Fair Work Act 2009

s.604 - Appeal of decision

Appeal against decision [2025] FWC 3216 of Commissioner Simpson at Brisbane on 24 October 2025 in U2025/5323 - unfair dismissal decision on merits only - not in public interest to grant permission - permission to appeal refused

[1] OS MACP Pty Ltd (OS) has lodged an appeal under s 604 of the Fair Work Act 2009 (Act) against a decision of Commissioner Simpson issued on 24 October 2025 ( [2025] FWC 3216). In his decision, the Commissioner determined that Karl Mouat had been unfairly dismissed by OS, but did not determine the question of remedy. The Commissioner has scheduled a further hearing to consider that matter. In order to appeal from the Commissioner's decision, OS requires the Commission's permission under s 604. The appeal was listed for hearing in relation to the question of permission to appeal only.

[2] Section 400 of the Act applies to this appeal, because the Commissioner's decision was made under Part 3-2 of the Act. Section 400(1) states that the Commission must not grant permission to appeal unless it is in the public interest to do so. This test is a stringent one (see Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54 at [43]). Consideration of the public interest involves a broad value judgment. 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.

[3] The notice of appeal advances seven grounds upon which OS elaborated in its submissions. We will not recite these. Having reviewed the grounds, we are prepared to accept that the appeal raises at least arguable contentions of error for the purposes of an application for permission to appeal. However, we do not consider that it is in the public interest to grant permission to appeal in circumstances where the Commissioner is yet to determine what if any remedy will be awarded to Mr Mouat. The Commissioner's decision on the merits only is in the nature of an interlocutory decision. In this regard, we agree with the observations of the Full Bench in WorkPac Mining Pty Ltd v Botiki [2021] FWCFB 3325 (Workpac) at [26]. Contrary to the submission of OS, the Commissioner's decision did not finally dispose of Mr Mouat's right to seek an unfair dismissal remedy, because his application is only part-heard. Mr Mouat made an application under s 394(1), which allows a person who has been dismissed to apply to the Commission 'for an order under Division 4 granting a remedy'. The Commissioner's decision did not determine whether to grant a remedy. All that it determined was one step in the deliberative process. The decision affirmed the existence of a necessary condition for the making of a remedy order, namely that Mr Mouat was unfairly dismissed (see s 390(1)(b)).

[4] Appeals from interlocutory decisions are not encouraged because of their tendency to promote a multiplicity of appellate proceedings, which typically involve duplication, and waste time. For this reason, permission to appeal from interlocutory decisions is not usually granted (see for example Kennedy v Qantas Ground Services Pty Ltd [2019] FWCFB 2151 at [20]), and it will rarely be the case that an appeal from such a decision would attract the public interest (see Workpac at [24]). That the Commissioner's decision determined a substantive matter rather than a procedural one does not change its interlocutory character. It is not in the interests of the efficient administration of justice for appeals to be brought from substantive decisions that determine only one part of 'a broader controversy, the totality of which might rationally be the subject of a single appeal' (Milford v Coles Supply Chain Pty Ltd [2019] FWCFB 2277 at [17]).

[5] OS submitted that the general rationale behind refusing appeals from interlocutory decisions, which it said was to avoid expense and delay, was not present here because the Commissioner has indicated that he intends to hand down a remedy decision before the end of the year. OS appeared to envisage that an appeal from the remedy decision could be joined to its present appeal. This is doubtful, as the second appeal would require permission to appeal. But the submission merely demonstrates the real risk, if permission to appeal is granted, that there will be multiple appellate proceedings in respect of the one matter, which is wholly undesirable.

[6] OS said that it would be prejudiced by a refusal of permission to appeal because it may seek to reagitate its appeal grounds after the remedy decision and seek to stay any reinstatement order, and that as a condition of a stay it would likely be required to pay Mr Mouat during the stay, with little prospect of recovering these monies. Again, the submission reveals the risk of multiple proceedings. It is indeed foreseeable that a remedy may be ordered and that OS will wish to appeal from the order. The sensible and efficient course is for one appeal to be brought against the final disposition of the matter, addressing both merits and remedy. As to the alleged prejudice to OS associated with a stay, this would be the consequence of OS acceding to a condition. And any prejudice would be eclipsed by the likely waste of time and resources associated with multiple appeals if permission were granted.

[7] OS contended that granting permission to appeal was in the public interest because of the urgent need for it to address the Commissioner's adverse findings about its processes, as well as the Commissioner's credit findings against a witness. We see no urgency in these matters, or any reason why they engage the public interest rather than just private interests. OS contended that its appeal attracted the public interest because some of the alleged errors in the decision were jurisdictional and raise issues of general importance. But even if this may be accepted on an arguable basis, these considerations are comfortably outweighed by the disutility of granting permission to appeal from a decision that has determined that a dismissal was unfair but not the question of remedy.

[8] In unfair dismissal matters, the sensible and efficient approach is generally for an appeal to be brought once the application has been determined to finality. There is no prejudice to an appellant's appeal rights. It is well settled that in an appeal from a final decision, an appellate court can correct any interlocutory decision or order which affected the result (see Gerlach v Clifton Bricks Pty Limited (2002) 209 CLR 478). The same is true in the Commission. OS's application for permission to appeal risks the prospect of multiple appeals, bifurcation, duplication, and the inefficient use of the Commission's limited resources, all of which weigh strongly against a conclusion that granting permission to appeal is in the public interest.

[9] We do not consider that it is in the public interest to grant permission to appeal. We are therefore required by s 400(1) to refuse permission to appeal, and we do so.

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