Fair Work Act 2009

s.604 - Appeal of decision

Appeal against decision on transcript of Deputy President Bell at Melbourne on 21 August 2025 in matter number C2025/5072 - permission to appeal refused

[1] Rhylie De Graaff has lodged an appeal under s 604 of the Fair Work Act 2009 (Act) against a decision of Deputy President Bell made on transcript on 21 August 2025 in which the Deputy President dismissed Mr De Graaff's application under s 365 after concluding that he had not been dismissed by the respondent, Uconnex Pty Ltd. The matter was listed before us for permission to appeal only. The parties consented to the Full Bench determining the matter without holding 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 365 states that if a person has been dismissed and alleges that the dismissal contravened Part 3-1, the person may apply to the Commission to deal with the dispute. The respondent objected to the application on the ground that Mr De Graaff was not dismissed but had instead voluntarily resigned after three months of employment. In his decision, the Deputy President read out s 386 of the Act, which defines when a person has been 'dismissed', and cited Mr De Graaff's resignation letter of 30 May 2025. The Deputy President noted Mr De Graaff's contention that his employment had become untenable because of a pattern of conduct by the respondent, which was said to include its failure to address his concerns about the impact of the working environment on his physical and mental health, and numerous other matters. The Deputy President concluded that he was not satisfied that Mr De Graaff's evidence rose to a level that demonstrated that he had been forced to resign. In particular, the Deputy President did not consider that Mr De Graaff was publicly blamed for systemic problems outside his control, that there was any threat or action by the respondent that gave him no choice but to resign, or that he was directed to participate in discriminatory practices. The Deputy President further found that there was insufficient evidence of alleged award breaches. The Deputy President accepted that Mr De Graaff had been labouring under significant mental health challenges but that these were not caused by the employer. The Deputy President concluded that Mr De Graaff was not dismissed within the meaning of s 386 and dismissed his s 365 application.

[3] An appeal may only be brought with the permission of the Commission under s 604(1). Section 604(2) provides that the Commission must grant permission to appeal if it is satisfied that it is in the public interest to do so. 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 at [27]). Where the public interest is not engaged, the Commission may grant permission to appeal on general discretionary grounds. 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. An appellant must ordinarily demonstrate that there is such a case in order to be granted permission to appeal, as an appeal cannot succeed in the absence of error (Coal & Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 at 204). However, the fact that a member at first instance may have made an error is not necessarily a sufficient basis to grant permission to appeal.

[4] In his notice of appeal, Mr De Graaff advanced five grounds. First, he submitted that the Deputy President erred in applying s 386 to the question of whether he had been dismissed, because that section is found in Part 3-2, which concerns unfair dismissals, whereas his application was a general protections claim under s 365, which is found in Part 3-1. This ground is misconceived. The definition of 'dismissed' in s 386 applies to s 365 applications (see s 12 of the Act, and the decision of the Full Federal Court in Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152 (Coles v Milford)). Mr De Graaff's second appeal ground contended that under s 365, a reverse onus applies, such that the employer must prove that the adverse action was not taken for a prohibited reason. This is correct. But the reverse onus does not apply to the question of whether adverse action has occurred, such as a dismissal (see s 361). It was for Mr De Graaff to demonstrate that he had been dismissed, not the respondent. By his third appeal ground, Mr De Graaff contended that he had raised concerns about underpayments and made 'whistleblower disclosures', but that the decision focused only on whether he was dismissed. But this is precisely what the Deputy President was required to do. The respondent had objected to Mr De Graaff's application on the basis that it had not dismissed him. The Deputy President was required to determine this objection as a threshold matter (see Coles v Milford). More generally, the Commission's role is not to determine whether an applicant has exercised a workplace right or whether a contravention of Part 3-1 has occurred. None of these grounds of appeal are arguable.

[5] Mr De Graaff's fourth appeal ground asserted that he had been denied procedural fairness because he was not informed that his case would be decided on an 'unfair dismissal' basis and that he did not consent to this. There is no arguable case of a denial of procedural fairness. The matter was listed for a jurisdictional hearing and was determined by the Deputy President in the usual way after hearing from the parties. In his written submissions, Mr De Graaff contended that the Deputy President had ignored a conflict of interest that arose from the fact that the respondent's legal representative had been referred to in the evidence filed in the proceeding, and had also been permitted to advocate for the respondent. But this does not make sense. As the Deputy President said, any conflict would be a matter as between the respondent and its representative. We fail to see any arguable error associated with this ground.

[6] The fifth ground of appeal states that the Deputy President failed to engage with Mr De Graaff's resignation letter, his timeline document, and other evidence, but it is clear from the transcript that he did so. Mr De Graaff restates his contention that the wrong 'framework' was applied but this is plainly wrong, as we have explained above.

[7] The appeal grounds do not disclose an arguable case of appealable error. The decision appears to us to reflect an orthodox assessment and disposition of a case of this kind. We are not satisfied that it is in the public interest to grant permission to appeal, nor do we consider that permission to appeal should be granted on general discretionary grounds.

[8] Permission to appeal is refused.

Printed by authority of the Commonwealth Government Printer