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For the 2014-2015 year, 79% of unfair dismissal applications made to the Fair Work Commission (FWC) were settled at the conciliation phase.

For the 21% that did not settle, some Applicants proceeded to have their matter heard by way of hearing. If an Applicant is not satisfied with the outcome at the hearing they are able to lodge an application to appeal. However, in order for an application to appeal to be granted, the Applicant must satisfy the FWC that it has proper grounds for an appeal.

In Dr TB v Commonwealth of Australia as represented by the Australian Bureau of Statistics [2016] FWCFB 4777, the Appellant made an Application to appeal Deputy President Kovacic’s decision and order issued on 21 April 2016 which dismissed her unfair dismissal application (decision at first instance). The Appellant based his application to appeal on the following grounds:

• It was in the public interest to grant him permission to appeal because the injustice that occurred to him might happen to others and society would be better served if such matters were exposed; and

• The Deputy President failed to take into account information contained in all the documents provided.

Section 400 of the Fair Work Act 2009 (Cth) provides:

• The FWC must not grant permission to appeal from a decision made by the FWC unless it is in the public interest to do so.

An appeal from a decision made by the FWC in relation to an unfair dismissal matter, can only be made on the basis that the decision at first instance involved a significant error of fact.

The Full Bench noted that the public interest test would be satisfied when:

• The matter raises issues of importance and general application;

• Where there are varying decisions on similar issues and guidance is required from a higher court; or

• Where the first decision manifests injustice or the result is counter intuitive;

• The legal principles applied appear to be disharmonious when compared with other recent decisions dealing with similar matters.

The Full Bench acknowledged that the Appellant had submitted voluminous amounts of material in excess of 300 pages as part of his unfair dismissal application. The Full Bench determined that despite the volume, the Deputy President did consider all the material before him including the response documents contained in the material from the Appellant. In fact the Deputy President:

• had made comment on the Appellant’s responses that he had submitted as part of the evidence; and

• had outlined a summary of the material and submissions of the Appellant.

The Full Bench also noted that the Appellant did not point to any error in the Deputy President’s conclusions.

The Full Bench also added it was difficult to discern what the Appellant says should have been taken into account by the Deputy President. Further the Appellant did not identify what was ignored or not properly considered by the Deputy President causing the Deputy President to fall into significant error in his decision or to make findings that were not reasonably open to him based on the material.

The Full Bench was not satisfied that there was any error in the decision of the Deputy President nor convinced that the decision was counter intuitive or manifested injustice.

It held that the decision was reasonably open to the Deputy President on all material before him. On this basis it was not in the public interest to grant permission to appeal and the application was dismissed.

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