Fair Work Act 2009

s.604 - Appeal of decision

Appeal against decision [2024] FWC 3509 and order PR782746 of Commissioner Fox at Melbourne 23 December 2024 in matter number C2024/6293 - permission to appeal refused.

[1] Mr Paulo Gonzalez has lodged an appeal under s 604 of the Fair Work Act 2009 (Cth) (Act) against a decision[1] and order[2] of Commissioner Fox, issued on 23 December 2024, for which permission to appeal is required. In the decision, the Commissioner declined to grant an extension of time for the filing of Mr Gonzalez's s 365 general protections application against the respondent, the Department of Transport and Planning.

[2] The matter was listed for permission to appeal only. For the reasons that follow, permission to appeal is refused.

[3] After setting out various procedural matters, the Commissioner turned to consider Mr Gonzalez's application for an extension of time, noting that the application had been filed 74 days outside the statutory timeframe for lodgement prescribed by s 366(1)(a) of the Act.

[4] The Commissioner considered whether to allow a further period for Mr Gonzalez's application to be made, having regard to the factors in s 366(2) of the Act. In relation to

s 366(2)(a), the Commissioner considered Mr Gonzalez's submissions as to the reason for the delay. Having regard to all of the evidence, the Commissioner did not consider that Mr Gonzalez's ill health provided a satisfactory reason for the delay, noting the other tasks that Mr Gonzalez was able to undertake in a similar period.

[5] The Commissioner was satisfied for the purposes of ss 366(2)(b), (c) and (e) that:

• (a) while Mr Gonzalez raised concerns about his employment following his dismissal, he did not contest the dismissal itself such that the consideration in s 366(2)(b) was a neutral matter in the consideration of an extension of time;

• (b) the question of prejudice to the respondent was a neutral consideration; and

• (c) there was nothing relevant to weigh in the consideration of the fairness factor in

  s 366(2)(e) of the Act.

[6] As to the merits (s 366(2)(d)), the Commissioner indicated her preliminary view that Mr Gonzalez's substantive general protections application was not particularly strong but noted Mr Gonzalez's contention that there were serious questions to be tried. In the absence of making a full assessment of the evidence, the Commissioner regarded the merits to be a neutral consideration.

[7] Having regard to the findings made in relation to the above factors, the Commissioner concluded that there were no exceptional circumstances such as to exercise her discretion to extend time and dismissed Mr Gonzalez's application.

[8] There is no right to appeal, and an appeal may only be made with the permission of the Commission. Without limiting when the Commission might grant permission, s 604(2) of the Act provides that the Commission must grant permission if the Commission is satisfied that it is in the public interest to do so.

[9] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[3] The public interest is not satisfied simply by the identification of error or a preference for a different result.[4] 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.[5]

[10] 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.[6] However, it is necessary to engage with the grounds to consider whether they raise an arguable case of appealable error.

[11] Mr Gonzalez advances four grounds of appeal:

• (1) The Commissioner mistook the facts in relation to the events occurring during the period of the delay, and the weight to be attributed to those events when considered against the evidence of Mr Gonzalez's mental health.

• (2) The Commissioner mistook the facts in relation to the action taken by Mr Gonzalez to contest his dismissal and failed to consider the evidence in support of this.

• (3) The Commissioner acted upon a wrong principle by failing to test the respondent's evidence consistent with s 397 of the Act and as set out in the Commission's Practice Note: Fair Hearings, and thereby could not conclude that Mr Gonzalez's substantive application was without merit, taking into account the reverse onus of proof in s 361 of the Act.

• (4) The Commissioner failed to take a material consideration into account in the form of evidence of a similar job advertisement, submitted by Mr Gonzalez.

[12] Mr Gonzalez submits that it is in the public interest that permission to appeal be granted because:

• (A) of an 'alleged abuse of power by State government entity';

• (B) the Commissioner acted upon the wrong principles with respect to the application of ss 361 and 397 of the Act in her assessment of the merits of Mr Gonzalez's substantive case;

• (C) there is an inconsistency in the approach to mental health in determining an extension of time; and

• (D) the Commissioner failed to exercise jurisdiction by failing to respond to a substantial and clearly articulated argument that the respondent had undertaken a non-genuine redundancy and did not take material evidence into account.

[13] Mr Gonzalez elaborates on these matters in his written outline of submissions, which he supplemented by way of oral submissions at the permission to appeal hearing before us.

[14] We are not persuaded that it would be in the public interest to grant permission to appeal. The contentions at [12](B) and (D) above - which also reflect appeal grounds (3) and (4) - appear to conflate the jurisdictional hearing, which was confined to dealing with an extension of time, with a full hearing regarding Mr Gonzalez's substantive general protections case. It is well established that in the consideration of an extension of time, the Commission is not required to embark on a detailed consideration of the substantive application, including by making findings of fact or determining whether the respondent discharged the reverse onus of proof. The Commissioner undertook an initial assessment of the case based on the untested material before her and through the prism of viewing Mr Gonzalez's case at its most favourable.[7] The preliminary assessment reached was appropriately balanced against the counterfactual advanced by Mr Gonzalez, leading the Commissioner to regard the merits consideration to be a neutral factor in her consideration of exceptional circumstances. No arguable case of appealable error arises in relation to this approach, nor is the public interest enlivened.

[15] As to the public interest submission at [12](C) above, Mr Gonzalez has not identified any relevant disparity between the decision under appeal and other recent decisions as to the legal principles to be applied in the Commission's assessment of mental health as a reason for the delay. The evidence in each application must be considered on a case-by-case basis. Relevant disparity is not established by simply referring to other cases decided by reference to different facts and circumstances.[8] We do not consider that the decision was counter-intuitive or involved any disharmonious application of relevant legal principles, or that guidance from an appellate body is required. Further, the broad allegation at [12](A) that there has been an abuse of power by a State government entity does not sufficiently engage the public interest criterion. It does not involve any challenge to the core findings made by the Commissioner, nor refer to any aspect of the decision.

[16] We are not otherwise satisfied that the balance of appeal grounds set out at [11] of this decision give rise to an arguable case of appealable error. In support of his contention that the Commissioner mistook the facts in her consideration of the reason for the delay (ground (1)), Mr Gonzalez seeks to rely upon fresh evidence in the appeal. The fresh evidence comprises a letter from Mr Gonzalez's treating psychologist dated 8 December 2024.

[17] Section 607(2) of the Act confers a discretion on the Full Bench to admit further evidence and take into account any other information on appeal. However, it is by no means a matter of course that it will do so. The well-settled principles governing the discretion to admit new evidence or to consider further material are set down in Akins v National Australia Bank (Akins).[9] Three conditions need to be met before fresh evidence can be admitted. It must be established that the evidence could not have been obtained or adduced with reasonable diligence for use at first instance; it must be evidence which is of such a high degree of probative value that there is a probability that there would have been a different result at first instance; and the evidence must be credible.[10] While it is permissible in an appropriate case to depart from the principles set out in Akins,[11] it will be rare for fresh evidence to be admitted on appeal where the conditions in Akins are not met.

[18] The fresh evidence sought to be relied upon is said by Mr Gonzalez to provide context to the medical evidence considered by the Commissioner. Having considered the content of this material and Mr Gonzalez's submissions in relation to it, we are not persuaded that the evidence sought is of such a high degree of probative value that there is a probability that there would have been a different result at first instance. We therefore decline to admit the document.

[19] The Commissioner's consideration of the reasons given by Mr Gonzalez for the delay, and the action taken by Mr Gonzalez to contest his dismissal (appeal grounds (1) and (2)), do not support an arguable case that the Commissioner mistook the facts. There appears to be an evidentiary foundation for the Commissioner's findings, and this informed her overall conclusion that there were no exceptional circumstances. Any disagreement about the weight attributed by the Commissioner to these relevant matters, where they were otherwise the subject of proper consideration in the decision, is not a sustainable ground of appeal.[12] We do not consider it to be arguable that the Commissioner erred in the manner outlined in House v The King,[13] or at all.

[20] For the reasons given, we are not satisfied for the purposes of s 604((2) of the Act that the public interest is enlivened. Nor an arguable case of appealable error disclosed. It follows that we have decided to refuse permission to appeal.

M Carrick with J Sofianos, Victorian Government Solicitor's Office, for the respondent.

[1] [2024] FWC 3509

[2] PR782746

[3] 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]

[4] 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]

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

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

[7] See Ivan Cowen v Renascent Regional Pty Ltd [2021] FWCFB 2606

[8] JBS Australia Pty Ltd v Willie Bara [2025] FWCFB 15 at [17]

[9] Akins v National Australia Bank [1994] 34 NSWLR 155

[10] See Perry v Rio Tinto Shipping Pty Ltd [2016] FWCFB 6936

[11] JJ Richards & Sons Pty Ltd v Transport Workers' Union of Australia (2010) 202 IR 180; [2010] FWAFB 9963 at [95]; Mermaid Marine Vessel Operations Pty Ltd v Maritime Union of Australia (2014) 241 IR 35; [2014] FWCFB 1317 at [18]; C Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [21] - [25]; P_erry v Rio Tinto Shipping Pty Ltd_ [2016] FWCFB 6963 at [11]

[12] See Hawken v Patrick Stevedores Holdings Pty Limited [2024] FWCFB 463 at [56] and the cases cited therein

[13] [1936] HCA 40; 55 CLR 499

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