Fair Work Act 2009

s.604 - Appeal of decision

Appeal against decision [2025] FWC 608 of Deputy President Millhouse at Melbourne on 27 February 2025 in matter number U2024/11876 - jurisdictional objection to application for unfair dismissal remedy determined on the assumption of a dismissal - circumstances required date of dismissal to be determined rather than assumed - Decision quashed - jurisdictional objections to be redetermined.

[1] The Appellant Mr Graeme Taylor has lodged an appeal under s 604 of the Fair Work Act (the Act) against a decision of Deputy President Millhouse dated 27 February 2025 (Decision). The Decision dealt with a jurisdictional objection made by the Department of Justice and Community Safety (DJCS) in relation to Mr Taylor's unfair dismissal application made pursuant to s 394 of the Act. In her decision, the Deputy President dismissed the application on the basis that it was lodged outside the 21 day time limit prescribed by s 394(2)(a) of the Act and that she was not satisfied that there were exceptional circumstances to extend time under s 394(3) of the Act.

[2] The appeal was lodged on 2 April 2025, the 34th day after the Decision was published on 27 February 2025. Rule 128(2) of the Fair Work Commission Rules 2024 (FWC Rules) provides that a notice of appeal under s 604 of the FW Act must be lodged within 21 days after the date of the decision the subject of the appeal, or within such further time as may be allowed by the Commission on application by the Appellant. As the appeal was instituted 13 days out of time, Mr Taylor requires the grant of an extension of time for his appeal.

[3] The matter was heard by the Full Bench on 14 May 2025 in respect of the application for an extension of time to appeal, permission to appeal and the appeal itself.

[4] Mr Taylor pressed three grounds of appeal which were identified in the following terms in the Appellant's Outline of Submissions dated 24 April 2025:

1. the discretion exercised by the Deputy President not to extend the period of time for Mr Taylor to bring his unfair dismissal application miscarried because the Deputy President failed to consider whether there was a dismissal;

2. the Deputy President erred in finding that the dismissal took effect within the meaning of section 394(1) of the Fair Work Act 2009 on 26 April 2024; and

3. the Deputy President had no evidence to support the finding that Mr Taylor was aware on 26 April 2024 that his employment contract had been terminated.

[5] At the commencement of the hearing, the Full Bench considered Mr Taylor's application to extend time to appeal. Having heard submissions from the parties, the Full Bench granted an extension of time and indicated that it would provide its reasons for doing so together with the decision on permission and the appeal.

[6] In Appeal by The Australian Workers' Union,[1] a Full Bench of the Commission set out the relevant considerations and the overarching assessment to be made in considering whether to extend time to appeal:

"The principal considerations are whether there is a satisfactory reason for the delay in filing the appeal, the length of the delay, the nature of the grounds of appeal and their prospects of success, and any prejudice to the respondent if time were extended. The question to be answered by reference to these considerations is whether, in all the circumstances, the interests of justice favour an extension of the time within which to lodge the appeal."

[7] In the present matter, the reason for the delay was representative error. Mr Taylor was represented by Mr Wolf Legal. The circumstances of the representative error are set out in an affidavit of the junior solicitor who had the primary carriage of the matter. On 27 February 2025, the Decision of the Deputy President was handed down. On the same day, the junior solicitor sought counsel's advice regarding the prospects of success in an appeal. On 2 March 2025, counsel provided that advice. On 3 March 2025, the junior solicitor spoke to Mr Taylor regarding an appeal and Mr Taylor indicated he wished to consider the matter. On 6 March 2025, Mr Taylor gave instructions to Mr Wolf Legal to appeal the decision. On 13 March 2025, the junior solicitor requested a copy of the transcript of the first instance hearing. On 17 March 2025 to 1 April 2025, the junior solicitor was the instructing solicitor in a jury trial in the County Court of Victoria. Due to oversight, the junior solicitor failed to lodge the appeal in accordance with the instructions given by Mr Taylor on 6 March 2025. A further affidavit from Ms Naomi Riggs, the supervising Principal Solicitor from Mr Wolf Legal, indicates that on 13 March 2025 she spoke to Mr Taylor and confirmed that there was a 21 day time limit.

[8] The circumstances, set out above demonstrate that Mr Taylor acted promptly in providing instructions to Mr Wolf Legal on 6 March 2025 to lodge the appeal. These instructions were provided well within the 21 day time limit. However, due to oversight by the junior solicitor, the appeal was not lodged within time. There is no evidence that Mr Taylor took any further steps after 6 March 2025 to verify that the appeal had been lodged prior to the expiry of the time limit, or indeed prior to lodgement of the appeal, and we infer that no such steps were taken by Mr Taylor. However, any failure by Mr Taylor to take further steps should not weigh against him. This is because he had provided instructions to his solicitor well within time to lodge the appeal and the duration of the period between providing those instructions and the lodgement of the appeal is not so inordinate that Mr Taylor, as a lay person, could be regarded as being neglectful in not checking with his solicitors that the appeal had been lodged. Moreover, in assessing whether Mr Taylor was neglectful, the primary focus should be on his action or inaction in the period after the 21 day time limit had expired. In the present matter, that period is about 13 days, a limited duration which fortifies our conclusion that he had not been neglectful. In these circumstances, we consider that representative error constitutes a satisfactory explanation for the delay.

[9] In respect of the nature of the grounds of appeal and prospects of success, we considered that first and second grounds had reasonable prospects of success in respect of a grant of permission and on appeal.

[10] In relation to prejudice, DJCS does not contend that it would be prejudiced if time were extended. We are satisfied that no prejudice arises.

[11] Having regard to the above considerations, we were satisfied that the interests of justice favoured the extension of time to lodge the appeal. Consequently, we determined to extend time and pursuant to r 128(2) allowed Mr Taylor until 2 April 2025 to lodge his appeal.

[12] An appeal under s 604 is by way of rehearing. However, a Full Bench's powers are only exercisable if there is error on the part of the primary decision maker. There is no right to appeal, and an appellant must first obtain permission to appeal.

[13] As the present matter is an appeal from a decision made under Part 3-2 of the Act, s 400 imposes additional requirements. Firstly, under s 400(1) the Commission must not grant permission to appeal unless it considers that it is in the public interest to do so. Secondly, under s 400(2) an appeal on a question of fact can only be made on the ground that the decision involved a significant error of fact. The test under s 400 has been described by the Federal Court as a "stringent one".[2]

[14] The task of assessing whether a "public interest" test is met is a discretionary one involving a broad value judgment. Considerations that may attract the public interest have been identified by a Full Bench of the Commission in GlaxoSmithKline Australia Pty Ltd v Makin[3] in the following terms:

"... the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters."

[15] In Qantas Ground Services Pty Ltd t/a QGS v Rogers,[4] a Full Bench of the Commission observed as follows:

"[11] 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. However, the fact 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 de facto or preliminary hearing of the appeal. In determining whether permission to appeal should be granted, it is unnecessary and inappropriate for the Full Bench to conduct a detailed examination of the grounds of appeal. However it is necessary to engage with those grounds to consider whether they raise an arguable case of appealable error."

[16] We deal with the matter of permission in respect of Mr Taylor's appeal in paragraph [75] below.

[17] Mr Taylor has been employed in DJSC or its predecessor agency since December 2001. Mr Taylor was initially employed as a Prison Officer but he was promoted over time and in 2017 he was employed as a Prison Supervisor at HM Prison Langi Kal Kal (LKK Prison).

[18] The Victorian Public Service Enterprise Agreement 2020 (VPS Agreement) covered and applied to DJCS and Mr Taylor. The VPS Agreement is an enterprise agreement made under the Act. In his capacity as Prison Supervisor, Mr Taylor was classified as a COG3 under clause 27 and Appendix 1 of the VPS Agreement.

[19] Clause 25 (Management of Misconduct) sets out a detailed process for managing misconduct or alleged misconduct including provision for initial assessment of allegations by the employer, provision of allegation in writing to the employee, provision for an investigation, provision for an employee to speak to an investigator, provision an employee to respond to any findings of the investigation and any disciplinary outcome proposed by the employer, and specification of factors that the employer must take into account in determining the disciplinary outcome. Underlying the various steps in the misconduct process is an overarching obligation to provide procedural fairness.[5]

[20] On 28 April 2023, under clause 25.7(a)(i) of the VPS Agreement, the DJCS commenced an initial assessment into allegations of misconduct against Mr Taylor for the substantial purpose of determining whether a formal investigation was required. That day, DJSC exercised a power under clause 25.7(a)(iii) to direct Mr Taylor to undertake duties at an alternative workplace, being Hopkins Correctional Centre (Hopkins CC).[6]

[21] Between 2 May 2023 and 14 August 2023, Mr Taylor was absent from work having submitted a WorkCover Claim for an alleged mental health injury.[7]

[22] On 15 August 2023, Mr Taylor returned to work. The return to work occurred at Hopkins CC and Mr Taylor was paid his usual remuneration as Prison Supervisor.[8]

[23] On 11 September 2023, DJCS commenced a misconduct investigation into Mr Taylor under clause 25 (Management of Misconduct) of the VPS Agreement. The misconduct investigation was into an allegation that the Mr Taylor had "made discriminatory and/or disrespectful comment(s) about transgender prisoner(s)." The allegation identified two particulars, the first particular being a comment alleged to have been made by Mr Taylor on or around 26 October 2022, and the second particular being a comment(s) alleged to have been made between January and April 2023.[9]

[24] Mr Taylor appears to have responded to the allegations at least in writing. Mr Taylor appears to have made at least partial admissions in respect of the second of the two particulars which founded the basis of the single allegation.[10]

[25] On about 8 February 2024, Mr Taylor was notified by DJCS that that the allegation had been substantiated as the conduct referred to in the second particular, in respect of which Mr Taylor had made the partial admission, was found proven. The first particular was not found proved. The DJCS notification proposed a disciplinary outcome to assign Mr Taylor to a Senior Prison Officer role at the COG2B classification and a transfer to Hopkins CC "in accordance with clause 25.12(b)(vi) and (vii) of the Agreement." The proposed sanction, involving as it did the express application of two disciplinary outcomes (being those specified in 25.12(b)(vi) and (vii)) was said to be an exercise of the power under clause 25.12(c) to apply multiple disciplinary outcomes to form a single disciplinary outcome. In ordinary terms, the proposed sanction involved a demotion and transfer.

[26] On 25 February 2024, Mr Taylor appears to have provided a response to the proposed disciplinary sanction. This is apparent from the DJCS "Final Disciplinary Notification" dated 18 April 2024 (referred to in paragraph [29] below) and its reference to Mr Taylor's response dated 25 February 2024. However, Mr Taylor's response of 25 February 2024 was not before the Full Bench, is not referred to in the first decision of the Deputy President, and it is unclear whether it was in evidence before the Commission at first instance.

[27] On 26 February 2023, the CPSU on behalf of Mr Taylor responded to the proposed outcome of demotion and transfer. The CPSU raised a number of issues with the main issue being that the proposed disciplinary outcome was disproportionate. In light of this matter, the CPSU asserted that the demotion was a repudiation of the contract of employment and "could very well be taken as a termination of employment." The CPSU proposed discussion with DJCS about "a lesser, more proportionate outcome."[11]

[28] On 26 April 2024, at a meeting with Mr Paul Lardner (Acting General Manager, DJCS), Mr Taylor was given letter dated 18 April 2024 entitled "Final Disciplinary Outcome."[12] That letter (Final Outcome Letter) relevantly identified as follows:

"I am satisfied that you have engaged in misconduct and I have reached a final decision regarding an appropriate disciplinary outcome.

In order to avoid a more severe discipline outcome such as termination of your employment, I have decided on the outcome of assignment to Senior Prison Officer role at COG2B and a transfer to Hopkins Correctional Centre in accordance with clause 25.12(c) of the Agreement."

[29] At the meeting, Mr Taylor indicated to Mr Lardner that he disputed the decision, referring to dispute resolution or a review of action.[13] The decision in the Final Outcome Letter constituted what can be properly described as a demotion and transfer.

[30] The demotion and transfer appear to be a confirmation of the DJCS proposed disciplinary outcome notified on 8 February 2024 and referred to in paragraph [25] above. The Final Outcome Letter made no express reference in the body of the text to an effective date for the demotion and transfer. Furthermore, the Final Outcome Letter whilst referring to various issues evidently raised by Mr Taylor in his letter dated 25 February 2024, did not expressly refer to the CPSU letter dated 26 February 2024 and made no reference to consideration of the union's representations that the proposed disciplinary sanction of demotion and transfer was disproportionate.

[31] On 1 May 2024, the CPSU notified DJCS of a dispute under clause 13 (Resolution of Disputes) of the VPS Agreement.[14] The dispute was in relation to the final disciplinary outcome and the email and also noted the following:

"Please note the obligations as detailed in clause 13.6, whereby whilst a dispute is being dealt with, work continues in accordance with usual practise. That is, that Mr. Taylor continues his usual level and location and that the transfer remains on hold until such time as we have resolved the dispute."

[32] We note that as at 26 April 2024, Mr Taylor was deployed at Hopkins CC pursuant to the DJSC Initial Assessment Letter of 28 April 2023. Mr Taylor had been working at Hopkins CC from the time of his return to work on 15 August 2023. Furthermore, Mr Taylor's remuneration was not immediately reduced by DJCS to that payable to a Senior Prison Officer COG2B classified employee. Mr Tayor was in fact paid his usual Prison Supervisor Salary until 17 September 2024.[15]

[33] On about 13 May 2024, the CPSU and an Assistant Commissioner of DJCS arranged a meeting for 17 May 2024 which to discuss the dispute under clause 13 (Dispute Resolution).

[34] On 17 May 2024, Mr Taylor informed the CPSU that he had engaged a solicitor to represent him. The CPSU ceased to represent Mr Taylor and the meeting with the Assistant Commissioner did not proceed.

[35] On 30 May 2024, Ms Riggs of Mr Wolf Legal, who had commenced representing Mr Taylor, wrote to Mr Bezzina of DJCS confirming that they now represented Mr Taylor and requesting Mr Bezzina's availability to meet in respect of the dispute previously notified by the CPSU.[16] Neither Mr Taylor nor his solicitors at Mr Wolf Legal received a response from DJCS regarding the availability of Mr Bezzina, or any other person from DJCS, for a meeting.[17]

[36] On 20 June 2024, the solicitors at Mr Wolf Legal wrote to DJCS raising various issues including asserting that the disciplinary outcome was harsh, unjust or unreasonable having regard to Mr Taylor's length of service and service record, that the sanction was disproportionate, that the sanction was impacting Mr Taylor's mental health and that the transfer to Hopkins CC was impacting Mr Taylor's carer commitments.[18] The correspondence proposed three alternative outcomes for DJCS to accept, being a return to LKK Prison together with some mediation arrangements, continue the dispute resolution process, or agree to a separation on financial terms. These three options were left open for 7 days with an indication that absent election by DJCS, proceedings would be commenced in the Fair Work Commission.

[37] On 23 August 2004, DJCS emailed a letter dated 21 August 2024 to Mr Wolf Legal in which it rejected the various matters raised and the three outcomes proposed in the Mr Wolf Legal letter of 20 June 2024.[19] The DJCS letter mistakenly noted that that Mr Taylor had applied to the Fair Work Commission under clause 25.14 of the VPS Agreement. Importantly, it noted that "[c]onsistently with the VPS Agreement's dispute resolution clause the department has not applied the disciplinary outcome pending resolution of the dispute."

[38] On 17 September 2024, DJCS emailed Mr Wolf Legal and stated that it "will continue" with the disciplinary outcome set out in the Disciplinary Outcome Letter. It is useful to set out the full terms of this email:

I wish to inform you that we will continue with the attached disciplinary outcome that was sent to Graeme on 26 April 2024. In making this disciplinary outcome decision the department has considered the material provided by Mr Taylor during this process. This includes the letter dated 20 June 2024 which referred three options which the department rejected in its letter dated 23 August 2024. The 20 June 2024 correspondence also stated that if the options were not exercised then proceedings would commence in the Fair Work Commission within 7 days. The department notes that, despite the department rejecting all the options, proceedings never commenced in the Fair Work Commission.

[39] On 3 October 2024, Mr Taylor made his unfair dismissal application to the Commission by lodgement of a Form F2. The application identified 17 September 2024 as the date the dismissal took effect.

[40] On 1 November 2024, DJCS filed its response by lodgement of a Form F3. The response raised two jurisdictional objections. Firstly, an objection that Mr Taylor was not dismissed as the disciplinary outcome of demotion and transfer was made in accordance with clause 25.12(b)(vi) of the VPS Agreement. Secondly, that if Mr Taylor was dismissed, the application was lodged out of time, being more than 21 days after the dismissal took effect. DJCS identified 26 April 2024 as the date of dismissal.

First Instance Hearing and Decision of Primary Decision Maker

[41] The Deputy President held a hearing in relation to DJCS' two jurisdictional objections on 12 December 2024. Mr Taylor was represented by counsel, gave evidence which included his adoption of a witness statement and was briefly cross examined. DJCS was represented by a departmental employee and called no witnesses. A court book constituting a number of documents filed by the parties prior to the hearing was tendered by agreement at the commencement of the hearing.

[42] In relation to the jurisdictional issue of dismissal, the representative for DJCS submitted that Mr Taylor was not dismissed because he had been demoted in accordance with clause 25 of the VPS Agreement and that where demotion is authorised by the enterprise agreement, it will not constitute a termination within the meaning of s 386(1) of the Act.[20] In support of this contention, the DJCS relied on a decision of a Full Bench of the Commission in NSW Trains v Todd James.[21] The DJCS did not submit that Mr Taylor's demotion and transfer did not involve a significant reduction in remuneration or duties and therefore it placed no reliance on s 386(2)(c).

[43] In relation to the question of whether the unfair dismissal application was out of time, DJCS submitted that if there was a dismissal, the dismissal took effect on 26 April 2024, being the date that Mr Taylor received the Final Outcome Letter. In support of this contention, the DJCS relied on a decision of a Full Bench of the Commission in Ayub v NSW Trains.[22] Further, DJCS submitted that there were no exceptional circumstances which would enliven the exercise of discretion by the Deputy President to extend time under s 394(3).[23]

[44] In relation to the jurisdictional issue of dismissal, counsel for Mr Taylor submitted that the disciplinary outcome of demotion and transfer constituted a dismissal within the meaning of s 386 of the Act. Mr Taylor submitted that by demoting and transferring him, DJCS repudiated his contract of employment.[24]

[45] Mr Taylor submitted that the demotion and transfer was not authorised by the VPS Agreement because DJCS had not complied with clause 25 of the VPS Agreement in imposing that sanction. Mr Taylor identified three acts of non-compliance:[25]

• (a) DJCS had not complied with the obligation under clause 25.12(a) that "the discipline outcome must not be disproportionate to the seriousness of the matter";

(b) DJCS had expressly applied a combined disciplinary outcome under clause 25.12(c), which did not comply with clause 25.12, in that:[26]

1. DJCS had assigned Mr Taylor to a lower classification under clause 25.12(b)(vi), and that clause only permitted that to be done with a transfer to a different work location if there was no suitable position available at the existing location, and there was no evidence that there was no suitable position of Senior Prison Officer role (COG2B) at LKK Prison; and

2. DJCS had transferred Mr Taylor to a different work location under clause 25(b)(vii) at a lower classification, when that clause only authorised a transfer to a different work location at an employee's current classification; and

(c) DJCS had not complied with clause 25.6 as the duration of the disciplinary process was such that it was non-compliant with the provision "[a]ll parties involved in the misconduct process will commit to completing it as quickly as practicable."[27]

[46] In light of his contention that the demotion and transfer was not authorised by the VPS Agreement, Mr Taylor submitted that his contract of employment had been repudiated.[28]

[47] In relation to the out of time objection, Mr Taylor submitted that the date the dismissal took effect was 17 September 2024, being the date when Mr Taylor's remuneration was lowered from the Prison Supervisor classification to Senior Prison Officer classification and the date of the email from DJCS to Mr Wolf Legal set out in paragraph [38] above.[29] Mr Taylor also submitted that the provision of the Final Outcome Letter on 26 April 2024 should not be regarded as the effective date of dismissal, as it did not identify the date when the demotion and transfer were to take effect in circumstances where Mr Taylor had been performing duties at Hopkins CC since September 2023, and further that it did not identify when the reduction in remuneration was to take effect.[30] Mr Taylor characterised the Final Outcome Letter of 26 April 2024 as, in effect, notice of termination, and not when the dismissal took effect. Mr Taylor also submitted that the 1 May 2024 dispute notification by the CPSU under clause 13 (Dispute Resolution) operated so that the dismissal took effect on 17 September 2024. Furthermore, Mr Taylor submitted that if the dismissal was found to take effect on 26 April 2024, the Deputy President should exercise her discretion to extend time as she should be satisfied there were exceptional circumstances.[31]

[48] At the commencement of the hearing, the Deputy President indicated that the hearing was to determine the two jurisdictional objections made by DJCS.[32] However, in the course of querying counsel for Mr Taylor as to whether Mr Taylor had filed any material addressing the extension of time, the Deputy President adverted to the prospect that she may decide the out of time objection on one of two alternative approaches.[33] The first approach was if the Deputy President found Mr Taylor had been dismissed, she would then determine the out of time objection. The second approach was if the Deputy President assumed Mr Taylor had been dismissed, she would then determine the out of time objection.

[49] In her Decision, the Deputy President adopted the second approach. The Deputy President did not decide whether Mr Taylor had been dismissed. Rather, the Deputy President assumed Mr Taylor had been dismissed as he alleged, so that she could determine the date the assumed dismissal took effect. This was for the purpose of determining whether the application was made within 21 days and if not, whether time should be extended pursuant to 394(3) of the Act.[34]

[50] As we have already noted, the Deputy President decided that the application was out of time, concluded that there were no exceptional circumstances to extend time, and dismissed the application.

[51] In deciding that the unfair dismissal application was out of time, the Deputy President determined that the date the assumed dismissal took effect was 26 April 2024. This is because the Deputy President regarded the provision of the Final Outcome Letter to Mr Taylor 26 April 2024 as the communication by DJCS of the immediate implementation of the disciplinary outcome and that Mr Taylor understood the disciplinary outcome was implemented forthwith.[35] The Deputy President rejected Mr Taylor's contentions that the Final Outcome Letter constituted notice of the dismissal, and a dismissal did not take effect until the reduction of remuneration on 17 September 2024.[36] The Deputy President considered that her identification of 26 April 2024 as the date of assumed dismissal was consistent with the decision in Ayub v NSW Trains, as the Full Bench had concluded that in respect of dismissal without notice, the 21 day lodgement period for an unfair dismissal application should not be interpreted to run before an employee becomes aware of the dismissal or at least a reasonable opportunity to do so.[37]

[52] In the consideration of when the assumed dismissal took effect, the Deputy President noted the 1 May 2024 CPSU dispute notification under clause 13 of the VPS Agreement. The Deputy President found that pending resolution of the dispute, DJCS did not reduce Mr Taylor's remuneration. Later in the Decision, when the Deputy President was considering whether to grant an extension of time, the Deputy President found that Mr Taylor's salary was maintained only by reason of the CPSU dispute notification on 1 May 2024 which she described was "to trigger the status quo provision in the VPS Agreement."[38]

[53] Having decided that 26 April 2024 was the effective date of the assumed dismissal, the Deputy President then considered whether she should extend time. The Deputy President determined that she was not satisfied that there were exceptional circumstances so as to extend time having regard to the various considerations in s 394(3) of the Act.[39] In that regard, the Deputy President:

1. considered that there was no acceptable explanation for the delay, rejecting Mr Taylor's proffered reasons for delay being the activation of the dispute notification under clause of 13 of the VPS Agreement and the suggestion of representative error, and assessed the absence of an acceptable explanation as weighing against an extension;

2. found that Mr Taylor became aware of the dismissal on 26 April 2024, which weighed against an extension;

3. found that Mr Taylor took steps to dispute the dismissal as he had contended the demotion before it was finalised and after it was effected, which she assessed weighed in favour of an extension;

4. found that there was no prejudice to DJCS if an extension was granted, which was assessed a neutral consideration;

5. noted a contest between the parties on the merits of the application, and in circumstances of the conflict, the merits were assessed a neutral consideration; and

6. considered that there were no matters of fairness between Mr Taylor and other persons in like positions, and consequently assessed this matter as a neutral consideration.

[54] By the first appeal ground Mr Taylor contends that the discretion exercised by the Deputy President not to extend the period of time for Mr Taylor to bring his unfair dismissal application miscarried because the Deputy President failed to consider whether there was a dismissal. In essence appeal ground one, alleges that the Deputy President erred in failing to determine whether or not that there was in fact a dismissal.

[55] It is appropriate when considering the first ground, to commence with a general survey of Part 3-2 (Unfair Dismissal). Part 3-2 is constituted by five divisions.

[56] Division 1 (Introduction) is self-evidently introductory. Section 381(1) sets out the object of Part 3-2 which include in paragraph (b) "to establish procedures for dealing with unfair dismissal that are (i) quick, flexible and informal; and (ii) address the needs of employers and employees".

[57] Division 2 (Protection from unfair dismissal) sets out who is protected from unfair dismissal. Under s 382, such protection is conferred on a person who is an employee, who has completed a minimum period of employment, and to whom at least one of the following three circumstances apply: the person is covered by a modern award, an enterprise agreement applies to the person or the person earns less than the high income threshold.

[58] Division 3 (What is an Unfair Dismissal) sets out the elements of an unfair dismissal. Under s 385, the Commission must be satisfied of four matters being that: the person has been dismissed, the dismissal was harsh unjust or unreasonable, the dismissal was not consistent with the Small Business Fair Dismissal Code and the dismissal was not a case of genuine redundancy. Section 386 sets out the meaning of the term "dismissed" which includes in sub-section (1) that the person's employment has been terminated on the employer's initiative or the person resigned from employment but was forced to do so because of the conduct of the employer. Section 387 specifies criteria for the Commission to take into account in considering whether a dismissal was harsh unjust or unreasonable including matters going to a valid reason and the provision of an opportunity to respond to any reason related to the capacity or conduct of the person. Section 388 provides for declaration of the Small Business Dismissal Code and how compliance with the Code is to be determined. Section 389 sets out the meaning of genuine redundancy.

[59] Division 4 (Remedies for Unfair Dismissal) sets out when the Commission may order a remedy. Under s 390(1), the Commission may only order a remedy of reinstatement or compensation if the Commission is satisfied that the "person was protected from unfair dismissal (see Division 2)". Under s 390(2), the Commission may make an order of reinstatement or compensation "only if the person made an application under s 394.".

[60] Division 5 (Procedural Matters) is about the procedural aspects of obtaining remedies for unfair dismissal. Under s 394(1), a "person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy." Section 394(2) requires that "the application" "must be made within 21 days after the dismissal took effect" or "within such further period as the FWC allows". Section 396 specifies four specific matters the Commission "must decide ... relating to an application for an order under Division 4 before considering the merits of the application" being whether: the application was made within the period required in s 394(2), the person was protected from unfair dismissal, the dismissal was consistent with the Small Business Fair Dismissal Code and the dismissal was a case of genuine redundancy.

[61] Having undertaken this survey, the issues raised by the first ground, raise a central focus on s 386, s 394 and s 396.

[62] In respect of s 386, the term "dismissed" has a bifurcated definition. Section 386(1)(a) provides that a person is dismissed "if the person's employment ... was terminated on the employer's initiative". Section 386(1)(b) provides that a person is dismissed if "the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer."

[63] In respect of s 394(1), it is noteworthy that the provision sets out a criterion for an unfair dismissal application being; "A person who has been dismissed". This criterion is also used in s 365(a) which deals with an application to the Commission to deal with a general protections dismissal dispute. In Coles Supply Chain Pty Ltd v Milford[40] (Coles v Milford), the Full Federal Court considered the proper construction of the criterion "A person who has been dismissed" in s 365. The Full Court noted that the criterion was expressed in objective terms. Furthermore, the criterion was fulfilled if there has been a dismissal in fact and would not be fulfilled merely because an applicant asserts that he or she has been dismissed. We consider that the criterion in s 394 bears the same meaning as the identical criterion in s 365(a). We are mindful that the Full Court considered the construction of s 365(a), in part having regard to the immediate statutory context of s 365(b). In that regard, s 365(b) uses the word "alleges" to require as a second criterion for a general protections dismissal application, an allegation that a person has been dismissed in contravention of Part 3-1 (General Protections). However, this difference in the immediate statutory context of s 365, does not cause us to consider that the expression "A person who has been dismissed" has a different meaning in s 394(1) to that identified by the Full Court in respect of s 365(a). Consequently, the criterion of a "A person who has been dismissed" in s 394(1) is in objective terms, would be fulfilled if there has been a dismissal in fact, and would not be fulfilled merely because an applicant asserts that he or she has been dismissed.

[64] In respect of s 394(2), the "application" referred to is clearly the application contemplated by s 394(1), being one made by: "A person who has been dismissed." Furthermore, s 394(2)(a) refers to the primary time limit as being measured from "after the dismissal took effect." It is noteworthy that s 394(2)(a) is expressed in objective terms and the time limit commences to run "after the dismissal took effect". It is not expressed to run from the time after an applicant alleges the dismissal took effect or after an alleged dismissal took effect. Consequently, time commences to run after the dismissal takes effect as a matter of fact. We note that s 394(2) is in relevantly identical terms to s 366(1) which deals with time limits in respect of general protections dismissal applications. Consequently, in construing s 394(2)(a) we adopt the construction of s 366(1)(a) as set out by the Full Court in Coles v Milford at [57] being that "the time to lodge the application runs from the date the dismissal takes effect in fact."

[65] In respect of s 394(2)(b) and s 394(3), we note that these provisions deal with the discretionary power of the Commission to extend time if an unfair dismissal application is not made within the 21 day time limit in s 394(2)(a). These provisions are in relevantly identical terms to s 366(1)(b) and s 366(2) which deal with the power of the Commission to extend time for a general protections dismissal application. In Coles v Milford the Full Court considered the nature of the power under s 366(1)(b) and s 366(2) and held at [58] as follows:

1. "The third observation is that the power to allow more time to make an application presupposes that there has been a dismissal in fact and that the application was not lodged within 21 days of its occurrence. The following features make that plain:

(1) First, the requirement that the FWC take into account the reason for the delay necessarily comprehends that the length of the delay may be objectively ascertained.

(2) Second, the requirement that the FWC take into account any action taken by the person to dispute the dismissal focuses attention on the steps taken (or not taken) after the dismissal has occurred. By its nature, that task requires the FWC to identify the time from which steps ought to have been taken.

(3) Third, the requirement that the FWC have regard to any prejudice to the employer "including prejudice caused by the delay" also requires a finding to be made as to the length of the delay, being the delay between the dismissal taking effect and the expiration of the usual 21 day limitation period. To calculate the length of the delay from the date upon which a dismissal is alleged would be to deny the actual length of the delay and hence disregard the consequent prejudice to the respondent.

(4) Fourth, the FWC must also consider the fairness of granting or refusing an extension of time as between the person and others in a like position. That, too, is an objective enquiry. A person is not "in a like position" just because he or she alleges that to be the case."

[66] We note that in aid of its construction of s 366(1)(b) and s 366(2), the Full Court set out in the above passage, four considerations which make the construction plain. We adopt those four considerations in their application to s 394(2)(b) and (3), noting that we understand the third consideration of delay to be a reference to the delay which commences from the expiration of the 21 day time limit, a time limit which runs after the dismissal takes effect.

[67] Section 396 sets out four initial matters to be decided by the Commission before considering the merits of the application. In paragraph (a), the Commission is required to consider whether the application was made within the period required in s 394(2). The period in s 394(2) is the period within 21 days after the dismissal took effect or the further period as the Commission allows. A decision in respect of these four initial matters is expressed to be "relating to an application for an order under Division 4". This terminology is directed to the application made under s 394, being an application to the Commission for an order under Division 4 by: "A person who has been dismissed." This necessarily entails the application being made by a person who has been dismissed in fact. Furthermore, as the Full Court observed obiter in Coles v Milford at [21], each of the four initial matters in s 396 presupposes the fact of a dismissal. Consequently, we consider that the requirement in s 396 to consider the matters in (a) - (d) is conditioned by the existence of an application by: "A person who has been dismissed".

[68] It is apparent from our survey of Part 3-2, the further focus on s 386, s 394 and s 396 and our consideration of Coles v Milford, that the exercise of power to extend time under s 394(2)(b) and (3) is contingent on there being a dismissal in fact. In that regard:

1. section 394(1) limits those who can apply to "A person who has been dismissed";

2. the "application" referred to in s 394(2) is a reference to the application contemplated by s 394(1);

3. the primary 21 day time limit in s 394(2)(a) commences to run from after the "dismissal took effect";

4. the power to extend time under s 394(2)(b) and (3) presupposes that there has been a dismissal in fact and that the application was not lodged within 21 days of its occurrence; and

5. the requirement to determine the four initial matters (including whether the application was made within the period in s 394(2)) before consideration of the merits is dependent upon there being an application "relating to an application for an order under Division 4", being an application to the Commission for an order under Division 4 by "A person who has been dismissed."

[69] In this matter, it was therefore necessary for the Deputy President to have determined as a matter fact, rather than to have assumed, whether there was a dismissal, determined whether the application was filed out of time measured from the 21 day time limit (which runs from the date the dismissal took effect), and considered any application for extension of time having regard to the considerations in s 394(3), which call for consideration of circumstances arising from a dismissal in fact. The Deputy President's failure to do so was an error of jurisdiction.

[70] We observe that within the context of an unfair dismissal application made under s 394 of the Act, it is not uncommon for a respondent to object to the jurisdiction of the Commission to deal with an unfair dismissal application on the dual and alternative grounds that there was no dismissal and if there was a dismissal, then the application was made outside the primary 21 day time limit. It is also not uncommon for the same dual jurisdictional objections to be made in the Commission in respect of general protections dismissal applications made under s 365 of the Act. There are of course significant differences in the nature and extent of the Commission's functions in an unfair dismissal application and a general protections dismissal application. However, in respect of both types of dismissal disputes, the Commission is charged with receiving the application. We further note that, the authority of the Commission to either deal with a general protections dismissal dispute in conference or to determine the merits of an unfair dismissal application, is dependent on the fact of dismissal and whether the application was made within 21 days or such further time that the Commission allows.

[71] In Coles v Milford the Full Court made some observations about whether there were cases where the Commission could avoid drawing a conclusion as to whether or not a dismissal had occurred and still proceed to determine an application for extension of time on the assumption that there was a dismissal. The Full Court observed as follows:

[59] "As discussed later in these reasons, there may be cases where the FWC may avoid drawing a conclusion as to whether or not an employment relationship has ended in circumstances that amount to a dismissal, and proceed to determine an application for an extension of time on the assumption that it has so ended. But on an application for an extension of time, ascertainment of the length of the delay between the date that the relationship ended and the expiration of the statutory time limit must be identified.

[86] In an appropriate case, it may also be permissible for the FWC to determine that the employment came to an end on a particular date without deciding whether or not the applicant was "dismissed" with the meaning of s 386 of the FW Act. In such a case it may be permissible to refuse to grant an extension of time even assuming, for the employee's benefit, that there was indeed a dismissal."

[72] We note that these observations are subject to a qualification, expressed in paragraph [86] of Coles v Milford cited above, of "an appropriate case". The Court did not identify the parameters of any such appropriate case. However, we consider that if these observations have application to an unfair dismissal application, an "appropriate case" to proceed on the basis of an assumed dismissal in determining an application for extension of time, includes one where an employee has resigned, there is a dispute about whether or not the resignation was "forced" within the meaning of s 386(1)(b) but there is no dispute as to the date the employment came to an end. This course would be consistent with the object of Part 3-2 set out in s 381(1)(b), being "to establish procedures for dealing with unfair dismissal that are: (i) quick, flexible and informal; and (ii) address the needs of employers and employees".

[73] However, the issues in Mr Taylor's case did not fall within this limited category. In that regard, the issues in Mr Taylor's case involved, firstly, a contest between the parties as to whether or not there had been a dismissal at all, noting DJCS's contention that the imposition of the disciplinary sanction of demotion and transfer was authorised by the VPS Agreement and secondly, if the first issue was decided against DJCS, a contest as to the date the dismissal took effect.

[74] Consequently, we remain of the view set out in paragraph [69] above, that the Deputy President's decision involved an error of jurisdiction.

[75] We consider that this is a matter in which it is appropriate to grant permission to appeal as it is in the public interest to do so. The appeal raises an issue of general application, being the proper approach of the Commission to deal with dual or multiple objections including that there was no dismissal and that the unfair dismissal application is not within the time allowed by s 394(2). As we noted above, this circumstance is not uncommon.

[76] We uphold the appeal and the quash the decision. In light of upholding ground one, it is not necessary to deal with the second and third grounds.

Redetermination of the Jurisdictional Objections and the Application to Extend Time

[77] We propose to redetermine the objections made by DJCS and consider, if necessary, any application to extend time.

[78] We consider that it is appropriate to give the parties the opportunity to call further evidence and make submissions on the question of alleged dismissal including the proper construction of the VPS agreement, whether the disciplinary sanction imposed on Mr Taylor was in accordance with the VPS Agreement, the date (if any) when the alleged repudiatory conduct occurred and the date and manner (if any) when the alleged repudiatory conduct was accepted by Mr Taylor.

[79] As referred to in paragraph [5] above, on 14 May 2025 we granted Mr Taylor an extension of time to appeal. We now further order and direct as follows:

• (1) Permission to appeal is granted.

• (2) The appeal is upheld.

• (3) The decision of the Deputy President of 27 February 2025 ( [2025] FWC 608) is quashed.

• (4) The parties are directed to file and serve any further witness statements, documents and submissions they intend to rely on, on or before 4:00pm on 12 August 2025.

• (5) The matter is listed for further hearing before the Full Bench in Melbourne on 15 August 2025.

[1] [2023] FWCFB 157 at [72].

[2] Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [43], Buchanan J (with whom Marshall and Cowdroy JJ agreed).

[3] [2010] FWAFB 5343 at [27].

[4] [2019] FWCFB 2759.

[6] Letter dated 28 April 2023 from DJCS to Mr Taylor (AB pp. 104-106).

[7] Statement of Graeme Taylor par [5] (AB p. 179).

[8] Statement of Graeme Taylor par [6] & [8] (AB p. 179).

[9] Letter dated 11 September 2023 from DJCS to Mr Taylor (AB p. 206).

[11] Letter from CPSU to DJCS dated 26 February 2024 (AB pp. 221-224).

[12] Letter from DJC to Mr Taylor dated 18 April 2024. (AB pp. 63-67; AB pp. 136-141).

[13] Transcript, Taylor XN, PN97 (AB p. 23).

[14] Email from CPSU to DJCS dated 1 May 2024 (AB p. 69).

[15] Statement of Mr Taylor dated 27 November 2024 at par [33] (AB p. 183).

[16] Email from Ms Naomi Riggs to Mr Allan Bezzina dated 30 May 2024 (AB p. 80).

[17] Statement of Mr Taylor dated 27 November 2024 at par [15] (AB p. 180).

[18] Letter from Mr Wolf Legal to DJCS dated 20 June 2024 (AB pp. 224-228).

[19] Email from DJCS to Mr Wolf Legal at (AB79); Letter from Mr Wolf Legal to DJCS dated 21 August 2024 (AB pp. 76-78).

[20] Respondent's Outline of Submissions (First Instance) dated 4 December 24 pars [11]-[15].

[21] [2016] FWCFB 55, with particular reference to paragraph [130].

[22] [2022] FWCFB 5500.

[23] Transcript, PN272- 286 (AB pp. 230-231).

[25] Transcript, PN162-175 (AB, pp.29-30).

[29] Transcript, PN189-195 (AB pp. 32-33).

[31] Transcript, PN202-211 (AB pp. 33-35).

[40] [2020] FCAFC 152; (2020) 279 FCR 591.

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