s.604 - Appeal of decision

Appeal against decision of Commissioner Yilmaz at Melbourne on 28 March 2025 on transcript in matter numbers U2025/795 and U2025/797 - permission to appeal refused.

[1] Pepperleaf.com.au Pty Ltd has lodged an appeal under s 604 of the Fair Work Act 2009 (Cth) (Act) against a decision of Commissioner Yilmaz dated 28 March 2025, for which permission to appeal is required. The Commissioner's decision was made in the context of dealing with the unfair dismissal applications made by each of the respondents to the appeal, Messrs Simon Kahil and John Cincotta, against the appellant.

[2] In the decision, the Commissioner considered that the respondents' unfair dismissal applications were filed prematurely and, in the circumstances of the matter, was satisfied that this constituted an irregularity that the Commission may waive under s 586(b) of the Act. Accordingly, the Commissioner exercised her discretion to waive the irregularity in the form or manner in which each of the applications was made.

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

[4] The matter concerns applications for an unfair dismissal remedy made by each of the respondents to the appeal against the appellant pursuant to s 394 of the Act. The applications were filed with the Commission on 24 January 2025. On 29 January 2025, the appellant filed its Form F3 response to the applications. The appellant raised a jurisdictional objection to each application on the basis that the respondents had not been dismissed by it.

[5] Following the allocation of the matters to the Commissioner and there being no objection to the applications being heard together, the Commissioner listed the applications for a jurisdictional hearing on 28 March 2025 to determine the date of dismissal. The parties filed written material in accordance with the directions of the Commission. In summary:

• (a) the respondents contended that they were founding shareholders of the appellant, having commenced the business in 2014;

• (b) the respondents said that they commenced employment with the appellant in 2016 and that they were also directors of the company;

• (c) the respondents contended that their employment was summarily terminated on 6 January 2025 as an outcome of a board meeting held on that date. Evidence was filed by one of the respondents who was present at the board meeting;

• (d) the appellant's position was that the respondents were not dismissed from their employment on 6 January 2025 as investigations into their conduct were ongoing after that date. Rather, at the 6 January 2025 board meeting, resolutions were passed that allowed for the potential termination of the respondents' employment due to serious misconduct; and

• (e) the appellant contended that on 30 January 2025, resolutions were passed for the termination of the respondents' employment, and they were notified of their dismissal on that date.

[6] At the 28 March 2025 jurisdictional hearing, Mr Kahlil stated on behalf of the respondents that there was "ample evidence" to demonstrate that they were dismissed on 6 January 2025 but stated as follows:[1]

MR KAHIL: Thank you, Commissioner. We maintain that there's ample evidence for dismissal at the respondent's initiative on 6 January, but for the purposes of today, we're asking for the Commission to use your discretion to waive the irregularity and to proceed in a practical way, given that both outcomes are going to result in a hearing down the track.

[7] The Commissioner enquired of the appellant whether there was anything it wished to say in response:[2]

MR WEERASOORIYA: Only that based on the application made by the applicants and the 21-day time limit for the submission, is that the applicants were informed of their dismissal on 30 January by the respondent and clearly advised to potentially withdraw their clam, seek legal advice and consult with the Fair Work Ombudsman with respect to their rights moving forward, and therefore we would contend that they would be out of time in applying, based on 30 January 2025 as the dismissal date, and we would just ask the Commissioner to consider - - -

MR WEERASOORIYA: - - - that in making your decision.

[8] The Commissioner proceeded by:[3]

• (a) stating that it was not in contest that the respondents had been dismissed;

• (b) setting out her summary of the parties respective positions;

• (c) noting that whether the applications were filed on 24 January 2025 (as was the case) or 30 January 2025 (being the date the appellant contends the dismissals took effect), the applications would be the same in substance and form;

• (d) recording that should the respondents withdraw their applications and refile them with a revised dismissal date, such applications would be out of time and there would be "very good grounds" to warrant an extension of time; and

• (e) stating that s 577 of the Act requires the Commission to perform its functions and exercise powers in a manner that is quick, informal and avoids unnecessary technicalities.

[9] Noting that the respondents no longer pressed for a determination that their employment was dismissed on 6 January 2025 and had conceded the effective date of dismissal was 30 January 2025, the Commissioner considered it appropriate to exercise her discretion to waive the irregularity in the respondents' premature applications pursuant to s 586(b), applying the Full Bench authority in Mihajlovic v Lifeline Macarthur.[4] The Commissioner accepted each of the applications on this basis and proceeded to program the applications to a merits hearing on 22 May 2025.

[10] While it is not expressly stated, we consider that read fairly, the decision makes it sufficiently clear that the effect of the wavier was such that the applications were taken to have been made on the day the dismissal took effect, being 30 January 2025, and on that basis were validly made.

[11] The appellants lodged the Form F7 Notice of Appeal in the Commission on 17 April 2025. The appellant applied for a stay of the Commissioner's decision, which was declined on 7 May 2025.[5]

[12] The Form F7 Notice of Appeal lists six grounds of appeal, which are summarised as follows:

• (1) Procedural bias: It is contended that the Commissioner was procedurally biased in favour of the respondents, which denied the appellant procedural fairness.

  • This is said to have occurred by reason of the respondents filing and serving material that was irrelevant to the jurisdictional objection relating to their premature application and this material influenced the Commissioner's judgment of the applications;

  • The Commissioner's bias is said to have been evident from the following:

    • the Commissioner denied the inclusion of the appellant's written reply to the respondents' submission;

    • on 28 March 2025, the Commissioner determined to forgo a formal jurisdictional hearing and instead proceeded to issue a rushed decision on transcript and did not provide the appellant with an opportunity to read its additional submission onto the record;

    • during a pre-hearing conference on 28 March 2025, the Commissioner spent significantly more time with the respondents than with the appellant;

    • following the conciliation with the Commissioner, the respondents requested the Commissioner to exercise her discretion to waive the irregularity with their applications, demonstrating coaching or collaboration with the Commissioner;

    • the Commissioner cut off the appellant's attempts to convey its concerns with the Commission waiving the irregularity and its attempt to seek that the 21-day time limit on applications be appropriately considered; and

    • the Commissioner had already formed a view in favour of the respondents.

• (2) Erroneous application of principles in Mihajlovic v Lifeline Macarthur: It is contended that the Commissioner erroneously applied the Full Bench decision in Mihajlovic v Lifeline Macarthur, as paragraph [43] of the decision demonstrates that it does not operate in relation to an application sought to be filed after the time limit prescribed in s 394(2)(a) of the Act. The Commissioner failed to consider the unique aspects of the matter before her and failed to provide procedural fairness to the appellant with respect to jurisdictional objections that arise from the Commissioner's curing of the irregularities.

• (3) New evidence: It is contended that unlike in Mihajlovic v Lifeline Macarthur, the Commissioner's curing of the applications is akin to new evidence being submitted, which the appellant was denied the opportunity to appropriately respond to. Further, the appellant was not able to respond to evidence presented in the respondents' submission including that the respondents were directors and not employees of the business.

• (4) Erroneous application of s 577(b): It is contended that the Commissioner relied upon

  s 577(b) of the Act in error when she should have appropriately considered ss 394(2)(a) and 394(3) of the Act. Further, the Commissioner's approach to deal with the matter in a manner that is quick and informal created a procedural bias in favour of the respondents. The Commissioner need not have acted with haste as the respondents do not seek reinstatement. The application of s 577(b) should not undercut ss 394(2)(a) and 394(3) as occurred here.

• (5) No evidence with respect to considering ss 394(2)(a) and 394(3) in determining grounds for extension of time: Further to the above, it is contended that the Commissioner's conclusions regarding ss 394(2)(a) and 394(3) were not based on evidence. It was not possible for the Commissioner to form a fair and balanced conclusion to grant an extension of time as the appellant had only responded in its submissions to the jurisdictional objection that the respondents had not been dismissed. Further, the Commissioner curtailed the opportunity to discuss the matter during the hearing and cut off the appellant's submissions.

• (6) Consideration of relevant facts: It is contended that the Commissioner's reference to the 6 January 2025 board minutes fails to recognise the distinction between the respondents' roles as directors and employees. As directors, the respondents appropriately received the 6 January 2025 board meeting minutes in accordance with the Corporations Act 2001. Separately, they were issued termination of employment notices following an investigation and due to serious misconduct findings. The Commissioner erred by failing to appreciate that deliberations, discussions and resolutions passed in a board meeting are distinct from discussions and provision of notice to employees. Further, Mr Cincotta did not attend the 6 January 2025 board meeting and had no contact with the appellant on 6 January 2025 to give him a basis for considering himself terminated on that date, a fact the Commissioner appears to have overlooked in favour of noting the date of issue of the board minutes.

[13] The appellant contends, in summary, that granting permission to appeal will provide clarity with respect to (a) balancing the discretion to waive irregularities against ensuring procedural fairness is afforded to all parties, and (b) the correct application of the decision in Mihajlovic v Lifeline Macarthur.

[14] An appeal under s 604 of the Act is an appeal by way of rehearing. The Commission's powers on appeal are only exercisable if there is error on the part of the primary decision maker.[6] There is no right to appeal and an appeal may only be made with the permission of the Commission. Subsection 604(2) requires the Commission to grant permission to appeal if satisfied that it is "in the public interest to do so." Permission to appeal may otherwise be granted on discretionary grounds.

[15] Section 400(1) modifies s 604(2) in relation to decisions made under Part 3-2, unfair dismissal, of the Act:

• (1) Despite subsection 604(2), the FWC must not grant permission to appeal from a decision made by the FWC under this Part unless the FWC considers that it is in the public interest to do so.

[16] The effect of s 400(1) is that if the Full Bench does not consider that it is in the public interest to grant permission to appeal, it must refuse such permission. It is not available to grant permission on discretionary grounds.

[17] The decision before us was made under s 586, which is not located in Part 3-2. However, the decision was made in relation to unfair dismissal applications made under Part 3-2. In Australian Postal Corporation v Gorman[7] the Federal Court (Besanko J) considered an application for judicial review in respect of the dismissal of an unfair dismissal application under s 587 of the Act (which, like s 586, is not located in Part 3-2 of the Act). With respect to the question of whether s 400(1) applied to the appeal, Besanko J said:[8]

... It seems to me that the Senior Deputy President's decision was a decision made 'under this Part' within subsection 400(1) and a decision 'in relation to a matter arising under this Part' within subsection 400(2) despite the fact that s 587 is in Part 5-1 of the Act. The Senior Deputy President's decision was a decision to dismiss the first respondent's application made under s 394 for a remedy for unfair dismissal. That is a decision under Chapter 3 Part 3-2 in the same way as an order for re-instatement or compensation would be a decision under that Part. Even if FWA's general power to dismiss is contained in subsection 587(3), it is part of FWA's powers when it makes a decision under Chapter 3 Part 3-2. The same reasoning applies if regard is had not to the order but to the ground upon which the order was made, that is, that the continued pursuit of the application is frivolous or vexatious.

[18] Consistent with other decisions of this Commission,[9] we will take the approach that

s 400(1) applies to the appeal before us. However, we will also state the conclusion we would reach if s 400(1) did not apply.

[19] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[10] The public interest is not satisfied simply by the identification of error or a preference for a different result.[11] 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.[12]

[20] 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.

[21] 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.[13] However, it is necessary to engage with the grounds to consider whether they raise an arguable case of appealable error.

[22] The appeal here is brought against an interlocutory decision. Courts and tribunals have generally discouraged appeals against interlocutory decisions, and it will not commonly be the case that permission would be granted to appeal against an interlocutory decision under s 604 of the Act, whether or not s 400(1) applies.[14]

[23] The decision under appeal was made pursuant to s 586(b) of the Act, which confers discretionary powers upon the Commission to waive an irregularity in the form or manner in which an application is made. It is not sufficient in this application for the Full Bench to substitute its own determination for that of the Commissioner. Rather, it is necessary for the appellant to demonstrate error in the exercise of the discretion of the type identified in House v The King.[15]

[24] We are not satisfied that the appellant has demonstrated any basis upon which permission to appeal could be granted in the public interest, for the following reasons.

[25] First, we do not consider that the appeal raises any issue of importance and general application concerning the application of s 586(b) of the Act. The legislature contemplated that applications might be made to the Commission other than in accordance with the Act and made provision for that eventuality. As has been explained in a number of Full Bench decisions,[16] the Act confers discretionary powers upon the Commission, including to waive an irregularity in the form or manner in which an application is made pursuant to s 586(b). By s 586(a), the Commission may also allow a correction or amendment of any application, on any terms it considers appropriate. In addition, s 587(1)(a) provides that an application may be amenable to dismissal if it is not made in accordance with the Act. It follows that where a defective application is filed, it may be the subject of correction, waiver or dismissal. It may also be discontinued pursuant to s 588. It follows that the Act does not disclose an intention to treat a defective application as being entirely invalid and of no effect.[17]

[26] Second, we do not consider it to be arguable that the Full Bench in Mihajlovic v Lifeline Macarthur has been incorrectly applied. In that decision, the Full Bench noted that a premature application is one that has not been made in accordance with the Act. It proceeded by observing that it was open to the Commission to exercise its discretion, including to waive any irregularity in the form or manner in which such an application is made. That is precisely what the Commissioner did. There is nothing before us to indicate that the decision of the Commissioner was inconsistent with the general principles stated in Mihajlovic v Lifeline Macarthur.

[27] Third, the contention that the Commissioner reached conclusions regarding s 394(3) of the Act (which deals with the considerations for granting an extension of time for applications lodged after the 21-day statutory timeframe) without evidence is misconceived. These matters in s 394(3) were not the subject of evidence and submission before the Commissioner because the applications were not filed after the expiration of the 21-day statutory timeframe in s 394(2)(a). Relatedly, the contention that the Commissioner erred by applying s 577(b) of the Act when she should have considered ss 394(2)(a) and 394(3) relies on the appellant's mistaken premise that the Commissioner was dealing with applications that had been filed after the 21-day statutory timeframe had passed. The Commissioner's reliance upon s 577(b) in the circumstances was an appropriate consideration as this provision recognises the requirement that the Commission perform its functions and exercise its powers in a manner that is quick, informal and avoids unnecessary technicalities.

[28] Fourth, no arguable error arises from the Commissioner's statement that there would be "very good grounds" to warrant an extension of time should the applications be withdrawn and then refiled out of time, with a revised dismissal date. This statement is consistent with the view of the Full Bench in Hambridge v Spotless Facilities Services Pty Ltd.[18] The Full Bench recognised that the potential for irregularities to be remedied under s 586 - rather than being dealt with by a discontinuance and a second (out of time) application - is a matter relevant to the consideration of whether there are exceptional circumstances justifying an extension of time to lodge the second application (should that fall to be considered, which it did not here).

[29] Fifth, the proposition that the decision lacked impartiality and gives rise to a reasonable apprehension of bias is not supported by the appellant's speculative contentions. Nor are we persuaded that the appellant was "cut off" or precluded from making submissions in relation to the proposal to waive the irregularity. As the transcript bears out, the Commissioner invited the appellant to make responsive submissions, and the appellant exercised this opportunity.[19]

[30] Sixth, the grounds relied upon by the appellant in which it contends that there are supplementary objections that it has not had an opportunity to advance before the Commissioner (e.g. the status of the respondents as employees or directors) do not demonstrate an arguable case of error in the decision. Regardless, the appellant is not precluded from raising these matters in connection with the next stage of the proceedings before the Commissioner.

[31] For these reasons, we are not satisfied that it would be in the public interest to grant permission to appeal. Accordingly, permission to appeal must be refused in accordance with

s 400(1). Alternatively, if s 400(1) does not apply to this appeal, we would still refuse permission to appeal for the reasons we have stated. No public interest or discretionary grounds have been made out which would justify the grant of permission to appeal.

[1] Transcript of proceedings dated 28 March 2025 (Transcript) at PN20

[4] Mihajlovic v Lifeline Macarthur [2014] FWCFB 1070; 241 IR 142

[5] [2025] FWC 1263

[6] Coal and Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ

[7] [2011] FCA 975

[9] See, e.g. Asciano Services Pty Ltd v Hadfield [2015] FWCFB 2618; see also David Rayner v Little Moreton Pty Ltd t/a H-R Products [2017] FWCFB 756

[10] 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]

[11] 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]

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

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

[14] See Hutton v Sykes Australia Pty Ltd [2014] FWCFB 3384 at [3] and the decisions cited therein

[15] House v The King [1936] HCA 40; 55 CLR 499

[16] Mihajlovic v Lifeline Macarthur [2014] FWCFB 1070; 241 IR 142 at [42]; Hambridge v Spotless Facilities Services Pty Ltd [2017] FWCFB 2811; 271 IR 360 at [27]- [31]; CFMMEU v Griffiths Cranes Pty Ltd [2019] FWCFB 1717 at [41]- [49]

[17] See Shane Arch v Insurance Australia Group Services Py Limited [2020] FWCFB 601 at [35]

[18] Hambridge v Spotless Facilities Services Pty Ltd [2017] FWCFB 2811; 271 IR 360

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