Fair Work Act 2009

s.604 - Appeal of decision

Appeal against decision [2026] FWC 93 of Deputy President Wright at Sydney on 13 January 2026 in matter number U2025/16682 - permission to appeal refused.

[1] Ms Svetlana Collas Sagastegui has lodged an appeal under s 604 of the Fair Work Act 2009 (Cth) (the Act) against a decision[1] of Deputy President Wright which dismissed Ms Collas Sagastegui's application for an unfair dismissal remedy on the basis that it was filed out of time and there were no exceptional circumstances that warranted an extension of time (the Decision).

[2] Rule 128(2) of the Fair Work Commission Rules 2024 (Cth) requires a notice of appeal to be filed within 21 days after the date of the relevant decision or order, or within such further time as allowed by the Commission. The Decision was issued on 13 January 2026. Ms Collas Sagastegui's application was lodged on 4 February 2026. This means that Ms Collas Sagastegui's appeal was filed one day out of time, and she requires an extension of time from the Commission to lodge her appeal pursuant to rule 128(2)(c).

[3] Ms Collas Sagastegui's matter was listed before us in relation to permission to appeal and the issue of extension of time to appeal.

[4] The background facts in the Decision can be summarised as follows. Ms Collas Sagastegui was employed by Pulse Staffing Australia Pty Ltd (Pulse) as a casual on-hire educator from 19 March 2023. On 13 October 2023, Ms Collas Sagastegui injured her wrist. Ms Collas Sagastegui was unfit for pre-injury duties until 24 May 2024. Ms Collas Sagastegui performed office duties during the period she was unfit for her pre-injury duties, though the parties disagreed as to the exact timing of the office duties. Ms Collas Sagastegui's last shift was on 23 May 2024.

[5] On 28 May 2024, Ms Collas Sagastegui met with Pulse management to review her pending payments and to request that her workers' compensation claim be reopened so that she could continue to treat her injury. The parties disagreed on what was said during that meeting. Ms Collas Sagastegui said that Pulse made an offer to her to not pursue any further claims regarding her injury. Pulse denied this. The parties also disagreed on whether Pulse said to Ms Collas Sagastegui that she was no longer working with them. Pulse's position was that Ms Collas Sagastegui remained on their casual database and was not removed until she became 'lapsed', 12 months after her last assignment.

[6] The parties provided correspondence from icare regarding Ms Collas Sagastegui's workers' compensation matter in relation to Ms Collas Sagastegui's capacity for work and the status of her wrist injury. The Decision records at paragraph [16] that Ms Collas Sagastegui explained during the hearing that she did not receive any workers compensation payments after her last shift with Pulse on 23 May 2024, but payments were made after a decision from icare from about November 2024 to July 2025.

[7] Ms Collas Sagastegui lodged her unfair dismissal application under s 394 of the Act on 18 October 2025, approximately two and a half months after her weekly workers' compensation payments ceased.

[8] In the matter before the Deputy President, Pulse disputed that it had dismissed Ms Collas Sagastegui but did not object to 28 May 2024 being regarded as the effective date of dismissal for the purpose of the Commission determining whether an extension of time should be granted.

[9] The Deputy President proceeded to consider whether to allow a further period of time for Ms Collas Sagastegui's application to be made under s 394(3). Ms Collas Sagastegui submitted that the reason for the delay was a combination of her severe mental health issues; her reliance on her workers' compensation lawyers to file an unfair dismissal application on her behalf; ignorance of the 21-day deadline; and language barriers due to her limited English proficiency.

[10] The Deputy President accepted that Ms Collas Sagastegui was suffering the effects of her wrist injury and had a psychological injury by at least 6 July 2024 but found that there was insufficient evidence to establish that those conditions prevented Ms Collas Sagastegui from lodging her unfair dismissal application. The Deputy President found that even if she had been satisfied that Ms Collas Sagastegui's medical conditions prevented her from lodging her application, that only went as far as 14 April 2025, as the evidence showed that from 15 April 2025 to 27 June 2025, Ms Collas Sagastegui was certified as having some capacity for work.

[11] The Deputy President also accepted that individuals who do not speak English as a first language may be disadvantaged in understanding their legal rights but found that Ms Collas Sagastegui was reasonably proficient at accessing information and navigating bureaucratic systems. The Deputy President further observed that it was well-established that ignorance of the law was not an exceptional circumstance, and that Ms Collas Sagastegui did not lead any evidence to support her contention that she had been relying on her workers' compensation lawyers to file an unfair dismissal application for her.

[12] The Deputy President found that Ms Collas Sagastegui's medical conditions might explain and account for some, but not all, of the 487-day delay in making her unfair dismissal application. The Deputy President found that this factor did not weigh in favour of a finding of exceptional circumstances.

[13] With regard to the other criteria in s 394(3) of the Act that did not weigh in favour of a finding of exceptional circumstances, the Deputy President found that Ms Collas Sagastegui was aware of the dismissal when it took effect; there was no evidence that Ms Collas Sagastegui took any action to dispute the dismissal; and the delay of 487 days would cause prejudice to Pulse. The Deputy President found that the merits of Ms Collas Sagastegui's application and fairness between Ms Collas Sagastegui and other persons in a similar position to be neutral considerations in her assessment.

[14] In weighing the criteria in s 394(3) of the Act, the Deputy President was not satisfied that there were exceptional circumstances and therefore dismissed Ms Collas Sagastegui's unfair dismissal application.

[15] Ms Collas Sagastegui requires the Commission's permission in order to appeal from the Deputy President's decision. Section 400 of the Act applies to this appeal, because the decision under appeal was made under Part 3-2. Section 400 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.

[16] Consideration of the public interest involves a broad value judgment.[2] As noted in the Full Bench decision in GlaxoSmithKline Australia Pty Ltd v Makin ('Makin'), 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.[3] 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.[4] However, the appeal grounds must be examined with a view to whether they establish an arguable case of appealable error. This is so because an appeal cannot succeed in the absence of such error.[5]

[17] In Ms Collas Sagastegui's Notice of Appeal, she sets out a number of contentions, which can be summarised in the following manner.

[18] Ground 1 relates to the Deputy President's conduct of the matter. Ms Collas Sagastegui submits that the Deputy President distorted justice as she refused to accept Ms Collas Sagastegui's refusal to bow her head. Ms Collas Sagastegui further submits that the Deputy President subjected her to a humiliating interrogation that was being watched online. Ms Collas Sagastegui contends that this was a form of indirect bullying. Ms Collas Sagastegui's submissions on this ground effectively argue that the Deputy President was biased and deliberately obstructed justice.

[19] Ground 2 asserts that the Deputy President's observation that Pulse had provided office duties between 27 December 2023 to 2 May 2024 was incorrect, as she only performed office work in February 2024.

[20] Ground 3 refutes Pulse's argument that Ms Collas Sagastegui was not dismissed, and objects to Pulse's reliance on clauses of the employment contract stating that termination of an assignment does not of itself constitute termination of employment; that there is no obligation on Pulse to offer future assignments; and that Pulse makes no firm advance commitment to continuing and indefinite work.

[21] Ground 4 concerns the Deputy President's finding that a chronology of Ms Collas Sagastegui's injury was incomplete and that there were difficulties with assessing Ms Collas Sagastegui's incapacity and the impact that may have had on Ms Collas Sagastegui's inability to file her application. Ms Collas Sagastegui submits that the medical evidence was clear (albeit manipulated at times) and that there was sufficient evidence to assess her incapacity as ongoing. Ms Collas Sagastegui asserts that the Deputy President did not acknowledge an ultrasound result from May 2024 that indicated that there had been no recovery or change in her injury.

[22] Ground 5 deals with the Deputy President's finding that Ms Collas Sagastegui did not provide the results of her DASS 21 test, and so she was unaware of when it was administered. Ms Collas Sagastegui submits that she did present the results as well as a medical report referring to the DASS 21 results. Ms Collas Sagastegui provided a copy of the DASS 21 results to the Full Bench.

[23] With regard to the public interest, Ms Collas Sagastegui largely restates the above grounds of appeal.

[24] Ms Collas Sagastegui did not directly address the issue of her appeal being one day out of time. However, Ms Collas Sagastegui informed the Full Bench several times that she continues to be affected by her medical conditions. We have taken this into account.

[25] The Respondent's oral submissions were effectively that Ms Collas Sagastegui has not demonstrated any error with the Decision, and the findings of the Deputy President were reasonable based on the material before her.

[26] With regard to ground 1, Ms Collas Sagastegui did not lead any evidence in support of her contentions against the Deputy President's conduct or explain what the appealable error was. During the hearing, Ms Collas Sagastegui submitted that the Deputy President had treated a medical report dated 11 April 2024 in a humiliating or mocking manner when the Deputy President stated that she would consider the report. Having reviewed the materials, we find no error in how the Deputy President dealt with the matter. We find that this contention and ground rise no higher than Ms Collas Sagastegui's dissatisfaction with how the proceeding was conducted.

[27] Ground 2 relates to the Deputy President's recounting of a submission from Pulse. The Deputy President did not make a finding as to whether Pulse's submission was correct, and it was not material to the Deputy President's findings. There is therefore no arguable error.

[28] Ms Collas Sagastegui's third ground of appeal is misguided, as the Deputy President did not make a finding on whether Ms Collas Sagastegui was dismissed. Indeed, the Deputy President dealt with Ms Collas Sagastegui's unfair dismissal application on the assumption that she was dismissed, as seen at paragraph [21] of the Decision, an appropriate approach which was open for the Deputy President to adopt in light of the decision of the Full Bench in Taylor v Department of Justice and Community Safety.[6]

[29] Ground 4 is also misguided. At paragraph [34] of the Decision, the Deputy President accepted that Ms Collas Sagastegui was suffering the effects of her wrist injury and a psychological injury. However, the Deputy President found that those conditions did not prevent Ms Collas Sagastegui from lodging her unfair dismissal application on time. We find no arguable error in this conclusion or how it was reached.

[30] In terms of ground 5, we have reviewed the Digital Hearing Book that compiled the parties' materials at first instance. The DASS 21 report was not in the Digital Hearing Book, and the parties were to advise the Deputy President's Chambers if there were any materials missing. There was therefore no error in the Deputy President's finding that she was unaware of when the DASS 21 report was completed. However, even if the DASS 21 report had been before the Deputy President, it would not have been probative. The DASS 21 report that Ms Collas Sagastegui provided to the Full Bench was completed on 18 June 2023, well before Ms Collas Sagastegui's wrist injury on 13 October 2023. We also note that the Deputy President did not reject Ms Collas Sagastegui's submission that she was suffering from psychological health conditions. The Deputy President notes at paragraph [32] of the Decision a medical report dated 6 July 2024 which detailed Ms Collas Sagastegui's psychological injury. The Deputy President found that it did not provide a sufficient explanation for the entire delay. We find that there is no arguable error.

[31] The following matters are generally relevant to whether a further period should be granted for the filing of a notice to appeal:

• (a) whether there is a satisfactory reason for the delay;

• (b) the length of the delay;

• (c) the nature of the grounds of appeal and the likelihood of one or more of those grounds being upheld if time was extended; and

(d) any prejudice to the respondent if time was extended.[7]

[32] As we are not satisfied that Ms Collas Sagastegui has identified an arguable case of error in the Deputy President's Decision, and the public interest is not enlivened, there is no sensible basis to grant an extension of time to file the notice of appeal.

[33] We refuse to grant a further period for the filing of Ms Collas Sagastegui's notice of appeal. The application for permission to appeal is therefore dismissed.

[34] Even if we had been minded to grant a further period for Ms Collas Sagastegui to file her notice of appeal, we do not consider that it is in the public interest to grant permission to appeal. None of the matters referred to in Makin are present, nor is there any other element that engages the public interest. We are required by s 400(1) of the Act to refuse permission to appeal, and we do so.

[1] [2026] FWC 93.

[2] Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCA 54; (2011) 192 FCR 78, [44].

[3] [2010] FWAFB 5343, [26]-[27]

[4] Trustee for the MTGI Trust v Johnston [2016] FCAFC 140, [82].

[5] Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194, 204 [16]-[17].

[6] [2025] FWCFB 173, [70]-[72]

[7] United Workers' Union v The Corporation of the Trustees of the Roman Catholic Church Archdiocese of Brisbane [2025] FWCFB 203, [28].

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