Fair Work Act 2009

s.604 - Appeal of decision

Appeal against decision [2025] FWC 2589 of Commissioner Riordan at Sydney on 31 October 2025 in matter number U2025/5471

[1] Escarle Pacheco Hernandez has lodged an appeal under s 604 of the Fair Work Act 2009 (Act) against a decision of Commissioner Riordan issued on 31 October 2025 ( [2025] FWC 2589) in which the Commissioner concluded that Ms Hernandez's dismissal by Swarovski Australia Pty Ltd (Swarovski) was unfair and awarded Ms Hernandez two weeks' pay plus superannuation. The matter was listed before us in relation to permission to appeal only.

[2] In his decision, the Commissioner considered each of the matters that s 387 requires the Commission to take into account in considering whether a dismissal was harsh, unjust, or unreasonable. The Commissioner found that Swarovski had a valid reason to dismiss Ms Hernandez because she had refused to continue to participate in a performance improvement plan (PIP) and because of her offensive behaviour, which constituted misconduct (s 387(a)). The Commissioner found that Ms Hernandez was notified of the reasons for her dismissal (s 387(b)), but that she was not given an appropriate period of time to respond to all of the allegations that Swarovski had raised against her (s 387(c)). The Commissioner noted that there had been no refusal to allow a support person to participate in discussions about dismissal (s 387(d)), and that although Swarovski had relied on a previous warning for unsatisfactory performance (s 387(e)), this was not a relevant consideration because her dismissal related to misconduct. The Commissioner found that the company was not a small business and had dedicated human resources personnel (ss 387(f) and (g)). As to other relevant matters (s387(h)), the Commissioner noted Ms Hernandez's passion for her work, which some staff took to be confronting, but also that her refusal to participate in the PIP meant that the company could not harness that passion. The Commissioner concluded that Swarovski was left with no alternative but to dismiss Ms Hernandez, but that in order to afford her a 'fair go', Swarovski was required to give her sufficient time to respond to the allegations, and its failure to do this rendered the dismissal unfair.

[3] On the question of remedy, the Commissioner stated that the compensation to which Ms Hernandez should be entitled was the period of time it would have taken Swarovski to undertake an appropriate termination process, and that when various considerations were taken into account, including the possibility that she may have wished to obtain legal advice, this would have taken approximately 2 weeks. The Commissioner ordered Swarovski to pay Ms Hernandez two weeks' pay plus superannuation.

[4] Ms Hernandez requires the Commission's permission in order to appeal from the Commissioner's decision. Section 400 of the Act applies to this appeal, because the decision under appeal was made under Part 3-2 of the Act. Section 400(1) states that 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 made on the ground that the decision involved a significant error of fact. Consideration of the public interest involves a broad value judgment (Coal & Allied Mining Services Pty Ltd v Lawler [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 that the decision manifests an injustice (GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343; (2010) 197 IR 266 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).

[5] Ms Hernandez's notice of appeal advanced six grounds of appeal. First, she contended that the Commissioner made significant errors of fact, including about her conduct and her involvement in the PIP, and submitted that these findings had affected the Commissioner's exercise of his discretion in relation to remedy. But it is well established that the factual findings of a member at first instance should generally stand, unless they can be shown to be wrong by incontrovertible facts or are glaringly improbable (see AEU v Bendigo Kangan Institute of TAFE [2021] FWCFB 3649 at [37]- [39]). It is not arguable that this is the case here. It appears to us that the Commissioner's findings were comfortably open to him. The second ground submitted that the Commissioner failed to consider various matters under s 387, including her mental health and whether the employer contributed to the situation that led to the dismissal, but we do not consider it arguable that these were matters that the Commissioner was required to take into account, and no link is made between these matters and the remedy decision, which is the focus of the appeal. Ground 3 submitted that the Commissioner relied on a prior warning in reaching his conclusion, but in fact the Commissioner said that he did not rely on the warning, and again this has no connection with the question of remedy. Ground 4 submitted that the Commissioner did not correctly assess the question of whether the dismissal was harsh, unjust or unreasonable; this is not arguable, and in any event that question was resolved in the appellant's favour. The fifth appeal ground submitted that there had been unfairness in the conduct of the employer, rather than error on the part of the Commissioner. And the sixth ground asserted, without providing details, that the Commissioner had made social contact with a 'person associated with Swarovski' prior to handing down his decision. Based on this limited material, there is no arguable basis for Ms Hernandez's contention of apprehended bias.

[6] The grounds of appeal and the supporting submissions do not disclose 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. None of the matters referred to in Makin are present in this case, nor are there any other elements that engage the public interest. We are therefore required by s 400(1) to refuse permission to appeal, and we do so.

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