Fair Work Act 2009

s.604 - Appeal of decision

Stay application under s 606 - no arguable case of error - stay refused

• [1] Wlmm Food Pty Ltd (appellant) has applied for a stay under s 606 of the Fair Work Act 2009 (the Act) in connection with an appeal that it has lodged under s 604 against a decision of Commissioner Simpson issued on 11 July 2025 ( [2025] FWC 1995). In his decision, the Commissioner determined that the dismissal of Jian Zhang by the appellant was unfair and ordered the appellant to pay Mr Zhang compensation of $7,953 within 14 days.

• [2] The principles that apply to stay applications under s 606 are well established. Before granting a stay, the Commission must be satisfied that the appeal presents an arguable case, with some reasonable prospects of success both in respect of permission to appeal and the merits, and that the balance of convenience weighs in favour of a stay. The decision under appeal in this matter was made under s 401, and therefore s 400 applies to the appeal. Section 400(1) states that the Commission must not grant permission to appeal from a decision made under that Part unless it considers that it is in the public interest to do so. Further, s 400(2) provides that, to the extent that an appeal is brought on a question of fact, an appeal can only be made on the ground that the decision involved a significant error of fact.

• [3] The appellant failed to attend the hearing before the Commissioner on 10 July 2025, despite the Commissioner advising it that the hearing would proceed, even if the appellant did not engage with the process. Mr Zhang appeared at the hearing and gave evidence. In his decision, the Commissioner made findings based on the evidence before him, and had regard to the appellant's F3 response to the unfair dismissal application. The Commissioner rejected the appellant's contentions that the dismissal was consistent with the Small Business Fair Dismissal Code (Code), and that Mr Zhang had committed misconduct, as he found that there was no evidence to support them. The Commissioner accepted Mr Zhang's evidence that he was dismissed without warning after raising a concern that he had been underpaid. He concluded that there was no valid reason for the dismissal and that the dismissal was unfair.

• [4] The appellant's notice of appeal sets out 3 grounds, each of which contends that Mr Zhang committed misconduct and that the Commissioner was wrong not to take this into account or give the matter sufficient weight. None of the grounds of appeal present an arguable case of error. The appellant appears to believe that its appeal is an opportunity for it to prove the factual case that it could have presented to the Commissioner if it had attended the hearing. This is wrong. Appeals exist for the correction of error. There is no basis to assert that the Commissioner's factual findings were affected by error. Factual finding of a member at first instance should generally stand unless they are glaringly improbable or contrary to compelling inferences. The appellant identifies no basis to consider that the Commissioner's findings are of such a nature. It simply asserts that the facts were different from those found by the Commissioner. The appellant's other contentions, that the Commissioner took a strict approach to the Code and emphasised procedural matters over misconduct, are not reasonably arguable.

• [5] At the stay hearing, the appellant's director, Yunpeng Guan, contended that he was unaware of the hearing because his wife gave birth on 31 May 2025, and they had missed the email from the Commission advising of the hearing. I do not accept this. On 14 May 2025, the Commissioner's associate sent Mr Guan an email attaching the notice of listing and directions, and on 19 May 2025, Mr Guan replied, confirming that he had received it.

• [6] As no arguable case of error has been presented in the stay application, it is not necessary to consider the balance of convenience. I would also note that the appellant is in breach of the Commissioner's order, which required payment by 25 July 2025, and that it did not lodge its appeal until after the deadline for compliance had passed. This is a further, discretionary reason not to grant the application.

• [7] The application for a stay is refused.

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