Fair Work Act 2009

s.604 - Appeal of decision

Appeal against decision [2025] FWC 713 of Deputy President Beaumont at Perth on 12 March 2025 in matter number U2025/556 - permission to appeal refused.

[1] Mr Matthew Poore has lodged an appeal under s 604 of the Fair Work Act 2009 (Cth) (Act) against a decision[1] and order[2] of Deputy President Beaumont issued on 12 March 2025, for which permission to appeal is required. In the decision, the Deputy President declined to grant an extension of time for the filing of Mr Poore's application for an unfair dismissal remedy against the respondent, BAE Systems Australia Limited.

[2] The matter was listed for permission to appeal only. The parties consented to the application being determined without holding a hearing pursuant to s 607(1)(b) of the Act. We are satisfied that the question of permission to appeal can be adequately determined without the need for oral submissions. For the reasons that follow, permission to appeal is refused.

[3] The Deputy President recorded that Mr Poore's application for an unfair dismissal remedy was filed six days outside the 21-day statutory timeframe in s 394(2) of the Act. Accordingly, the Deputy President proceeded to consider whether to allow a further period for Mr Poore's application to be made, having regard to the factors in s 394(3) of the Act.

[4] In summary, the Deputy President did not consider that the reasons relied upon by Mr Poore to explain the delay (s 394(3)(a)), which are set out at paragraph [12] of the decision, to be acceptable. This weighed against a finding that there were exceptional circumstances justifying an extension of time. The considerations in ss 394(3)(b), (c) and (d) did not weigh in favour of a finding of exceptional circumstances. As to the merits of the application

(s 394(3)(e)), the Deputy President recorded Mr Poore's evidence that he considered his dismissal to be unfair, arising from an inadvertent error in circumstances where he otherwise held a good employment record. In the absence of testing the evidence, the Deputy President also regarded this to be a neutral matter in her overall consideration. There were no relevant questions of fairness (s 394(3)(f)) to be taken into consideration.

[5] Having regard to the conclusions reached in relation to the statutory considerations in

s 394(3), the Deputy President was not satisfied that the requisite exceptional circumstances existed and concluded that there was no basis for her to allow an extension of time.

[6] There is no right to appeal, and an appeal may only be made with the permission of the Commission. Section 400 of the Act applies to this appeal, as it is from a decision made under Part 3-2 of the Act. By 400(1), 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 on the ground that the decision involved a significant error of fact. The test under s 400 is "a stringent one."[3]

[7] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[4] The public interest is not satisfied simply by the identification of error or a preference for a different result.[5] 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.[6]

[8] 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.

[9] An application for permission to appeal is not a preliminary hearing of the appeal. In determining whether to grant permission to appeal, it is unnecessary and inappropriate to conduct a detailed examination of the appeal grounds.[7] However, it is necessary to engage with the grounds to consider whether they raise an arguable case of appealable error.

[10] By his Form F7 Notice of Appeal, Mr Poore relies upon four appeal grounds:

• (1) The Deputy President erred in her decision when she found there were no exceptional circumstances justifying an extension of time.

(2) The Deputy President erred when she found that the reasons given by Mr Poore for the delay in filing the application were "implausible."

(3) The Deputy President erred when she found there was no "acceptable or reasonable explanation for the delay in filing the application."

(4) The Deputy President erred when she found that Mr Poore did not take any action to dispute his dismissal.

(5) The Deputy President denied Mr Poore procedural fairness when she made findings of fact adverse to Mr Poore without giving him the opportunity to be heard on those adverse findings.

[11] Mr Poore contends that it is in the public interest to grant permission to appeal because the decision contains significant errors of fact, denied Mr Poore procedural fairness and, as a consequence, a substantial injustice to Mr Poore may result if permission is refused. It is contended that the proposed appeal raises important questions of law as to how the Commission applies its discretion, including how findings of fact should be made by the Commission.

[12] We are not persuaded that it would be in the public interest to grant permission to appeal for the following reasons.

[13] First, Mr Poore contends that his "evidence and submissions were accepted without challenge by the Respondent"[8] and accordingly, "the Deputy President was bound to accept all of the evidence of the Applicant as uncontested fact."[9] We disagree. As s 394(3) of the Act makes clear, the Deputy President was required to reach a state of satisfaction that there were exceptional circumstances such as to exercise her discretion to allow a further period for the application to be made, taking into account the matters at (a) to (f) of that section. We consider, as the decision records, that the Deputy President correctly applied the matters in s 394(3) to the application before her.

[14] Second, Mr Poore contends that it was "not open"[10] to the Deputy President to find that:

• (a) he did not make an initial application with the Fair Work Ombudsman (FWO);

• (b) it was implausible that office closures over the Christmas/New Year break made prompt advice unavailable and this contributed to the delay;

• (c) there was no acceptable or reasonable explanation for the delay; and

• (d) Mr Poore took no action to dispute his dismissal.

[15] We do not consider the contention that these findings were "not open" to be arguable. Each of the above conclusions appears to have been reasonably available and supported by the material before the Deputy President. As to (a) above, Mr Poore accepts in his submissions that he did not make an application with the FWO,[11] which is precisely what the Deputy President concluded. It also follows from this that the conclusion at (d) above - that Mr Poore took no action to dispute his dismissal - was reasonably available on the material before the Commission. The relevant action to be considered is action that will put the employer on notice that its decision to terminate the employment is actively contested.[12]

[16] As to (b) above, when paragraph [19] of the decision is read in its entirety, we consider it clear that the Deputy President was considering Mr Poore's submission regarding "office closures and the unavailability of prompt advice as contributing to the reason for the delay" (our emphasis). The Deputy President observed that information was always readily available on the Commission's website, before concluding as follows:[13]

In the absence of evidence that the Applicant did not have access to the internet (which does not appear to be case given the apparent electronic lodgement of an enquiry to FWO), I consider office closures an implausible reason for the delay.

[17] In our view, the implausibility to which the Deputy President is referring relates to Mr Poore's submission as to the unavailability of prompt advice, rather than that Mr Poore's evidence was implausible. No arguable error is demonstrated by reason of the conclusion at (b) above.

[18] It follows that we are not persuaded that the matters at [14](a)-(d) demonstrate arguable errors of fact in the decision, let alone significant errors such as to satisfy the stringent requirement in s 400(2) of the Act. Nor do we consider it to be arguable that the Deputy President erred in in the exercise of he[14]discretion14 when she found there were no exceptional circumstances justifying an extension of time.

[19] _Third, a_s the decision records, the parties advised the Deputy President that they were content for Mr Poore's application for an extension of time to be determined on the papers.[15] Mr Poore now contends that the Deputy President erred by failing to invite him to make further submissions before she made findings adverse to his interests. Such a contention cannot be sustained. Mr Poore was on notice that a decision that may affect his interests would be made, he filed written material addressing the relevant statutory considerations and was given the opportunity for an oral hearing, which he declined. In these circumstances, we do not consider it to be arguable that Mr Poore was denied procedural fairness.[16]

[20] In circumstances where we are not persuaded that it would be in the public interest to grant permission to appeal, it follows that we must refuse permission in accordance with the stringent test in s 400(1) of the Act.

[21] For the reasons given, permission to appeal is refused.

[1] [2025] FWC 713

[2] PR785141

[3] Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54; 192 FCR 78; 207 IR 177 at [34] and [43]

[4] 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]

[5] 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]

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

[7] Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]

[8] Appellant's outline of submissions at [20]

[12] See Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298

[14] House v The King [1936] HCA 40; 55 CLR 499

[16] See Kioa v West [1985] HCA 81; (1985) 159 CLR 550

Printed by authority of the Commonwealth Government Printer