[2025] FWCFB 120

Fair Work Act 2009

s.604 - Appeal of decisions

[1] Mr John Dagger (the Appellant) has appealed against a decision of Commissioner Simpson issued on 28 March 2025, refusing an extension of time for Mr Dagger to make an application for the Commission to deal with a general protections dispute involving his dismissal.[1] Directions were issued on 1 May 2025 and the matter is listed for hearing before a Full Bench of the Commission on Friday 20 June 2025. On 28 May 2025, the Appellant submitted a Form F52 Application seeking the production of documents (the Application) by the Respondent in the Appeal, Oscar Wylee Pty Ltd.

[2] The documents sought by the Appellant included all internal communications between any of the Respondent's managers, HR personnel or legal advisors relating to the investigation of various complaints made by the Appellant including an alleged incident of workplace assault on 15 October 2024; alleged workplace bullying, and alleged defamation contained in an email purportedly sent on or around 16 October 2024.

[3] The Application also sought production of any witness statements or interview notes relating to the investigation of the Appellant's complaints; all correspondence and documentation relating to the decision making process concerning termination of the Appellant's employment by the Respondent; any responses or reports provided to the Appellant regarding his complaints and the subsequent investigation; all documentation relating to any disciplinary action considered or taken against the person who was the subject of Mr Dagger's complaint; and an email referencing prior complaints made against the Appellant and requiring the Appellant not be left alone in the Respondent's store; and 'any other matters' relating to the conduct of the person about whom the Appellant had complained.

[4] Further, the Appellant sought that the Respondent provide written confirmation as to whether it had taken disciplinary action against the person about whom he had complained, along with any correspondence or documentation explaining the Respondent's decision not to take disciplinary action. The Appellant contends that he requires the documents sought to properly argue his appeal.

[5] On 05 June 2025, the Associate of the presiding member corresponded with the Appellant informing him that evidence that was not considered at first instance is not ordinarily considered on appeal, and that for further evidence to be admitted, permission must be obtained from the Full Bench, with reference to s. 607(2) of the Fair Work Act 2009 (Cth) (the Act). The Appellant was informed about the principles governing the admission of fresh evidence on appeal and that if he wished to press the Application, he was required to provide submissions detailing the relevance of the documents sought to the matters for determination in the appeal. The Appellant was also informed that if the documents he sought were for the purpose of arguing the merits of his application in the appeal, he would need to establish their relevance considering the Commissioner's finding that merit was a neutral consideration in his decision to refuse an extension of time.

[6] On 10 June 2025, the Appellant filed submissions in support of the Application which again argued that the documents sought were directly relevant to determining the merits of the Appeal. The Appellant submitted that the Commissioner's finding that the merits were neutral was factually and legally erroneous; the Respondent's evidence was untested and self-serving; material issues of fact were left unresolved; the Appellant was denied procedural fairness regarding new allegations introduced on appeal; and the Commissioner failed to consider a F52 Application filed in the course of the first instance proceedings [which sought substantially the same material]; and the documents sought could have 'clarified and corrected the record'. The Appellant submitted the merits of the application are positive, not neutral, and that the Application should be granted allowing the Appellant access to the investigation materials and communications, as necessary for the Commission to 'conduct a fair and informed merits assessment'.

[7] The Respondent filed submissions objecting to the production of the material sought and the Appellant filed a supplementary submission and sought confirmation that it would be received by the Full Bench. The supplementary submission set out the Appellant's contentions in response to those of the Respondent. By email sent on 18 June 2025, the Appellant was informed that the Full Bench would consider whether to receive his supplementary submissions and would deal with the Application at the hearing of the appeal.

[8] On 18 June the Appellant sent an email to the Chambers of the presiding Member, seeking an adjournment of his appeal hearing and attaching submissions in support. Essentially the Appellant contends that in the interests of efficiency and procedural fairness, the hearing of his appeal should be adjourned until the Application for the production of documents is determined, and any documents produced properly considered. On 18 June 2025 the Associate of the presiding member responded to the Appellant informing him that the adjournment was refused and his appeal would be heard at 10.00 am on Friday 20 June, in accordance with the Notice of Listing. The Appellant responded seeking written reasons as to why the Application for the production of documents had not been granted.

[9] The material filed by the Appellant has been referred to all members of the Full Bench. We have considered the matters raised by the Appellant and provide the following reasons for declining to issue the Notices to Produce sought by him.

[10] It is clear from the submissions and material filed by the Appellant to date in support of his application for production of documents, that the documents sought are for the purpose of the Appellant seeking that the Full Bench conduct a hearing in relation to the merits of his substantive application, at the appeal. As we have noted, the appeal concerns a decision by a Member of the Commission refusing to grant the Appellant an extension of time to lodge his general protections application.

[11] It is well established that the Commission should not embark upon a detailed consideration of the merits of a substantive case in determining whether to grant an extension of time.[2] This is particularly so where the matter involves disputed facts. Full Benches of the Commission have emphasised that while the Act requires the Commission to take into account the merits of an application in deciding whether to grant an extension of time to file an application, the substantial merits are not able to be fully examined or agitated at this stage of the proceeding.[3]

[12] It has also been observed that it would be undesirable to expose the parties to a requirement to present their evidentiary cases twice, which would occur if the Commission embarked on a detailed consideration of the substantive case in relation to an extension of time application and the matter proceeded to a full hearing on merits. In Kyvelos v Champion Socks Pty Ltd[4] a Full Bench of the Commission said a Member of the Commission making a finding about the merits of a case would serve as an encouragement to other applicants for late acceptance to put their entire evidentiary case and seek to cross-examine the respondent's witnesses to reduce the possibility of an adverse finding on the merits, leading to an unjustifiable delay and expense.[5]

[13] We also note that the grounds of appeal can be pursued by the Appellant without the documentation he seeks. In this regard the appeal raises issues of law which do not require an assessment of merits. To the extent that the appeal asserts that the Commissioner made findings not available on the evidence or disregarded relevant evidence, the Full Bench will be required to examine evidence that was before the Commissioner rather than new evidence. The Appellant can refer the Full Bench to evidence that was either disregarded or not before the Commissioner without the documents he seeks.

[14] Further we note that many of the issues the Appellant seeks to ventilate via the documents appear to relate to an unfair dismissal application rather than a general protections application. The Appellant is seeking an extension of time with respect to a general protections application. The question of whether the Respondent investigated the Appellant's complaints thoroughly or fairly, is not the focus of a general protections application, where the Appellant is contending that he was dismissed because he made a complaint. Nor is the issue of whether the Appellant was afforded procedural fairness relevant. To the extent that the Appellant requires documents in relation to the person against whom he made complaints, the Commission cannot order a party to create a document and can only require documents that are in existence and relevant to a matter in dispute, to be produced. Quite simply, the documents the Appellant seeks to have produced by the Respondent, are not relevant to the appeal.

[15] Finally, the Commission does not have power to arbitrate or determine a general protections dispute unless the parties consent. This consent has not been given. Accordingly, if the appeal succeeds the matter will be conciliated and if it is not resolved the Appellant will be required to make an application to a court for hearing and determination.

[16] For these reasons the Appellant's Application for the production of documents has not been granted. The Appellant should note that the appeal will proceed to hearing at 10.00 am on 20 June 2025, in accordance with the Notice of Listing. If, after considering these Reasons, the Appellant wishes to pursue his Application for production of documents, he may raise this at the hearing of the appeal.

[1] John Dagger v Oscar Wylee Pty Ltd [2025] FWC 873.

[2] Broadbent v Goulburn Flight Training Academy Pty Ltd [2021] FWCFB 2794; Donohoe v QuickComms Australia Pty Ltd [2020] FWCFB 5426 at [53]; Long v Keolis Downer T/A Yarra Trams [2018] FWCFB 4109 at [71] - [73]; Kyvelos v Champion Socks Pty Ltd Dec 1294/00 M Print T2421 at [13].

[3] Broadbent v Goulburn Flight Training Academy Pty Ltd [2021] FWCFB 2794 at [28].

[4] Kyvelos v Champion Socks Pty Ltd U No. 31007 of 2000 (AIRC unreported T2421, 10 November 2000).

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