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[2025] FWCFB 184
General information, not legal advice.
Fair Work Commission (Full Bench)
2025-08-20
Original judgment source is linked above.
s.604 - Appeal of decisions
Appeal against decision [2025] FWC 1667 of Commissioner Fox at Melbourne on 24 June 2025 in matter number C2025/122 and order PR788451 - permission to appeal refused.
[2] Mr Morrison's employment was terminated for redundancy in 2023. The Commissioner found the employment terminated on 29 May 2023, but Mr Morrison says it terminated on the day he received the termination letter, which he says was 16 June 2023. In any event he did not lodge his application until 8 January 2025. Based on the termination date of May 2023, the Commissioner calculated that the application was lodged 569 days after the 21 day time limit provided for by section 366 of the Fair Work Act.
[3] On 26 May 2025, the Commissioner conducted a determinative conference for the purposes of deciding whether to extend time. She issued her decision on 24 June 2025, finding that she was not satisfied that there were exceptional circumstances warranting an extension. The Commissioner refused to extend time and dismissed Mr Morrison's application.
[4] After Mr Morrison filed his notice of appeal, he subsequently provided an amended notice and then a further amended notice. We have taken the latter into account. If permission to appeal is granted Mr Morrison intends to rely on several appeal grounds, alleging various errors of fact, incorrect application of principle, and prejudice on the part of the Commissioner.
[5] The application for permission to appeal was determined on the papers. The parties had been given an indication to seek an oral hearing if they wished to do so.
[6] The Commission had regard to section 366(2) of the Fair Work Act, which provides that the Commission's discretion to extend time is enlivened if the Commission is satisfied there are exceptional circumstances. That subsection requires the Commission to take into account:
(b) any action taken by the person to dispute the dismissal; and
(c) prejudice to the employer (including prejudice caused by the delay); and
(e) fairness as between the person and other persons in a like position.
[7] The Commission, at first instance, took each of these considerations in turn, finding two of them weighed against a finding of exceptional circumstances, and three were neutral. The adverse considerations were the reason for the delay, and the prejudice to the employer. After taking into account the considerations the Commissioner was not satisfied there were exceptional circumstances, and, as indicated above, declined to extend time, dismissing the application.
[8] Mr Morrison's notice of appeal lists fourteen grounds. Taken together they essentially amount to complaints that:
the Commissioner did not take into account relevant facts or failed to give them sufficient weight (grounds 1, 2, 3, 5, 8, and B3);
the Commissioner erred in fact (ground 10, B1, B2);
the Commissioner erred by excluding a second corporate entity from being a respondent in the proceedings (ground 4);
the Commissioner was not objective because she referred to Mr Morrison's use of artificial intelligence (ground 6), and because she used language and reasoning in her decision that was the same as had appeared in the Respondent's submissions (ground 10);
the Commissioner failed to afford procedural fairness in that the Respondent was able to change their legal representation without notice (ground 7), in cutting him off when he attempted to reply to remarks made by the respondent's counsel (ground 9),
• the Commissioner failed to follow Ali Qureshi v Spotless Services Australia Ltd [2023] FWC 2411 (ground 11),[3] which he referred to as a "Full Bench" decision.
[9] On the question of permission to appeal, Mr Morrison contends that it would be in the public interest in reliance on twelve grounds, many of which traversed the same areas as those set out in the appeal grounds.
[10] Mr Morrison filed submissions on 28 July 2025. His written submissions elaborated on his appeal grounds and public interest grounds. They also sought to raise new issues beyond those on appeal, including a fresh allegation of potential gender bias. Mr Morrison did not seek, and we have not granted, leave to raise matters beyond those in the notice of appeal.
[11] Under s 604(2) of the Fair Work Act, we are required to grant permission to appeal if we are satisfied that it is in the public interest to do so. We may otherwise grant permission on discretionary grounds.
[12] 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 (Makin) at [27]).
[13] 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.
[14] It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of appealable error.[4] Also, the fact that a member at first instance may have made an error is not necessarily a sufficient basis to grant permission to appeal.
[15] Mr Morrison's appeal fails to establish an arguable case of appealable error, with a minor exception dealt with below. The Commissioner found that Mr Morrison had not been aware of the option of pursuing a claim such as this until late December 2024, and had filed it on 8 January 2025. She took into account the reason Mr Morrison gave for being unaware of this option. She took into account the evidence about Mr Morrison's incapacity. She dealt with the issue of the amendment to the name of the Respondent. The findings she made in relation to these matters were open to her on the evidence, so we do not accept there is an arguable case of appealable error in that regard. Mr Morrison disagrees with how the Commissioner weighed the relevant matters, and he considers her to have been dismissive of the medical evidence. It is inherent in the Commission's functions that evidence, including expert evidence, is considered and weighed. Mr Morrison's disagreement with the Commissioner's consideration of the evidence does not establish an arguable case of appealable error.
[16] The notice of appeal includes grounds asserting the Commissioner erred in fact. Ground 10 goes to the finding related to Mr Morrison's capacity to make the application, in respect of which Mr Morrison takes issue with the Commissioner's reliance on his participation in AAT proceedings and his tertiary study. The Commissioner's finding that Mr Morrison had "participated in" AAT proceedings was open to her. Her finding that Mr Morrison had "partially completed" a Diploma was open to her.
[17] Mr Morrison also states that a significant error of fact was that "redundancy" had not been referred to in the termination letter, and says it was introduced later by the Respondent's barrister. He says this undermined the employer's credibility and should have been treated as procedural confusion. This is ground B2 and it is not clear how this is said to be a significant error of fact by the Commission. We discern from it that Mr Morrison is saying the Commission decided that redundancy was the reason for the dismissal, and that this was an error.
[18] The termination letter that was before the Commission clearly expressed that the employment was being terminated because as a result of the sale of the business, Mr Morrison's position was no longer required by the purchaser. This being a general protections dismissal claim, the reason for the termination is in contest. The Commissioner's decision recorded that Mr Morrison's application had asserted that the dismissal had been in breach of sections 340 and 351 of the Fair Work Act. When considering the merits of the application in the context of the extension of time application, she explicitly did not determine or offer a provisional view as to whether the dismissal had been for redundancy. Instead, she made an orthodox finding that she did not have all the evidence before her that would allow her to make a full assessment of the substantial merits of the application. There is no appealable error arising from any finding of fact that the termination was for redundancy.
[19] In appeal ground B1, Mr Morrison also takes issue with the Commissioner's finding that the termination had taken effect on 29 May 2023, rather than 16 June 2023. We accept that a dismissal does not take effect until communicated. If there was any error in the finding in relation to the effective date of termination being 29 May 2023 rather than 16 June 2023, it would not be material, given the length of the delay.
[20] Mr Morrison's initiating application, at first instance, had named DXC Technology ("DXC") as the second respondent. DXC was not the employer but appears to have operated a workers' compensation claims management provider. The decision records that the Commissioner removed this entity as a respondent. The removal of DXC as a respondent does not give rise to an appealable error in relation to the determination of Mr Morrison's application for an extension of time under section 366 of the Fair Work Act.
[21] We do not consider there is an arguable case of appealable error that the Commissioner was not objective because she referred to Mr Morrison's use of artificial intelligence. The appeal ground does not assert that Mr Morrison took issue with this at first instance. The bare making of observations that Mr Morrison used artificial intelligence does not reveal any lack of objectivity on the Commissioner's part and nor would it give rise to any reasonable apprehension of bias. We observe that the Commission has an obligation to provide a fair hearing, which often involves giving procedural guidance to self-represented parties. The use of artificial intelligence can raise issues of, among other things, accuracy. When providing procedural guidance, a Commission Member may consider it appropriate to indicate that documents created with the assistance of AI are likely to be treated cautiously.
[22] Using language similar to that in a party's submissions, or making findings consistent with those submissions, if the Commission finds them persuasive, does not of itself reveal bias or give any reasonable apprehension of bias.
[23] Having been given permission to be legally represented it was open to the employer respondent to change its lawyers. Mr Morrison's complaint in that regard does not reveal an arguable case of appealable error. Mr Morrison also takes issue with the Commissioner cutting him off when he attempted to reply to remarks made by the respondent's counsel. Mr Morrison's submissions filed 28 July 2025 provide some further information, stating that the respondent's barrister had made intimidating comments about how he would treat Mr Morrison in court. It is not apparent from Mr Morrison's notice of appeal or written submissions how such an exchange would have given rise to an appealable error given the Commissioner's findings and reasoning as to the considerations under section 366 of the Fair Work Act. No arguable case of appealable error is established.
[24] As to ground 11, it is sufficient to observe that the Commissioner was not bound to follow Ali Qureshi v Spotless Services Australia Ltd [2023] FWC 2411. Mr Morrison appears to have incorrectly apprehended that the decision was a Full Bench decision. That decision was a single Member decision, as was the related extension of time decision in the same proceedings, where time was extended to allow the application to be filed a day late. No arguable case of appealable error is established in relation to this appeal ground.
[25] In support of his position that it would be in the public interest to grant permission to appeal, Mr Morrison argued that the appeal grounds raised "serious concerns about how self-represented applicants with psychological injuries are treated within the Commission." In addition to matters referred to above he says he gave sworn evidence while the person appearing for the respondent, a Ms Lee, did not, and he says no reason was given for this.
[26] The Commission has to act judicially and on the basis of probative evidence. It was for Mr Morrison to make his case, and it was up to the Respondent to decide what, if anything, evidence it led, and which witnesses it called, if any. We cannot see anything in the decision that suggests the Commission took into account material not properly before her, or unsworn representations from Ms Lee that Mr Morrison contested. Nor has Mr Morrison articulated any conclusions that ought to have been drawn, by inference, from the Respondent's decision not to call Ms Lee as a witness.
[27] As can be appreciated, we see no arguable case of any appealable error in the Commissioner's decision, save for the issue in relation to the effective termination date which for the reasons indicated above is not material. In those circumstances we do not consider it is in the public interest to grant permission to appeal. We see no other basis to exercise our discretion to grant permission to appeal.
[28] For the foregoing reasons, permission to appeal is refused.
[3] Though from the context it appears Mr Morrison intended to refer to the extension of time decision in those proceedings, Muhammad Ali Qureshi v Spotless Services Australia Limited [2023] FWC 1613.
[4] Wan v Australian Industrial Relations Commission [2001] FCA 1803, 116 FCR 481 at [30].
Printed by authority of the Commonwealth Government Printer
Paul Thomas Morrison
622 142 214 Pty Ltd [2025] FWCFB 184
(2011) 192 FCR 78
(2010) 197 IR 266