s.604 - Appeal of decision

Appeal against decision of Commissioner Tran on transcript at Melbourne on 24 September 2025 in matter number U2025/14437 - permission to appeal refused

[1] Entire Building Services Pty Ltd (EBS) has lodged an appeal under s 604 of the Fair Work Act 2009 (Act) against a decision of Commissioner Tran made on transcript on 24 September 2025 and published on 29 September 2025 ( [2025] FWC 2890). The appeal was listed for hearing in relation to permission to appeal only. The parties consented to the Full Bench determining the matter without holding a hearing, and we are satisfied that it can be adequately determined without oral submissions (see s 607(1)).

[2] In her decision, the Commissioner granted Bradley Waye an extension of time within which to bring his unfair dismissal application against EBS. Section 394(2) states that such applications must be made within 21 days after the dismissal took effect, or within such further period as the Commission allows. Mr Waye's unfair dismissal application was lodged 2 days out of time. Section 394(3) permits the Commission to allow a further period if it is satisfied that there are exceptional circumstances, taking into account the matters in ss 394(3)(a) to (f). The Commissioner considered Mr Waye's arguments in respect of each of the matters in s 394(3). Mr Waye told the Commissioner that the reason for his delay in lodging his application was that a few weeks after his employment ended, his brother had attempted to kill himself, and that this had affected his own health, as he was dealing with matters relating to his brother's suicide attempt. The Commissioner found this to be an acceptable reason for the delay and that it weighed in favour of a finding of exceptional circumstances.

[3] As to the question of whether Mr Waye became aware of the dismissal when it took effect, the Commissioner considered that there was some confusion about when the dismissal took effect, because EBS had sent Mr Waye a message on 12 August stating that it would regard his indication that he was looking for another job as a resignation; Mr Waye then asked for a termination letter, and this was sent to him on 13 August 2025, but he did not receive it until 14 August 2025. The Commissioner considered that this was a factor weighing in favour of a conclusion that there were exceptional circumstances. In respect of the other mandatory considerations, the Commissioner concluded that Mr Waye took no other steps to dispute his dismissal, that there was no prejudice to the employer associated with the delay, that the merits of the application weighed neither in favour of nor against an extension of time, and that no submissions had been made on the question of fairness between the applicant and other persons in a similar position. The Commissioner concluded that there were exceptional circumstances and granted Mr Waye an extension of time within which to bring his application.

[4] EBS requires the Commission's permission in order to appeal. Section 400 applies to this appeal, because the decision under appeal was made under Part 3-2 of the Act, which pertains to unfair dismissals. Section 400(1) states that the Commission must not grant permission to appeal unless it is in the public interest to do so. 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 unnecessary and inappropriate to conduct a detailed examination of the appeal grounds (Trustee for the MTGI Trust v Johnston [2016] FCAFC 140 at [82]). 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 such a case in order to be granted permission to appeal, as an appeal cannot succeed in the absence of error (Coal & Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 at 204). 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.

[5] EBS's notice of appeal advanced 7 grounds which were the subject of brief written submissions. First, EBS contended that it had been denied procedural fairness because Mr Waye's F2 application was not served on it until 24 hours prior to the proceeding on 24 September 2025, which left the company unprepared and unable to provide an appropriate response. In fact the F2 was sent to EBS on 22 September 2025, and it contained relatively little information. There is no indication that EBS asked the Commissioner for an adjournment to better prepare itself for the hearing, or that this was reasonably required. The Commissioner issued directions in respect of the extension of time hearing on 16 September 2025. We do not consider there to be any arguable case that EBS was denied procedural fairness. The second ground of appeal states that the F2 contained no response to question 1.4, which asks about the reason for delay, and contends (together with the sixth ground of appeal) that Mr Waye provided no evidence that his brother tried to commit suicide. But the first of these matters does not speak to any error on the part of the Commissioner, and the second is not correct, because Mr Waye gave oral evidence about the suicide attempt. What EBS really means is that there was no documentary or corroborative evidence about the attempted suicide, but there is no rule of evidence that requires a person's oral evidence to be corroborated and no reason is advanced as to why the Commissioner should not have accepted Mr Waye's evidence. In our assessment the Commissioner's findings on this matter were comfortably open to her.

[6] The third ground submits that EBS was denied natural justice because it was not given a chance to prepare its F3 employer response prior to the hearing, and was then asked numerous questions during the hearing which it was unable to answer. On 22 September 2025, after receiving the F2, EBS advised the Commissioner that although it had sufficient time to bring relevant supporting material to the hearing on 24 September 2025, it did not consider that it would be able to lodge its F3 prior to the hearing. The Commissioner replied that it was not necessary for EBS to lodge its F3 beforehand. EBS did not seek an adjournment. Further, EBS does not explain why it was unable to answer questions because of not having lodged its F3, nor does it identify what those questions were, or why they were important. An extension of time hearing is essentially for the applicant to explain why there are exceptional circumstances that would warrant an extension of time. It is commonplace for there to be no F3 lodged with the Commission at that time. There is no arguable error in ground 3.

[7] Ground 4 contends that the dismissal complied with the Small Business Fair Dismissal Code but this is an argument to be made to the Commissioner in the next phase of the unfair dismissal proceeding. The fifth ground states that Mr Waye had failed to follow the correct processes in several respects, namely by lodging his application late, by not answering question 1.4 of the F2 form, and by not sending his application to the company. But these were Mr Waye's errors and omissions, not those of the Commissioner. Ground 5 also contended that Mr Waye's brother's suicide attempt was in August 2024, some 13 months previously. But the Commissioner plainly accepted Mr Waye's evidence that this occurred a few weeks after his employment ended and that he was dealing with the matter at the time, as she concluded that this was an acceptable reason for the delay. In this and all other relevant respects, it appears to us that the Commissioner's findings were comfortably open to her. The sixth ground is dealt with above. The final ground of appeal states that Mr Waye did not dispute the dismissal. But the Commissioner considered this matter in the course of reaching her overall evaluative conclusion that there were exceptional circumstances in this case and that time should be extended. An appellant seeking permission to appeal is required to demonstrate some arguable error in the relevant decision. It has not done so in this case.

[8] EBS's notice of appeal and submissions do not present an arguable case of error in the Commissioner's decision. We do not consider that it is in the public interest to grant permission to appeal, whether by reference to the considerations identified in Makin or otherwise. We are therefore required by s 400 of the Act to refuse permission to appeal.

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