See Fair Work Act 2009 ss.400, 604
The following information is limited to providing general guidance for appeals against unfair dismissal 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, with the permission of the Commission.
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.
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.
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.
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 unfair dismissal decisions.
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.
If the error that is alleged 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 of law may be a jurisdictional error, which means an error concerning the tribunal'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).
 See for example Hart v Coles Supermarkets Australia Pty Ltd and Bi-Lo Pty Limited T/A Coles and Bi Lo  FWCFB 7090 (Watson VP, Kovacic DP, Roe C, 27 October 2015).
 Tweed Valley Fruit Processors Pty Ltd v Ross and Others  IRCA 407 (16 August 1996).
 J.J. Richards & Sons Pty Ltd v Transport Workers' Union of Australia  FWAFB 9963 (Lawler VP, O'Callaghan SDP, Bissett C, 23 December 2010) at para. 9.
 Fair Work Commission Rules r 56(2)(a)‒(b).
 Fair Work Commission Rules r 56(2)(c).
 Fair Work Act s.604(2).
 Fair Work Act s.400(2).
 Coal & Allied Mining Services Pty Ltd v Lawler  FCAFC 54 (19 April 2011) at para. 44, [(2011) 192 FCR 78].
 GlaxoSmithKline Australia Pty Ltd v Makin  FWAFB 5343 (Kaufman SDP, Ives DP, Spencer C, 23 July 2010) at para. 27, [(2010) 197 IR 266].
 See for example Qantas Airways Limited v Carter  FWAFB 5776 (Harrison SDP, Richards SDP, Blair C, 17 July 2012) at para. 57, [(2012) 223 IR 177]; Kable v Bozelle, Michael Keith T/A Matilda Greenbank  FWCFB 3512 (Catanzariti VP, Watson VP, Gostencnik DP, 22 May 2015); Harris v Home Theatre Group Pty Ltd T/A Home Theatre Group  FWA 2910 (Asbury C, 12 May 2011) at para. 18.
 Fair Work Act s.400(2).