Fair Work Act 2009

s 604 - Appeal of decision

Appeal against decision [2020] FWC 1927 of Deputy President Young at Melbourne on 14 April 2020 in matter number U2019/6507 - permission to appeal refused

[1] Mr Kaviraaj Kapoor (the Appellant) has lodged an appeal under s 604 of the Fair Work Act 2009 (Cth) (Act) against a decision of Deputy President Young on 14 April 2020 ( [2020] FWC 1927) (the Decision) which dismissed Mr Kapoor's application for an unfair dismissal remedy against Crown Melbourne Ltd (the Respondent). The matter was listed before us in relation to permission to appeal only. The parties consented to the matter being determined without a hearing, and we are satisfied that it can be adequately determined without the parties making oral submissions.

[2] The Appellant in his Form F7 Notice of Appeal confirmed to the Commission that he had changed his name from Harkirat Singh to Kaviraaj Kapoor between the initial application being determined by the Deputy President and this appeal application being lodged with the Commission.

[3] An appeal filed under s 604 of the Act must be filed within 21 calendar days after the date of the decision being appealed, or within such further time allowed by the Commission. The Decision was issued on 14 April 2020, and the prescribed 21-day period ended on 5 May 2020. The Appellant lodged the Form F7 Notice of Appeal on 5 February 2026, therefore making the application approximately 2,100 days out of time. Accordingly, this appeal cannot proceed unless the Commission grants the Appellant an extension of time.

[4] In the Decision, the Deputy President considered each of the matters that s 387 of the Act requires the Commission to take into account when considering whether a person's dismissal was harsh, unjust or unreasonable. The Deputy President concluded that there was a valid reason for the Appellant's dismissal (s 387(a)) as the Appellant had, on multiple occasions, refused to follow the lawful and reasonable directions of his direct supervisor and/or the relevant manager on duty. The Deputy President accepted that the Appellant was notified of the reason for his dismissal and was given an opportunity to respond (ss 387(b) and (c)), and that there was no refusal by the Respondent to allow the Appellant to have a support person present at discussions about the dismissal (s 387(d)). The Deputy President noted, in connection with ss 387(e), (f) and (g), that the dismissal did not relate to unsatisfactory performance, and that the Respondent had some 7000 employees and a dedicated human resources team. The Deputy President noted various other relevant matters in connection with s 387(h), however ultimately determined that the matters raised by the Appellant did not relate to his dismissal. The Deputy President concluded, taking into account the matters in s 387, that the Appellant's dismissal was not harsh, unjust or unreasonable, and was not unfair.

[5] The Appellant requires the Commission's permission in order to appeal from the Commissioner's decision. Section 400 of the Act applies to this appeal, because the decision under appeal was made under Part 3-2 of the Act. Section 400(1) states that the Commission must not grant permission to appeal unless it is in the public interest to do so. Section 400(2) provides that an appeal on a question of fact can only be made on the ground that the decision involved a significant error of fact. Consideration of the public interest involves a broad value judgment.[1] As noted by the Full Bench in GlaxoSmithKline Australia Pty Ltd v Makin[2] ('Makin') matters that may engage the public interest include issues of importance and general application, a diversity of decisions at first instance, or that the decision manifests an injustice. In deciding whether to grant permission to appeal, it is unnecessary and inappropriate to conduct a detailed examination of the appeal grounds.[3] 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 ultimately succeed in the absence of error.[4]

[6] In the Form F7 Notice of Appeal, the Appellant outlines four grounds for the appeal: (a) the Commission erred in the exercise of its discretion; (b) the Commission failed to take into account relevant considerations; (c) the Commission took into account irrelevant considerations and/or made errors of fact; and (d) the Decision was unjust or unreasonable. In his lengthy submissions, the Appellant provides further grounds, which we have summarised as follows:

• (a) by ground 1 the Appellant contends that the Deputy President proceeded on the premise that the Appellant had been put on notice of, and afforded an opportunity to respond to, the full allegations ultimately relied upon to justify dismissal. The Appellant states that the Deputy President fell into error when placing reliance on the agreed statement of facts (ASOF) document where he had responded in the affirmative to the question asking whether allegations had been shown to him. According to the Appellant, the Deputy President had proceeded on an incorrect factual premise, namely, that he had been given a proper opportunity to respond to the full disciplinary case.

• (b) by ground 2 the Appellant asserts that the Deputy President made an error by finding that there was a valid reason (s 387(a)) for the termination of his employment by the Respondent;

• (c) ground 3 sets out that in relation to 'valid reason' the Deputy President erred when concluding that the direction by the Respondent for him to go home on sick leave was lawful and reasonable because he had stated that he was stressed and unable to deal. According to the Appellant, the Deputy President misconceived temporary stress as equivalent to medical incapacity;

• (d) by ground 4 the Appellant argues that the Deputy President did not consider whether escalation was permissible under the Respondent's Resolution of Workplace Issues Policy (Policy) which required local resolution before escalation;

• (e) ground 5 outlines that CCTV was used beyond its proper limits by the Deputy President in her findings and as such it materially affected her finding of valid reason;

• (f) by ground 6 the Deputy President is said to have made an error in finding that the Appellant had repudiated his contract of employment with the Respondent; and

• (g) ground 7 discloses that having erred in relation to valid reason, grievance compliance, and repudiation, the Deputy President erred in characterising the Appellant's conduct as serious misconduct warranting summary dismissal, and that the Decision does not demonstrate a structured proportionality analysis.

[7] In respect of the public interest, the Appellant submits that it is in the public interest for the Commission to allow his appeal because it raises issues of broader application, including:

1. whether temporary workplace stress may be properly equated with medical incapacity;

2. the threshold at which welfare-based managerial actions may be characterised as misconduct;

3. the limits of repudiation arising from disputed workplace removal;

4. whether escalation absent prior local resolution satisfies internal grievance procedures; and

5. the evidentiary limits of silent CCTV communications where verbal exchanges are in issue.

[8] The Appellant's first ground of appeal challenges the Deputy President's finding that the Appellant had been put on notice of, and afforded an opportunity to respond to, the full allegations ultimately relied upon to justify dismissal and the Deputy President's reliance upon the Appellant's answer to point 54 of the ASOF document prepared by the parties prior to the initial hearing. At paragraph [83] of the Decision, the Deputy President identifies that under cross examination the Appellant agreed that at the meeting with Ms Butterworth, a number of allegations were put to him and that he provided a response to those allegations. At paragraph [111] of the Decision, the Deputy President acknowledges the Appellant's submission that at the meeting on 12 June 2019, Ms Butterworth and Mr Christie only asked questions and almost nothing was said about the allegations. At paragraph [114] of the Decision, the Deputy President makes findings as to what constituted the valid reason for the Appellant's dismissal and in that same paragraph, she refers to paragraph [54] of the ASOF document noting that the Appellant agreed that at the meeting on 12 June 2019, the Respondent put 'the allegations to him'. However, the Deputy President expressly refers to the precise allegations having not been articulated in the ASOF document and in this respect, she premises her finding that seven allegations were put to the Appellant at the meeting on 12 June 2019, based on the evidence of Ms Butterworth and Ms Christie and the Appellant's evidence[5] referred to at paragraph [116] of the Decision. That the Deputy President found that the Appellant was notified of valid reason was clearly open on the evidence. That evidence that was not, as asserted by the Appellant, limited to the ASOF document (particularly paragraph [54]). We therefore do not accept that the Deputy President fell into error in the manner so described by the Appellant. We have found no appealable error in relation to this ground.

[9] In grounds 2 and 3, the Appellant seeks to challenge the Deputy President's finding in relation to a valid reason (s 387 (a)). These grounds can be dealt with in short compass. At paragraph [85] of the Decision, the Deputy President turned to matters that she was required to take into account under s 387. Thereafter, the Deputy President set out the correct approach regarding the consideration of s 387(a) of the Act. The Deputy President then specified that the reasons for the Appellant's dismissal as relied upon by the Respondent, were those articulated by Mr Christie and advanced in the Respondent's 'Second Submission'. The Deputy President then carefully considered the evidence in relation to the allegations as set out at paragraphs [98] - [109] of the Decision and made detailed findings in respect of valid reason. Those findings were reasonably open on the evidence before the Deputy President as was her conclusion that there was a valid reason for the Appellant's dismissal. We discern no arguable case of significant error of fact or other appealable error in this regard.

[10] By ground 4 of the appeal the Appellant submits that the Deputy President failed to properly consider the Respondent's compliance with the Policy. The Deputy President comprehensively considers this issue in the Decision at paragraphs [18] to [21]. At paragraph [20], the Deputy President details why she considered the Appellant's submissions on the matter (namely alleged non-compliance with the Policy) were misplaced. We again discern no arguable case of error in relation to this ground, noting that the Deputy President made logical findings based on the evidence before her.

[11] At Ground 5 of the appeal, the Appellant submits that the Deputy President allowed for the use of CCTV beyond its proper limits. In this regard, the Appellant submits that silent CCTV footage was relied upon as corroborative evidence of 'refusal and seriousness' - albeit that the footage could not establish tone, verbal exchanges or context. We first observe that at paragraph [5] of the Decision, the Deputy President states that the Appellant relied upon the CCTV footage notwithstanding that with the exception of the interview room, the CCTV footage did not have audio. At paragraph [33] of the Decision, the Deputy President makes the observation that the CCTV footage demonstrates the location of the 'Mezzanine office'. At paragraph [36] of the Decision, the Deputy President makes reference to the Appellant's evidence that 'tricks and mind games are visible on the CCTV footage'.[6] At paragraph [41] of the Decision, the Deputy President refers to the Appellant's evidence that the CCTV footage demonstrates that managers were playing 'mind games with him to get him inside the glass doors'. At paragraph [44] of the Decision, the Deputy President finds that having reviewed the CCTV footage she finds no support for the Appellant's assertion that Ms Leahy was playing mind games to get him inside the glass doors in the Mezzanine area. At paragraphs [47], [60], [61], and [73] of the Decision, the Deputy President refers to the CCTV footage by way of temporal reference of the location of individuals. The assertion that the Deputy President allowed for the use of CCTV beyond its proper limits is simply not open on any reading of the Deputy President's Decision. For the sake of fulsomeness, we further observe that the Deputy President gave due consideration to the Respondent's failure to show the Appellant the CCTV footage prior to his dismissal as was appropriate to do (see paragraphs [115] and [123] of the Decision). There was therefore no arguable error in the approach of the Deputy President.

[12] Ground 6 addresses that the Deputy President fell into error when concluding that the Appellant's conduct repudiated the contract of employment. It is not necessary that the conduct said to constitute a valid reason for dismissal is repudiatory of the employment contract, but in essence, it must be of such gravity or importance as to indicate a rejection or repudiation of the employment contract by the employee.[7] We consider given the evidence before the Commissioner and the findings that were made, such conclusion was amply open on the evidence and it follows this ground of appeal fails to disclose an arguable case of appealable error in the Deputy President's Decision.

[13] Ground 7 of the Appellant's appeal grounds concern the Deputy President's error in characterising the Appellant's conduct as serious misconduct warranting summary dismissal, and that the Decision did not demonstrate structured proportional analysis. At paragraphs [138] to [140] of the Decision, the Deputy President directly addresses proportionality and provides detailed reason as to why the Appellant's conduct constituted serious misconduct. We agree with the Deputy President's reasons and are simply not satisfied that the ground discloses an arguable case of appealable error.

[14] Having considered the appeal grounds and submissions of the Appellant, we have determined that none of the appeal grounds identify any arguable error in the Decision. The grounds of appeal relied upon by the Appellant have a consistent theme in that they take exception with the Decision, but do not identify any arguable significant error of fact or arguable error in law. Further, there is nothing in the material which satisfies us that it would be in the public interest to grant the Appellant permission to appeal. The appeal does not raise any issue of importance or general application. The Decision was based on the particular circumstances before the Deputy President. The Decision does not manifest any injustice and the outcome determined by the Deputy President was unsurprising given the Appellant's conduct.

[15] The below matters are generally relevant to whether a further period should be granted for the filing of a notice to appeal:

1. whether there is a satisfactory reason for the delay;

2. the length of the delay;

3. the nature of the grounds of appeal and the likelihood of one or more of those grounds being upheld if time was extended; and

d) any prejudice to the respondent if time was extended.[8]

[16] The Appellant submitted that the reasons for delay were primarily due to him being a self-represented appellant and not understanding his rights to appeal at the time of the Decision. The Appellant further submitted that the Decision of the Deputy President has caused him personal distress as well as on-going financial and reputational damage. The Appellant submitted that after becoming aware of his appeal rights, he acted promptly in filing his appeal.

[17] The Appellant has not provided a satisfactory explanation in relation to his delay in filing an application to appeal. The Appellant's submission that after becoming aware of his appeal rights he acted promptly in filing his appeal, are not consistent with the significant delay in filing. The Appellant filed his application to appeal some 2,100 days out of time. This is an exceptionally long delay and combined with the unsatisfactory reasons for the delay as provided by the Appellant, this factor does not weigh in favour of granting an extension.

[18] As we are not satisfied that the Appellant has identified an arguable case of appealable error in the Deputy President's Decision, and the public interest test is not enlivened, there is no logical reason to extend time to file the Notice of Appeal.

[19] The Appellant submits that there would be no prejudice to the Respondent had an extension been granted, however we are not satisfied that this is the case noting the significant delay in the Appellant filing his appeal application. Even if this were the case, the absence of any prejudice to the Respondent would not automatically support an extension being granted.

[20] We refuse to grant a further period for the filing of the Appellant's Notice of Appeal. Further, we do not consider that it is in the public interest to grant permission to appeal. None of the matters referred to in Makin are present, nor is there any other element that engages the public interest. We are required by s 400(1) of the Act to refuse permission to appeal, and we do so.

[1] Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCA 54; (2011) 192 FCR 78, [44].

[2] [2010] FWAFB 5343, [26]-[27].

[3] Trustee for the MTGI Trust v Johnston [2016] FCAFC 140, [82].

[4] Coal & Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194, 204, [16]-[17].

[5] Transcript of Proceedings, Singh v Crown Melbourne Ltd (Fair Work Commission, U2019/6507, Young DP, 24 September - 26 September 2019), [PN1023]-[PN1024], [1026]-[1027].

[7] Ventia Australia Pty Ltd v Pelly [2023] FWCFB 201, [92].

[8] United Workers' Union v The Corporation of the Trustees of the Roman Catholic Church Archdiocese of Brisbane [2025] FWCFB 203, [28].

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