Appeals

 See Fair Work Act s.604

Note: The examples used in this section do not only refer to anti-bullying matters; they also include decisions related to other types of matters heard by the Fair Work Commission. These examples have been used because they help explain the principles behind the appeal process.

A person who is aggrieved by a decision made by the Commission (other than a decision of a Full Bench or Expert Panel) may appeal the decision, with the permission of the Commission.[1]

A person who is aggrieved is generally a person who is affected by a decision or order of the Commission and who does not agree with the decision or order. The term can extend beyond people whose legal interests are affected by the decision in question to people with an interest in the decision beyond that of an ordinary member of the public, such as, in some circumstances, a union or an employer association.[2]

In determining whether a person is a ‘person aggrieved’ for the purposes of exercising a statutory right of appeal, it is necessary to consider the relevant statutory context.[3]

Intervention

There is no provision of the Fair Work Act expressly dealing with intervention however the Commission has used the broad procedural power in s.589(1) to empower it to permit intervention in an appropriate case.[4]

An appeal must be lodged with the Commission within 21 days after the date the decision being appealed was issued.[5] If an appeal is lodged late, an application can be made for an extension to the time limit.[6]

In each appeal, a Full Bench of the Commission needs to determine two issues:

• whether permission to appeal should be granted, and
• whether there has been an error in the original decision.

The Fair Work Act provides that the Commission must grant permission to appeal if it is satisfied that it is in the public interest to do so.[7]

Public interest

The task of assessing whether the public interest test has been met is a discretionary one involving a broad value judgment.[8]

Some considerations that the Commission may take into account in assessing whether there is a public interest element include:

• where a matter raises issues of importance and general application
• where there is a diversity of decisions so that guidance from an appellate court is required
• where the original decision manifests an injustice or the result is counter intuitive, or
• that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters.[9]

The public interest test is not satisfied simply by the identification of error or a preference for a different result.[10]

Error of law

An error of law of law may be a jurisdictional error, which means an error concerning the Commission’s power to do something, or it may be a non-jurisdictional error concerning any question of law which arises for decision in a matter.

In cases involving an error of law, the Commission is concerned with the correctness of the conclusion reached in the original decision, not whether that conclusion was reasonably open.[11]

Error of fact

An error of fact can exist where the Commission makes a decision that is ‘contrary to the overwhelming weight of the evidence...’[12].

In considering whether there has been an error of fact, the Commission will consider whether the conclusion reached was reasonably open on the facts.[13] If the conclusion was reasonably open on the facts, then the Full Bench cannot change or interfere with the original decision.[14]

It is not enough to show that the Full Bench would have arrived at a different conclusion to that of the original decision maker.[15] The Full Bench may only intervene if it can be demonstrated that some error has been made in exercising the powers of the Commission.[16]

Link to form

•  Form F7 – Notice of Appeal

All forms are available on the Forms page of the Commission's website.

 See Fair Work Act s.606

If the Commission hears an appeal from, or conducts a review of a decision, the Commission may order that the operation of the whole or part of the decision be stayed by making a stay order.

The stay order can be made on any terms and conditions that the Commission considers appropriate, until a decision in relation to the appeal or review is made, or the Commission makes a further order.

If a Full Bench is hearing the appeal or conducting the review, a stay order in relation to the appeal or review may be made by:

• the Full Bench
• the President
• a Vice President, or
• a Deputy President.

Permission to appeal granted

Jurisdiction of the Commission

Obatoki v Mallee Track Health & Community Services and Others [2015] FWCFB 1661 (Catanzariti VP, Smith DP, Blair C, 27 March 2015).

Facts

The Deputy President dismissed the appellant’s application at first instance on the basis that the application had no reasonable prospects of success. Mallee Track had terminated the contract with Dove Investments and Dr Obatoki was no longer working at the Mallee Track Medical Clinic.

Outcome

Permission to appeal was granted because the Full Bench was satisfied that the matter raised issues of importance and general application and thus enlivened the public interest. The proper approach to the application of s.789FF of the Fair Work Act in circumstances where the employment relationship has ceased is an issue that has previously only been considered by single member authorities. The Full Bench were of the view that this was particularly warranted given that the application of this provision went to issues of the Commission’s jurisdiction. The Full Bench found that the Deputy President correctly held that there were no reasonable prospects that the application could succeed. The Commission could not be satisfied that the second of the two jurisdictional prerequisites of s.789FF(1) could be met. The Full Bench found no error in the decision of the Deputy President and accordingly the appeal was dismissed.

Relevance

The issue raised by this appeal had not been considered by a Full Bench of the Commission. Given that it related to issues around the jurisdiction of the Commission and would provide future guidance, permission to appeal was granted.

Duty of the Commission to provide adequate reasons for decisions

Dianna Smith T/A Escape Hair Design v Fitzgerald [2011] FWAFB 1422 (Acton SDP, Cartwright SDP, Blair C, 15 March 2011).

Decision at first instance [2010] FWA 7358 (Bissett C, 24 September 2010).

Facts

The appellant argued that there were a number of significant errors of fact in the original decision.

Outcome

The Full Bench found that there were no errors in the decision-making process on unfair dismissal warranting review on appeal. However, in failing to give adequate reasons for the decision with respect to remedy, there was error such that it was in the public interest to grant permission to appeal. The appeal was allowed and the decision as to remedy was quashed and remitted to the first instance decision-maker.

Relevance

There are established principles on the duty to give adequate reasons for a decision. In particular, the reasons for decision must be sufficient to allow the parties to exercise such rights of appeal as may be available and to enable an appeal bench to determine whether or not error has occurred in relation to a decision. By not providing these reasons the Commission fell into error.

Misapplication of statutory test

Aperio Group (Australia) Pty Ltd (T/a Aperio Finewrap) v Sulemanovski [2011] FWAFB 1436 (Watson SDP, McCarthy SDP, Deegan C, 4 March 2011), [(2011) 203 IR 18].

Decision at first instance [2010] FWA 9958 and order PR505584 (Ryan C, 30 December 2010).

Facts

This decision involved an appeal against a decision of the Commission reinstating an employee on the basis that the employee’s dismissal was without valid reason, and therefore harsh, unjust or unreasonable.

Outcome

The Full Bench determined that there had been a failure to properly consider whether there was a valid reason for termination in accordance with s.387(a). This misapplication of the statutory test was significant and productive of a plainly unjust result. The appeal was allowed, the order quashed, and the original application dismissed on rehearing.

Relevance

The Full Bench determined that the preservation of public confidence in the administration of justice was a matter of public interest and could be undermined by decisions that were manifestly unjust.

Interpretation of provisions of the Fair Work Act

Ulan Coal Mines Limited v Honeysett [2010] FWAFB 7578 (Giudice J, Hamberger SDP, Cambridge C, 12 November 2010), [(2010) 199 IR 363].

Decision at first instance [2010] FWA 4817 (Raffaelli C, 12 July 2010).

Facts

These were two appeals against a decision determining whether certain dismissals were the result of genuine redundancies.

Outcome

The Full Bench concluded that the Commission’s decision was open on the evidence and other material before it and did not involve any error in interpretation of the section.

Relevance

These appeals concerned the interpretation of the redeployment exclusion set out in s.389(2) of the Fair Work Act. This provision of the Fair Work Act had not been considered by a Full Bench before, therefore the Full Bench determined that it was in the public interest to grant permission to appeal.

Permission to appeal refused

Significant error of fact established but not in public interest to grant permission to appeal

Qantas Airways Limited v Carter [2012] FWAFB 5776 (Harrison SDP, Richards SDP, Blair C, 17 July 2012).

Decision at first instance [2011] FWA 8025 and order PR517011 (Spencer C, 25 November 2011).

Facts

These were appeals from a decision that there was no valid reason for the employee’s dismissal, that the dismissal was unfair and that the employee be reinstated.

Outcome

The Full Bench found that the Commission was in error in failing to find that the employer had a valid reason to dismiss the employee. However, permission to appeal was not granted, because the matter turned on its particular facts, and raised no wider issue of principle or of general importance, and no issue of jurisdiction or law.

Relevance

In this matter the Full Bench found that, even though there was an error, no substantial injustice would result if permission to appeal was refused. No public interest considerations were established by the submitted grounds of appeal.