s.604 - Appeal of decision

Appeal against decision [2025] FWC 3089 of Commissioner Perica at Melbourne on 15 October 2025 in matter number C2025/5811 - permission to appeal refused

[1] Paulo Gonzalez has lodged an appeal under s 604 of the Fair Work Act 2009 (Act) against a decision of Commissioner Perica issued on 15 October 2025 ( [2025] FWC 3089) in which the Commissioner declined to grant an extension of time for Mr Gonzalez to make an application under s 365 of the Act and dismissed the application. The appeal was listed before us in relation to permission to appeal only. The parties consented to the matter being determined without a hearing, and we are satisfied that it can be adequately determined without the parties making oral submissions (see s 607(1) of the Act).

[2] Section 366(1) provides that an application under s 365 must be made within 21 days after the dismissal took effect, or within such further period as the Commission allows. Section 366(2) provides that the Commission may allow a further period if it is satisfied that there are exceptional circumstances, taking into account the matters in ss 366(2)(a) to (e). Mr Gonzalez's employment with the Department of Transport and Planning ended on 31 May 2024 for reason of redundancy. On 3 September 2024, he lodged an application under s 365 in respect of his dismissal (first application). The first application was lodged outside the 21-day period. Mr Gonzalez sought an extension of time. On 23 December 2024, Commissioner Fox refused to grant an extension of time and dismissed the first application ( [2024] FWC 3509). Mr Gonzalez appealed. On 4 February 2025, a Full Bench refused permission to appeal ( [2025] FWCFB 25).

[3] On 17 June 2025, Mr Gonzalez lodged another s 365 application (second application). He contended that his employment with the Department had been re-enlivened on 28 May 2025 by a decision of the Workplace Injury Commission (WIC) which had found the Department liable for workers' compensation payments in respect of a previously rejected claim. He said that under the Workplace Injury and Compensation Act 2013 (WIRC Act), the WIC decision 'transformed' the period since the end of his employment on 31 May 2024 to a leave of absence on workers' compensation, and that the Department's failure to reinstate him amounted to a fresh dismissal, which occurred on 17 June 2025. The Department contended that the second application was 361 days late and that no extension of time should be granted.

[4] The Commissioner rejected Mr Gonzalez's argument that he had been dismissed for a second time. At [114], the Commissioner said that Mr Gonzalez's contention that the decision of the WIC 'reanimated his long dead employment relationship' was without foundation, and that his second application was nothing more than a rerun of the matter which was before Commissioner Fox. The Commissioner concluded that the second application was 361 days late and determined that there were no exceptional circumstances warranting an extension of time within which to bring that application. Mr Gonzalez appeals from this decision.

[5] An appeal may only be brought with the permission of the Commission under s 604(1). The Commission must grant permission if it is satisfied that it is in the public interest to do so. In other cases, permission to appeal may be granted on general discretionary grounds.

[6] Mr Gonzalez advances four grounds of appeal. They are devoid of merit. We will not summarise them. They raise no logical contention of error. Although this Full Bench is concerned only with an application for permission to appeal, and hence whether the appeal raises an arguable case of error, it is plain that Mr Gonzalez's second application was untenable and that the Commissioner was right to reject it. Mr Gonzalez's notion that his employment with the Department was somehow revived by the WIC decision is baseless. The WIRC provides no support for it. Mr Gonzalez's employment ended on 31 May 2024. There was no reengagement. There was no second termination. Mr Gonzalez's dismissal had already been the subject of one application under s 365, which was dismissed by Commissioner Fox. Having confirmed this fact, the Commissioner was not required to consider a second extension of time application in respect of the same dismissal. But favourably to Mr Gonzalez, the Commissioner did so. He concluded that there were no exceptional circumstances that could justify an extension of time. There is no arguable error in the Commissioner's refusal to grant Mr Gonzalez an extension of time.

[7] It is not in the public interest to grant permission to appeal, nor should permission be granted on general discretionary grounds. Permission to appeal is refused.

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