s.604 - Appeal of decision

Appeal against decision [2025] FWC 2955 of Deputy President Cross at Sydney on 7 October 2025 in matter number U2025/12843 - permission to appeal refused

[1] Tasha Blackman has lodged an appeal under s 604 of the Fair Work Act 2009 (Act) against a decision of Deputy President Cross issued on 7 October 2025 ( [2025] FWC 2955). The appeal was listed for hearing in relation to permission to appeal only.

[2] In his decision, the Deputy President declined Ms Blackman's request for an extension within which to make her unfair dismissal application. Section 394(2) states that such applications must be made within 21 days after the dismissal took effect, or within such further period as the Commission allows. Ms Blackman's unfair dismissal application was lodged over 2 months out of time. Section 394(3) permits the Commission to allow a further period if it is satisfied that there are exceptional circumstances, taking into account the matters in s 394(3)(a) to (f). The Deputy President considered Ms Blackman's arguments in respect of those matters. As to the reasons for the delay, the Deputy President considered that the medical evidence of Ms Blackman's distress and post-dismissal depression was of limited probative value and cited authority that stress or shock following dismissal is not exceptional. The Deputy President considered that Ms Blackman had a clear appreciation of her rights by mid-July after speaking to a legal centre, and that she was not precluded by stress and anxiety from advancing her rights. The Deputy President considered that the asserted ambiguity about a possible future engagement was not borne out by the evidence and that the dismissal letter had stated clearly that the employment would end immediately. He also considered that insofar as Ms Blackman chose to focus on financial and caring responsibilities, this was not a valid reason for delay. The Deputy President stated that he reasons for delay were not exceptional and that this weighed in the respondent's favour.

[3] As to the other mandatory considerations, the Deputy President noted that Ms Blackman was notified of her dismissal before it took effect, that she did not take other steps to dispute her dismissal until 16 and 17 July 2025 when certain correspondence was sent to the respondent, and that there was no prejudice to the employer, all of which he considered neutral factors. The Deputy President also regarded the merits as a neutral factor, as the necessary factual findings could not be made in the absence of a hearing on the evidence. He also stated that neither party had identified matters relevant to the question of fairness between the applicant and other persons in a similar situation, and that no weight could be given this consideration. The Deputy President stated that there were no exceptional circumstances and dismissed the application for an extension of time.

[4] Ms Blackman requires the permission of the Commission to appeal from the Deputy President's decision. Section 400 of the Act applies to this appeal, because the decision was made under Part 3-2 of the Act, which pertains to unfair dismissals. Section 400(1) states that the Commission must not grant permission to appeal unless it is in the public interest to do so. Consideration of the public interest involves a broad value judgment. Matters that may engage the public interest include issues of importance and general application, or where the decision manifests an injustice (GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343; (2010) 197 IR 266 (Makin) at [27]). 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 may have made an error is not necessarily a sufficient basis to grant permission to appeal.

[5] Ms Blackman's notice of appeal advances four grounds upon which she has elaborated in her submissions. First, she contends that the Commissioner made an error of fact by finding that she had a clear understanding of her rights when in fact she was suffering from significant depression and did not understand the 21-day rule. Secondly, she contended that the Deputy President did not give proper consideration to her medical circumstances and that her mental health condition did affect her ability to make decisions and meet deadlines, which should have been assessed as exceptional factors. Thirdly, Ms Blackman submitted that the decision was unreasonable and unfair because she lodged her application as soon as she was mentally capable of doing so. Fourthly, Ms Blackman said that she represented herself at the hearing, whereas the respondent was represented by a lawyer, and that this was unfair.

[6] We do not consider that any of these grounds present an arguable case of error. Ms Blackman disputes the Deputy President's factual findings, however 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]). In our view it is not arguable that this is the case here. The Deputy President's findings appear to us to have been comfortably open on the evidence. Ms Blackman also disputes the weighting assigned to the evidence by the Deputy President, but in substance she simply contends for a different weighting, and this does not speak to any error. Finally, it is a routine circumstance that one party might be represented but not another. In this case, the respondent was represented by in-house counsel, which did not require the permission of the Commission under s 596.

[7] Ms Blackman sought to adduce new evidence on appeal under s 607(2) of the Act. We decline to accept it. The Full Bench is guided by the principles set out in Akins v National Australia Bank [1994] 34 NSWLR 155 (Akins) (see Perry v Rio Tinto Shipping Pty Ltd [2016] FWCFB 6963 at [10]), which generally require, among other things, that the evidence be of such a high degree of probative value that there is a probability that there would have been a different result at first instance. This is not the case here. We are not persuaded that the new evidence is of such a high degree of probative value that it would have made any difference. We also note that while Ms Blackman contended that the new evidence was an "updated" medical certificate and that it supplemented evidence she had previously submitted, she gave no reason as to why it could not reasonably have been adduced in the proceeding before the Deputy President.

[8] We do not consider that the grounds of appeal present an arguable case of appealable error on the part of the Deputy President. Ms Blackman has also failed to persuade us that it would be in the public interest to grant permission to appeal. Contrary to Ms Blackman's submission, we do not consider this matter engages the public interest, whether in the ways contemplated by Makin or otherwise. We are therefore required by s 400(1) to refuse permission to appeal.

[9] Permission to appeal is refused.

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