s.604 - Appeal of decision

Compass Group Defence Hospitality Services Pty Ltd

Appeal against decisions [2025] FWC 2495 and [2025] FWC 2599 of Commissioner Sloan at Sydney on 25 August 2025 and 3 September 2025 in matter number U2025/1022

[1] Monica Budzinauskas has lodged an appeal under s 604 of the Fair Work Act 2009 (Act) against a decision of Commissioner Sloan issued on 25 August 2025 ( [2025] FWC 2495) which concluded that Ms Budzinauskas's dismissal by Compass Group Defence Hospitality Services Pty Ltd (Compass) was unfair. In a second decision on 3 September 2025 ( [2025] FWC 2599) the Commissioner determined that Compass must pay Ms Budzinauskas $22,800 less taxation as required by law, plus 11.5% superannuation. Ms Budzinauskas contends that the Commissioner erred in his calculation of compensation. Although the notice of appeal refers only to the first decision, it is apparent that the appeal is directed also at the second decision. The matter was listed before us in relation to permission to appeal only.

[2] In his first decision, the Commissioner took into account the considerations in s 392(2) which pertain to the assessment of compensation, and the four-step approach set out by the Full Bench in Sprigg v Paul's Licensed Festival Supermarket [1998] AIRC 989; (1998) 88 IR 21. The Commissioner stated that it was his provisional conclusion that Ms Budzinauskas should receive compensation of 20 weeks' pay, but that as no evidence had been led about her remuneration, Compass was directed to file a document setting out Ms Budzinauskas's weekly pay at the time of her dismissal, and details of the total amount of remuneration she received or was entitled to receive in the 26 weeks immediately before her dismissal. The Commissioner further directed that, if Ms Budzinauskas disputed the evidence produced by Compass, she was to file a document setting out the basis of her objection and any evidence in support.

[3] In his second decision, the Commissioner recorded that Compass had informed his chambers that Ms Budzinauskas's weekly wage at the time of her dismissal was $1,140 gross, and that in the 26 weeks prior to her dismissal she had received $32,875.96 in remuneration. The Commissioner further noted that Ms Budzinauskas had advised his chambers that she did not dispute the company's figures and that the Commissioner could finalise his orders. The Commissioner then confirmed his view that it was appropriate to award 20 weeks' pay in compensation, and that this would be at the weekly rate of $1,140, which amounted to a total of $22,800, less taxation as required by law, plus superannuation of 11.5%.

[4] Ms Budzinauskas requires the Commission's permission in order to appeal from the Commissioner'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. Consideration of the public interest involves a broad value judgment (Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [44]). 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 (GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343; (2010) 197 IR 266 at [27]).

[5] In deciding whether to grant permission to appeal, it is unnecessary and inappropriate to conduct a detailed examination of the appeal grounds (Trustee for the MTGI Trust v Johnston [2016] FCAFC 140 at [82]). 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 (Coal & Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 at 204).

[6] In her notice of appeal, Ms Budzinauskas contended that the Commissioner had erred in basing his calculation on a gross weekly wage of $1,140. She submitted that this amount was only her flat rate and did not take into account the true value of her wages, which included matters such as weekend and shift penalties, and allowances payable under the relevant award. Ms Budzinauskas contended that the 6 month remuneration figure provided by Compass was $32,875.96, and that this amount divided by 26 would be a weekly amount of $1,264.46. She contended that her compensation should be based on this higher weekly amount.

[7] We do not perceive any arguable case of error on the part of the Deputy President. First, Ms Budzinauskas was afforded an opportunity to make submissions to the Commissioner about the basis on which he should calculate her compensation. She told the Commissioner that she did not dispute the figures that had been submitted by Compass. Appeals exist for the correction of error, not to give a party a further opportunity to advance arguments that should have been made at first instance. To the extent that Ms Budzinauskas seeks to adduce fresh evidence pursuant to s 607, we decline to receive it, because no good reason is offered as to why the matters now raised by Ms Budzinauskas could not have been raised before the Commissioner. Secondly, Ms Budzinauskas misunderstands the relevance of the 6-month remuneration figure provided by the employer. This information was required by the Commissioner for the purpose of ensuring that any award of compensation did not exceed the statutory cap. There is no contradiction between the figures proffered by Compass: the 6-month figure looks into the past, based on work actually performed, whereas the weekly wage was the figure applicable at the time of dismissal. The fact that a person has worked loaded hours in the past does not necessarily mean they will do so in the future.

[8] If Ms Budzinauskas wanted to contend that the weekly figure should be increased to reflect her usual working arrangements, the time to do so was after she received Compass's remuneration information that was submitted pursuant to the Commissioner's directions. Instead, she told the Commissioner that she did not dispute the figures and that he could proceed to finalise the compensation, which is what the Commissioner then did.

[9] Ms Budzinauskas submitted that it was in the public interest to grant permission to appeal because unfair dismissal applications are the most common claims filed in the Commission, and because it is of public importance that the Sprigg formula be properly applied. But there is no arguable error in the Commissioner's decisions, nor do any questions of general importance arise. The matter involved the routine assessment of compensation in an unfair dismissal matter.

[10] The grounds of appeal do not disclose an arguable case of error in either of the Commissioner's decisions. We do not consider that it is in the public interest to grant permission to appeal. We are therefore required by s 400(1) to refuse permission to appeal, and we do so.

A. Chamberlain for Compass Group Defence Hospitality Services Pty Ltd

Printed by authority of the Commonwealth Government Printer