Fair Work Act 2009

s.604 - Appeal of decisions

Appeal against decision [ [2025] FWC 2388] of Commissioner Simpson at Brisbane on 15 August 2025 in matter number C2025/3512

[1] Ms Kianah Ashton has lodged an appeal, for which permission to appeal is required, under s 604 of the Fair Work Act 2009 (Cth) (Act) against a decision[1] of Commissioner Simpson dated 15 August 2025. The Commissioner's decision was about a general protections application under s. 365 of the Act made against ALDI Stores (ALDI).

[2] At the time the general protections application was made, Ms Ashton had already made an unfair dismissal application under s. 394 of the Act. The Commissioner's decision was to dismiss the general protections application because s 725 of the Act stops two applications being made concerning the same dismissal.

[3] The Commissioner's decision was made on his own initiative. There had been delays in progressing proceedings due to Ms Ashton's health. The Commissioner considered that the issue of the two applications could be determined even though Ms Ashton's health prevented her from progressing her challenge to the dismissal.

[4] This decision deals with Ms Ashton's appeal and whether permission to appeal should be granted.

[5] The background to the matter is set out in the Commissioner's decision at [3] to [38]. Put briefly, Ms Ashton was dismissed on 20 December 2024. An unfair dismissal application was filed on 9 January 2025, within the 21-day time limit in s. 394(2). That matter faced delays due to Ms Ashton's health. ​ A conciliation scheduled for February 2025 was postponed, and subsequent directions hearings were adjourned as Ms Ashton remained unfit to participate.

[6] On 30 April 2025, Ms Ashton filed a second application, the general protections claim alleging her dismissal contravened the general protections in Part 3-1 of the Act. ​ As s 725 prohibits multiple applications regarding the same dismissal, the Commission informed Ms Ashton that the general protections application was not available to her because an unfair dismissal had been filed.

[7] Ms Ashton was invited to take steps to ensure she only had one application before the Commission. Ms Ashton was informed that if she wished to continue her unfair dismissal application, she should withdraw the general protections claim. If she wished to make a general protections application she should discontinue both applications and refile a general protections application seeking an extension of the 21 day time limit for such applications which is found is s.366(1) of the Act.

[8] ​Ms Ashton expressed a preference for the general protections claim, but did not take steps to ensure that only one application was before the Commission.

[9] Ms Ashton continued to provide medical certificates that she was unable to engage in proceedings. Following a number of exchanges with the Commissioner's chambers Ms Ashton indicated that she was unavailable to engage in proceedings before the Commission until 5 October 2025.

[10] Given Ms Ashton's unavailability, the Commissioner decided that it was open to him to address the jurisdictional issue raised by having two applications. He determined that the general protections claim, filed after the unfair dismissal application, was invalid due to the prohibition on bringing two applications in ss 725 and 727 of the Act. ​

[11] The Commissioner's decision incorrectly refers to s. 587(1)(c) of the Act as conferring a power to dismiss the matter. This appears to us to be a typographical error, given the content of the Commissioner's decision and the otherwise correct references to s 587(1)(a) of the Act. Section 587(1)(a) was the appropriate section to dismiss the application. The general protections application was not made in accordance with the Act because of the prohibition on two applications being made about the same dismissal.

[12] 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) the Act provides that the Commission must grant permission if the Commission is satisfied that it is in the public interest to do so. Permission to appeal may be granted on other grounds.

[13] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment[2]. The public interest is not satisfied simply by the identification of error or a preference for a different result.[3] 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[4].

[14] 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.

[15] Ms Ashton's grounds of appeal set out in her notice of appeal focus on why she should be granted an extension of time to pursue a general protections application. The submissions filed in support of her application for permission to appeal go beyond the matters raised in the notice of appeal. Ms Ashton also points to the decision relying on incorrect evidence and refers to a timeline of incidents that occurred while she was employed by ALDI.

[16] The decision made by the Commissioner only addressed the question of whether the general protections application was made in accordance with the Act. The decision was not about the matters that led to the dismissal.

[17] It became clear on the hearing of the application for permission to appeal that Ms Ashton seeks that the Commission on appeal quash the Commissioner's decision and allow her general protections application to proceed even though it was filed out of time and at the same time that she had unfair dismissal proceedings on foot.

[18] Ms Ashton appears to have proceeded on the misunderstanding that the Commissioner has refused an extension of time application. The Commissioner did not have an extension of time application before him and his decision is not a refusal to extend time. The matter dealt with by the Commissioner was simply the issue of whether s 725 allowed Ms Ashton to bring two applications concerning her dismissal. The Commissioner's decision is correct on that point. Section 725 prevented Ms Ashton from bringing the general protections action while she had an unfair dismissal application on foot.

[19] Consequently, Ms Ashton has not made out a case for permission to appeal to be granted. An arguable case has not been made out 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 issue of law, principle or wider application but rather turns upon its own facts.

[20] Permission to appeal is refused.

[21] We note that Ms Ashton is still pursuing her unfair dismissal proceedings and that case may be progressed by contacting the chambers of Commissioner Simpson.

[1] [2025] FWC 2388

[2] 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

[3] 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

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

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