Fair Work Act 2009

s.604 - Appeal of decisions

DEPUTY PRESIDENT ROBERTS COMMISSIONER MATHESON COMMISSIONER CRAWFORD

Appeal against decision [2025] FWC 3847 of Deputy President Bell at Melbourne on 16 December 2025 in matter number C2025/12389

[1] This decision concerns an appeal that has been lodged by Mr. Andrew Shaw under s.604 of the Fair Work Act 2009 (Cth)(Act) against the decision of Deputy President Bell made on 16 December 2025 (Decision).[1] In the Decision the Deputy President determined not to allow an extension of time for the filing of a general protections application involving dismissal that had not been lodged within 21 days after Mr. Shaw's dismissal took effect. A hearing was held on 17 February 2025 to deal with the question of whether permission to appeal was granted however Mr. Shaw did not attend the hearing and the Fair Work Commission (Commission) has proceeded to determine the question based on the material before it as at the time of the hearing.

[2] The appellant requires the Commission's permission to appeal from the Deputy President's decision. Section 604(2) provides that the Commission must grant permission if it is satisfied that it is in the public interest to do so. Consideration of the public interest involves a broad value judgment.[2] Matters that may engage the public interest include issues of importance and general application, a diversity of decisions at first instance, or if the decision manifests an injustice.[3] Where the public interest is not engaged, the Commission may grant permission to appeal on general discretionary grounds. In deciding whether to grant permission to appeal, it is unnecessary and inappropriate to conduct a detailed examination of the appeal grounds.[4] 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 succeed in the absence of error.[5] The fact that a member at first instance may have made an error is not necessarily a sufficient basis to grant permission to appeal.

[3] Mr. Shaw appealed the Decision on five grounds.

[4] The first ground of appeal was that Deputy President erred in law by denying Mr. Shaw procedural fairness as he determined the extension-of-time application on the papers and on the basis of an asserted lack of clarity as to timing and incapacity, without affording Mr. Shaw an opportunity to clarify those matters.[6]

[5] In his decision the Deputy President noted that in addition to the material Mr Shaw had filed with his Form F8 application, Mr. Shaw subsequently filed a signed statement and other documentary evidence which he had regard to. The Deputy President said that he was satisfied on the material before him that the extension of time matter was capable of being dealt with 'on the papers'.[7]

[6] In respect of the reason for the delay, the appellant advanced a number of matters which were referred to by the Deputy President in his decision. In summary, these were that:

• immediately before the dismissal, a director made a false allegation about him to the Australian Federal Police which created shock, confusion, fear, distress and significant disruption to his mental state;

• there were complex financial disputes and before the dispute he had raised concerns about financial irregularities;

• the sequence of events, including the timing of his dismissal, caused significant distress, confusion and instability;

• he required time to understand the situation and seek legal clarification;

• he believed that because he invoiced through his company he may not have had standing to make an application and this misunderstanding was only clarified later through legal advice;

• he was forced to urgently engage with multiple regulatory bodies;

• he was left without access to business records or communications necessary to prepare the application as these were cut off following the dismissal;

• he was experiencing significant stress and health impacts due to the retaliation and sudden collapse of his business operations.[8]

[7] The Deputy President accurately summarised the reasons given for the delay as follows:

'[3] As to the reasons for delay, Mr Shaw says that a 'false' allegation was made by his

former employer about him to the Australian Federal Police, which Mr Shaw says created significant shock, confusion and distress. Mr Shaw says this false report to the AFP was made one day before he was dismissed. Mr Shaw states he required time to understand the situation and seek legal clarification. In his supplementary material, Mr Shaw also refers to needing to engage with 'multiple regulatory bodies' urgently following the dismissal. Mr Shaw also says that, at the same time, there were complex financial disputes, unexplained conduct by the directors of his former employer, and attempts to resolve matters directly. Mr Shaw also explains that he was under a misapprehension about his capacity to have made an application under section 365, because his work was invoiced through the company (which I understand to be a reference to being in a legal relationship other than employment). Mr Shaw says these

events delayed his ability to lodge within 21 days. Finally, in the supplementary material Mr Shaw says he was left without access to business records necessary to prepare his application.'

[8] In respect of the reason for the delay, the Deputy President made findings as follows:

'[4] The delay is the period commencing after the 21-day lodgement period ended (which was 3 November 2025) until the date the application was lodged on 4 December 2025, although circumstances arising prior to that delay may be relevant to the reason for the delay. In the circumstances, Mr Shaw's application is approximately 31 days' late. I am not satisfied that the explanations provided by Mr Shaw supply a satisfactory explanation for any part of the delay, whether in isolation or combination. While I am prepared to accept the circumstances he described could have impacted on his ability to lodge an application, there is no clear timing about them and nothing to satisfactorily explain a 31-day delay. In respect of Mr Shaw's misapprehension of his legal rights, there is nothing unusual about that circumstance and I note it is a circumstance experienced by many self-represented litigants in the Commission. I consider the reasons for delay are matters pointing strongly against a finding of exceptional circumstances.'

[9] A Full Bench of the Commission recently summarised the principles relevant to the consideration of procedural fairness in Trustee The V & V Unit Trust & Vernon Walsh Pty Ltd (t/As V&V Walsh Meat Processors & Exporters) v Australasian Meat Industry Employees' Union.[9] In summary the Full Bench said:

• the Commission is required to act juridically, and the principles of natural justice apply to proceedings before the Commission;

• the basic requirement is that a party must have a reasonable opportunity to present their case;

• whilst procedural fairness requires that a party be given a reasonable opportunity to present its case, the Commission is not required to ensure a party takes the best advantage of that opportunity;

• s.593(1) provides that the Commission is not required to hold a hearing in performing its functions or exercising its powers, except as provided by the Act, and that provision is consistent with the obligation imposed by s.577(1)(b) that the Commission act in a manner that is 'quick, informal and avoids unnecessary technicalities';

• there will be circumstances in which procedural fairness requires that the Commission permit evidence to be given and to conduct an oral hearing, for example where the person to be heard cannot express themselves effectively in writing and may not have access to assistance;

• it may also be necessary to conduct an oral hearing if a proceeding requires the Commission to determine questions of fact which are subject of conflicting evidence.

[10] The appellant had a reasonable opportunity to put forward reasons and supporting material to the Commission as to why he considered an extension of time should be granted and he took up that opportunity. The appellant lodged his application together with an attachment on 4 December 2025. The Form F8 specifically asked 'What were the reasons for the delay?' and the appellant addressed this question in the form. The appellant subsequently sent an email to the Commission that same evening attaching a document entitled 'Exceptional Circumstances Statement,' which he sent again on 9 December 2025, and requested that it be included on his file as further justification for the delay. The appellant sent an email to the Commission on 5 December 2025 in which the Applicant stated, in providing an explanation for the delay:

'Until recently, I did not understand that the behaviour I experienced fell within Fair Work's jurisdiction or that I was entitled to lodge a claim. Only after obtaining legal advice did I become aware of my rights and the appropriate process, and I contacted Fair Work immediately.'

[11] On 9 December 2025 the appellant sent an email to the Commission in which he addressed whether there were exceptional circumstances, with reference to the reason for the delay, action taken to dispute the dismissal, merits of the application, prejudice to the employer and fairness. On 13 December 2025 the appellant sent an email which attached a signed declaration which was provided to Deputy President Bell's Chambers on 15 December 2025.

[12] The appellant completed his form online on 4 December 2025. At the time when he completed his form, the following text would have appeared online under the section 'Timeframe to apply':

'The Commission may decide whether to give you an extension of time without conducting a hearing, on the basis of the information you give us in this form (and any attachments). If we do not give you an extension of time, your application cannot go ahead.'

[13] In the circumstances of this matter, we are not persuaded that there was any denial of procedural fairness. We find there is no arguable case of appealable error in appeal ground 1.

[14] The second ground of appeal was that Deputy President failed to properly consider relevant material concerning the appellant's acute mental health crisis, hospital attendances, and inpatient residential and mental health treatment during the relevant post-dismissal period, which were capable of establishing incapacity preventing compliance with the statutory time limit.

[15] The third ground of appeal was that the Deputy President erred in concluding that there was 'nothing to satisfactorily explain a 31-day delay' where the material before the Commission disclosed a sequence of events including,

• (a) a report to the Australian Federal Policy immediately preceding dismissal;

• (b) acute physical collapse requiring hospital treatment; and

• (c) subsequent inpatient residential mental health care.

[16] In respect of the reason for the delay, the Deputy President summarised the reasons put forward by Mr Shaw and said that while he was prepared to accept the circumstances described could have impacted on Mr Shaw's ability to lodge an application, there was no clear timing about them and nothing to satisfactorily explain a 31-day delay. As is mentioned above, in respect of Mr Shaw's misapprehension of his legal rights, the Deputy President observed that there was nothing unusual about that circumstance and concluded that he was not satisfied that the material provided by the appellant established a satisfactory explanation for any part of the delay and considered the reasons for the delay pointed strongly against a finding of exceptional circumstances[10]

[17] We are not persuaded that the Deputy President did not properly consider the material the appellant put forward in reaching the conclusions that he did. Rather, it is clear that the Deputy President considered the material filed by the appellant and adopted the conventional path in weighing the various considerations relevant to the decision about whether an extension of time should be granted. There is no arguable case of appealable error in appeal grounds 2 or 3.

[18] The fourth appeal ground is that the Deputy President applied an unduly narrow construction of 'exceptional circumstances' under s.366(2) of the Act by treating the delay factor as determinative, notwithstanding findings that the employer would suffer no prejudice, that the appellant had taken steps to dispute the dismissal, and that the merits were not assessed adversely.

[19] While the reason for the delay is only one of a number of factors that need to be taken into account, it is clear from the Decision that the Deputy President considered the balance of considerations in s.366(2) as he was required to do, including action taken by Mr. Shaw to dispute the dismissal (s.366(2)(b)),[11] prejudice to the employer (s.366(2)(c)),[12] the merits of the application (s.366(2)(d))[13] and fairness as between the person and other persons in a like position (s.366(2)(e)).[14] As noted above, the Deputy President adopted a conventional approach in weighing these considerations in arriving at a determination. We can see no basis on which it might be said that in doing so, the Deputy President applied an unduly narrow construction of "exceptional circumstances" and we are unable to identify any errors of law or principle, or in the decision-making process undertaken by the Deputy President. There is no arguable case of appealable error in relation to appeal ground 4.

[20] The fifth appeal ground is that the Deputy President's Decision was attended by appealable error in that the evaluative conclusion reached was not reasonably open on the material before the Commission.

[21] It is apparent that the Deputy President had due regard to the material filed by Mr. Shaw addressing the relevant considerations and we are not persuaded that he was either guided by irrelevant factors, mistook the facts or failed to take some material consideration into account or that he reached a conclusion that was not reasonably open on the material as asserted by Mr. Shaw.

[22] We are not persuaded that the decision of the Deputy President was attended by appealable error. We have considered whether the appeal attracts the public interest and we are not satisfied for the purposes of s.604(2) that it would be in the public interest to grant permission to appeal. We do not consider that the appeal raises any legal or factual issue of significance or general application, or that there is diversity of decisions at first instance, or that the legal principles applied by the Deputy President are disharmonious when compared with other decisions. Nor do we consider that the Deputy President's decision is counter intuitive or manifests an injustice.

[23] We have also concluded that there is no other discretionary basis upon which permission to appeal should be granted.

[24]

[1] [2025] FWC 3846.

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

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

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

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

[6] Applicant's Notice of Appeal Form 7, response to q.2.1.

[7] [2025] FWC 3846 at [2].

[8] Applicant's Form F8, response to q. 1.4; Applicant's "Exceptional Circumstances Statement"; emails to Commission on 5 and 9 December 2025.

[9] [2026] FWCFB 10 at [27] - [32].

[11] [2025] FWC 3864 at [5].

[12] [2025] FWC 3864 at [6].

[13] [2025] FWC 3864 at [7].

[14] [2025] FWC 3864 at [8].

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