Fair Work Act 2009

s.604 - Appeal of decision

Appeal against decision [2025] FWC 825 of Commissioner Lim at Perth on 24 March 2025 in matter number C2024/9305 - permission to appeal refused.

[1] Mr Hoonsik Oh has lodged an appeal under s 604 of the Fair Work Act 2009 (Cth) (Act) against a decision[1] of Commissioner Lim dated 24 March 2025, for which permission to appeal is required. The Commissioner's decision was made in the context of dealing with Mr Oh's general protections application involving dismissal, made pursuant to s 365 of the Act against the respondent, MRL Asset Management Pty Ltd.

[2] In the decision, the Commissioner dismissed Mr Oh's general protections application, finding that the making of the application contravened the prohibition in s 725 of the Act. This is because, at the time the general protections application was made, there was an unfair dismissal application of the kind in s 729 that also applied.

[3] The matter was listed for permission to appeal only. 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. For the reasons that follow, permission to appeal is refused.

[4] Section 725 is found in Part 6-1 Multiple actions, Division 3 Preventing multiple actions, Subdivision B Applications and complaints relating to dismissal of the Act. Section 725 provides as follows:

A person who has been dismissed must not make an application or complaint of a kind

referred to in any one of sections 726 to 732 in relation to the dismissal if any other of those sections applies.

[5] Section 729 applies to unfair dismissal applications. It provides as follows:

• (1) This section applies if:

(a) an unfair dismissal application has been made by the person in relation to the dismissal; and

(i) been withdrawn by the person who made the application; or

(iii) failed because the FWC was satisfied that the dismissal was a case of genuine redundancy.

(2) An unfair dismissal application is an application under subsection 394(1) for a remedy for unfair dismissal.

[6] Section 727 is also relevant. It concerns general protections applications made to the Commission, defined as an application under s 365 of the Act for the Commission to deal with a dispute that relates to a dismissal.

[7] The Commissioner was satisfied on the material before her that when Mr Oh filed his general protections application pursuant to s 365 on 22 December 2024 (Australian Western Standard time):[2]

• (a) Mr Oh had not withdrawn his unfair dismissal application (s 729(1)(b)(i)). Mr Oh did not withdraw his unfair dismissal application until 23 January 2025 when he filed a notice of discontinuance with the Commission;

• (b) Mr Oh's unfair dismissal application had not failed for want of jurisdiction

  (s 729(1)(b)(ii)); and

• (c) Mr Oh's unfair dismissal application had not failed by reason of his dismissal being a case of genuine redundancy, there being no such finding by the Commission

  (s 729(1)(b)(iii)).

[8] On this basis, the Commissioner concluded that Mr Oh's general protections application contravened the prohibition in s 725 of the Act and exercised her discretion to dismiss the application pursuant to s 587(1)(a).[3]

[9] There is no right to appeal, and an appeal may only be made with the permission of the Commission. Without limiting when the Commission might grant permission, s 604(2) of the Act provides that the Commission must grant permission if the Commission is satisfied that it is in the public interest to do so.

[10] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[4] The public interest is not satisfied simply by the identification of error or a preference for a different result.[5] 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.[6]

[11] 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.[7] However, it is necessary to engage with the grounds to consider whether they raise an arguable case of appealable error.

[13] In his Form F7 Notice of Appeal, Mr Oh advances numerous contentions of error, which are further explained in extensive written submissions filed in support of the application for permission to appeal.[8] Having regard to this material, the grounds of appeal are summarised as follows:

• (1) Reliance on purely formal grounds (Form F50): Mr Oh contends that in the course of the Commission's administrative handling of his matter, he was advised that his unfair dismissal application had been prematurely marked as settled or closed after the conciliation conference, despite the absence of a signed settlement deed. Mr Oh says that he was not advised by Commission staff that in order for his unfair dismissal matter to conclude before the Commission, he needed to file a Form F50. This is said to have induced Mr Oh to believe the unfair dismissal application was no longer active. Consequently, treating the unfair dismissal application as on foot solely on formal grounds (that is, there being no notice of discontinuance filed) overlooks the Commission's administrative omissions.

Additionally, Mr Oh submits that even after the Commission's phone consultation regarding a potential general protections application, Mr Oh's then-legal representative did not advise him of the need to submit Form F50. This omission is said to further reinforce Mr Oh's belief that the unfair dismissal application had already concluded.

(2) Misapplication of s 725: It is submitted that the Commissioner erred in concluding that Mr Oh's general protections application constituted "impermissible double dipping" pursuant to s 725 merely because no Form F50 had been lodged to withdraw his earlier unfair dismissal application.

(3) A Form F50 was unnecessary: It is submitted that a Form F50 was not necessary where no final settlement deed was signed by Mr Oh. Further, it is said that the Commission's 18 December 2024 correspondence noted that any queries about implementing the terms of settlement were to be raised with the other party and that Mr Oh "will need to file a Notice of Discontinuance (Form F50)" which Mr Oh submits only arose if an agreement was in fact reached and executed. In addition, Mr Oh relies upon the Commission's 3 January and 9 January 2025 correspondence in which Mr Oh was advised that his unfair dismissal application had been administratively closed and therefore he submits that the Form F50 served no legal or practical purpose. Despite this, the Commissioner treated the unfair dismissal application as still "on foot."

(4) Procedural fairness violations: Mr Oh contends that the Commissioner overlooked his position that he reasonably believed his unfair dismissal application had concluded when the Commission communicated by its 18 December 2024 letter that the conciliator's role in the process had concluded. Further, this correspondence is contradictory to the Commission's later communications on 3 January and 9 January 2025.

(5) Distinct substantive claim under Part 3-1: Mr Oh submits that his dismissal was primarily motivated by internal whistleblowing and raising serious safety concerns and is a clear case of adverse action under the general protections provisions of the Act. The unfair dismissal application is said to differ both legally and factually from the general protections application by focussing on retaliatory dismissal for protected activities. By dismissing the general protections application on a procedural technicality, the Commissioner failed to conduct any merits-based inquiry into whether Mr Oh was subjected to adverse action for engaging in protected whistleblower conduct.

(6) Failure to consider adverse evidence of bullying and retaliation: It is contended that the Commissioner declined to address Mr Oh's contentions of bullying, identity exposure and the implementation of a retaliatory "warning record." This is said to deny Mr Oh a fair opportunity to have the whistleblower retaliation question heard.

(7) Improper reliance upon terms of settlement containing full release of all claims: The terms of settlement in relation to Mr Oh's unfair dismissal application included a "full release of all claims" clause, not otherwise discussed or agreed to by Mr Oh. The Commission treated the unfair dismissal application as if settled.

(8) Significant errors of law and fact in the decision: It is contended that the core finding in the decision that the unfair dismissal application remained "on foot" until 23 January 2025, despite the Commission's administrative closure and position that the application was settled or finalised on 18 December 2024 and deprived Mr Oh of a merits-based analysis of his application.

(9) Public interest implications: Mr Oh contends that in a high-risk mining environment, whistleblower disclosures regarding safety are of public importance. The dismissal of a general protections application on a formal basis of "double dipping" is said to set a chilling precedent for future internal whistleblowers.

[14] In addition to the above matters, Mr Oh contends that the public interest is enlivened including because there is precedential value in clarifying the issue of administrative file closures and Form F50 discontinuance requirements and there are concerns arising in this matter in respect of whistleblower protections and mining industry safety.

[15] At the heart of Mr Oh's appeal is the contention that the Commissioner misapplied

s 725 of the Act, in light of the matters relied upon by Mr Oh and summarised in his grounds of appeal.

[16] Mr Oh's position is that his unfair dismissal application did not settle because he did not execute the terms of settlement produced to the parties by the Commission. However, in the absence of (a) discontinuing his unfair dismissal application, or (b) a determination by the Commission that the unfair dismissal application failed for want of jurisdiction or because the dismissal was a case of genuine redundancy, the unfair dismissal application remained - to use the term relied upon by the Commissioner - on foot. In these circumstances, s 729 of the Act applied when Mr Oh filed his general protections application in the Commission on 22 December 2024, this being an application of the kind referred to in s 727. Both were applications in relation to the dismissal and therefore the "double dipping" provision in

s 725 of the Act was engaged. This is the conclusion reached by the Commissioner.

[17] It follows that Mr Oh's contention that the Commissioner misapplied s 725 does not raise an arguable contention of appealable error. Nor do we consider that the balance of Mr Oh's appeal grounds demonstrate any arguable basis upon which permission to appeal could be granted. Briefly stated:

• (a) The Commission's 18 December 2024 correspondence stated that, "The Applicant will need to file a Notice of discontinuance (Form F50) with the Commission, with a copy sent to the Respondent" and that the conciliator's role in the process was concluded. The contention that the Commission or Mr Oh's former legal representative did not provide further guidance about filing a Form F50 is not connected to any arguable error by the Commissioner in the decision. Nor is it arguable that the conciliator's statement demonstrates that the unfair dismissal application was at an end, having regard to the direction to Mr Oh to file a notice of discontinuance.

(b) It appears that Mr Oh seeks to rely upon the Commission's 3 January and 9 January 2025 correspondence advising that his unfair dismissal application had been administratively closed as a reason for not filing a Form F50 notice of discontinuance prior to lodging his general protections application. Such reliance is misplaced. The Commission's 3 January and 9 January 2025 correspondence post-dates the filing of Mr Oh's general protections application in the Commission on 22 December 2024. In any event, the administrative closure of a file is of "no legal significance at all" and "does not bring a proceeding to an end."[9]

(c) The contention that the Commissioner overlooked Mr Oh's concerns and thereby denied him procedural fairness is not arguable, having regard to the Commissioner's summary of Mr Oh's position at [16] of the decision, and analysis of those contentions at [20] and [22], and the observation at [24] of the decision.

(d) Mr Oh's submission that his general protections applications sought a separate and distinctive remedy to his unfair dismissal application and ought to have proceeded on this basis does not appear to be sustainable, having regard to the Full Bench decision in Qantas Airways Ltd v Lawless.[10] The Full Bench stated that the statutory purpose of the provisions of Subdivision B of Division 3 of Part 6-1 is to - put simply - limit an applicant to a single remedy arising from the dismissal (thereby restricting a person with multiple remedies from applying for more than one available remedy).[11]

(e) The contention that the Commissioner failed to consider his contentions of adverse action or the merits of his general protections application is not arguable. It was not open to the Commissioner to deal with the merits of Mr Oh's general protections application in circumstances where she had determined it to be barred by s 725.

(f) The contention that the Commission improperly regarded his unfair dismissal application "as if settled" does not give rise to any arguable error in the Commissioner's decision.

(g) There is an evidentiary foundation for the Commissioner's conclusion that Mr Oh's application remained "on foot" until 23 January 2025, noting that is the date Mr Oh filed his Form F50 notice of discontinuance. We do not consider it to be arguable that the Commissioner made a significant error of law or fact, as contended.

[18] Mr Oh seeks to rely upon fresh evidence in support of his appeal, comprising of an email from Mr Oh to the Commission said to be requesting guidance dated 20 December 2024, a file note said to have been made by Mr Oh during a telephone call with the Commission on 20 December 2024, and a call log screen-shot of Mr Oh's telephone, said to demonstrate that he made five calls to the Commission's switchboard on 20 December 2024.

[19] Section 607(2) of the Act confers a discretion on the Full Bench to admit further evidence and take into account any other information on appeal. However, it is by no means a matter of course that it will do so. The well-settled principles governing the discretion to admit new evidence or to consider further material are set down in Akins v National Australia Bank (Akins).[12] Three conditions need to be met before fresh evidence can be admitted. It must be established that the evidence could not have been obtained or adduced with reasonable diligence for use at first instance; it must be evidence which is of such a high degree of probative value that there is a probability that there would have been a different result at first instance; and the evidence must be credible.[13] While it is permissible in an appropriate case to depart from the principles set out in Akins,[14] it will be rare for fresh evidence to be admitted on appeal where the conditions in Akins are not met.

[20] Having considered the content of this material and Mr Oh's submissions in relation to it,[15] we are not persuaded the evidence is of such a high degree of probative value that there is a probability that there would have been a different result at first instance. The Commissioner appeared to accept at [10] of the decision that the call(s) took place on 20 December 2024. Mr Oh's limited handwritten annotations do not further develop his position. Nor do they bear upon the Commissioner's conclusion that the general protections application was statute barred by

s 725 (a conclusion that is not attended by any arguable error). We therefore decline to admit this material.

[21] For the reasons given, an arguable case has not been advanced that the decision is attended by appealable error. Nor are we satisfied that the public interest is enlivened or that there are any other discretionary grounds justifying the grant of permission to appeal. The appeal does not raise any genuine issue of law, principle or wider application but rather turns upon its own facts.

[22] Finally, we record that Mr Oh sought a confidentiality order pursuant to s 594(1) of the Act in relation to "personal addresses, telephone numbers and email details" in the Appeal Book. We decline to make an order and note that publication of such material has not been necessary in the determination of Mr Oh's application for permission to appeal before us.

[1] [2025] FWC 825

[4] 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]

[5] 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]

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

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

[8] Appellant's outline of submissions - permission to appeal; Appeal Book

[9] Marie Vic Dawson v Centre for Digestive Diseases Pty Ltd [2025] FWCFB 50 at [38]

[10] [2014] FWCFB 3582

[11] [2014] FWCFB 3582 at [26]

[12] Akins v National Australia Bank [1994] 34 NSWLR 155

[13] See Perry v Rio Tinto Shipping Pty Ltd [2016] FWCFB 6936

[14] JJ Richards & Sons Pty Ltd v Transport Workers' Union of Australia (2010) 202 IR 180; [2010] FWAFB 9963 at [95]; Mermaid Marine Vessel Operations Pty Ltd v Maritime Union of Australia (2014) 241 IR 35; [2014] FWCFB 1317 at [18]; C Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [21] - [25]; Perry v Rio Tinto Shipping Pty Ltd [2016] FWCFB 6963 at [11]

[15] Appellant's submissions dated 26 May 2025

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