Fair Work Act 2009

s.604 - Appeal of decisions

Appeal against decision [2025] FWC 3437 of Commissioner Connolly at Melbourne on 19 November 2025 in matter C2024/1086 - permission to appeal refused

[1] Mark Frost has lodged an appeal under s 604 of the Fair Work Act 2009 (Act) against a decision of Commissioner Connolly made on 19 November 2025 ( [2025] FWC 3437) in which the Commissioner redetermined, on remittal from a Full Bench, a dispute under clause 11 of the Ambulance Victoria Enterprise Agreement 2020 (Agreement). Mr Frost's appeal was listed before us in respect of permission to appeal only. The parties consented to the matter being determined without a hearing, and we are satisfied that it can be adequately determined without the parties making oral submissions (see s 607(1) of the Act).

[2] The dispute that was referred to the Commission under the Agreement concerned a decision of Ambulance Victoria (AV) to impose a disciplinary sanction on Mr Frost in the form of a transfer, following an independent report which concluded that Mr Frost had engaged in bullying conduct towards coworkers. Mr Frost considered that the transfer decision was unreasonable, and that AV had failed to comply with clause 75 of the Agreement, which requires it to deal with alleged misconduct consistent with the principles of procedural fairness. Mr Frost also believed that his conduct did not amount to serious misconduct, and that the sanction of transfer was therefore not available to AV under clause 74.6(f)(iv) of the Agreement. On 23 August 2024, the Commissioner issued a decision in which he concluded that AV had met its obligations under clause 75, that Mr Frost's conduct amounted to bullying and serious misconduct, and that AV had not acted unreasonably or unjustly ( [2024] FWC 2237). On 12 May 2025, a Full Bench upheld Mr Frost's appeal on the grounds that the Commissioner had erred by equating bullying with serious misconduct, as the seriousness of bullying can vary; and by apprehending that the independent report had concluded that Mr Frost's behaviour amounted to serious misconduct, when in fact it had concluded that the conduct amounted to bullying ( [2025] FWCFB 94).

[3] The Full Bench quashed the Commissioner's first decision and remitted the application to him for redetermination, noting that the Commissioner was required to determine whether the conduct that the investigator had found to have occurred constituted serious misconduct. In his decision on remittal, the Commissioner concluded that this conduct was wilful and deliberate, and that it was inconsistent with the continuation of Mr Frost's employment with AV. He did so after considering the seriousness of the conduct and noting that the principal complainant's sense of anxiety and humiliation had been caused by Mr Frost's conduct, and that Mr Frost's conduct was contrary to his contract of employment. The Commissioner concluded that Mr Frost had engaged in serious misconduct, and that AV was able to transfer Mr Frost under the terms of the Agreement.

[4] An appeal from the Commissioner's decision may only be brought with the permission of the Commission under s 604. Section 604(2) requires the Commission to 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. Matters that may engage the public interest include issues of importance and general application, or where the decision manifests an injustice (GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343; (2010) 197 IR 266 (Makin) at [27]). 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 (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, as an appeal cannot succeed in the absence of error (Coal & Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 at 204). The fact that a member may have made an error is not necessarily a sufficient basis to grant permission to appeal.

[5] In his notice of appeal, Mr Frost advances four grounds of appeal. The first ground contends that the Commissioner erred in determining that certain conduct occurred and amounted to serious misconduct, when the investigator had not found that the conduct occurred, namely: that Mr Frost had taken his mail into work knowing that it would be seen by the complainant, which amounted to a further instance of bullying (at [95]); and that Mr Frost was evasive and not completely honest with the investigator during the investigation (at [96] to [97]). We do not consider this ground to present an arguable case of error. The Commissioner's remark at [95] recorded his view that it was more likely than not that Mr Frost took his mail into work knowing that it would be seen by the complainant and that this was a further instance of bullying. But the Commissioner separately concluded that the conduct that the investigator had found to have occurred constituted serious misconduct. This was the question that the Full Bench had required the Commissioner to answer. He was not precluded from making other observations or conclusions. As to the second matter, the investigator stated in his report that Mr Frost had 'prevaricated and failed to answer directly any of the specifics of the conduct in which he was alleged to have engaged'. To say that the investigator considered that Mr Frost had been evasive and not entirely honest appears to us to be an available characterisation of what the investigator said in his report.

[6] The second ground of appeal contended that Mr Frost was denied procedural fairness because he was not informed that the Commissioner would consider the matters in the first appeal ground and was not able to address them. We do not consider there to be an arguable case that Mr Frost was denied procedural fairness. These were matters that had been canvassed in the proceeding below and were known to be in dispute. Further, it does not appear to us that these matters were consequential in the disposition of the application, because the Commissioner separately determined that the conduct that the investigator found to have occurred amounted to serious misconduct. The passages referred to in grounds 1 and 2 appear to be in the nature of additional and available observations in relation to facts that had been in dispute between the parties.

[7] The third ground of appeal submitted that the Commissioner erred in finding that Mr Frost's conduct was wilful and deliberate. The fourth ground contended that the Commissioner erred in finding that Mr Frost's conduct was inconsistent with the continuation of his employment. These grounds challenge factual findings. The Commissioner explained the reasons for his findings. We do not recite these here. It suffices for us to say that it is well-established that the factual findings made by a member at first instance should generally stand on appeal unless they are shown to be wrong by incontrovertible facts or are glaringly improbable (see Australian Education Union v Bendigo Kangan Institute of TAFE [2021] FWCFB 3649 at [37] - [39]). In our view there is no arguable case to this effect here. The Commissioner's factual findings appear to us to have been comfortably open to him based on the evidence before the Commission.

[8] In our assessment there is no arguable case of error in the Commissioner's decision. We are not satisfied that it is in the public interest to grant permission to appeal. None of the elements identified in Makin is present in this case and we do not consider there to be any other matters engaging the public interest. Further, we do not consider that permission to appeal should be granted on general discretionary grounds. In particular, contrary to the submission of Mr Frost, we do not consider that the decision is attended with sufficient doubt to warrant its reconsideration, or that it manifests an injustice.

[9] Permission to appeal is refused.

Printed by authority of the Commonwealth Government Printer