Fair Work Act 2009

s.604 - Appeal of decision

DEPUTY PRESIDENT GRAYSON COMMISSIONER CRAWFORD COMMISSIONER SLOAN

Appeal against decision [2025] FWC 2418 of Commissioner Mirabella at Melbourne on 18 August 2025 in matter number C2025/6149 - Permission to appeal refused

[1] Kaylee Wright has lodged an appeal under s.604 of the Fair Work Act 2009 (the 'Act') against a decision of Commissioner Mirabella issued on 18 August 2025.[1] The decision related to an application that Ms Wright had made under section 365 of the Act seeking that the Commission deal with a general protections dispute involving dismissal. The Respondent, Diabetes Australia, had raised a jurisdictional objection to the application, namely that it had not dismissed Ms Wright, within the meaning of s.386 of the Act. In her decision, the Commissioner upheld that objection and dismissed the application.

[2] Ms Wright requires permission to appeal.[2] The matter was listed before the Full Bench for permission to appeal only. For the reasons that follow, permission to appeal is refused.

[3] As the reasons for the Commissioner's decision were given on transcript and not in a published decision, we will briefly outline the facts of the matter.

[4] On 2 April 2024, Ms Wright commenced employment with Diabetes Victoria. Her employment contract stated that she was employed on a fixed-term basis until 28 June 2024. Ms Wright subsequently entered into a second contract with Diabetes Victoria, which was stated to be for a fixed term until 30 June 2025.

[5] In approximately February 2025, Diabetes Victoria decided to resign as a member of Diabetes Australia. The two organisations came to an arrangement under which Diabetes Australia would offer employment to certain employees of Diabetes Victoria, including Ms Wright.

[6] Diabetes Australia made an offer of employment to Ms Wright in a document titled "Contract of Employment" dated 14 March 2025 ('Contract'). The Contract provided that Ms Wright would be engaged as a Customer Services Officer; that her employment with Diabetes Australia would commence on 22 April 2025 and Ms Wright would be engaged on a fixed term basis ending on 30 June 2025. The Contract did not contain an option for renewal or extension. The Contract provided that Ms Wright's prior service with Diabetes Victoria from 2 April 2024 would be recognised for the purposes of calculating long service leave accruals, redundancy entitlements and the minimum employment period as defined in s.383 of the Act. Ms Wright executed the Contract online on 20 March 2025.

[7] Ms Wright's employment with Diabetes Australia came to an end on 30 June 2025.

[8] Ms Wright commenced proceedings under s.365 of the Act. She alleged that she had been subjected to adverse action and discrimination by Diabetes Australia, on the basis of a disclosed mental health condition. She claimed that after expressing a need for support and reasonable accommodations, she experienced a series of distressing events and actions that undermined her mental wellbeing, affected her performance, and ultimately resulted in the non-renewal of the Contract under inconsistent and unfair circumstances.

[9] Diabetes Australia denied the allegations. It also raised a jurisdictional objection: it claimed that Ms Wright had not been dismissed but that her employment came to an end at the expiry of her fixed-term period of employment.

[10] In her decision, the Commissioner summarised the parties' evidence and submissions. She found that it was not reasonable in the circumstances for Ms Wright to have expected anything other than that the Contract would expire with the effluxion of time on 30 June 2025; that the terms of the Contract were very clear; that there was no evidence of anything that Diabetes Australia had done that would have caused Ms Wright to think that the Contract would be renewed; and, that correspondence close to the termination date of the Contract also made it clear that the Contract was coming to an end. Having made those findings, the Commissioner stated that she was satisfied that Ms Wright was not dismissed at the initiative of Diabetes Australia and therefore had not been dismissed within the meaning of the Act. The Commissioner dismissed the proceedings.

[11] There is no right to appeal. An appeal may only be brought with the permission of the Commission under s.604(1) of the Act. Without limiting when the Commission might grant permission, s.604(2) provides that the Commission must grant permission to appeal if it is satisfied that it is in the public interest to do so.

[12] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[3] The public interest is not satisfied simply by the identification of error or a preference for a different result.[4] Considerations that may attract the public interest include that the matter raises issues of importance and general application, that there is a diversity of decisions at first instance so that guidance from a Full Bench is required, or that the decision at first instance reveals an injustice.[5]

[13] Where the public interest is not engaged, the Commission may grant permission to appeal on general discretionary grounds. In determining whether to grant permission to appeal, it is unnecessary and inappropriate to conduct a detailed examination of the appeal grounds.[6] However, it is necessary to engage with the 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.[7] However, an error by the Member at first instance is not necessarily a sufficient basis for the grant of permission to appeal.

[14] In her appeal book, Ms Wright included material that had not been before the Commissioner. That material can be broken down into three categories: first, statements or similar documents prepared by Ms Wright that traversed the history of the dispute, the conduct of the hearing before the Commissioner and the impact that the dispute has had on her; second, copies of her contracts with Diabetes Victoria; and third, two excerpts from her Bank Statement.

[15] At the hearing before the Full Bench, Ms Wright agreed that the documents in the first category should be taken as submissions. She did not rely on them to the extent that they traversed what transpired at the hearing before the Commissioner; the Full Bench could rely on the transcript in that regard. The Full Bench reserved its decision as to whether to admit the documents in the second and third categories.

[16] 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.

[17] It is well-settled that the principles governing the discretion to admit new evidence or to consider further material are set down in Akins v National Australia Bank ('Akins').[8] In that case, the New South Wales Supreme Court identified three conditions which need to be met before fresh evidence can be admitted;[9]

"(1) it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial;

(2) the evidence must be such that there must be a high degree of probability that there would be a different verdict; and

[18] In considering whether to exercise the discretion in s.607(2), it is permissible in an appropriate case to depart from the principles set out in Akins, and the principles need not be strictly applied.[10] However, it will be rare for fresh evidence to be admitted on appeal where the conditions in Akins are not met.

[19] It appears that at the time of the hearing before the Commissioner, Ms Wright did not have copies of her contracts with Diabetes Victoria. But the existence of the contracts and the fact that they were both for fixed terms was not in dispute. We fail to see that the contracts have such a high degree of probative value that there is a probability that had they been before the Commissioner, there would have been a different result.

[20] The partial excerpts from Ms Wright's Bank Statements do not meet any of the conditions in Akins. The evidence was available to Ms Wright at the time of the hearing. But more particularly, the evidence comprises incomplete excerpts of parts of Ms Wright's Bank Statements. The form in which the evidence is presented leads us to conclude that it is unlikely that it would have made any difference to the Commissioner's decision, and also calls into question the credibility of the evidence.

[21] For these reasons, we have determined not to admit the new evidence.

[22] We observe for completeness that in her appeal book, Ms Wright made a request that the Commission require Diabetes Australia to produce certain documents. At the hearing before us, she confirmed that the documents she sought were, in her submission, relevant to her appeal if permission to appeal is granted. She agreed that the Full Bench did not need to deal with that request in the context of considering whether to grant her permission to appeal.

[23] It has required some effort to clarify the grounds of appeal on which Ms Wright relies.[11] In her notice of appeal, she provided four grounds of appeal by way of a "summary". These were amplified in the submissions that she filed in support of her appeal and in a document titled "Grounds of Appeal" appearing in the appeal book. The language that Ms Wright used to describe her grounds was not always consistent across the documents. There was also a significant overlap in the grounds. Further, a number of the grounds were more directed to the merits of her substantive application than demonstrating error in the Commissioner's decision. We will deal only with those grounds in the latter category.

[24] Ms Wright's first appeal ground was that the Commissioner erred in failing to properly apply the legal test under s.386(1)(a). She argued that this requires analysis of whether the employer initiated the termination of the employment relationship, which required more than looking only at whether an employment contract had an expiry date. She contended that the Commissioner's decision was contrary to Khayam v Navitas English Pty Limited ('Khayam').[12]

[25] However, in its submissions in the proceedings below, Diabetes Australia had contended that Khayam had been reversed in Alouani-Roby v National Rugby League Ltd.[13] In her reasons, the Commissioner noted Ms Wright's reliance on Khayam and stated that she had taken all of the parties' submissions into account. We can readily infer that the Commissioner preferred Diabetes Australia's submissions. In that context, this ground does no more than express disagreement with the Commissioner's conclusion and a preference for a different outcome. In any event, we do not consider that the Commissioner's application of the relevant case law was affected by error.

[26] A second and related appeal ground was that the Commissioner failed to take into account evidence that on 24 June 2025, while Ms Wright was on personal leave, internal emails were exchanged within Diabetes Australia regarding the cessation of her employment. As she had not been consulted in that regard, she submitted that it suggested that Diabetes Australia initiated the end of the employment relationship. Ms Wright relied on Warren George Francis v Volunteer Marine Rescue Assoc Qld Inc ('Francis'),[14] as authority for the proposition that "early notice of non-renewal and active employer conduct prior to the expiry of the term may constitute a dismissal under s 386(1)(a)."[15]

[27] We do not need to consider whether Francis stands for the proposition for which Ms Wright contends. It suffices to observe that in that case, Commissioner Hunt found that the Respondent had engaged in conduct that conveyed an understanding that, notwithstanding a contractual time limit in the employment contract, the employment relationship would continue. No such consideration arises here. The high point of Ms Wright's evidence before the Commissioner was that she had an expectation of renewal because Diabetes Victoria had previously extended her contract.

[28] There was nothing out of the ordinary in Diabetes Australia preparing the ground for Ms Wright's expected departure. Ms Wright has not demonstrated an arguable case that the Commissioner erred in not having found otherwise.

[29] Two appeal grounds arose from the recognition by Diabetes Australia of Ms Wright's service with Diabetes Victoria. First, Ms Wright contended that her move from Diabetes Victoria to Diabetes Australia was the result of a transfer of business within the meaning of s.311 of the Act. As a result, her employment with Diabetes Australia was "continuous" as per s.22 of the Act. Ms Wright seemed to argue that this precluded the Commissioner from giving effect to the fixed-term provisions of the Contract.

[30] During the hearing before the Commissioner, Diabetes Australia submitted that it and Diabetes Victoria were not associated entities. Ms Wright asserted otherwise, but led no evidence in that regard. If the organisations were not associated entities, there is a question as to whether a transfer of business occurred. That is because there is no evidence of any other "connection" between them within the meaning of s.311(1)(d). But even if we were to assume that there had been a transfer of business within the meaning of the Act, it does not necessarily follow that Diabetes Australia was precluded on that basis alone from offering Ms Wright a fixed-term contract and relying on its terms.

[31] Second, Ms Wright contended that as a result of Diabetes Australia recognising her service with Diabetes Victoria, Diabetes Australia contravened s.333E of the Act. That is, the Contract was the third consecutive fixed-term contract that had been offered to her. As a result, the term in the Contract stating that it would expire on 30 June 2025 had no effect by virtue of s.333G(1).

[32] Firstly, as outlined above at [6], the Contract expressly only provides for the recognition of prior service in relation to three specific matters. Secondly, we have serious doubts as to whether Diabetes Australia can be taken to have contravened s.333E by entering into the Contract with Ms Wright, by virtue of the fact that she had previously been employed by Diabetes Victoria under two fixed-term contracts. The effect of Ms Wright's argument appears to be that, given that there was an alleged transfer of business, Diabetes Australia is to be taken as having been the entity that entered into the two previous contracts in place of Diabetes Victoria. We are not convinced of the correctness of that contention. But this is not a matter we need to determine in deciding whether to grant permission to appeal. We are not satisfied there is an arguable case that the Commissioner erred in relying on the expiry date identified in Ms Wright's fixed term contract based on the material before the Commissioner and the circumstances of this case.

[33] Another appeal ground on which Ms Wright relied was that the Commissioner's conduct was procedurally unfair and denied her natural justice. This ground was based on a number of contentions.

[34] First, Ms Wright claimed that she was repeatedly interrupted during the hearing and prevented from presenting key evidence. She stated that the Commissioner blocked her attempts to refer to relevant documents. However, this is not borne out by the transcript. While the Commissioner adopted an inquisitorial approach to the proceedings, her questions of Ms Wright, and of the representative for Diabetes Australia, were directed towards understanding the arguments that each party was advancing and clarifying their evidence. To the extent that the Commissioner prevented Ms Wright from traversing evidence and submissions, it was to avoid her going into the merits of the matter. That was appropriate as the Commissioner was only considering the question of whether Ms Wright had been dismissed.

[35] Second, Ms Wright asserted that the Commissioner conducted a private, unrecorded meeting with Diabetes Australia in her absence. Importantly, this did not occur during the hearing, but on 24 July 2025, some weeks earlier, when the Commissioner had listed the matter for conference. In any event, Ms Wright did not explain how such a meeting denied her procedural fairness or impacted on the Commissioner's decision. The high point of her case was that the meeting "raises concerns about transparency and procedural fairness."

[36] Third, Ms Wright claimed that the Commissioner made comments to the effect that Ms Wright was unprofessional during the hearing by referring to Ms Wright's cat and suggesting she should have attended in person. Ms Wright asserted that these remarks were inappropriate, caused her significant anxiety, impaired her ability to present her case, and affected the fairness of the process.

[37] These assertions are also not borne out by the transcript. The hearing was conducted remotely via Microsoft Teams. It is clear that Ms Wright's cat was in the room with her during the hearing and had distracted the Commissioner. Ms Wright explained to the Commissioner that her cat was in recovery from veterinary treatment, could not leave her side, and was being "raucous" and "hitting things." Ms Wright offered to, and did, place the cat in another room. The Commissioner cannot be criticised for seeking to remove distractions from the hearing, and the transcript reveals nothing inappropriate about the manner in which she did so. Further, the Commissioner did not suggest that Ms Wright ought to have attended in person. She simply observed that had the hearing been in person, no cats would have been allowed. This was in the context of asking parties to respect the process, despite the matter being heard online.

[38] Fourth, Ms Wright submitted that the Commissioner failed to give her guidance as to the conduct of proceedings. This included the Commissioner failing to inform Ms Wright of her "right" to request an adjournment or additional time if she felt her case "was not fully heard" and failing to inform her in advance that she could cross-examine Diabetes Australia's witness. Putting to one side whether Ms Wright had a right to request an adjournment as she contends, the fact remains that it was for Ms Wright to familiarise herself with the Commission's processes. There is ample information available on the Commission's website that Ms Wright could have accessed. Her material on appeal reveals that she is no stranger to navigating that website.

[39] Fifth, Ms Wright contended that the Commissioner did not advise her of her right to appeal the decision. That contention has no bearing on whether the decision itself was affected by error.

[40] In a further appeal ground (or grounds), Ms Wright asserted that the Commissioner had made significant errors of fact in three respects. The first rested on evidence that she was one of four employees of Diabetes Victoria who had been offered employment with Diabetes Australia, but the only one whose contract was not renewed. Ms Wright contended that the Commissioner "failed to draw appropriate inferences from the employer's selective treatment and lack of transparency." Ms Wright did not articulate what the "appropriate inferences" would have been. But in any event, the contention rests on an incorrect premise, namely that Diabetes Australia was required to justify why it did not renew the Contract. That was a question that went to the merits of the application, not to whether Ms Wright had been dismissed. It is not the role of the Commission to determine the merits of an application made under s.365 of the Act.

[41] The second alleged error was that the Commissioner had failed to consider whether the non-renewal of the Contract may have been connected to her having raised concerns about sick leave and mental health in the month prior to the cessation of her employment. This contention rests on the same incorrect premise as the previous one.

[42] The third alleged error arose from an assertion that Diabetes Australia breached its obligations under the Contract or the National Employment Standards to provide her with notice of termination. However, Ms Wright did not explain how this demonstrates an error by the Commissioner. Further, this does not appear to have been an argument advanced before the Commissioner.

[43] For the reasons given, we do not consider that Ms Wright has advanced an arguable case that the decision was attended by appealable error. The decision appears to us to reflect an orthodox assessment and disposition of a case of this kind. We are not satisfied that it is in the public interest to grant permission to appeal, as the appeal does not raise any genuine issue of law, principle or wider application. We do not consider that permission to appeal should be granted on general discretionary grounds.

[44] Permission to appeal is refused.

[1] Kaylee Wright v Diabetes Australia [2025] FWC 2418, with the reasons given on transcript on 18 August 2025.

[2] Fair Work Act 2009 (Cth) s604(1).

[3] O'Sullivan v Farrer ([1989] HCA 61; 1989) 168 CLR 210, 216-217 per Mason CJ, Brennan, Dawson and Gaudron JJ, applied in Hogan v Hinch ( 2011) 243 CLR 506, [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78, [44]-[46].

[4] Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089, [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663; 241 IR 177, [28].

[5] GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, 197 IR 266, [27].

[6] Trustee for The MTGI Trust v Johnston [2016] FCAFC 140, [82].

[7] Coal & Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194, 204.

[8] (1994) 34 NSWLR 155.

[10] JJ Richards & Sons Pty Ltd v Transport Workers' Union of Australia (2010) 202 IR 180; [2010] FWAFB 9963, [95]; Mermaid Marine Vessel Operations Pty Ltd v Maritime Union of Australia (2014) 241 IR 35; [2014] FWCFB 1317, [17]; C Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149, [21]-[25]; Perry v Rio Tinto Shipping Pty Ltd [2016] FWCFB 6963, [11].

[11] We observe that our task has not been made easier by Ms Wright citing in support of her submissions authorities which do not appear to exist.

[12] [2017] FWCFB 5162.

[13] [2024] FCAFC 161.

[14] [2024] FWC 978.

[15] K Wright v Diabetes Australia Appeal Book, pg 26.

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