s.604 - Appeal of decision

Appeal against decision [2025] FWC 605 of Deputy President Colman at Melbourne on 27 February 2025 in matter number U2025/641 - permission to appeal refused.

[1] Ms Yanjun Liu has lodged an appeal under s 604 of the Fair Work Act 2009 (Cth) (Act) against a decision[1] of Deputy President Colman issued on 27 February 2025, for which permission to appeal is required. In the decision, the Deputy President declined to grant an extension of time for the filing of Ms Liu's application for an unfair dismissal remedy against the respondent, Hills Health Pty Ltd.

[2] The matter was listed for permission to appeal only. The parties consented to the application being determined without holding a hearing pursuant to s 607(1)(b) of the Act. We are satisfied, having regard to s 607(1)(a), that the question of permission to appeal can be adequately determined without the need for oral submissions. For the reasons that follow, permission to appeal is refused.

[3] Being satisfied that Ms Liu's application was filed one week outside the 21-day statutory timeframe for lodgment in s 394(2) of the Act, the Deputy President proceeded to consider whether to allow a further period for the application to be made, having regard to the factors in

s 394(3). As to the reason for the delay (s 394(3)(a)), the Deputy President accepted that Ms Liu is suffering from the mental health condition described in the correspondence from her doctor. However, he did not accept that this condition rendered Ms Liu unable to lodge the application on time, the conclusion not being consistent with Ms Liu's submissions at the hearing as to the actions she took in the period prior to filing the application. The matters in

ss 394(3)(b), (c), (d) and (f) were neutral considerations. As to the merits of Ms Liu's substantive application (s 394(3)(e)), the Deputy President recorded Ms Liu's submission that her dismissal was unfair including because it was in retaliation for having raised concerns and complaints and for taking sick leave. The respondent's position was that Ms Liu was dismissed on 20 December 2024 because she no longer had a legal right to work in Australia, as her working visa had expired on 8 November 2024. The Deputy President concluded that the merits of the case weighed strongly against an extension of time.

[4] Having regard to the findings made in relation to the above factors, the Deputy President concluded that there were no exceptional circumstances such as to exercise his discretion to extend time. Further, the Deputy President concluded that even if the discretion were enlivened, it would not be exercised in this case.

[5] There is no right to appeal, and an appeal may only be made with the permission of the Commission. Section 400 of the Act applies to this appeal, as it is from a decision made under Part 3-2 of the Act. By 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."[2]

[6] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[3] The public interest is not satisfied simply by the identification of error or a preference for a different result.[4] 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.[5]

[7] 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.[6] However, it is necessary to engage with the grounds to consider whether they raise an arguable case of appealable error.

[8] Ms Liu's grounds of appeals are set out in her Form F7 Notice of Appeal and are summarised as follows:

1. Procedural unfairness (denial of natural justice)

   • (1) Failure to provide interpreter services

   • (2) Failure to adjourn hearing

   • (3) Lack of consent regarding employer's legal representation

   • (4) Forced to proceed unrepresented

2. Significant error in assessing medical evidence

   • (1) Misinterpretation of medical evidence

   • (2) Undue weight on legal engagement

   • (3) Lack of guidance from employer.

[9] Ms Liu submits that granting the appeal is in the public interest including because it reinforces procedural fairness by ensuring that individuals from diverse cultural and linguistic backgrounds are given fair and equitable opportunities to pursue justice; it emphasises fair access to justice, particularly for unrepresented and culturally diverse individuals, by addressing significant procedural disparities and imbalances; and it ensures that mental health conditions are appropriately acknowledged and respected in procedural matters, setting important precedents that promote inclusivity and equity within the judicial system.

[10] The 21-day statutory timeframe for lodging unfair dismissal applications in the Commission reflects Parliament's intention that such applications are to be made promptly. It is not in dispute that Ms Liu's application was filed outside this timeframe. While the Act recognises that there are some cases where a late application should be accepted, the Commission must be satisfied that there are exceptional circumstances for doing so.

[11] In the consideration of the circumstances before him, Ms Liu believes that the Deputy President failed to give sufficient weight to the credible medical evidence before the Commission and this constitutes a significant error (ground B(1)). However, the weight to be assigned to the conclusions that the Deputy President reached in respect of the matters specified in s 394(3) of the Act were matters for the Deputy President.[7] The reasons for delay was just one of those matters. Any disagreement about the weight attributed to the medical evidence where it was otherwise the subject of proper consideration in the decision, is not a sustainable ground of appeal. In this case, the decision records that the Deputy President's consideration of the medical evidence was balanced against Ms Liu's oral submissions at the hearing. These submissions demonstrated that Ms Liu undertook other tasks and functions that the Deputy President concluded required "significantly more concentration and cognitive function" than filing a form F2 application during the relevant period. In circumstances where the medical evidence was properly considered, an arguable case of error does not arise.

[12] The contentions that Ms Liu sought, but did not receive, legal advice from any of the professionals that she contacted, nor from the respondent (grounds B(1) and (2)) are not connected to any aspect of the Deputy President's decision and cannot therefore give rise to an arguable error.

[13] Ms Liu raises four grounds in support of her contention that she was denied procedural fairness (grounds A(1)-(4)). However, we are not persuaded that Ms Liu was denied the opportunity for a fair hearing in respect of any of these matters. While an interpreter did not attend the hearing despite being arranged by the Commission, Ms Liu was invited to advise whether she wished to proceed on the understanding that if at any time she did not understand something she could inform the Deputy President, and steps would be taken to assist. Ms Liu agreed to proceed on this basis.[8] At no time during the course of the hearing did Ms Liu indicate that she did not understand, nor seek an adjournment. Upon the conclusion of the hearing, Ms Liu thanked the Deputy President and stated that matters were "all clear on my side." This understanding, we consider, is consistent with the cogent and articulate written submissions filed by Ms Liu in these proceedings. We reject the contention that Ms Liu was at any time "forced" to proceed.

[14] We accept that the respondent's legal representative appears to have made brief oral submissions at the hearing absent being granted permission to do so pursuant to s 596(2) of the Act. The decision is arguably attended by error in this respect. However, the mere demonstration of error, without more, is not necessarily sufficient to attract the public interest and require the grant of permission to appeal.[9] Such is the case here, for two reasons.

[15] First, this is not a case where the respondent led evidence at the hearing, cross-examined Ms Liu, or presented its case only through oral submissions at the hearing. On the contrary, the oral submissions advanced by the respondent's representative were extremely confined, largely focussing upon the medical evidence produced by Ms Liu shortly prior to the hearing, and observations about Ms Liu's employment contract. Neither of these submissions were adopted by the Deputy President in the decision.

[16] At paragraph [4] of the decision, the Deputy President addressed the position advanced by the respondent in relation to the overall merits of the application (s 394(3)(e)). These matters were not the subject of oral submissions at the hearing by the respondent's representative. Rather, they were set out in the respondent's comprehensive Form F3 filed in response to Ms Liu's unfair dismissal application prior to the hearing. The Form F3:

• (a) provided an extensive summary of the respondent's position regarding the out of time objection;

• (b) provided documentary evidence demonstrating the written communications that passed between it and Ms Liu in relation to the expiration of Ms Liu's visa; and

• (c) addressed the matters in s 387 of the Act, with supporting evidence, in connection with the respondent's position that there was a valid reason for the dismissal by reason of Ms Liu's inability to perform the inherent requirements of her job due to being unable to legally work in Australia.

[17] These matters appear to demonstrate that the oral submissions made by the respondent's representative without express permission at the hearing were not material to the Deputy President's dispositive reasoning.

[18] Second, permission to appeal may be refused despite the identification of appealable error where upholding the appeal would lack any useful result.[10] In this matter, Ms Liu was dismissed following the expiration of her working visa and where she did not hold a substantive visa that provided unrestricted working rights in Australia. There is no material before us to demonstrate that Ms Liu's capacity to work in Australia has been remedied. But even if it has, it remains the case that Ms Liu has not persuaded us that the appeal attracts the public interest by reference to the stringent test that applies to unfair dismissal proceedings under s 400(1) of the Act. The matters advanced by Ms Liu, including those set out in her written submissions, do not demonstrate that the appeal raises any genuine issue of law, principle or wider application. Ms Liu's application for an extension of time was considered by reference to its own factual circumstances. The overall conclusion reached by the Deputy President that there were no exceptional circumstances justifying the grant of an extension of time when all the matters in s 394(3) were taken into consideration has not been the subject of challenge in the appeal. Nor would we conclude that such challenge would have any arguable prospects of success in any event.

[19] It follows that we must refuse permission to appeal in accordance with s 400(1) of the Act.

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

[1] [2025] FWC 605

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

[3] 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) 192 FCR 78 at [44]-[46]

[4] 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]

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

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

[7] R v Hunt; Ex parte Sean Investments Pty Ltd [1979] HCA 32; (1979) 53 ALJR 552 at p. 556 (Murphy J); cited in Chubb Security Australia Pty Ltd v Thomas, Print S2679 (AIRCFB, McIntyre VP, Marsh SDP, Larkin C, 2 February 2000) at [37]

[8] Appellant's submissions at 16 (Audio recording of proceeding at 00:01:47)

[9] GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343 at [26]- [27]; Lawrence v Coal & Allied Mining Services Pty Ltd t/a Mt Thorley Operations/Warkworth [2010] FWAFB 10089 at [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663; 241 IR 177 at [28]

[10] See Ferrymen Pty Ltd v Maritime Union of Australia [2013] FWCFB 8025 at [48] and the decisions there cited; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663; 241 IR 177 at [28]

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