See Fair Work Act ss.375A and 604
The following information is limited to providing general guidance for appeals against dismissal dispute ARBITRATION decisions.
For information about lodging an appeal, stay orders, appeals directions and the appeals process please refer to the Appeal proceedings practice note.
A person who is aggrieved by a decision made by the Fair Work Commission (other than a decision of a Full Bench or Expert Panel) may appeal the decision to the Full Bench with the permission of the Commission.
A decision of the Commission includes any decision of the Commission, however described.
However, a ‘decision of the Commission’ does not include the outcome of a process carried out:
The mere conduct of a conciliation conference does not constitute the making of a decision which can be subject to an appeal.
A person who is aggrieved by a decision made by the Full Bench or a Judicial Member such as the President may apply to the Federal Court for a judicial review.
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 a union.
An appeal must be lodged with the Commission within 21 days after the date the decision being appealed was issued.
If an appeal is lodged late, an application can be made for an extension to the time limit.
In each appeal, a Full Bench of the Commission needs to determine 2 issues:
The general requirements relating to appeals are altered in the case of appeals against dismissal dispute arbitration decisions.
The Fair Work Act 2009 provides that the Commission must grant permission to appeal to the Full Bench if it is satisfied that it is in the public interest to do so. Permission to appeal a dismissal dispute arbitration decision must not be granted unless the Commission considers that it is in the public interest to do so.
If the alleged error in the original decision is an error of fact, then the person making the appeal must persuade the Full Bench that it is a significant error of fact.
The task of assessing whether the public interest test has been met is a discretionary one involving a broad value judgment.
Some considerations that the Commission may take into account in assessing whether there is a public interest element include:
The public interest test is not satisfied simply by the identification of error or a preference for a different result.
An error 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.
In unfair dismissal cases, if the error that is alleged is an error of fact, then the appellant must demonstrate that it is a significant 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 ...’
In considering whether there has been an error of fact, the Commission will consider whether the conclusion reached was reasonably open on the facts. If the conclusion was reasonably open on the facts, then the Full Bench cannot change or interfere with the original decision.
It is not enough to show that the Full Bench would have arrived at a different conclusion to that of the original decision-maker. The Full Bench may only intervene if it can be demonstrated that some error has been made in exercising the powers of the Commission.
 Fair Work Act s.604(1); Tokoda v Westpac Banking Corporation T/A Westpac  FWAFB 3995 .
 Fair Work Act s.598(1).
 Fair Work Act s.595(2).
 Judiciary Act 1903 (Cth) s.39B(1A)(c).
 Fair Work Commission Rules 2013 r 56(2)(a)‒(b).
 Fair Work Commission Rules 2013 r 56(2)(c).
 Fair Work Act s.604(2).
 Fair Work Act s.375A(1).
 Fair Work Act s.375A(2).
 Fair Work Act s.375A(2).