Fair Work Act 2009

s.604 - Appeal of decisions

Appeal against decision [2025] FWC 3518 of Commissioner Clarke at Melbourne on 24 November 2025 in matter number C2025/7364

[1] This decision concerns an appeal that has been lodged by Mr. Robert Taylor under s.604 of the Fair Work Act 2009 (Act) against a decision of Commissioner Clarke made on 24 November 2025[1] in which the Commissioner determined not to grant a further period of time for Mr. Taylor to bring his general protections application under s.365 of the Act and dismissed his application. The matter was listed before us to deal with the issue of permission to appeal only.

[2] Pursuant to s.366(1) of the Act, an application under s 365 must be made within 21 days after the dismissal took effect, or within such further period as the Commission allows. Section 366(2) provides that the Commission may allow a further period if it is satisfied that there are exceptional circumstances, taking into account the matters in ss 366(2)(a) to (e). Mr Taylor's employment ended on 27 June 2025. His application was filed on 28 July 2025, 10 days outside the 21-day period. He asked the Commissioner to allow a further period.

[3] In his decision, the Commissioner addressed the mandatory considerations in s.366(2) and Mr. Taylor's arguments in respect of each of them. As to the reasons for the delay (s. 366(2)(a)), the Commissioner noted Mr. Taylor's submission that he had initially commenced an unfair dismissal application within the 21-day period, but that he had not served the minimum employment period, a requirement that Mr. Taylor believed could be waived by the Commission. The Commissioner said that this was not a case where an applicant had simply used an incorrect form, as had occurred in Hambridge v Spotless Facilities Services[2] (Hambridge), because Mr. Taylor's unfair dismissal application did not contain allegations or material facts that were relevant to a general protections claim; rather, under the heading "Desired outcome' in section 3 of the form, the application made only limited reference to 'Consideration of general protections, if the Commission determines that my dismissal was influenced by' the exercise of workplace rights or discriminatory factors such as age. The Commissioner also noted that the accompanying submission and annexures did not expand on what was included in the application in relation to general protections but requested the Commission consider whether the circumstances could also give rise to a general protections claim. The Commissioner concluded that Mr. Taylor misapprehended the significance of the minimum employment period in an unfair dismissal application and misapprehended that he would be permitted to change course by a simple amendment. He said that the appellant had thereafter brought a fundamentally different claim in the form of a general protections application. The Commissioner noted that Mr. Taylor had acted promptly once he became aware of his mistakes and accepted that Mr. Taylor had acted in good faith.

[4] In respect of the other matters in s.366(2), the Commissioner recorded that Mr. Taylor had taken action to dispute his dismissal (s.366(2)(b)), and that the respondent had conceded that it would not be prejudiced by an extension of time (s.366(2)(c)). The Commissioner considered the merits of Mr Taylor's application (s.366(2)(d)) to be a neutral consideration, noting the presumption to which Mr Taylor was entitled under s.361 of the Act. The Commissioner did not consider that the matter in s.366(2)(e) - fairness as between Mr Taylor and other persons in a like position - to be relevant. The Commissioner did not consider that there were exceptional circumstances, either individually or collectively, and concluded that the discretion to grant an extension of time was not enlivened.

[5] Mr. Taylor requires the Commission's permission to appeal from the Commissioner'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.[3] 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.[4] 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.[5] 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.[6] The fact that a member at first instance may have made an error is not necessarily a sufficient basis to grant permission to appeal.

[6] Mr. Taylor's Notice of Appeal prosecutes ten grounds. The first and second grounds contend that the Commissioner failed to consider the written submissions that had accompanied his unfair dismissal application, which were the same as the submissions attached to his form F8, and that the Commissioner was wrong to conclude that the unfair dismissal application did not contain the characteristics of a general protections claim. We see no arguable error here. The Commissioner concluded that Mr. Taylor's general protections claim set out the basis of his claim in a materially different way to the unfair dismissal application. It appears to us that the Commissioner's views on this matter were comfortably open to him, including in particular that this was not a case of an applicant simply using an incorrect form and that the circumstances here were distinguishable from those in Hambridge.

[7] The third appeal ground submitted that the Commissioner failed to address Mr. Taylor's request for a waiver of the minimum employment period that Mr. Taylor made in his unfair dismissal application. This ground is misconceived. As the Commissioner explained, the Act does not allow for the period to be waived. In any event, Mr. Taylor had elected to discontinue the unfair dismissal application and pursue a general protections claim. The minimum employment period is not relevant to a general protections claim. There is no arguable case of appealable error disclosed in this ground.

[8] Mr. Taylor's fourth appeal ground submitted that the Commissioner failed to consider his procedural objections, including his objection to the respondent's request for an extension of time to file its materials, and his objections to the hearing book, but these objections appear to us to have related to minor inconsequential matters. Mr. Taylor said that he did not receive any guidance from the Commissioner, despite being a self-represented litigant, but he does not identify what if any guidance he actually sought or what guidance he should have been given. We see no indication of any 'unequal communication' with the parties during the hearing, as Mr. Taylor alleged in this ground of appeal. There is no arguable case of a denial of procedural fairness, or any other appealable error associated with ground 4.

[9] Appeal ground 5 contended that there was an internal inconsistency between the Commissioner's decision to mark Mr. Taylor's submission as evidence in the proceeding (recorded at [7]) and his determination at [15] that there were no allegations in the unfair dismissal application that were relevant to a general protections claim. Contrary to Mr. Taylor's apparent understanding, the marking of a submission or statement as an exhibit does not connote the acceptance of its content. In any event as we have stated above, we do not discern any error in the assessment made by the Commissioner as to the substance of the two applications. There is no arguable contradiction. Mr. Taylor's sixth ground of appeal stated that the Commission had erroneously distinguished his case from Hambridge, but plainly the two cases are very different and there is no basis to contend that there was an appealable error in this respect.

[10] Ground 7 submitted that the Commissioner had improperly allowed the respondent's submissions about his professional experience (Mr. Taylor is a lawyer who was employed by the respondent as corporate counsel) to shape the reasoning of the decision. In fact, the Commissioner simply refers to Mr. Taylor's qualifications in his decision and said at [24] that the conclusion not to extend time "is comfortably reached without resort to the Respondent's exhortations to apply a higher standard to the Applicant in light of his professional qualifications and history". This ground is misconceived and does not disclose an arguable case of appealable error.

[11] Mr. Taylor's eighth appeal ground stated that the Commissioner had failed to engage with, or rejected, his 'uncontradicted sworn evidence'. The Commissioner did engage with his evidence at [9]-[11] of the decision. Mr. Taylor does not explain which parts of his uncontradicted evidence the Commissioner rejected. No appealable error has been identified under this heading.

[12] Ground 9 contended that the proceeding was affected by procedural unfairness because the Commissioner treated the parties differently, including by affording Mr. Taylor less engagement and courtesy than the respondent. We find this ground to be vague and general. Our review of the materials does not detect any denial of procedural fairness; on the contrary, it appears to us that Mr. Taylor had a fair and reasonable opportunity to be heard. The tenth appeal ground asserted that the outcome was one that no reasonable decision maker could have reached. In our view, this contention is not remotely arguable. We find the outcome unsurprising.

[13] Mr Taylor's notice of appeal and submissions do not present any arguable case of error in the decision under appeal. The Commissioner considered each of the mandatory factors in the usual way and reached conclusions, including in respect of his ultimate disposition of the matter, that appear to us to have been comfortably open. We are not satisfied that it is in the public interest to grant permission to appeal. None of the matters referred to in Makin is present in this case and the public interest is not engaged in any other way, nor do we consider that there is any reason to grant permission to appeal on general discretionary grounds.

[14]

Mr W Spargo, of Lander & Rogers, appearing with permission on behalf of the Respondent

[1] [2025] FWC 3518.

[2] [2017] FWCFB 2811.

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

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

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

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

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