[2025] FWCFB 170

Fair Work Act 2009

s.604 - Appeal of decision

Appeal against decision [2025] FWC 1807 of Commissioner Crawford at Sydney on 25 June 2025 in matter number U2025/2077 - permission to appeal refused

[1] Jessica Wei has lodged an appeal under s 604 of the Fair Work Act 2009 (Act) against a decision of Commissioner Crawford issued on 25 June 2025 ([2025] FWC 1807). Ms Wei requires the Commission's permission to appeal. Her appeal was listed before us in relation to permission to appeal only.

[2] The Commissioner's decision dismissed Ms Wei's application for an unfair dismissal remedy under s 394 of the Act. Section 387 requires the Commission, in considering whether it is satisfied that a dismissal was harsh, unjust, or unreasonable, to take into account the matters in ss 387(a) to (h). The Commissioner found that there was a valid reason for Ms Wei's dismissal related to her capacity (s 387(a)) because she had been unfit for her regular role for some 5 months and there was no prospect of her returning. He also found that Ms Wei was not properly notified of the reason for dismissal or provided an opportunity to respond to it (ss 387(b) and (c)). He considered the matters in ss 387(d) to (g) to be neutral factors, and noted that the parties had not referred to any other relevant matters under s 387(h). The Commissioner considered that the valid reason for dismissal weighed strongly against Ms Wei's application, and although the dismissal was procedurally flawed, this was unlikely to have affected the outcome. He concluded that the dismissal was not unfair, and that in any event he would not have ordered a remedy, as reinstatement would be unsafe, and compensation was not sought.

[3] An appeal may only be brought with the permission of the Commission under 604(1). Section 400 of the Act applies to this appeal, because the Commissioner's decision 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) states that an appeal on a question of fact can only be made on the ground that there was a significant error of fact. Consideration of the public interest involves a broad value judgment (Coal & Allied Mining Services Pty Ltd v Lawler and others (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 (Makin) at [27]).

[4] 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.

Grounds of appeal and public interest contentions

[5] Ms Wei's notice of appeal advanced 4 grounds. First, she submitted that the Commissioner failed to consider or investigate the respondent's retaliatory motive related to her anti-bullying claim, and did not consider whether her incapacity was caused by the respondent's misconduct, including bullying. Secondly, she said that the Commissioner ignored evidence that her dismissal was connected to her bullying claim, and that the respondent had caused a deterioration in her health and then used this as an excuse to dismiss her and to avoid the Commission's scrutiny of her bullying claim. Neither of these grounds presents an arguable case of error. The Commission's factual finding was that the reason for dismissal was Ms Wei's incapacity to perform her role. Findings at first instance should generally stand on appeal unless they are 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]). There is no arguable case to this effect here. The Commissioner's findings appear to us to have been entirely open to him. Further, the Commissioner was under no duty to investigate alternative motives for the dismissal. It was for Ms Wei to put before the Commissioner the evidence and arguments on which she relied.

[6] Ms Wei's third ground of appeal was that the Commissioner gave too little weight to his conclusion that the dismissal was procedurally unfair, as in her opinion the procedural flaws were significant and concealed the real reason for her dismissal. But we perceive no error in the Commissioner's approach to the weighing of the mandatory considerations. Ms Wei argues for a different weight, but this does not speak to any arguable error.

[7] Ms Wei's fourth ground contends that she had sought an order for production of documents but that this was ignored. In fact, the Commissioner heard from the parties about this application on 18 June 2025 and determined on transcript that he would not make an order at that time, but that if during the hearing Ms Wei sought particular documents, he would consider her request. To the extent that Ms Wei challenges the Commissioner's oral decision at the procedural hearing on 18 June 2025, there is no arguable case that it was affected by error. Ms Wei sought production of many broad categories of documents. To decline the application at that time was clearly within the Commissioner's discretion.

[8] Ms Wei's written submissions advanced further appeal grounds. Leave to amend the notice of appeal was not sought, and is not granted, but in any event the new matters present no arguable case of error. Ms Wei said that the proceeding had focused mainly on her bullying application, not her capacity, and that during a mention the respondent called witnesses to speak about the anti-bullying matter. But contrary to Ms Wei's contention, this does not suggest that the dismissal was connected to her bullying claim. Ms Wei pointed to an email from the respondent to the Commission advising that she had been dismissed and that her anti-bullying application now had no prospect of success. But the email says nothing about the reasons for the dismissal. Ms Wei said that the decision contained a factual error because she was absent from work only for 4 months, not 5. But this would not be a significant error of fact, as it would need to be in order to form the basis of an appeal ground (see s 400(2)).

[9] Ms Wei said that her appeal raised important public interest issues, including the protection of employees who lodge anti-bullying claims, and the use of dismissal to frustrate their rights. It appears to us however that Ms Wei's case simply turned on its own facts. We do not consider that her appeal raises matters that engage the public interest, whether of the kind referred to in Makin or otherwise.

[10] The grounds of appeal do not disclose an arguable case of error, and we do not consider, for the purposes of s 400(1), that it is in the public interest to grant permission to appeal. Permission to appeal is therefore refused.

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