Fair Work Act 2009

s.604 - Appeal of decision

Appeal against decision [2025] FWC 1357 of Deputy President O'Neill at Melbourne on 19 August 2025 in matter number U2025/1630 - permission to appeal refused

[1] Soledad Degendorfer has lodged an appeal under s 604 of the Fair Work Act 2009 (Act) against a decision of Deputy President O'Neill which dismissed Ms Degendorfer's application for an unfair dismissal remedy. The matter was listed 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] In her decision, the Deputy President determined that Ms Degendorfer had not been an employee of the respondent, Australian Skin Clinics Knox Pty Ltd (ASCK). The Deputy President found that Ms Degendorfer had been employed by Shariff Investments Pty Ltd (Shariff), a franchisee of an Australian Skin Clinics outlet, and that in early February 2025 ASCK took over the franchise from Shariff. The sale agreement was signed on 3 February 2025 and the transfer took effect on 4 February 2025. Ms Degendorfer had been told by Shariff that she would be on secondment to the new franchisor. On 3 February 2025, she attended for work as usual. That evening, Ms Degendorfer received an email from ASCK stating that Shariff had decided to terminate her contract. On 4 February 2025, ASCK sent Ms Degendorfer a further message, confirming that she had not been employed by ASCK and that no employment relationship existed between them. Before the Deputy President, Ms Degendorfer contended that she had worked a full shift on 3 February 2025 while ASCK was in effective control of the clinic, that her role had remained unchanged, and that her prior service with Shariff counted towards her period of employment, with the consequence that she was eligible to bring an unfair dismissal application against ASCK. ASCK contended that it had simply never employed Ms Degendorfer. The Deputy President agreed. She found that there was no contract of employment between the parties, nor could she identify any conduct by ASCK that was suggestive of an intention to offer Ms Degendorfer employment. Further, the work performed by Ms Degendorfer on 3 February 2025 was for the benefit of Shariff, not ASCK. The Deputy President concluded that Ms Degendorfer had not been an employee of ASCK and that she was therefore not a person protected from unfair dismissal.

[3] Section 400 of the Act applies to this appeal, because the Deputy President's decision was made under Part 3-2 of the Act. Section 400(1) states that the Commission must not grant permission to appeal unless it is in the public interest to do so. Section 400(2) provides that an appeal on a question of fact can only be made on the ground that the decision involved a significant error of fact. 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 if the decision manifests an injustice (GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343; (2010) 197 IR 266 at [27]).

[4] 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 ultimately 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] Ms Degendorfer's first and second appeal grounds contended that the Deputy President erred in determining that the franchise transferred to ASCK on 4 February 2025, and in failing to give proper weight to evidence about the handover arrangements for keys, EFTPOS and locks on 1 February 2025. In this regard, and in various other respects set out in her written submissions, Ms Degendorfer challenges the Deputy President's findings of fact. But it is well established that the factual findings of a member at first instance should generally stand, unless they can be shown to be wrong by incontrovertible facts or are glaringly improbable (see AEU v Bendigo Kangan Institute of TAFE [2021] FWCFB 3649 at [37]- [39]). It is not arguable that this is the case here. On the contrary, the Deputy President's findings appear to us to have been comfortably open on the evidence. The third appeal ground states that the Deputy President accepted the respondent's submissions 'without disclosure compliance'. This appears to relate to a contention of Ms Degendorfer before the Deputy President that ASCK had not complied with an order for production of documents. But the Deputy President was not satisfied that there had been any such failure and no cogent contention of error is advanced in this regard.

[6] The fourth ground of appeal asserts that the Deputy President failed to properly consider the question of continuity of employment from Shariff to ASCK. But continuity of employment was irrelevant, because the Deputy President found that Ms Degendorfer was never employed by ASCK. The fifth ground of appeal contended that the Deputy President erred in not finding that Ms Degendorfer was dismissed by ASCK on the evening of 3 February 2025, when its representative advised her that Shariff had terminated her employment. We fail to see any arguable error here. There could be no dismissal of Ms Degendorfer by ASCK if she was never employed by that entity in the first place.

[7] Ms Degendorfer's final ground of appeal asserted that the Deputy President had erred by failing to address her concerns of apprehended bias that were raised in correspondence to chambers on 3 April 2025. Ms Degendorfer's complaint was that during a mention earlier that day, the Deputy President had questioned whether it was appropriate for her to be represented by Henri Dupont, and had referred to old newspaper articles about him. The correspondence asked the Deputy President to provide a written assurance that she was not biased and that she would act impartially. In her appeal submissions, Ms Degendorfer said that the absence of any assurance from the Deputy President reinforced the apprehension of bias. This is misconceived. If Ms Degendorfer considered that the Deputy President should recuse herself, it was up to her to make a recusal application. The Deputy President clearly explained this in her reply to Ms Degendorfer's correspondence. No recusal application was ever made. There is no arguable basis for a contention of error in the Deputy President's treatment of this matter, or that this ground of appeal speaks to any error in the Deputy President's decision. In her written submissions, Ms Degendorfer suggested that the transcript of the mention on 3 April 2025 would bear out her concerns about bias, but the audio recording reveals nothing of the kind. The Deputy President sought to ascertain in what capacity Mr Dupont was speaking for Ms Degendorfer, whether he required the Commission's permission to represent her pursuant to s 596, and if so whether permission should be granted. It transpired that Mr Dupont was Ms Degendorfer's partner and the Deputy President allowed him to represent her.

[8] Ms Degendorfer's grounds of appeal disclose no arguable case of error in the Deputy President's decision. Further, we do not consider that it is in the public interest to grant permission to appeal. We are therefore required by s 400(1) to refuse permission to appeal, and we do so.

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