Fair Work Act 2009

s.604 - Appeal of decisions

Appeal against the extempore decision of Commissioner Lee at Melbourne on 15 October 2015 in matter number C2025/9017

[1] Envirochem Australia Pty Ltd (appellant) has lodged an appeal under s 604 of the Fair Work Act 2009 (Act) against a decision of Commissioner Lee dated 28 October 2025 ( [2025] FWC 3131). The appeal was listed for hearing in relation to permission to appeal only. The parties consented to the matter being determined without a hearing, and we are satisfied that it can be adequately determined without the parties making oral submissions (see s 607(1)).

[2] The Commissioner's published decision on 28 October 2025 gave reasons for an ex tempore determination made at the conclusion of a jurisdictional hearing on 15 October 2025. That decision dismissed the appellant's objection to an application made by Kristine Ramos under s 365 of the Act, whereby the appellant had contended that the application was incompetent because Ms Ramos had not been dismissed.

[3] In his published decision, the Commissioner recounted uncontested evidence that one of the appellant's directors had engaged in a range of unwanted conduct towards Ms Ramos, including hugging her, sending her red lip kiss emojis, and sending her messages stating that he loved her. The Commissioner did not accept that Ms Ramos had been a willing participant in this conduct and stated that he preferred Ms Ramos's evidence to that of the director. The Commissioner noted that Ms Ramos had complained about the conduct, but nothing was done about it. He concluded that there was a sufficient causal connection between the conduct and the resignation to have forced Ms Ramos to resign. The Commissioner noted that following the hearing, he had conducted a conference pursuant to s 368 of the Act, at which the parties had reached a settlement agreement and the file was closed.

[4] An appeal may only be brought with the permission of the Commission under s 604(1). Section 604(2) provides that the Commission must grant permission to appeal if it is satisfied that it is in the public interest to do so. Consideration of the public interest involves a broad value judgment (Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCA 54; (2011) 192 FCR 78 at [44]). 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 (GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343; (2010) 197 IR 266 at [27]).

[5] Where the public interest is not engaged, the Commission may grant permission to appeal on general discretionary grounds. 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.

[6] The appellant's notice of appeal asserted that Ms Ramos had not been dismissed but had resigned due to illness, that the Commissioner had made a significant error of fact in concluding otherwise, and that the appellant was denied procedural fairness because the Commissioner had ignored its statements and evidence. In its written submissions, the appellant contended that the Commissioner had made incorrect and biased findings and generally put forward its account of all of the relevant facts.

[7] In our opinion the appeal presents no arguable case of appealable error in the Commissioner's decision. The appeal grounds and the submissions of the appellant seek to challenge the Commissioner's factual findings, but it is well established that factual findings of a member at first instance should generally stand on appeal, unless they are shown to be wrong by incontrovertible facts or are glaringly improbable (see Australian Education Union v Bendigo Kangan Institute of TAFE [2021] FWCFB 3649 at [37] - [39]). There is no arguable case to this effect here. It appears to us that the Commissioner's conclusions were plainly open to him. The appellant seeks to reargue the matters that it put before the Commissioner, but appeals exist for the correction of error, not to afford an unsuccessful litigant an opportunity to rerun its case.

[8] The appeal is without any utility because the matter was resolved.

[9] We are not satisfied that it is in the public interest to grant permission to appeal, nor do we consider that permission to appeal should be granted on general discretionary grounds. Permission to appeal is refused.

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