Fair Work Act 2009

s.604 - Appeal of decisions

Appeal against decision [2025] FWC 2572 of Commissioner Tran at Melbourne on 2 September 2025 in matter number U2025/1780 - Alleged failure to accord sufficient weight to some matters - Alleged factual errors - Not in the public interest to grant permission to appeal - Permission to appeal refused.

[1] Nicholas Fletcher has lodged an appeal under s 604 of the Fair Work Act 2009 (Cth) (the Act) against a decision[1] of Commissioner Tran (the Decision) delivered on 2 September 2025. In the Decision, the Commissioner dismissed Mr Fletcher's application for an unfair dismissal remedy against the respondent, Gordon House Management Pty Ltd.

[2] The respondent manages accommodation and has an onsite café at a boutique accommodation facility in central Melbourne. Mr Fletcher was responsible for managing the onsite café. He had been employed since May 2015 initially as a casual employee and then as a full-time employee from 2016 in the role of Operations Manager. He was made General Manager in June 2024 and held that position until he was dismissed.

[3] As set out in the Decision, the circumstances leading to Mr Fletcher's dismissal arose from three separate incidents. The first two concerned incomplete cash reconciliations for the café. For avoidance of doubt, there was no suggestion of dishonesty but, rather, the case was put on the basis that Mr Fletcher seemed unable to control or record the costs, and to manage the café in such a way as to become profitable. The third matter concerned an unauthorised access to an area known as 'Lot 24' and changing the locks for access to that area.

[4] Turning to the factors in s 387 of the Act, the Commissioner recorded her conclusions in an orthodox fashion, giving specific consideration to each of the factors in s 387(a)-(h). The Commissioner ultimately preferred the employer's evidence on the three reasons in dispute that led to the dismissal, including a detailed explanation of her findings. The Commissioner concluded that, when the three reasons were taken together, they formed a valid reason for Mr Fletcher's dismissal.

[5] The Commissioner was also satisfied that Mr Fletcher had been adequately notified about these matters and given an opportunity to respond to them, and her finding included a factual rejection of Mr Fletcher's contention that he was dismissed for 'not replying to one letter'. The Commissioner found that there was no refusal to permit Mr Fletcher to have a support person. In relation to any warnings given for performance concerns, the Commissioner was satisfied that Mr Fletcher was warned about his unsatisfactory performance in relation to the cash reconciliation matters. The respondent group company did not have any dedicated human resources staff. The Commissioner found that this lack of expertise had an impact on the procedures that were followed, but it did not weigh greatly in favour nor against a finding that the dismissal was harsh, unjust, or unreasonable.

[6] In relation to the final element of s 387 - which addresses any other matters that the Commission considers relevant - the Commissioner was not persuaded by Mr Fletcher's contention that there was a hostile work environment. A further issue was that Mr Fletcher was dismissed while on sick leave. The employer did not delay its decision to terminate Mr Fletcher's employment because it had a suspicion that Mr Fletcher was using his sick leave because he was unable to answer the questions about the reconciliations. As Mr Fletcher was dismissed while on sick leave, the Commissioner concluded that was a matter that weighed in favour of the dismissal being unjust. However, the Commissioner also concluded that this issue did not weigh so greatly in favour of a finding that the dismissal was unjust as to outweigh the other factors the Commissioner had already made conclusions upon. We note that the Commissioner also concluded that any opportunity to respond to the employer's further suspicion about the reasons for Mr Fletcher being off work 'may have - at most - delayed the dismissal'.

[7] Ultimately, the Commissioner concluded that Mr Fletcher's dismissal was not harsh, unjust or unreasonable taking into account her conclusions regarding the factors in s 387 of the Act and Mr Fletcher's application was dismissed.

[8] There is no right to appeal, and an appeal may only be made with the permission of the Commission. 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. 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.[2] However, it is necessary to engage with the grounds to consider whether they raise an arguable case of appealable error.

[9] Section 400 of the Act applies to this appeal, as it is from a decision made under Part 3-2 of the Act. 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] 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]

[10] We also note that Mr Fletcher sought to adduce new evidence on appeal. That material included a payslip, some medical reports and a statement that appears to have been prepared in relation to an application for a worker's compensation claim. We provisionally allowed the material to be received at the hearing, although we expressed our view at the time that it might not be relevant. Having regard to our reasons below and having further considered the material, we are not satisfied it is sufficiently relevant to the appeal and leave to rely upon it as further evidence on appeal under s 607(2) of the Act is declined.[7] Our conclusions below would not change if the material was admitted.

[11] There were six grounds of appeal listed in Mr Fletcher's notice of appeal, namely:

• Dismissal while on sick leave. Mr Fletcher contends that the Commissioner 'minimised [the] significance, contrary to statutory protections' in s 352 of the Act.

• Procedural fairness. Mr Fletcher contends that he was denied the chance to respond to the suspicion that his sick leave was illegitimate, which he states 'was central to [the] dismissal'.

• The Lot 24 lock. Mr Fletcher contends that he was expressly instructed to change the locks on Lot 24 believing the lease was secured. He says that as he had changed '100+ locks' previously (with authorisation), the focus 'on one lock [was] opportunistic and inconsistent with [his] normal duties'.

• Cash reconciliation issues. Mr Fletcher appears to accept there were discrepancies but says that 'Systemic failures caused discrepancies (no training until late August 2024, faulty EFTPOS, creditor delays, use of my personal card)'.

• Harshness. Mr Fletcher says that he had over nine years' service across the group, he relied on the employer for his housing and had workplace-related health issues. Mr Fletcher alleges the consequences of dismissal were 'not properly weighed'.

• Accrued sick leave. Mr Fletcher says the employer benefited opportunistically by terminating him during a certified absence, extinguishing his ability to use that entitlement and avoiding a prolonged authorised absence (which he says was approximately 32 weeks). Mr Fletcher says the Commissioner failed to consider this material factor.

[12] Mr Fletcher also filed written submissions with his appeal grounds. His submissions mostly overlapped with the grounds in his notice of appeal but also gave some extra detail that is not necessary to set out. There were two additional (or substantially expanded) matters raised in the submissions that were not in the notice of appeal. The first alleged errors for failing to consider relevant considerations going to harshness. Those matters broadly included allegations of bullying and alleged corporate misconduct. The second issue concerned an alleged failure to properly consider 'company deception and systematic failings'. This second "additional" issue substantially overlaps with the "cash reconciliation issues" referred above.

[13] Mr Fletcher's appeal grounds can be broadly categorised as an alleged failure to accord weight to a relevant matter, failing to consider a relevant matter, and errors of fact. No category raises any issue of arguable error. On the issues of weight and the consideration of matters, Mr Fletcher's complaint is really that the Commissioner did not accord sufficient weight to the matters he raises. An alleged failure to accord sufficient weight to a relevant consideration is not, in itself, sufficient to demonstrate appealable error. The Commissioner was required to 'take into account' the various factors in s 387(a)-(h) of the Act and she clearly did so. It was for the Commissioner to determine the appropriate weight given to the various factors,[8] which she also did. That Mr Fletcher disagrees with the extent of weight the Commissioner gave to any particular factor, either alone or in the context of any other relevant matter, raises no arguable error.

[14] In relation to the alleged factual errors, the grounds of appeal are in substance an attempt to relitigate his case before the Full Bench. The Commissioner made careful factual findings based on contested witness evidence, which clearly included her assessment of those witnesses. Where an error of fact is alleged, an appellate body will not interfere with the factual findings of a trial decision-maker unless it is concluded that a finding cannot stand because it was contrary to incontrovertible facts or uncontradicted testimony, glaringly improbable, or contrary to compelling inferences, at least in circumstances in which the findings are likely to have been affected by impressions formed by seeing and hearing the evidence being given.[9] Additionally, an appeal alleging a factual error arising from an unfair dismissal decision can be made only on the ground that the decision involved a 'significant' error of fact. There is no material before us to indicate any error of this nature and, respectfully, the Commissioner's factual findings were clearly open on the evidence.

[15] In his notice of appeal, Mr Fletcher states that the public interest in granting permission to appeal arises because the 'case raises important questions about the scope of protections under s 352 of the Fair Work Act'. Mr Fletcher also states that the 'decision lowers the procedural fairness standard by excusing dismissal based on untested suspicion', 'it has broader implications for managers being dismissed for reconciliation issues arising from systemic employer failings' and 'the failure to address the employer's opportunistic benefit from accrued sick leave undermines confidence in the fairness of the system'.

[16] Without repeating at length our earlier observations, the gravamen of Mr Fletcher's complaint is an attempt to relitigate the hearing at first instance. It will commonly not be in the public interest to grant permission to appeal in an unfair dismissal case where the grounds of appeal, in substance, do no more than seek to relitigate the factual findings made at first instance.[10] In our view, the appeal does not raise any matter or issue of importance or general application which might attract a grant of permission to appeal. For those reasons, we are not satisfied that any issue of public interest is enlivened in this matter. In circumstances where we are not persuaded that it is in the public interest to grant permission to appeal, permission to appeal must be refused in accordance with s 400(1) of the Act.

[17] For the reasons given above, permission to appeal is refused.

C Banson appeared for Gordon House Management Pty Ltd.

[1] Fletcher v Gordon House Management Pty Ltd [2025] FWC 2572.

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

[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 applied in Hogan v Hinch (2011) 243 CLR 506 at [69] and Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCA 54; (2011) 192 FCR 78 at [44]- [46].

[5] GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343; (2010) 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; (2010) 197 IR 266 at [24]- [27].

[7] Akins v National Australia Bank (1994) 34 NSWLR 155 at 160.

[8] Friends of Hinchinbrook Society Inc v Minister for Environment (No 3) (1997) 77 FCR 153 at 187-188 (Hill J).

[9] Fox v Percy [2003] HCA 22; (2003) 214 CLR 118; at [27]-[29]; Robinson Helicopter Co Inc v McDermott [2016] HCA 22; (2016) 90 ALJR 679 at [43]; Lee v Lee [2019] HCA 28; (2019) 266 CLR 129 at [55]; University of Melbourne v Matthai [2026] FWCFB 42 at [31].

[10] Illawarra Coal Holdings Pty Ltd (t/as South32) v Sleiman [2024] FWCFB 364 at [36]- [40].

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