Fair Work Act 2009

s.604 - Appeal of decision

Appeal against decision [2025] FWC 3811 of Deputy President Millhouse at Melbourne on 11 December 2025 in matter number C2025/12440 - permission to appeal refused

[1] Rob Monaco has lodged an appeal under s 604 of the Fair Work Act 2009 (Act) against a decision of Deputy President Millhouse on 11 December 2025, in which the Deputy President declined to grant an extension of time for Mr Monaco to make his application under s 365 of the Act, and dismissed the application. The appeal was listed in relation to the question of 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 Monaco's employment ended on 5 November 2025, and his application was lodged on 5 December 2025, outside the 21-day period. He asked the Deputy President to allow a further period.

[3] In her decision, the Deputy President considered the matters in s 366(2) and the arguments that Mr Monaco advanced in respect of them. As to the reasons for the delay, the Deputy President noted Mr Monaco's submission that he had been on personal leave because of his concerns about intimidation and harassment from his employer and that he had been unable to work without a safety plan in place; and that he had an acquired brain injury, and his employer's conduct had affected his wellbeing. The Deputy President did not accept that Mr Monaco's circumstances prevented or seriously impeded the possibility of timely lodgement of his application. She did not consider that Mr Monaco had established any connection between the various matters on which he relied and the delay in lodging his application, and that this weighed heavily against an extension of time. The Deputy President found that while Mr Monaco had raised concerns with the respondent about various matters that occurred before the dismissal, he had not taken any other action to dispute the dismissal, which weighed against an extension of time. The Deputy President found that there was no prejudice to the employer associated with the delay, and that there were no matters relevant to the question of fairness between Mr Monaco and other persons in a like position. As to the merits of Mr Monaco's claim, the Deputy President noted Mr Monaco's contentions that he was dismissed for lodging incident reports against managers, and because of his temporary absence from work, and stated that while he had an arguable case, a more detailed assessment was not possible, and that the merits of the claim would depend on factual findings made by a court after hearing the evidence. The Deputy President concluded that, taking into account all of the matters in s 366(2), she was not satisfied that there were exceptional circumstances in Mr Monaco's case, that the power to extend time was not enlivened, and that the application was therefore dismissed.

[4] 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 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] FCA 54; (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 if 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). The fact that a member at first instance may have made an error is not necessarily a sufficient basis to grant permission to appeal.

[5] In his notice of appeal, Mr Monaco stated that he had omitted important matters from his s 365 application, including copies of medical certificates from 31 October to 14 November 2025, during which time he was being monitored as a suicide risk, as well as information about his acquired brain injury. The notice of appeal attaches various one-line medical certificates stating that Mr Monaco was unfit for work on certain dates, and a large quantity of documents, including correspondence between the parties. In his written submissions, Mr Monaco contended that his case was about whether he was mistreated during his probation period and whether the actions of the respondent were intended to prevent scrutiny or limit his legal recourse. Mr Monaco stated that his case was unique as the respondent had dismissed him without justification before the end of his probation period at a time when he was facing significant personal challenges, and the Full Bench should grant him permission to appeal.

[6] Appeals exist for the correction of error, not to allow unsuccessful parties an opportunity to rerun their case. Mr Monaco's notice of appeal and submissions do not present any arguable case of error in the Deputy President's decision. To the extent that Mr Monaco seeks to adduce further evidence on appeal under s 607(1)(a), we decline to admit it, having regard to the usual considerations that bear on the exercise of this discretion (see Akins v National Australia Bank [1994] 34 NSWLR 155 and Perry v Rio Tinto Shipping Pty Ltd [2016] FWCFB 6963). In particular, having perused the new material filed by Mr Monaco, we do not consider that it would have been likely to produce a different result at first instance.

[7] It appears to us that the Deputy President's consideration of the matter was an orthodox one that addressed all of the mandatory considerations. Mr Monaco evidently considers that the various factors should have been assessed and weighed differently however this is an expression of a point of view, not a valid contention of error.

[8] The appeal grounds do not disclose an arguable case of appealable error. We are not satisfied that it is in the public interest to grant permission to appeal. None of the matters referred to in Makin is present in this case and the public interest is not engaged in any other way. Nor do we consider that there is any reason to grant permission to appeal on general discretionary grounds.

[9] Permission to appeal is refused.

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