Fair Work Act 2009

s.604 - Appeal of decision

Appeal against decision [ [2025] FWC 2719] of Deputy President Boyce at Sydney on 29 September 2025 in matter number U2025/1699 - permission to appeal refused.

[1] Mr Vixon Kumar has lodged an appeal under s 604 of the Fair Work Act 2009 (the Act) against a decision[1] of Deputy President Boyce (the Decision) delivered on 29 September 2025. In the Decision, the Deputy President dismissed Mr Kumar's application for an unfair dismissal remedy against the respondent, Star Track Express Pty Limited.

[2] The respondent is a logistics, freight handling, and freight distribution company, including the sorting and delivery of parcels and freight. It is a member of the Australia Post group. Prior to his dismissal, Mr Kumar was a logistics Freight Handler at the respondent's facility in Greenacre, NSW. He had been employed since 2013 and, prior to the events leading to his dismissal, had no prior record of disciplinary action or misconduct.

[3] As set out in the Decision, the circumstances leading to Mr Kumar's dismissal arose from three separate incidents occurring at work on 10 December 2024. They were described as Allegation 1, 2 and 3 in the Decision, as well as in a letter of allegations issued to Mr Kumar on 19 December 2024, and we adopt that same terminology.

[4] 'Allegation 1' concerned Mr Kumar throwing boxes of freight, with somewhat excessive force, into a storage container. He was asked by his supervisor to stop doing that but did not comply until the third request. In Mr Kumar's witness statements and oral testimony, he denied throwing the boxes and denied being told to stop three times (he says he was only told once). The Deputy President clearly did not accept Mr Kumar's evidence. A fair reading of the Deputy President's findings concerning Allegation 1 was that Mr Kumar was throwing boxes with unnecessary force and belligerently or wilfully disregarded a contemporaneous direction to stop throwing the boxes until the third request. The Deputy President also rejected Mr Kumar's allegation that he was being targeted by the company through its investigation.

[5] Relevant to the application for appeal, it was the Deputy President's reasons concerning Mr Kumar's denials of Allegation 1 where error is alleged. At [39](f), the Decision records:

"Allegation 1 is a stand-alone incident. It occurred as a matter of fact. The Applicant's contentions that he was targeted in relation to Allegation 1 because of his union membership or union activities, or his relationship with [his supervisor] Mr Arefin (howsoever described or asserted), totally misses the point in that it does not engage with the facts of Allegation 1. The Applicant could have said to the Respondent and/or the Commission that he accepts that Allegation 1 occurred, but that it occurred because he was upset and frustrated (for whatever reason), thus explaining or mitigating his conduct. But that is not the Applicant's case. I find that the Applicant's denials of Allegation 1 are not a mistake by him, but intentional." (emphasis added).

[6] The appellant also relies on paragraph [40], which states:

"In view of my findings in the foregoing paragraph, I consider that Allegation 1 constitutes a stand-alone, and valid, reason for the Applicant's dismissal. It is a valid reason for dismissal not so much for the conduct itself, but for the Applicant's denials that he was throwing freight at all. The Applicant cannot have it both ways. He cannot rely upon the asserted triviality of his conduct in circumstances where he denies that the conduct ever happened at all. In this regard, it is the wrongful denial of the conduct that confirms Allegation 1 as a valid reason for dismissal, not simply the throwing of the freight." (emphasis added).

[7] 'Allegation 2' was more serious, in that it involved a safety issue. It concerned the way Mr Kumar was operating a ride-on pallet jack carrying a fully loaded air can (a storage container weighing, in this case, about 1.2 tonnes as it was fully loaded). There was video footage of Allegation 2. A narrative description of that footage from the Decision records Mr Kumar "driving straight into, and colliding with, a silver cage trolley in front of him that is packed with freight. Whilst the Applicant pauses shortly after the pallet jack first makes contact with the trolley (for no more than three seconds), he then continues on driving and pushing forward, again making contact with the loaded trolley in front of him, but this time the loaded trolley now has an employee behind it, scrambling to move it out of the way". A further part of Allegation 2 is that Mr Kumar's same supervisor asked Mr Kumar to stop, because the supervisor considered Mr Kumar's actions were unsafe and may cause damage (including wheel damage). Mr Kumar responded to the effect of "what wheel damage? What wheel damage?" and continued to drive the pallet jack forward.

[8] We set out the Deputy President's key finding for Allegation 2, which follows (emphasis added):

"[51] I make the following findings as to Allegation 2, and the Applicant's driving of a pallet jack on 10 December 2024:

(a) The Applicant's actions in driving the pallet jack are a textbook example of how a pallet jack should never (ever) be driven, whether that be in the Respondent's workplace, or any other workplace.

(b) Howsoever Allegation 2 may be framed, all of the evidence supports the conclusion that the Applicant, whilst operating a pallet jack carrying a fully loaded ABB Can (weighing approximately 1.2 tonnes), knowingly and recklessly, drove the pallet jack directly into a loaded trolley, and then continued to drive forward, with other employees moving other trollies out of the way. This is not a safety incident where one splits hairs over the minutia as to the manner in which Allegation 2 was framed. The Applicant was being asked to respond to his conduct, as shown to him on a video footage by the Respondent during the disciplinary process.

(c) None of the Applicant's responses to the Respondent, or in his evidence to the Commission, explain or justify the Applicant's conduct in operating the pallet jack in the manner that he did. The Applicant's conduct was no accident or mistake, and I accept the Respondent's submissions (by reference to the Applicant's responses) that the Applicant has not shown responsibility or remorse for the manner in which he drove the pallet jack during his shift on 10 December 2024.

(d) I accept the evidence of [the Supervisor] Mr Arefin that:

i) he told the Applicant, whilst the Applicant was driving the pallet jack, and colliding with trollies/cages, that what the Applicant was doing was unsafe and that he needed to immediately stop driving the pallet jack; and

ii) the Applicant responded (several times) to the foregoing words and instructions of Mr Arefin with words of defiance, i.e. words to the effect of "What wheels? What will get damaged?".

(e) There is no basis whatsoever on the evidence to find that the Respondent's actions in raising Allegation 2 with the Applicant occurred because of his union membership, role as a union delegate, attendance at bargaining meetings, him raising safety issues in the past, him being disliked or targeted by Mr Arefin, him making a complaint to Mr Akhter, or for reasons of differential treatment. Indeed, it would have been wrongful for the Respondent, having regard to its nontransferable obligations under Divisions 1 to 4 of the WHS Act, to not raise Allegation 2 with the Applicant; and

(f) Allegation 2 is a serious safety breach that falls directly at the feet of the Applicant. It is, in and of itself, a valid and stand-alone reason for the Applicant's dismissal."

[9] 'Allegation 3' was comprised of different conduct again, occurring later in the shift. It concerned Mr Kumar using his mobile telephone to take a video recording of work colleagues. There were clear policies against recordings in the workplace. Mr Kumar said he did so for reasons of safety. The Deputy President rejected that explanation. His key factual finding was:

"[55] Consistent with the evidence of [another employee] Mr Arvind Kumar, I find that the Applicant was engaging in the conduct set out in Allegation 3 because he took it upon himself, or felt entitled, to make an issue of employees sorting freight at the end of their shift because he did not consider that such employees should have been sorting such freight (and engaging in useful and productive work) close to the end of their shift. Despite the Applicant's assertions as to the reasons for, or purpose of, him taking photos or video recordings of other employees in the workplace, such reasons or purpose are not to the point. The Applicant was not authorised to be taking photos or video recordings of other employees in the workplace, full stop. His actions in doing so are a clear and blatant breach of the Respondent's workplace policies and procedures." (footnotes omitted).

[10] Of relevance to the application for permission to appeal is the following passage relied upon by Mr Kumar (emphasis added):

"[56] Again, even if it be accepted that Allegation 3, in and of itself, is not a valid reason that justifies the Applicant's dismissal, this is not to the point. I find that Allegation 3 is a valid reason for dismissal because of the Applicant's wrongful attempts to justify his conduct (including breach of policy) on the basis of 'safety'."

[11] In relation to the Deputy President's conclusions concerning 'valid reason', the appellant relies upon the following passage at [57] (emphasis added):

"[57] Having regard to my findings in relation to Allegations 1 to 3, on the issue of 'valid reason' for dismissal, I conclude that:

(a) each of Allegations 1, 2 and 3 are separately, or in and of themselves, valid reasons for dismissal;

(b) combined, Allegations 1 to 3 are valid reasons for dismissal;

(c) Allegations 1 and 3, in terms of being valid reasons for dismissal, are more about the Applicant's responses to his conduct, as opposed to the conduct itself; and

(d) Allegation 2, in term of being a valid reason for dismissal, is as much about the conduct itself, as it is the Applicant's responses to or explanations for that conduct."

[12] Finally, the appellant draws attention to the Deputy President's evaluation of the factors under section 387(h) of the Act (i.e. 'other matters'). After the Deputy President's consideration of various matters - none of which are otherwise in issue - he stated (emphasis added):

"[70] I have had regard to and taken into account the matters set out in sub-paragraphs (a) to (f) of the foregoing paragraph. I do not consider these matters, in the facts and circumstances of this case, to weigh against a finding that the Applicant's dismissal was harsh, unjust, and/or unreasonable. I do not accept that subparagraph (g) (as to differential treatment) has been made out on the evidence, or that the comparisons made are 'like for like' comparisons. Nor do I accept, having regard to the findings I have made in relation to Allegations 1 to 3, that the sanction of dismissal was disproportionate to the Applicant's conduct." (footnotes omitted).

[13] There is no right to appeal, and an appeal may only be made with the permission of the Commission. It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. However, that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal. An application for permission to appeal is not a preliminary hearing of the appeal. In determining whether to grant permission to appeal, it is unnecessary and inappropriate to conduct a detailed examination of the appeal grounds.[2] However, it is necessary to engage with the grounds to consider whether they raise an arguable case of appealable error.

[14] Section 400 of the Act applies to this appeal, as it is from a decision made under Part 3-2 of the Act. By s 400(1), 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 on the ground that the decision involved a significant error of fact. The test under s 400 is "a stringent one."[3]

[15] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[4] The public interest is not satisfied simply by the identification of error or a preference for a different result.[5] Considerations that may attract the public interest include that the matter raises issues of importance and general application, that the decision manifests an injustice or that the result is counterintuitive.[6]

[16] The grounds of appeal can be grouped into two categories:

• (Grounds 1, 7 and 8) For Allegations 1 and 3, the appellant alleges that the Deputy President erred in finding a valid reason for dismissal based on the findings that Mr Kumar "wrongfully denied" his conduct for Allegation 1 and his "wrongful attempt" to justify his conduct for Allegation 3. A further allegation of error concerning these grounds states that Mr Kumar was given no opportunity to respond to the allegation he had wrongfully sought to deny the conduct of Allegations 1 and 3 because they were never put to him.

• (Ground 4) For Allegation 2, it is said the Deputy President erred at [51] of the Decision in his assessment of whether Allegation 2 constituted a valid reason for dismissal relating to Mr Kumar's conduct by taking into account that Mr Kumar had not shown responsibility or remorse for the manner in which he drove the pallet jack.

[17] We note appeal grounds 2, 3, 5 and 6 were not pressed.

[18] For reasons that will become apparent, it is convenient to deal with the alleged error concerning Allegation 2 first. Beginning firstly with ground 4 of the notice of appeal, we do not accept that the Deputy President improperly took into account that Mr Kumar had not shown responsibility or remorse for the manner in which he drove the pallet jack. The Deputy President's observation was made in the context of the case before him, where Mr Kumar's witness statement asserted that the collision was an "accident". The question as to why the collision occurred was clearly capable of relevance to the wider question of whether there was a valid reason for dismissal based on Allegation 2, which in turn necessitated a finding as to Mr Kumar's state of mind. There is a difference, for example, between a mere accident, carelessness, recklessness, and deliberate conduct.

[19] The Deputy President's factual finding was that the collision was caused by a "knowing and reckless" state of mind on Mr Kumar's behalf. The reference to the Deputy President "taking into account" that Mr Kumar had not shown remorse or responsibility must be read in the full context of that sentence, which began by concluding that "The Applicant's conduct was no accident or mistake,...".

[20] The rejection of "accident or mistake" and the alternative conclusion that Mr Kumar's driving was actuated by a "knowing and reckless" state of mind is a factual finding. A fair reading of paragraph [57](d) of the Decision, a matter further relied upon by Mr Kumar in his written submissions, does not affect those observations and nor does the Deputy President's approach to Allegations 1 and 3 which are also sought to be impugned. It was also a factual finding informed by the Deputy President's overall assessment of the matter, video footage, and assessment of the witnesses giving evidence.

[21] Where an error of fact is alleged, it is well established that an appellate body will not interfere with the factual findings of a trial decision-maker unless it is concluded that a finding cannot stand because it was contrary to incontrovertible facts or uncontradicted testimony, glaringly improbable, or contrary to compelling inferences.[7] Additionally, an appeal alleging a factual error arising from an unfair dismissal decision can be made only on the ground that the decision involved a "significant" error of fact. There is no material before us to indicate any error of this nature and, respectfully, the finding was clearly open on the evidence.

[22] In light of these matters, we do not consider that ground 4 of the notice of appeal concerning Allegation 2 discloses any arguable error of principle of fact or law, including as they concern the Deputy President's conclusion that Allegation 2 comprised a valid reason for dismissal.

[23] A consequence of our conclusion that there is no arguable error concerning Allegation 2 is that there would be no utility in otherwise granting permission to appeal, even if we were to agree there was some arguable error concerning grounds 1, 7 and 8. There is no utility, because the Decision clearly records that the findings about Allegation 2 was "in and of itself, a valid and stand-alone reason for the Applicant's dismissal". Mr Kumar seeks to answer this in two interlocking parts: the first is in reliance on the contention that there is error regarding the findings for Allegations 1 and 3; and the second is that the Deputy President's conclusions regarding the factors in section 387(h) were infected - including for Allegation 2 - by those matters.

[24] While well-argued, we are not persuaded ground 4 raises any matter of public interest such that permission to appeal should be granted. There is no credible basis to indicate any different overall outcome that would enliven the public interest, particularly given the Deputy President's clear conclusions about Allegation 2. We do not consider the rolled-up language of the Deputy President's conclusions regarding the factors in section 387(h) (set out above at [12]) detracts from the fact that the Deputy President clearly turned his mind to the separate valid reasons before him. While the appellant correctly notes that the Deputy President's assessment of 387(h) refers to his conclusions (see above) in Allegations "1 to 3", we do not consider that, having gone to some length to identify separate valid reasons for dismissal, the Deputy President intended to - or did - recombine them through a somewhat summary observation concerning 'other matters' of relevance.

[25] For the reasons given above, permission to appeal is refused.

P. Boncardo of Counsel instructed by I. Wisniewska of the TWU, for the Appellant.

A. Battagello of Lander & Rogers, for the Respondent.

[1] Kumar v Star Track Express Pty Limited [2025] FWC 2719.

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

[3] Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54; 192 FCR 78; 207 IR 177 at [34] and [43].

[4] O'Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210 at 216-217 per Mason CJ, Brennan, Dawson and Gaudron JJ: applied in Hogan v Hinch (2011) 243 CLR 506 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCA 54; (2011) 192 FCR 78 at [44]- [46].

[5] GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343; 197 IR 266 at [24]- [27]; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/ Warkworth [2010] FWAFB 10089 at [28], affirmed on judicial review; Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 178; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663; 241 IR 177 at [28].

[6] GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, 197 IR 266 at [24]- [27].

[7] Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [27] - [29].

Printed by authority of the Commonwealth Government Printer