Fair Work Act 2009

s.604 - Appeal of decisions

Appeal against decision [2025] FWC 3568 of Deputy President Saunders at Newcastle on 26 November 2025 in matter number U2025/9106

[1] Ms. Mary Ann Watson has lodged an appeal under s.604 of the Fair Work Act 2009 (Act) against a decision of Deputy President Saunders on 26 November 2025[1] in which the Deputy President concluded that Ms. Watson's employment had not been terminated on the initiative[2] of Feros Care Limited (respondent) and dismissed her application for an unfair dismissal remedy. The matter was listed before us in relation to permission to appeal only.

[2] In his decision, the Deputy President set out in detail the evidence concerning Ms. Watson's casual employment with the respondent, including correspondence that passed between the parties, and recorded his factual findings. Much of the background was uncontentious. Ms. Watson had worked on a casual basis for the respondent for some time. During 2023, Ms. Watson had raised various allegations that she been subjected to adverse action by the respondent. In late 2023, Ms. Watson and other employees of the respondent were offered the opportunity to convert from casual to part-time employment. A majority of the respondent's casual employees converted to permanent part-time employment as a result of the offer. Ms. Watson declined the proposal. The Deputy President accepted that the conversion of many of the casual employees to permanency had an impact on the allocation of work to the remaining casual employees with casual employees thereafter primarily only offered work to fill gaps, replace part-time employees on personal leave or to attend to a last-minute request to attend to a client.[3]

[3] The Deputy President noted that it was not in issue that Ms. Watson was not able to accept casual shifts for much of 2024, including because of an injury.

[4] The Deputy President observed that Ms. Watson had not undertaken a client service shift for the respondent since about February 2024 and noted that from late 2024 until April 2025, while the Commission was dealing with a dispute that had been raised by Ms. Watson, Ms. Watson did not wish to make herself available for casual work.

[5] The Deputy President noted that in November 2024, the respondent wrote to the appellant advising that the respondent no longer required casual employees in the Byron Bay area to fill gaps in rosters and requested a meeting with the appellant to discuss the matter further. The proposed meeting did not eventuate.

[6] The Deputy President recorded that in May 2025, Ms. Watson asked the respondent for a commitment that she would be employed on a permanent part-time basis. On 14 May 2025, the respondent advised Ms. Watson in writing that it was not able to offer her such employment as there were no part-time vacancies. The respondent also told Ms. Watson that it did not have 'any available casual shifts at present' and that it was unable to 're-engage scheduling of casual shifts at this time'. Ms. Watson regarded this as a termination of her employment. The Deputy President accepted the respondent's evidence that there was no part-time or casual work available at that time but found that this did not preclude the possibility that such work would be available in the future, and that so much was clear from the correspondence. The Deputy President noted the respondent's evidence to the effect that the reference to the lack of available casual shifts in the correspondence of 14 May 2025 was intended as a reference to availability of such shifts in the appellant's designated areas and on the days and times that were consistent with the appellant's availability. The Deputy President concluded that there was no action by the respondent that was the principal contributing factor which resulted in the termination of Ms. Watson's employment, and that she had not been dismissed.

[7] Ms. Watson requires the Commission's permission in order to appeal from the Deputy President'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.

[8] Consideration of the public interest involves a broad value judgment.[4] 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.[5] In deciding 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 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.[7]

[9] Ms Watson's notice of appeal contains 15 grounds. Ground 1contends that the Deputy President erred in concluding that the employment had remained 'on foot' after 14 May 2025. We observe at the outset that the casual status of the appellant's employment was not in issue. There was no contractual guarantee that the appellant would be provided with work at any particular time. The Deputy President carefully assessed all of the surrounding circumstances and communications between the parties, including the email of 14 May 2025, and came to the view that although the appellant was not being offered casual work by the respondent at that time, the possibility of future casual work had not been foreclosed. The Deputy President concluded that the appellant's casual employment remained on foot during May 2025 and that, viewed objectively, there was no action on the part of the respondent that was the principal contributing factor which resulted directly or consequentially in the termination of the appellant's casual employment. The approach taken by the Deputy President was an entirely orthodox one based on well-established principles. We see no arguable case of appealable error and nothing which would otherwise enliven the public interest in these circumstances.

[10] Grounds 2, 3 and 9 contend that the Deputy President made errors of fact in preferring the respondent's evidence of a telephone call on 1 May 2025, in finding that Ms. Watson had failed to respond to work offers in mid-2024 and in not considering the significance of the respondent's email of 27 May 2025. In our view none of these grounds present an arguable case of appealable error. We observe that the respondent's email of 27 May 2025 was referred to in the Deputy President's decision and the email expressly stated that the appellant's employment had not been terminated as at that date. Further, the alleged factual errors in grounds 2 and 3, even if established, could not on any view, be described as significant errors of fact.

[11] Similarly, grounds 6 and 7 reveal no arguable error in the decision, for they concern alleged factual findings or a failure to make findings in respect of matters (namely a safety issue raised in late 2024, and the alleged exclusion of Ms. Watson from a meeting in December 2024) that could not in our view be described as significant in the determination of whether there was a dismissal on 14 May 2025.

[12] The finding challenged by appeal ground 8, which concerned Ms. Watson's portal access suspension, rises no higher than a disagreement with the Deputy President's evaluation of the significance of those events in the overall factual matrix. We do not consider that there is an arguable case of appealable error in this ground such as to engage the public interest.

[13] Grounds 4 and 5 submit that the Deputy President erred in concluding that a reduction in shifts was consistent with casual engagement, in circumstances where Ms. Watson had worked regular hours for six years; and erred by not giving proper weight to the respondent's communication in November 2024 that it did not require casuals in Ms Watson's region, which Ms. Watson said was evidence of a cessation of casual engagement. These grounds present no arguable error. First, casual employment is by its nature changeable. It was not contended that the appellant's status was anything other than a casual employee during the period of her employment. Nor was it in issue that for a variety of reasons, there had been a reduction in shifts and the appellant had not worked a casual shift since February 2024. Secondly, Ms Watson's case at first instance was that she was dismissed in May 2025, not November 2024. In any event, the lack of availability of casual work in a particular area at a particular time does not necessarily compel a conclusion that casual employment has ended. There is no arguable error in the Deputy President's treatment of the November 2024 correspondence.

[14] Ground 10 contends that the Deputy President should have taken into account that in conciliation both parties proceeded on the basis that the employment ceased on 14 May 2025. The ground is misconceived. The Commission would not ordinarily consider, let alone be required to consider, the positions adopted by parties in discussions held in private conference in an effort to resolve a matter if the matter did not resolve and ultimately proceeded to a hearing. We do not consider that there is any arguable case of error disclosed in this ground.

[15] Ground 11 states that the Deputy President erred in treating Ms. Watson's refusal of the proposal to convert to part-time employment as a neutral matter when the role in question was a distant and unsuitable one. The reasons for the applicant's refusal to convert are not relevant to the question of whether the appellant's employment had been ended many months later. No arguable case of appealable error is evident in this ground of appeal.

[16] Ground 12 challenges the Deputy President's finding that Ms. Watson did not want to make herself available for casual shifts while her dispute in the Commission was underway, but it appears to us that this finding was inconsequential to the outcome of the matter. Ground 13 disputed the Deputy President's finding that there was no casual work available to suit Ms Watson's preferences, but here too it appears to us that Ms. Watson simply disagrees with the assessment without identifying any relevant error or point to a basis upon which the public interest is engaged.

[17] Grounds 14 and 15 assert that the Deputy President erred in concluding that the respondent took no action that contributed to the termination, and in his ultimate conclusion that Ms. Watson was not dismissed. These grounds merely repeat previous grounds and insist on a different outcome. They reveal no arguable case of appealable error.

[18] The grounds of appeal do not disclose an arguable case of appealable error in the Deputy President's decision. 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 in this case, nor is there any other aspect of the appeal that engages the public interest. We are therefore required by s 400(1) to refuse permission to appeal, and we do so.

Mr R King, Solicitor of Cornwalls, appearing with permission on behalf of the respondent

[1] [2025] FWC 3568.

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

[5] GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343; (2010) 197 IR 266 (Makin) at [27].

[6] Trustee for the MTGI Trust v Johnston [2016] FCAFC 140 at [82].

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

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