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[40]
[2025] FWCFB 57
General information, not legal advice.
Fair Work Commission (Full Bench)
2025-03-18
Original judgment source is linked above.
s.604 - Appeal of decisions
Appeal against decision [2025] FWC 27 of Deputy President Anderson at Adelaide on 6 January 2025 in matter number U2024/10865 - appellant involved in a vehicle accident because of a medical incident - driver's licence suspended - driver's licence required for employment - grounds of appeal challenge a factual finding at first instance - whether arguable grounds to establish that factual finding not reasonably open- limitations on the availability of an appeal and grounds on which an appeal can be brought in relation to unfair dismissal proceedings - whether it is in the public interest for permission to appeal to be granted - permission to appeal refused.
[1] Mr Joshua Lambert worked as a trades assistant at a motor vehicle dealership. Ducala Pty Ltd trading as Northpoint Toyota ('Northpoint Toyota') operated that dealership. Mr Lambert was dismissed on 22 August 2024 and subsequently brought an application for an unfair dismissal remedy. On 6 January 2025, Deputy President Anderson issued a decision[1] dismissing Mr Lambert's application for an unfair dismissal remedy. The same day, the Deputy President made an order[2] consistent with that decision.
[2] On 28 January 2025, Mr Lambert filed a Notice of Appeal, setting out the grounds of appeal and seeking permission to appeal. The matter was listed for a hearing on 4 March 2025 as to the question of permission to appeal only.
[3] At that hearing, Mr Lambert was legally represented, with permission. Northpoint Toyota was not represented by a lawyer or paid agent; Northpoint Toyota's Mr Michael Rudd, People and Culture - Skyfleet, appeared for it.
[4] Having heard from the parties and considered their submissions, we have decided, for the reasons that follow, to dismiss Mr Lambert's application for permission to appeal.
[5] Mr Lambert's job involved washing and detailing cars, moving them, and providing the customer valet service.[3]
[6] On 20 April 2024, Mr Lambert experienced a medical episode while driving one of Northpoint Toyota's vehicles. He blacked out and wrote off the vehicle he was driving, and a private vehicle he struck. Fortunately, no-one was seriously injured.[4]
[7] Mr Lambert's driver's licence was suspended for six months, to be restored only after medical certification of fitness to drive.[5]
[8] On 22 August 2024, around four months into the suspension, Northpoint Toyota dismissed him.[6]
[9] The decision set out the relevant facts. It then summarised the parties' submissions, and, having done so, made findings as to other matters to be determined having regard to the statutory framework. The decision then turned to dealing with the question of whether the dismissal was harsh, unjust, or unreasonable, setting out the matters required to be taken into account, as provided for in section 387 of the Fair Work Act 2009 (Cth) ('the Fair Work Act').
[10] The decision then considered each of those matters in turn. For the purposes of section 387(a) the Deputy President found that there was a valid reason for dismissal,[7] and that the existence of the valid reason weighed against a finding of unfair dismissal.[8]
[11] The Deputy President considered there was some force in Mr Lambert's submissions as to harshness,[9] and gave detailed consideration to that question,[10] ultimately finding in that regard:[11]
[123] Having regard to both the considerations in favour and against a finding of harshness, and whilst taking a relatively liberal view to the time that an employer ought to reasonably allow, I do not find that Mr Lambert's dismissal was harsh on the ground that the employer dismissed him prematurely.
[12] His reasons in that regard included the following, with which the appellant takes issue in these proceedings:[12]
"[122] Whilst the applicant submits that dismissal after the period of four months in the context of a prospective restoration of Mr Lambert's driver's licence at the six-month mark was unreasonable, there are material countervailing considerations. These are:
[13] As to the question of whether the dismissal was harsh, unjust, or unreasonable, the decision concluded:[13]
"[124] Whilst it was open for Northpoint to have taken a different view and waited longer before dismissal (and some employers may well have done so), it was not unfair that Northpoint did not do so. It is well established that the Commission does not stand in the shoes of an employer and decide what they could or should have done.[17] The issue is whether what the employer actually did was, considered overall and objectively, harsh, unjust or unreasonable. I conclude that it was not.
[127] As Mr Lambert was dismissed through no fault of his own and consequent on an unexplained medical episode which deprived him of his driver's licence, one can readily have empathy for his circumstances.
[128] However, as his dismissal was not unfair, no issue of remedy arises. The application must be dismissed."
[14] We will now deal with the principles relevant to the question of whether the appellant should be given permission to appeal the decision.
[15] An appeal under section 604 of the Act is an appeal by way of rehearing and the Commission's powers on appeal are only exercisable if there is error on the part of the primary decision maker.[14] There is no right to appeal, and an appeal may only be made with the permission of the Commission.
[16] This appeal is one to which section 400 of the Act applies. Section 400 provides:
(1) Despite subsection 604(2), the FWC must not grant permission to appeal from a decision made by the FWC under this Part unless the FWC considers that it is in the public interest to do so.
(2) Despite subsection 604(1), an appeal from a decision made by the FWC in relation to a matter arising under this Part can only, to the extent that it is an appeal on a question of fact, be made on the ground that the decision involved a significant error of fact.
[17] In the Federal Court Full Court decision in Coal & Allied Mining Services Pty Ltd v Lawler and others,[15] Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under section 400 as "a stringent one." The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[16] A Full Bench of the Commission, in GlaxoSmithKline Australia Pty Ltd v Makin,[17] identified some of the considerations that may attract the public interest:
"... 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..."
[18] 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.[18] However, the fact that the Member at first instance made an error is not necessarily a sufficient basis to grant permission to appeal.[19]
[19] 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.[20] However, it is necessary to engage with the appeal grounds to consider whether they raise an arguable case of appealable error.
[20] In his Notice of Appeal Mr Lambert gave the following grounds of appeal:
"The Decision mistook the facts as per House v The King.
1. In finding that the decision to dismiss the Applicant was not unduly harsh, DP Anderson took into consideration that there was no certainty that the Applicant would have his drivers license restored on the 20 October 2025 (para 122).
2. At no point in the Respondent's evidence did they say they were uncertain about whether the Applicant would receive his driver's license on 20 October 2025.
3. In the cross examination of the Respondent's only witness, Lynn Walker, it was directly put to her whether they disputed if the Applicant would receive his license back by 20 October 2025. Ms Walker responded that they did not (Paras 179 - 180).
4. The Respondent did not contend in their submissions that there was any uncertainty about when the Applicant would receive his driver's license.
5. It was not open on the evidence for DP Anderson to consider this in finding that the
[21] As to the public interest, Mr Lambert's notice of appeal stated that "to allow the decision to stand would visit a manifest injustice upon the Applicant." The Notice also stated that "it is in the public interest to ensure that decisions of the Fair Work Commission are founded on proper application of the law. To not ensure so would result in a loss of confidence in the Fair Work Commission."
[22] Mr Lambert submitted that the Commission had formed its decision on the understanding that it was not certain that he, Mr Lambert, would regain his driver's licence on 20 October 2024 (again referring to paragraph [122] of the decision). He said it had been accepted between the parties that he would regain his licence by that date.
[23] Mr Lambert submitted that Northpoint Toyota had not contended that there was any ambiguity as to the date he would get his licence back, or that this matter affected the decision to terminate his employment.
[24] Mr Lambert submitted that the Commission was not invited to make any other finding with regards to that issue.
[25] Relying on Miller v University of New South Wales[21] Mr Lambert submitted that it was not the Commission's role to stand in the shoes of an employer and decide what the employer should have done. In assuming there was ambiguity in when Mr Lambert would get his licence back, when Northpoint Toyota had not taken that into consideration when terminating his employment, the Commission did so.
[26] In his submissions Mr Lambert went beyond his contention, in the Notice of Appeal, that the Commission had made an error of fact, and added that in considering this matter the Commission made an error of law by taking into account an irrelevant consideration.
[27] As to the public interest, Mr Lambert submitted that the Commission's power to entertain an appeal in a matter of this kind is circumscribed by the Act. Prior to exercising a grant of permission, the Commission must be satisfied that it would be in the "public interest".
[28] Relying on GlaxoSmithKline Australia Pty Ltd v Makin[22] Mr Lambert submitted that the public interest might be enlivened in a grant of permission in cases inter alia, "where a matter raises issues of importance and general application" or "where the original decision manifests an injustice or the result is counter intuitive," or if "the legal principles appear disharmonious when compared with other recent decisions dealing with similar matters".
[29] Mr Lambert submitted that:
(a) the appeal raises a question of significant importance and general application, namely the proper application of evidence in the circumstances where the parties agreed upon a fact in a hearing for an unfair dismissal application;
(b) if the appeal were not to succeed a significant injustice would have been manifested upon him in that he will have been deprived of his ability to prosecute his application;
(c) the legal principles in the original decision were incorrect in that the decision maker made a decision that was not open to it, and so reached a conclusion for which there was no evidence, which is an error of law;[23] and
(d) as that goes to the basis of decision, the decision must be set aside.[24]
[30] Mr Lambert submitted that the Commission did not apprehend the nature of the task before it, as it acted ultra vires with respect to the consideration of the disputed facts between the parties.
[31] At hearing Northpoint Toyota made brief oral submissions in response, which we have not found it necessary to set out here.
[32] As can be appreciated from the foregoing, Mr Lambert, the appellant, disputes the first-instance factual finding[25] that it was not definite that he would get his licence back in October 2024.
[33] Mr Lambert's evidence was that at the end of the six-month suspension of his licence he had to get medical certification in order to get his licence back.[26]
[34] Northpoint Toyota's witness Ms Walker said[27] that at the time of the dismissal, Northpoint Toyota had had no reason to question the date of 20 October 2024. This was a proper concession. The restoration of the licence was contingent upon a medical assessment. The employer was not in a position to assess the likelihood or otherwise of that medical assessment making a favourable decision as to Mr Lambert's medical fitness to drive.
[35] The parties' agreement that the employer had not, at the time of termination, questioned whether Mr Lambert's licence would be restored does not necessitate a finding that the licence would definitely be restored on 20 October 2024. The evidence was that the restoration was contingent.[28] Accordingly the Deputy President did not err by finding that at the time of termination it was not known whether Mr Lambert's driver's licence would be restored in two months' time.
[36] Mr Lambert has not established any arguable basis on which we could conclude that the Deputy President was wrong to make the factual finding that Mr Lambert is seeking to dispute. It follows there is also not an arguable basis for us to find this constituted a significant error of fact for the purposes of section 400(1) of the Fair Work Act.
[37] As we have indicated above, in his submissions Mr Lambert also sought to argue that by relying on this finding the Deputy President erred by taking into account an irrelevant consideration.
[38] The matters which may be considered under subsection 387(h) are broad and not restricted subject to relevance given the particular circumstances surrounding the case.[29]
[39] Mr Lambert's case at first instance had raised the issue of whether, even if there was a valid reason for termination, the dismissal was nonetheless harsh, unjust or unreasonable. In doing so he had submitted that it was unreasonable to dismiss him at the four-month mark when his licence would be restored at the six-month mark.[30]
[40] The Deputy President considered this issue in the context of taking account of the factors in section 387 of the Fair Work Act, as to whether the dismissal was harsh, unjust, or unreasonable.[31] In considering harshness,[32] the Deputy President considered this submission and took into account various countervailing factors, of which the contingent nature of the licence restoration was one.[33] This was not an irrelevant consideration. It was open to the Commission to consider it, having regard to subsection 387(h) for the Fair Work Act.
[41] It follows that Mr Lambert has not established any arguable basis on which we could conclude that the Deputy President erred by taking into account an irrelevant consideration.
[42] Mr Lambert also has not established that it is in the public interest to grant permission to appeal. We have considered his submissions in this regard. Having done so, and in light of our findings above, we find that the appeal does not raise any genuine issue of law, principle, or wider application.
[43] For the reasons given we do not consider that an arguable case has been advanced that the decision was attended by appealable error. Nor are we satisfied, for the purposes of subsection 400(1) of the Fair Work Act, that the appeal attracts the public interest.
[44] For the reasons set out above, the Full Bench orders that permission to appeal is refused.
A Wright, solicitor, of WK Lawyers for the Applicant.
Brisbane and via Microsoft Teams (Video Conference):
[1] Mr Joshua Lambert v Ducala Pty Ltd trading as Northpoint Toyota [2025] FWC 27.
[13] Decision, [124], [127]-[128].
[14] This is so because on appeal, the Commission has the power to receive further evidence pursuant to s.607(2); see Coal and Allied v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.
[16] O'Sullivan v Farrer [1989] HCA 61; 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch [2011] HCA 4, 243 CLR 506; 85 ALJR 398 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54; 192 FCR 78; 207 IR 177 at [44]- [46].
[17] GlaxoSmithKline Australia Pty Ltd v Colin Makin [2010] FWAFB 5343 at [27].
[18] Wan v AIRC [2001] FCA 1803, 116 FCR 481 at [30].
[19] Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089; 202 IR 388 at [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54; 192 FCR 78; 207 IR 177; N_SW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office_ [2014] FWCFB 1663; 241 IR 177 at [28].
[20] Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82].
[21] [2003] FCAFC 180, 64.
[23] relying on Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 290, [91].
[24] Relying on Bonim Stanmore Pty Ltd v Marrickville Council [2007] NSWLEC 286; (2007) 156 LGERA 12.
[28] Transcript, PN94 - PN102, and decision, [20]-[23].
[29] Robert Anthony Richards v Regional Express Holdings Ltd T/A Rex Airlines [2010] FWA 4230, [155], citing Kehagias and others v Unilever Limited (trading as Unifoods), AIRC Print Q0498, 29 April 1998.
Printed by authority of the Commonwealth Government Printer
Joshua Lambert
Ducala Pty Ltd T/A Northpoint Toyota [2025] FWCFB 57
(2000) 203 CLR 194
(2011) 192 FCR 78
(2010) 241 CLR 290
(2007) 156 LGERA 12