Fair Work Act 2009

s.604 - Appeal of decisions

Appeal against decision [2025] FWC 1778 of Commissioner McKinnon at Sydney on 24 June 2025 in matter number U2025/3899 - permission to appeal refused

[1] Nicole Cassin has lodged an appeal under s 604 of the Fair Work Act 2009 (Act) against a decision of Commissioner McKinnon issued on 24 June 2025 ( [2025] FWC 1778). Ms Cassin requires the Commission's permission to appeal. The matter was listed before us in relation to permission to appeal only.

[2] The Commissioner's decision dismissed Ms Cassin's application for an unfair dismissal remedy under s 394 of the Act. The Commissioner addressed each of the matters that s 387 requires the Commission to take into account in deciding whether a dismissal was harsh, unjust or unreasonable. In particular, the Commissioner found that there was a valid reason for Ms Cassin's dismissal related to her conduct (s 387(a)) because she had breached her contractual duty to act in her employer's best interests by engaging in a competing business, to the employer's likely detriment. The Commissioner also found that Ms Cassin was notified of the reason for dismissal and provided with an opportunity to respond to it (ss 387(b) and (c)). The Commissioner noted that, although the dismissal process had been a short one, this was because of Ms Cassin's own conduct, and it was reasonable for the employer to act quickly to protect its position. The Commissioner rejected Ms Cassin's contention that she was denied procedural fairness. She found that the allegations had been clearly set out in writing, and that Ms Cassin had an opportunity to respond to them but chose not to. The Commissioner concluded that the dismissal was not harsh, unjust, or unreasonable, and was not unfair.

[3] An appeal may only be brought with the permission of the Commission under 604(1). Section 400 applies to this appeal, as the decision under appeal was made under Part 3-2. Section 400(1) states that the Commission must not grant permission to appeal unless it is in the public interest to do so. Section 400(2) states that an appeal on a question of fact can only be made on the ground that there was a significant error of fact. Consideration of the public interest involves a broad value judgment (Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [44]). Matters that may engage the public interest include issues of importance and general application, a diversity of decisions at first instance, or where the decision manifests an injustice (GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343; (2010) 197 IR 266).

[4] 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. 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 (Coal & Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 at 204). The fact that a member at first instance may have made an error is not necessarily a sufficient basis to grant permission to appeal.

Grounds of appeal and public interest contentions

[5] Ms Cassin's notice of appeal advanced six interrelated grounds on which she elaborated in her submissions. Ms Cassin's first ground contended that the Commissioner had misapplied s 387(c) of the Act because this requires an employee to be given an opportunity to respond to allegations before dismissal. In fact, what s 387(c) requires is that the Commission take into account whether the person was given such an opportunity. Clearly, the Commissioner did so. Ms Cassin said in her submissions that the Commissioner erred by stating at [35] that she had two days to respond to the allegations, when in fact she had only four hours to respond. But this misrepresents the Commissioner's findings. The Commissioner noted that the respondent raised its allegations with Ms Cassin in writing on 19 March 2025, and then restated them in a letter on 21 March 2025 which foreshadowed termination and sought an urgent response by 5.00pm that day (at [16] and [19]). There is no arguable case of error here.

[6] Secondly, Ms Cassin contended that she was given only four hours to respond to the serious allegations in the letter of 21 March 2025, which was inadequate and denied her a meaningful opportunity to respond. But the Commissioner considered that this 'short window' was not unreasonable in the circumstances, and that the opportunity to respond was a meaningful one. This conclusion appears to us to have been comfortably open on the evidence. As the Commissioner noted, dismissal procedures are often shorter in cases of serious misconduct.

[7] Thirdly, Ms Cassin said that in finding that the short timeframe was reasonable, the Commissioner did not consider the seriousness and complexity of the allegations, the absence of any discussion about them, her lack of representation, or the fact that she was trying to obtain legal advice. We see no arguable error here. The Commissioner did consider the nature of the allegations, which she addressed in her decision. Further, none of the matters referred to by Ms Cassin were mandatory considerations or required particular weight to be afforded to them.

[8] Fourthly, Ms Cassin asserted that various case authorities confirmed that she had been denied procedural fairness. This contention is not arguable. The Commissioner considered that the employer had afforded Ms Cassin a genuine opportunity to respond, as contemplated by Crozier v Palazzo Corporation Pty Ltd 98 IR 137; and the other cases that Ms Cassin refers to dealt with their own facts. Whether an opportunity to respond to allegations was a reasonable one, and what if any weight is to be afforded to this matter, are matters in respect of which a member must make an assessment and has a margin of discretion. We perceive no error in the Commissioner's approach. Contrary to the fifth ground of appeal, we do not consider it arguable that the Commissioner misapplied s 387(c) by treating the brief window for a response as sufficient. Ms Cassin disagrees with the Commissioner's assessment of the adequacy of the opportunity to respond, but there is no arguable mistake. The final appeal ground is that the dismissal was found to be unfair despite a clear denial of natural justice. But this is a mere assertion that is not based upon any arguable error.

[9] Ms Cassin sought to adduce new evidence in the form of a letter from her lawyers confirming that she had sought advice about the allegations letter of 21 March 2025 but that there was insufficient time for them to respond. We refuse to admit the evidence under s 607, having regard to the principles in Akins v National Australia Bank [1994] 34 NSWLR 155. No reason is given as to why the new evidence could not reasonably have been obtained for the proceeding at first instance. Further, we fail to see how the letter could have materially assisted Ms Cassin's case. Had we admitted the letter, it would not have affected our conclusion.

[10] Ms Cassin said that her appeal was of general importance and attracted the public interest, including because it raised the question of 'how short is too short' for response times in dismissal procedures, and because the decision set a precedent that employers need not provide meaningful response times. We disagree. Ms Cassin's case turned on its own facts; the appeal could not determine generally 'how short is too short'; and the decision does not set a precedent of the kind asserted, as the Commissioner explicitly determined, for cogent reasons, that the opportunity to respond was indeed meaningful.

[11] We do not consider that it is in the public interest to grant permission to appeal. As required be s 400(1), permission to appeal is therefore refused.

R. Hanekom for Neta Care Holistic Health Services Limited

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