Fair Work Act 2009

s.604 - Appeal of decisions

Appeal against decision [2025] FWC 215 and order PR753581 of Deputy President Wright at Sydney on 22 January 2025 in matter number U2024/8071 - permission to appeal refused.

[1] Roadworx Surfacing Pty Ltd ('Roadworx') has lodged an appeal under section 604 of the Fair Work Act 2009 (Cth) ('the Fair Work Act'), for which permission is required, against a decision[1] and an order[2] of Deputy President Wright, issued on 22 January 2025.

[2] In the decision, the Deputy President found that, contrary to Roadworx's position, the former employee Mr Robert Dodd had been dismissed by Roadworx, and that he had been unfairly dismissed. The Deputy President determined that compensation was appropriate and issued an order that Roadworx pay Mr Dodd an amount of $33,913.07 gross, plus superannuation, less taxation as required by law.

[3] This matter was listed to deal with permission to appeal only. The hearing as to permission to appeal was held on 4 March 2025, in Brisbane. Mr David Sciberras, Business Unit Manager, appeared for the appellant, Roadworx. Mr Dodd appeared for himself. For the reasons that follow, we have decided to refuse permission to appeal.

[4] The factual background is set out in Deputy President Wright's decision.[3] In summary, Mr Dodd had worked for Roadworx, a street sweeping business, since 4 April 2014. From 2019 he was the supervisor in a team that carried out the work for a contract with Strathfield Council. Roadworx had that contract for five years. At the end of it, in 2024, the new successful tenderer offered Mr Dodd a job, but as a driver, rather than as a supervisor. Mr Dodd declined and remained employed by Roadworx.

[5] The facts that the Deputy President recited reveal that there were some subsequent issues between the parties. On 4 July 2024, an issue arose between Mr Dodd and Mr Sciberras relating to which job Mr Dodd was to work on (either a job at Mosman, or one at Castle Hill). On 8 July 2024, Mr Dodd attended a meeting with Mr Sciberras and Mr James Tory, Logistics Manager, in the workshop office. At first instance Mr Dodd and Mr Sciberras gave conflicting accounts of what occurred at this meeting, and Mr Tory was not called to give evidence. Mr Dodd's employment came to an end that day, 8 July 2024.

[6] After dealing with procedural matters including her decision to conduct a determinative conference, the Deputy President set out the background facts of the matter. She then referred to the legislative framework, including the power, under section 390 of the Fair Work Act, to order a remedy if the limbs of that provision are satisfied. She then set out the requirements of section 385, relating to whether a person has been unfairly dismissed.

[7] The Deputy President dealt with the issue of whether Mr Dodd had been dismissed. She found that he had been dismissed, within the meaning of that term set out in section 386 of the Fair Work Act, and that the dismissal had taken effect on 8 July 2024.

[8] The Deputy President considered the evidence that was before her that was relevant to this issue. She also observed that it was surprising that Mr Tory had not been called to give evidence in relation to the meeting of 8 July 2024 and nor had any transcript of the meeting been provided.[4] She noted elsewhere in the decision that Mr Sciberras has said the meeting had been transcribed on the day.[5]

[9] She considered that Mr Dodd has presented as a genuine and credible witness. She stated that she preferred Mr Dodd's evidence over Mr Sciberras's and stated her reasons for that preference.

[10] The Deputy President said that in determining whether she accepted Mr Dodd's or Mr Sciberras' account of what occurred, she had taken into account Roadworx's failure to provide material which it claimed was in existence and which verified its account that there was no dismissal, her assessment of the evidence of Mr Dodd and Mr Sciberras, the lack of evidence supporting a finding of mutual termination, and the fact that Mr Dodd made an unfair dismissal claim supporting his version of events within three days of his employment ceasing.[6]

[11] For the purposes of reaching her conclusions, the Deputy President made detailed findings of fact.

[12] Having found that Mr Dodd had been dismissed, the Deputy President also dealt with whether the application had been in time, and whether Mr Dodd had been a person protected from unfair dismissal for the purposes of section 382 of the Fair Work Act. She also observed that it was not in dispute that the dismissal was not for genuine redundancy and not one to which the Small Business Fair Dismissal Code applied and made findings accordingly. Having found that Mr Dodd had been dismissed, and having dealt with the other initial matters, the Deputy President went on to consider whether the dismissal had been harsh, unjust or unreasonable.

[13] She found that there had been no valid reason for the dismissal and made other findings considering each sub-paragraph of section 387 of the Fair Work Act as relevant. In doing so she considered the evidence and the parties' submissions and made further detailed findings of fact. Having done so, she found that the dismissal had been harsh, unjust, and unreasonable, and that an order for compensation was appropriate. She considered the relevant principles as to the amount of compensation and made the order we have referred to above.

[14] In her decision the Deputy President noted that Roadworx had attempted to file further material after the determinative conference concluded. She indicated she had not considered it, because it was outside the timeframe provided in the directions she had issued, and Roadworx had not sought leave to reopen its case.[7]

[15] An appeal under section 604 of the Fair Work Act is an appeal by way of rehearing and the Commission's powers on appeal are only exercisable if there is error on the part of the primary decision maker.[8] There is no right to appeal, and an appeal may only be made with the permission of the Commission.

[16] This appeal is one to which section 400 of the Fair Work Act applies. Section 400 provides:

(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.

(2) Despite subsection 604(1), an appeal from a decision made by the FWC in relation to a matter arising under this Part can only, to the extent that it is an appeal on a question of fact, be made on the ground that the decision involved a significant error of fact.

[17] In the Federal Court Full Court decision in Coal & Allied Mining Services Pty Ltd v Lawler and others,[9] Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under section 400 as "a stringent one." The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[10] A Full Bench of the Commission, in GlaxoSmithKline Australia Pty Ltd v Makin,[11] identified some of the considerations that may attract the public interest:

... the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters...

[18] 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.[12] However, the fact that the Member at first instance made an error is not necessarily a sufficient basis to grant permission to appeal.[13]

[19] An application for permission to appeal is not a de facto or preliminary hearing of the appeal. In determining whether permission to appeal should be granted, it is unnecessary and inappropriate for the Full Bench to conduct a detailed examination of the grounds of appeal.[14] However, it is necessary to engage with the appeal grounds to consider whether they raise an arguable case of appealable error.

[20] In its Notice of Appeal, in response to the question, "What are the grounds for your appeal?" Roadworx states "all outlined in the letter." In considering a stay application in relation to this appeal,[15] Deputy President Millhouse took this to be a reference to a letter to Deputy President Wright's chambers dated 31 January 2025.[16] We also take this to be a reference to that letter, which was filed with the Notice of Appeal. We substantially adopt Deputy President Millhouse's summary of those grounds[17] as follows:

(1) Regarding paragraph 10 of the decision: the job was offered to Mr Dodd, there was no recruitment process.

(2) Regarding paragraph 11 of the decision: a significant effort was made to offer Mr Dodd a suitable role, but Mr Dodd did not provide insight into what he wanted to do. Other options to manage contracts were rejected.

(3) Regarding paragraph 13 of the decision: this is rejected, constant meetings were held with Mr Dodd to allocate work and if this was acceptable to him.

(4) Regarding paragraph 38 of the decision: refer to email dated 5 July 2024 and the evidence of Mr Fabian and Mr Tory that Mr Dodd became hostile and agitated.

(5) Regarding paragraph 20 of the decision: a consultation follow up meeting was organised with Mr Dodd to provide further feedback regarding the ongoing sick days, the support Roadworx can provide, failure to meet business expectations and negativity towards the organisation. Management was hopeful of a resolution. Mr Dodd became highly argumentative. Management tried to come up with appropriate solutions, but Mr Dodd stormed off in the company vehicle. Mr Dodd returned his uniform and company belongings. Disciplinary letters were provided but Mr Dodd would not sign them."

[21] To the summary of ground (2), we would add that Roadworx's letter also took issue with findings in paragraph 12 of the decision in relation to the same events that had been the subject of paragraph 11.

[22] As to the public interest, the Notice of Appeal again states "refer to correspondence." We have taken this to also be a reference to the letter of 31 January 2025. That letter does not address the question of why it would be in the public interest to grant permission to appeal.

[23] The appellant did not file an outline of submissions as to the issue of permission to appeal despite being directed to do so.[18] The parties had the opportunity to make oral submissions at the hearing. We have had regard to those oral submissions.

[24] Roadworx sought to rely on fresh evidence, comprised of various documents filed with the Notice of Appeal, and to which reference was made in its letter to Deputy President Wright's chambers of 31 January 2025. The documents were:

• An email of 24 January 2024 from Mr Sciberras to Mr Dodd with the subject "Business Improvement";

• A reply to that email from Mr Dodd, dated the following day;

• A short statement, in an email, of Mr James Tory;

• A short statement, in an email, of Mr Glenn Fabian.

• A calendar appointment email dated 5 July 2024, regarding a meeting to be held on 8 July 2024.

[25] Section 607(2) of the Fair Work Act confers a discretion on the Full Bench to "admit further evidence" and "take into account any other information or evidence" on appeal. In exercising the discretion, the Full Bench is guided by[19] the principles set out in Akins v National Australia Bank (Akins).[20] For the purposes of this tribunal, previous Full Benches have described those principles as requiring that (a) it must be established that the evidence could not have been obtained or adduced with reasonable diligence for use at first instance; (b) 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 (c) the evidence must be credible."[21]

[26] In Akins, the Court qualified these "general principles," saying that "it is not possible to formulate a test which should be applied in every case to determine whether or not special grounds exist."[22] Full Benches of this Commission have also recognised it is permissible, in an appropriate case, to depart from these principles,[23] but it will be rare for fresh evidence to be admitted on appeal where the conditions in Akins are not met.[24]

[27] At the hearing in relation to permission to appeal, Roadworx conceded that it could have obtained this material in advance of the determinative conference before the Deputy President but had not done so. Roadworx gave reasons for this including:

• Mr Sciberras had a family member who was seriously ill at the time;

• Mr Sciberras ran a large complex business, and he had a demanding role, and did not have time;

• Mr Tory had been on night shifts at the time.

[28] In making submissions as to whether Mr Tory's statement should be admitted, Mr Sciberras, for Roadworx, submitted he had not thought that providing it had been a requirement. Deputy President Wright's decision records that Roadworx had filed material on 30 September 2024 and 18 October 2024[25] so if Roadworx intended to submit that it did not know it was to file its materials prior to that determinative conference, that submission appears unsustainable.

[29] Roadworx submitted the material it was seeking to have admitted as fresh evidence had high probative value and was credible.

[30] The Deputy President stated in her decision that it was surprising that Roadworx had not called Mr Tory to give evidence in the matter, given he was at the meeting of 8 July 2024.[26] In a similar vein it was also surprising that the short statement of Mr Tory that Roadworx sought permission to have admitted as fresh evidence in the appeal did not appear to refer to, let alone describe what had transpired in, the meeting of 8 July 2024.

[31] Mr Dodd opposed the admission of the additional evidence. He pointed out that the additional documents including the witness statements lacked probative value.

[32] Roadworx was or should have been aware of the considerations that the Full Bench would take into account in deciding whether to admit this fresh evidence because they were set out in Deputy President Millhouse's decision, in relation to Roadworx's stay application.[27]

[33] As stated, Roadworx conceded it could have obtained the material in advance of the hearing. The reasons given for the failure to do so did not provide adequate justification to allow it to be admitted regardless of that concession. Having regard to its content the additional material was also not of sufficient probative value to warrant admission as fresh evidence.

[34] In light of the foregoing, guided by the principles in Akins, we decided to decline to admit the fresh evidence.

[35] We are not persuaded that the Notice of Appeal, read with the letter of 31 January 2025, discloses any arguable appealable error. Roadworx seeks to dispute some factual findings that the Deputy President made. In support of its application for permission to appeal it made submissions in that regard and sought to rely on matters that had not been admitted into evidence before the Deputy President, including the fresh evidence that he had unsuccessfully sought to have admitted at the permission to appeal hearing. For the following reasons we find that Roadworx has not established any basis for any of the Deputy President's findings of fact to be disturbed on appeal. In setting out our reasons we will firstly deal briefly with each of the appeal grounds.

[36] Ground 1 relates to a factual finding the Deputy President in paragraph 10 of her decision, as to how Mr Dodd came to obtain the supervisor role for the Strathfield Council contract. Roadworx sought to contradict the finding without identifying why the Deputy President was in error in making it. In any event, we consider it would be immaterial.

[37] By ground 2, Roadworx seeks to dispute an observation that the Deputy President made at paragraph 11 of the decision, that Mr Dodd could not remember any discussion with Roadworx about what would happen to his role after the Strathfield Council contract came to an end. It also seeks to dispute facts set out in paragraph 12 of the decision, again regarding what happened at the end of the Strathfield Council contract. For this ground, Roadworx sought to rely on the email of 24 January 2024 that it had sought to adduce as fresh evidence, and that had not been before the Deputy President at first instance.

[38] Ground 3 relates to paragraph 13 of the decision, going to the work that had been allocated to Mr Dodd since February 2024. The ground is not completely clear, but Roadworx appears to take issue with the sentence "Mr Dodd says that jobs are usually allocated by text message by Mr Sciberras." It may also be taking issue with "Mr Dodd said that the travel and night work necessitated deciding to accommodate his family responsibilities." The letter of 31 January 2025 refers to paragraph 13 and asserts "This is rejected, constant meetings were held with Mr Dodd to allocate work and if this was acceptable by him."

[39] Ground 4 relates to paragraph 38 of the decision, and by that ground Roadworx appears to dispute the finding that there was no evidence that Mr Dodd had any prior notice of the meeting of 8 July 2024. To do so Roadworx sought to rely on the calendar appointment email of 5 July 2024 that it had sought to adduce as fresh evidence, and that had not been before the Deputy President at first instance. In any event, the subject of the calendar invitation to Mr Dodd is "Operational Meeting".

[40] Ground 5 relates to paragraph 20 of the decision. Paragraph 20 sets out Mr Dodd's evidence about a critical part of the meeting of 8 July 2024, in which he said he had asked Mr Sciberras if Mr Sciberras was sacking him, and Mr Sciberras had said "Yes I am." The Deputy President dealt with this exchange further at paragraph 38, stating that Mr Sciberras did not directly deny that this conversation had taken place, but denied that Roadworx terminated Mr Dodd's employment. The Deputy President recorded that Mr Sciberras had claimed that Mr Dodd had 'stormed off in his company vehicle' and that the termination was mutual. Having done so she considered the evidence available to her to support the two different accounts and made findings in that regard. In seeking to contest paragraph 20 of the decision Roadworx has, in its letter of 31 January, sought to provide a further description of the events of 8 July 2024.

[41] As can be appreciated from the foregoing, the appellant disputes various factual findings that underpinned the Deputy President's conclusions in the decision. It is appropriate to recognise that the Deputy President had the benefit of seeing and hearing the witnesses give their evidence. In Stephanie Muir Ridge v Mr Alex Yates[28] the Full Bench said that if permission to appeal is granted, then a Full Bench is required to conduct a real review of the evidence at first instance and, if it finds an erroneous factual finding has been made, not shrink from giving effect to its own conclusion in that regard.[29] The Full Bench went on to say:[30]

However, findings of fact at first instance will be treated with considerable deference where they involve findings which are likely to have been affected by impressions about the credibility of witnesses formed after seeing and hearing their evidence. In those circumstances, an appellate bench will ordinarily not interfere with the findings unless they are demonstrated to be wrong by reference to "incontrovertible facts or uncontested testimony" or they are "glaringly improbable" or "contrary to compelling inferences".

[42] That is to say, even if permission to appeal is granted and the Full Bench has the task of a more detailed review of the evidence, it would not lightly disturb findings in relation to contested facts made by the Member who saw and heard the witnesses give their evidence. In this case, we are dealing only with the question of permission to appeal, so have not yet reached the stage of undertaking the "real review" that would be required if permission were granted.

[43] The Deputy President was put to the task of dealing with contested facts and competing evidence about what had happened, including on the day the employment came to an end. She considered the evidence and made findings that appear to have been open on that evidence.

[44] Roadworx has not established any arguable basis on which we could conclude that the Deputy President was wrong to make any of the factual findings that Roadworx is seeking to dispute.

[45] Roadworx also has not established that it is in the public interest to grant permission to appeal. The appeal does not raise any genuine issue of law, principle, or wider application.

[46] For the reasons given we do not consider that an arguable case has been advanced that the decision was attended by appealable error. Nor are we satisfied, for the purposes of subsection 400(1) of the Fair Work Act, that the appeal attracts the public interest.

[47] For the reasons set out above, the Full Bench orders that permission to appeal is refused.

[48] The order that the Deputy President made at first instance on 22 January 2025 required that Roadworx pay Mr Dodd the amount of $33,913.07 gross within fourteen days of the date of that order. That order has not been stayed. The amount should already have been paid; if not, it should be paid immediately.

Mr D. Sciberras, Business Unit Manager, for the Appellant

[1] Robert Dodd v Roadworx Surfacing Pty Ltd [2025] FWC 215.

[2] PR753581.

[3] Robert Dodd v Roadworx Surfacing Pty Ltd [2025] FWC 215, [9] - [30].

[4] Robert Dodd v Roadworx Surfacing Pty Ltd [2025] FWC 215, [39].

[5] Robert Dodd v Roadworx Surfacing Pty Ltd [2025] FWC 215, [25].

[6] Robert Dodd v Roadworx Surfacing Pty Ltd [2025] FWC 215, [46].

[7] Robert Dodd v Roadworx Surfacing Pty Ltd [2025] FWC 215, [39].

[8] This is so because on appeal, the Commission has the power to receive further evidence pursuant to s.607(2); see Coal and Allied v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.

[10] O'Sullivan v Farrer [1989] HCA 61; 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch [2011] HCA 4, 243 CLR 506; 85 ALJR 398 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54; 192 FCR 78; 207 IR 177 at [44]- [46].

[11] GlaxoSmithKline Australia Pty Ltd v Colin Makin [2010] FWAFB 5343 at [27].

[12] Wan v AIRC [2001] FCA 1803, 116 FCR 481 at [30].

[13] Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089; 202 IR 388 at [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54; 192 FCR 78; 207 IR 177; N_SW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office_ [2014] FWCFB 1663; 241 IR 177 at [28].

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

[15] Roadworx Surfacing Pty Ltd v Robert Dodd [2025] FWC 576.

[18] Directions made 12 February 2025, [2].

[19] Perry v Rio Tinto Shipping Pty Ltd [2016] FWCFB 6963, [10].

[20] (1994) 34 NSWLR 155.

[21] For recent examples see Daniela Prince-Agbodjan v Victorian Aboriginal Child & Community Agency Co-Op Ltd [2025] FWCFB 27; Paulo Gonzalez v Department of Transport and Planning [2025] FWCFB 25; Ms Te-Arn Chalmers v CloudHolter Pty Ltd [2024] FWCFB 420; Stephenie Exton v Extons Real Estate Pty Ltd [2024] FWCFB 346.

[22] Akins v National Australia Bank (1994) 34 NSWLR 155, [160].

[23] Stephenie Exton v Extons Real Estate Pty Ltd [2024] FWCFB 346, [15], citing JJ Richards & Sons Pty Ltd v Transport Workers' Union of Australia (2010) 202 IR 180; [2010] FWAFB 9963, [95]; Mermaid Marine Vessel Operations Pty Ltd v Maritime Union of Australia (2014) 241 IR 35; [2014] FWCFB 1317, [18]; C Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149, [21] - [25]; Perry v Rio Tinto Shipping Pty Ltd [2016] FWCFB 6963, [11].

[24] Stephenie Exton v Extons Real Estate Pty Ltd [2024] FWCFB 346, [15].

[25] Robert Dodd v Roadworx Surfacing Pty Ltd [2025] FWC 215, [8].

[26] Robert Dodd v Roadworx Surfacing Pty Ltd [2025] FWC 215, [39].

[27] Roadworx Surfacing Pty Ltd v Robert Dodd [2025] FWC 576, [13].

[28] [2025] FWCFB 42.

[29] Ibid, [35] citing Fox v Percy [2003] HCA 22; (2003) 214 CLR 118, [29] (Gleeson CJ, Gummow and Kirby JJ).

[30] Stephanie Muir Ridge v Mr Alex Yates [2025] FWCFB 42, [35].

Printed by authority of the Commonwealth Government Printer