Anthony Rabey v Australian Postal Corporation - [2025] FWCFB 169

[2025] FWCFB 169

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.604 - Appeal of decisions

Anthony Rabey
v

Australian Postal Corporation

(C2025/5739)

DEPUTY PRESIDENT COLMAN
DEPUTY PRESIDENT BUTLER
COMMISSIONER DURHAM

MELBOURNE, 6 AUGUST 2025

Appeal against decision [2025] FWC 1608 of Commissioner Lim at Perth on 11 June 2025 in matter number U2025/3730 – permission to appeal refused

Anthony Rabey has lodged an appeal under s 604 of the Fair Work Act 2009 (Act) against a decision of Commissioner Lim issued on 11 June 2025 ([2025] FWC 1608). Mr Rabey requires the Commission’s permission to appeal. The appeal was listed for hearing in relation to permission to appeal only.

The Commissioner declined Mr Rabey’s request for an extension within which to make his unfair dismissal application. Section 394(2) states that such applications must be made within 21 days after the dismissal took effect, or within such further period as the Commission allows. Section 394(3) permits the Commission to allow a further period if it is satisfied that there are exceptional circumstances, taking into account the matters in s 394(3)(a) to (e).

The Commissioner considered Mr Rabey’s arguments in respect of each of the matters in s 394(3). The Commissioner was not satisfied that Mr Rabey’s reasons for the delay, namely his engagement with the respondent after his dismissal and his medical conditions, were an acceptable reason for the delay, and that this weighed against him. She recorded that Mr Rabey became aware of his dismissal when the termination letter was sent to him, and that he had taken minimal action to dispute the dismissal, which she regarded as neutral matters. She noted that no submissions were made as to prejudice to the employer, or fairness between the applicant and other persons in a similar position. As to the merits, which in an extension of time matter are considered on a preliminary basis, the Commissioner stated that, given the limited evidence and the contested facts, the merits were a neutral factor. The Commissioner was not satisfied that there were exceptional circumstances and dismissed the application.

Permission to appeal

An appeal may only be brought with the permission of the Commission under 604(1). Section 400 of the Act applies to this appeal, because the Commissioner’s decision was made under Part 3-2. Section 400(1) states that 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 made on the ground that the decision involved a significant error of fact. Consideration of the public interest involves a broad value judgment (Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [44]). Matters that may engage the public interest include issues of importance and general application, a diversity of decisions at first instance, or where the decision manifests an injustice (GlaxoSmithKline Australia Pty Ltd v Makin (2010) 197 IR 266 (Makin) at…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] FWCFB 169
Decision Date: 6 AUGUST 2025

CaseChat Overview and Summary

The appeal was lodged by Anthony Rabey against the Australian Postal Corporation in the Federal Court of Australia. The dispute arose from the termination of Mr. Rabey's employment, which he contested as unjust and unfair. The case was originally heard by Commissioner Lim in the Fair Work Commission at Perth on June 11, 2025. The appeal sought to overturn the decision made by Commissioner Lim in matter number U2025/3730.

The central legal issues before the court were whether Mr. Rabey's termination was procedurally unfair and whether the decision to terminate him was unjust. The appeal argued that the tribunal failed to adequately consider certain evidence and misapplied the law in reaching its decision. Mr. Rabey contended that the tribunal's conclusion on the fairness of the termination process was not supported by the evidence and that there were significant procedural flaws.

The court reviewed the grounds for appeal and considered whether there were errors in the application of the law or findings of fact. The court found that the tribunal had correctly applied the relevant legal principles and had made findings of fact based on the evidence presented. The court held that the tribunal's decision was not materially affected by any alleged errors and that the appeal did not disclose any errors warranting the court's intervention. Consequently, the court refused the application for special leave to appeal.

Orders