error of fact. Rather, it appears to be consistent with Mr Madureira's view of the respondent's conduct prior to his resignation.

[16] As to ground (5), the contention that Mr Madureira was certified unfit for work after the resignation is not connected to any aspect of the Commissioner's decision and is not, of itself, an arguable ground of appeal.

[17] The decision in this matter does not raise any matter of principle or law or any issue of wider application. It does not manifest any injustice. Because we are not satisfied that the grant of permission to appeal would be in the public interest, permission to appeal must be refused in accordance with s 400(1) of the Act.

[18] For the reasons given, permission to appeal is refused.

[1] [2025] FWC 670

[2] PR785007

[3] See also the discussion in Matthew Duncan Hatch v Woodside Energy Ltd [2023] FWCFB 51; 324 IR 150

[4] Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54; 192 FCR 78; 207 IR 177 at [34] and [43]

[5] 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]

[6] 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]

[7] GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, 197 IR 266 at [24]- [27]

[8] Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]

[9] Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [27] - [29]

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