[2025] FWCFB 154

Fair Work Act 2009

s.604 - Appeal of decisions

DEPUTY PRESIDENT ROBERTS COMMISSIONER P RYAN COMMISSIONER WALKADEN

Appeal against decision [ [2025] FWC 1471] of Commissioner Lim at Perth on 28 May 2025 in matter number U2024/12281- Application under s.394 of the Fair Work Act 2009 for unfair dismissal remedy - valid reason for dismissal - whether significant error of fact or error of law - whether Commission considers that it is in the public interest for permission to appeal to be granted - permission to appeal refused.

[1] The appellant in this matter, Mr Peng Zheng (Appellant), has filed an appeal against a decision of Commissioner Lim on 28 May 2025 in the matter of Zheng v. Citic Pacific Mining Management Pty Ltd.[1] In that decision, Commissioner Lim dismissed an application by Mr. Zheng for a remedy for unfair dismissal which had been brought against his former employer, Citic Pacific Mining Management Pty Ltd (Respondent). Permission to appeal is required for such an appeal and the matter was listed to hear from the parties as to whether permission should be granted.

[2] For the reasons that follow we have determined that permission to appeal should be refused.

[3] The decision at first instance records that the Appellant's employment was terminated for reasons related to events which occurred on 16 September 2024. On that day, the Appellant was involved in an interaction with a member of the public (Witness AB) in an elevator of the building in which the Respondent's work premises are located. The details of the events of that day were contested.

[4] The Appellant's version was that he was standing in the elevator when Witness AB spoke to him in a hostile way and ultimately physically assaulted the Appellant with her elbow or shoulder as she exited the elevator. The Appellant said that he reached out in the direction of Witness AB in a natural reaction of self-defence and his hand lightly brushed that person's shoulder.

[5] Witness AB gave a different version of events. She said the Appellant stood in the centre of the elevator obstructing access and egress. She said she had to squeeze past the Appellant to enter and exit the elevator as the Appellant refused her request to move. Witness AB said it was possible that she brushed against the Appellant as she exited the elevator given the Appellant's position and the confined space. She said as she exited the elevator she was pushed in the back and she heard a man say loudly "fuck off".

[6] A third person, Mr. Chong, was also in the elevator and witnessed the events. Mr. Chong gave evidence about what he saw and heard on that day.

[7] There was CCTV footage of the interaction in the elevator on 16 September 2024. That footage was tendered as evidence. Commissioner Lim also conducted an inspection of the elevator in the presence of both parties prior to the hearing.

[8] The Commissioner made an assessment of the credibility of the witnesses who gave evidence. The Commissioner concluded that the Appellant was not a credible witness and indicated that where there was a conflict between the evidence of the Appellant and the other witnesses, the Commissioner generally preferred the latter. The Commissioner concluded that the evidence of Witness AB, Mr. Chong and the CCTV footage aligned and that the Appellant deliberately pushed Witness AB with force and swore aggressively at her. Further, the Commissioner dealt with and rejected the argument that the conduct alleged could not constitute a valid reason for termination because it did not constitute a breach of the Respondent's Code of Conduct or 'behavioural expectations' and occurred outside of work hours and outside the workplace. The Commissioner concluded that there was a connection between the conduct and the employment and that the Respondent's interests had been damaged by the conduct. The Commissioner ultimately concluded that there was a valid reason for the Appellant's dismissal.

[9] The Commissioner's decision also dealt with the processes that were followed in effecting the termination of the Appellant's employment. The Commissioner concluded that the Appellant was not notified of the reason for his dismissal and was not given the opportunity to respond.[2] In relation to each of the other matters that the Commissioner was required to consider under s.387 of the Act, the Commissioner concluded that these were neutral factors in the assessment of whether the dismissal was harsh, unjust or unreasonable. At paragraph [93] of the decision the Commissioner concluded that notwithstanding the serious procedural deficiencies in the process followed to effect the termination, the valid reason for the termination outweighed this consideration and the dismissal was not unfair.

[10] The grounds of appeal advanced by the Appellant are lengthy. We have considered each of the grounds. It is unnecessary to set them out in full. The grounds are characterised by the Appellant as falling under two broad headings namely, significant errors of fact and errors of law.

[11] In summary form, the grounds contend that the significant errors of fact include:

• (i) Finding that there was a valid reason for the dismissal and that the dismissal was not unfair;

• (ii) Unreasonably placing excessive reliance upon certain factors and failing to take into account other relevant factors;

• (iii) Unreasonably or irrationally reaching conclusions, including those relating to;

  • (a) the events of 16 September 2024;
  • (b) whether the Respondent's interests were damaged by the events;
  • (c) the investigation process and the conclusion which should have followed from findings in relation to that process;
  • (d) the proportionality of dismissal as a response to the Appellant's conduct;
  • (e) the credibility of witnesses and the reliability of their evidence; and

• (iv) Failing to place any or sufficient weight on certain evidence favourable to the Appellant's interests.

[12] The alleged errors of law raised in the grounds include:

• (i) Failing to apply relevant principles developed by previous Full Bench decisions of the Commission;

• (ii) Failing to apply the Briginshaw standard in reaching conclusions as to alleged misconduct;

• (iii) Failing to properly consider the factors for determining whether the dismissal was harsh, unjust or unreasonable as set out in s.387 of the Act;

• (iv) Incorrect conclusions as to the credibility of witnesses;

• (v) Having little or no regard to the rules of evidence by relying on evidence of low probative value;

• (vi) Denial of natural justice by unreasonably not requiring written closing submissions;

• (vii) Denial of procedural fairness in restricting the Appellant's capacity to cross-examine a witness.

[13] The Appellant contended that it was in the public interest for permission to appeal to be granted for reasons which in summary form, include the following:

• (i) There was limited authority dealing with the importance of self-defence in cases involving an altercation amounting to alleged serious misconduct;
• (ii) There was actual or apprehended bias in that the Appellant was disbelieved by the Commissioner because of his gender and this required Full Bench guidance to ensure that decisions to dismiss are not affected by an apprehension of gender-based bias;
• (iii) The decision manifests an injustice because:
  • (a) it is not apparent from the decision that the Commissioner considered the Appellant's submissions;
  • (b) that the only reasonably available conclusion was that procedural deficiencies rendered the dismissal unfair;
  • (c) there was a clear apprehension of bias against the Appellant given the Respondent's admission that it was actively attempting to remove any form of violence against females and the Commissioner ought to have found that she had to be satisfied that the decision to terminate was not affected by sex discrimination or the result of a corporate culture that favoured females over males;
  • (d) The Commissioner's conclusion that the Appellant was an unreliable witness was not open to the Commissioner and undermines public confidence in the administration of justice.
• (iv) The Commissioner's decision is counterintuitive in that it pays little if any regard to important factors in the Appellant's case.
• (v) The Commissioner's decision is disharmonious when compared with other decisions of the Commission and its predecessor.

[14] There is no right to appeal a decision of the Commission. An appeal may only be made with the permission of the Commission.[3] Section 604(2) requires the Commission to grant permission to appeal if it is satisfied that it is in the public interest to do so.

[15] The decision subject to appeal was made under Part 3-2 - Unfair Dismissal - of the Fair Work Act 2009 (the Act). In matters of that kind, s.400(1) provides that the Commission must not grant permission to appeal unless it considers that it is 'in the public interest to do so'. Unlike appeals more generally,[4] here the Commission's satisfaction with respect to the public interest criterion is an essential requirement for the grant of permission to appeal. Further, in matters such as these, appeals on a question of fact may only be made on the ground that the decision involved a 'significant error of fact'.[5]

[16] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[6] The test has also been characterised as a "stringent one".[7] The public interest is not satisfied simply by the identification of error,[8] or a preference for a different result.[9]

[17] In GlaxoSmithKline Australia Pty Ltd v Makin, a Full Bench of the Commission identified some of the considerations that may attract the public interest:

"... the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters..."[10]

[18] It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of appealable error.[11] However, the fact that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.

[19] An application for permission to appeal is not a de facto or preliminary hearing of the appeal. In determining whether permission to appeal should be granted, it is unnecessary and inappropriate for the Full Bench to conduct a detailed examination of the grounds of appeal.[12]

[20] The first appeal ground takes issue with the Commissioner's central conclusions that the conduct which the Appellant was accused of did occur, that it constituted a valid reason for the dismissal and, when considered together with all other relevant factors, was a sufficient basis to come to a view that the dismissal was not unfair. The balance of the grounds of appeal that are characterised as significant errors of fact by the Appellant set out in greater detail alleged errors in relation to what is said to be the Commissioner's failure to take into account relevant matters, excessive reliance upon certain factors and the weight accorded to evidence. The grounds also take issue with various factual findings underpinning the Commissioner's ultimate conclusion.

[21] In our view the grounds advanced under this heading do not disclose an arguable case of appealable error. The Commissioner made an assessment of the credibility of witnesses and the veracity of the evidence that they gave and made findings that were relevant to the issues to be determined. We can discern no arguable case of appealable error in the approach adopted by Commissioner Lim. In substance, the Appellant's contentions of significant error rise no higher than disagreement with the Commissioner's factual findings and conclusions which followed from those findings.

[22] Nor are we persuaded that there is an arguable case that the Commissioner made an error of law as contended for by the Appellant. The Appellant submitted that the Commissioner made an error of law by failing to apply the principles set out by the Full Bench of the Commission in Newton v. Toll Transport Pty Ltd[13] (Newton) at paragraphs [171] to [175] of the decision. We disagree. The passages of the decision in Newton to which the Appellant refers dealt with a proposition raised in obiter comments at first instance to the effect that where the conduct in question in an unfair dismissal case involved fighting, the Commission would generally take the view that the dismissal would not be viewed as harsh, unjust or unreasonable. We agree with the Respondent that the circumstances in the present matter did not involve a "fight". But in any event, the Full Bench pointed out that the authorities did not support any 'decision rule' as the comments at first instance were described, and that the question of whether there is a valid reason in cases where there has been a physical altercation is to be determined having regard to all the relevant circumstances of the case. That is, with respect, precisely the approach adopted by Commissioner Lim.

[23] We are also not persuaded that there is an arguable case of an appealable error in the standard of proof applied or the consideration of the various factors that the Commission is required to take into account under s.387. The Commissioner explicitly engaged with each of the matters referred to in s.387, including a detailed consideration of whether there was a valid reason, and expressed a concluded view about each of those matters. There is nothing in the decision to suggest that the Commissioner misunderstood the statutory task required of her or applied an incorrect standard in reaching a view as to the evidence that was before the Commission.

[24] Further, we are of the view that there is no seriously arguable basis on which it could be said that the Commission's assessment of the credibility of witnesses discloses an error of law. Nor do we think that there is any substance in the suggestion that the Appellant was denied procedural fairness in the conduct of the matter at first instance. The Appellant was given every chance to present his case at the in-person hearing over the course of two days. That included the capacity to cross-examine key witnesses as determined by the Commission and make closing submissions orally.

[25] We conclude that no arguable case of appealable error has been demonstrated by the Appellant.

[26] We are also of the view that the appeal does not attract the public interest. In relation to the asserted lack of Commission authority where the issue of self-defence is raised by an applicant, we consider that given the Commissioner's clear findings in relation to the events of 16 September 2024, including that the Appellant deliberately pushed witness AB, and the express rejection of the submission that the Appellant was acting in self -defence,[14] we do not consider that this provides a sound public interest basis for granting permission to appeal.

[27] The contention that the Applicant was disbelieved by either the Respondent or the Commission because of his gender is wholly unsupported by any material before the Commission. It was rightly rejected by Commissioner Lim as rising "no further than conspiracy or speculation."[15] We accept the Respondent's submission that there is no reasonable or objective basis to assert that there was any gender bias in either the decision of the Respondent to dismiss the Appellant or the decision of Commissioner Lim. Accordingly, no support for the grant of permission to appeal on public interest grounds can be derived from this contention.

[28] Nor do we think that there is any basis to conclude that the decision manifests an injustice or is counter intuitive. The Commissioner considered and referred to the Appellant's arguments. The Appellant's application was dismissed because the Commissioner concluded that he engaged in aggressive and intentional conduct towards a member of the public and the Commissioner exercised a discretion to find that the valid reason outweighed how the Appellant's termination was effected. The Appellant's submission demonstrates no more than the preference for a different result.

[29] The decision of the Commissioner is not disharmonious with other decisions in this jurisdiction. The decisions referred to by the Appellant are distinguishable from the present matter.

[30] We do not consider that the grant of permission to appeal would be in the public interest on the basis of any of the grounds advanced by the Appellant, or at all.

By video using Microsoft Teams at 10:00am AEST on Wednesday, 9 July 2025.

[1] [2025] FWC 1471.

[3] Section 604(1).

[4] See s.604(2)

[5] Section 400(2).

[6] 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].

[7] Coal & Allied Mining Services v. Lawler (2011) 192 FCR 78 at [44].

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

[9] Ibid at [26]-[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].

[10] [2010] FWAFB 5343, 197 IR 266 at [24] - [27].

[11] Wan v AIRC [2001] FCA 1803; (2001) 116 FCR 481 at [30].

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

[13] [2021] FWCFB 3457

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