Fair Work Act 2009

s.604 - Appeal of decision

Appeal against decision [2025] FWC 453 and order PR784387 of Deputy President Anderson at Adelaide on 14 February 2025 in matter number U2024/10963 - permission to appeal refused.

[1] Mr Navin Chandra has lodged an appeal pursuant to s 604 of the Fair Work Act 2009 (Cth) (Act) for which permission to appeal is required against a decision[1] and order[2] of Deputy President Anderson issued on 14 February 2025. The decision dealt with an application made by Mr Chandra against Lambert Estate Wines Pty Ltd pursuant to s 394 of the Act for an unfair dismissal remedy.

[2] Mr Chandra was employed by the respondent as Finance and Administration Manager until 13 September 2024. Mr Chandra's employment was terminated on performance grounds. In the decision, the Deputy President concluded that Mr Chandra's dismissal was not harsh, unjust or unreasonable and dismissed the application.

[3] Mr Chandra's application was listed for permission to appeal only. The parties consented to the application being determined without holding a hearing under s 607(1)(b) of the Act. We are satisfied, having regard to s 607(1)(a), that the question of permission to appeal can be adequately determined without the need for oral submissions. For the reasons that follow, permission to appeal is refused.

[4] In the decision, the Deputy President summarised the evidence given by Mr Chandra and the respondent's President, Mr Kirk Lambert. Noting the volume of material before him, the Deputy President then proceeded by providing a considered summary of the relevant factual circumstances leading to the application being made.

[5] Before the Deputy President, Mr Chandra contended (in summary) that he was required to perform tasks that went beyond the duties reasonably required of his role and that any mistakes were not significant. Where payroll errors occurred, Mr Chandra submitted that they were minor, recoverable and attributed blame to other employees. Mr Chandra contended that the criticisms as to his failure to complete required work or his lack of responsiveness were unreasonable, and the dismissal was premature. Further, Mr Chandra said that he was denied procedural fairness and that his dismissal was predetermined by the respondent.

[6] The Deputy President comprehensively considered each of Mr Chandra's contentions. Given the important responsibilities Mr Chandra had in managing the business finances, the Deputy President ultimately concluded that the combined effect of the performance deficiencies demonstrated by the evidence gave rise to a valid reason for Mr Chandra's dismissal.

[7] The Deputy President further concluded that Mr Chandra's conduct in misappropriating documents (including financial records) from the respondent amounted to misconduct and also gave rise to a valid reason for the dismissal. While there were some identified deficiencies in the process adopted by the respondent, the Deputy President did not find that Mr Chandra was denied procedural fairness or that those deficiencies were sufficient such as to characterise the dismissal as unfair.

[8] Being satisfied that Mr Chandra's dismissal was not harsh, unjust or unreasonable, the Deputy President dismissed the application for an unfair dismissal remedy.

[9] There is no right to appeal and an appeal may only be made with the permission of the Commission. This appeal is from a decision made under Part 3-2 of the Act and therefore s 400 of the Act applies. By s 400(1), the Commission must not grant permission to appeal unless it is in the public interest to do so. Section 400(2) provides that an appeal on a question of fact can only be on the ground that the decision involved a significant error of fact. The test under s 400 is "a stringent one."[3]

[10] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[4] The public interest is not satisfied simply by the identification of error or a preference for a different result.[5] Considerations that may attract the public interest include that the matter raises issues of importance and general application, that the decision manifests an injustice or that the result is counterintuitive.[6]

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

[12] An application for permission to appeal is not a preliminary hearing of the appeal. In determining whether to grant permission to appeal, it is unnecessary and inappropriate to conduct a detailed examination of the appeal grounds.[7] However, it is necessary to engage with the grounds to consider whether they raise an arguable case of appealable error.

[13] Having regard to his Form F7 Notice of Appeal and outline of submissions, Mr Chandra's grounds of appeal may be summarised as follows:

• (1) The decision did not mention that the respondent did not provide any statements of evidence to substantiate its position.

• (2) Mrs Lambert was not present on the final day therefore no cross examination could occur.

• (3) Most of the performance allegations were set out by email and the respondent failed to produce evidence in support of the claims made in the emails.

• (4) The decision did not take into consideration that the respondent lacked basic human resource management practices.

• (5) The decision did not address Mr Chandra's submission that there had been a breach of the Form F52 production order.

• (6) Paragraph [10] of the decision "appears to be leaning towards bias" given its focus on communication dialogue styles rather than the facts.

• (7) Paragraphs [177], [178] and [204] of the decision demonstrate that the Deputy President allowed Mr Chandra to tender "some of the documents he had collected" and then referred to Mr Chandra's action as misconduct.

• (8) Paragraphs [174] and [191] of the decision did not take into consideration the psychological effect on Mr Chandra's mental health and therefore his performance.

• (9) The respondent failed to produce its grievance procedure.

[14] Mr Chandra submits that it is in the public interest to grant permission to appeal because his employment contract does not deal with the responsibilities of his role by reference to a job description or the duties in the job advertisement. By holding Mr Chandra to the duties identified in a job advertisement could be precedent setting and this issue requires appellate review and clarification.

[15] We do not consider that the grounds of appeal demonstrate an arguable case of appealable error for reasons that may be briefly stated.

[16] The contention by ground (1) that the respondent did not produce statements of evidence cannot be sustained having regard to the witness statement of Mr Lambert,[8] which Mr Chandra provided a written response to. As to ground (2), at [15] of the decision the Deputy President addressed that the respondent did not call Mrs Lambert to give evidence. Accordingly, Mrs Lambert would not have been available for cross examination, regardless of whether she had been present on the second day of the hearing or not. Had Mr Chandra specifically sought to cross examine Mrs Lambert, it was open to him to make an application for an order compelling Mrs Lambert (or any other person) to give evidence. There is no material before us indicating that any such application was made. Accordingly, this is not a matter that gives rise to any arguable error by the Deputy President.

[17] Grounds (3) and (9) are directed to alleged failings in the manner with which the respondent presented its case at first instance. This was a matter for the respondent. These grounds do not allege any error in the decision under appeal. As to ground (4), the respondent's "limited" human resources capacity was considered at paragraph [200] of the decision. The Deputy President gave this matter the weight he considered appropriate. The contention that the decision did not take into consideration this matter is therefore not arguable.

[18] As to ground (5), the Deputy President recorded his satisfaction at paragraph [6] of the decision that the parties promptly complied with the production orders issued by the Commission. The Deputy President was not required to deal specifically with every submission in the decision where it concerned matters that were not relevant to his dispositive reasoning.

[19] As is conventional, by paragraph [10] of the decision, the Deputy President provided observations as to the manner in which the evidence was given before him, including witness demeanour. We do not accept that this demonstrates a bias against Mr Chandra (ground (6)). There is no material to support a conclusion that the Deputy President did not act impartially.

[20] The contention raised by ground (7) discloses no arguable error. Paragraphs [62]-[63] of the decision records the circumstances of the 7 November 2024 production proceedings in which Mr Chandra disclosed taking copies of the respondent's financial documents for his own purposes. In concluding that this amounted to misconduct (thereby giving rise to a further valid reason for Mr Chandra's dismissal), it was open to the Deputy President to take this conduct into account and apply the well settled principle that a valid reason need not be the one that was relied upon by the employer at the time of dismissal.[9]

[21] As to ground (8), Mr Chandra's evidence at first instance was broadly that the employment circumstances created uncertainty and emotional distress for him.[10] We have not been taken to any evidence supporting Mr Chandra's contention on appeal that the events had a psychological effect on his mental health. No arguable case of error arises from the Deputy President not taking into consideration evidence of psychological effects that was not before him.

[22] For the reasons given, we do not consider that an arguable case has been advanced that the decision was attended by appealable error. Nor are we satisfied, for the purposes of s 400(1) of the Act, that the appeal attracts the public interest. The appeal does not raise any genuine issue of law, principle or wider application. It follows that we must refuse permission to appeal.

[1] [2025] FWC 453

[2] PR784387

[3] Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54; 192 FCR 78; 207 IR 177 at [34] and [43]

[4] 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]

[5] GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343; 197 IR 266 at [24]- [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]

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

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

[9] See Shepherd v Felt & Textiles of Australia Ltd [1931] HCA 21, per Starke J

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