s.604 - Appeal of decision

Appeal against decision [2025] FWC 3667 of Deputy President Dean at Canberra on 1 December 2025 in matter number U2025/12454 - stay refused

[1] M & R Clayton Pty Ltd (appellant) has applied for a stay under s 606 of the Fair Work Act 2009 (Act) in connection with its appeal against a decision of Deputy President Dean made on 1 December 2025 ( [2025] FWC 3667) in which the Deputy President determined that Karren Burns had been unfairly dismissed and ordered the appellant to pay her compensation.

[2] The principles that apply to stay applications under s 606 are well established. Before granting a stay, the Commission must be satisfied that the appeal presents an arguable case that the appeal should be upheld, with some reasonable prospects of success both in respect of permission to appeal and the merits, and that the balance of convenience weighs in favour of a stay. The Deputy President's decision was made under Part 3-2, and therefore s 400 applies to the appeal. Section 400(1) states that the Commission must not grant permission to appeal from a decision made under that Part unless it considers that it is in the public interest to do so. Further, s 400(2) provides that, to the extent that an appeal is brought on a question of fact, an appeal can only be made on the ground that the decision involved a significant error of fact.

[3] In her decision, the Deputy President rejected the appellant's contention that it had not dismissed Ms Burns and found that she had resigned in the heat of the moment following an exchange with the appellant's director, Mr Clayton, in which she understood Mr Clayton to have told her that her part-time hours would be reduced from three days a week to two half-days a week, when in fact Mr Clayton had said that her new hours would be two and a half days a week. The Deputy President found that Ms Burns did not genuinely intend to resign and had endeavoured the next day to clarify what Mr Clayton had said. The Deputy President set out s 386 of the Act, which defines dismissal as including a case where a person's employment has been terminated 'on the employer's initiative', and, having considered the relevant case law, concluded that this was such a case. The Deputy President proceeded to consider whether the dismissal was harsh, unjust or unreasonable, having regard to the mandatory considerations in s 387, and concluded that the dismissal was harsh and therefore unfair (see s 385(b)). The Deputy President ordered the appellant to pay Ms Burns the compensation referred to above within 14 days of her decision.

[4] The appellant's notice of appeal contains three grounds. The first ground states that Ms Burns had resigned in early 2025 when Mr Clayton told her that he planned to close the business, but that she later retracted her resignation, and whereas this earlier resignation was respectful, her resignation in July 2025 was not, and Mr Clayton felt that there was no way that Ms Burns could work for him when she possessed such animosity. There is no arguable merit in this ground. Appeals exist for the correction of error, not to allow an unsuccessful litigant another opportunity to argue its case. The first ground does not speak to any error in the Deputy President's decision. If anything, it tends to affirm the conclusion of the Deputy President that the employment was terminated on the employer's initiative. The second appeal ground states that following her first resignation, Ms Burns's attitude changed and she 'psychologically left the job'. But again, this ground fails to identify any error in the decision. The third ground states that Ms Burns lied when she told the Commission that she had only applied for a new job in July 2025 (Ms Burns denies this), and that an affidavit about this was sent to the Deputy President after the hearing but was rejected. The third ground also reveals no arguable error. There is no reason why the affidavit should have been accepted, nor any apparent reason why its contents should have been regarded as significant.

[5] Based on the material presently before the Commission, I consider that the appellant does not have an arguable case, with some reasonable prospect of success, either in respect of permission to appeal or the appeal itself. There appears to be nothing that could engage the public interest, as s 400 requires. In these circumstances, there is no proper basis to stay the Deputy President's order. It is therefore unnecessary to consider the balance of convenience however I will record my view that it does not favour a stay. The starting point is that Ms Burns is entitled to the benefit of her success at first instance. Good reasons are required to warrant the Commission's intervention to suspend the payment of compensation in an unfair dismissal case. In my view there are no such reasons here. A further discretionary reason not to grant a stay is the fact that the notice of appeal and its request for a stay was lodged only after the time for compliance with the order had passed. For these reasons, the application for a stay is refused.

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