Darren Vieira v Procter & Gamble Australia Pty. Limited
[2025] FWCFB 213
•18 SEPTEMBER 2025
| [2025] FWCFB 213 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Darren Vieira
v
Procter & Gamble Australia Pty. Limited
(C2025/7023)
| DEPUTY PRESIDENT FAROUQUE | MELBOURNE, 18 SEPTEMBER 2025 |
Appeal against decision [2025] FWC 2175 of Deputy President Colman at Melbourne on 25 July 2025 in matter C2025/5727 – permission to appeal refused
Introduction
Mr Darren Vieira has lodged an appeal and applies for permission to appeal under s 604 of the Fair Work Act 2009 (the Act) against a decision of Deputy President Colman dated 25 July 2025 (the Decision).[1] The Decision dealt with whether Mr Vieira should be granted an extension of time under s 366(1)(b) and s 366(2) to make a general protections dismissal application to the Commission under s 365.
Mr Vieira’s application for permission to appeal was listed for hearing before the Full Bench in person in Melbourne at 10:00am on 17 September 2025. A few minutes before the hearing was to commence, Mr Vieira emailed the Commission and indicated that he was unwell and unable to attend and requested that the hearing be re-listed or, alternatively, for his application for permission to be determined on the papers. The hearing commenced as listed but only for the purpose of ascertaining whether Proctor & Gamble Australia Pty Limited (the Respondent) consented to the application for permission to appeal being determined on the papers. The Respondent consented to permission being determined on the papers. We note that both parties filed written submissions in respect of Mr Vieira’s application for permission to appeal. Mr Vieira has also filed an appeal book containing relevant documents. We are satisfied that the parties have consented to the application for permission to be appeal being determined without the making of oral submissions. We are further satisfied that the matter can be adequately determined on the papers.
Mr Vieira was dismissed by the Respondent effective 10 December 2024. The 21-day period under s 366(1)(a) expired on 31 December 2024. Mr Vieira lodged his general protections application in the Commission on 16 June 2025.
In the Decision, the Deputy President concluded that taking into account the matters in s 366(2), he was not satisfied that there were exceptional circumstances to extend time. Consequently, the Deputy President dismissed Mr Vieira’s general protections application.
In relation to the Deputy President’s assessment of the considerations in s 366(2), the Decision discloses the following reasoning:
a)In relation to s 366(1)(a), Deputy President addressed Mr Vieira’s reason for the delay. The Deputy President referred to a contention identified in the Decision as made by Mr Vieira to the following effect: that at time of his dismissal, Mr Vieira understood, based on the respondent’s advice, that issues related to the dismissal were to be addressed in Workcover channels, and that he was not told about the option of making a general protections claim, of which he became aware in mid-2025. The Deputy President also referred to Mr Vieira’s explanation about the impact of a family law dispute and his poor psychological state affecting his ability to file a general protections application within time. The Deputy President did not consider that Mr Vieira had provided a good or acceptable explanation for the delay. In that regard, the Deputy President did not accept that the Respondent had advised Mr Vieira that issues related to his dismissal were to be addressed through Workcover channels. The Deputy President further noted that it was Mr Vieira’s responsibility to consider the legal options himself. The Deputy President also did not accept that Mr Vieira’s family law dispute was a good reason for the delay and further did not consider that his psychological state seriously impeded the timely filing of his claim. The Deputy President concluded that the absence of an acceptable explanation for the delay weighed against an extension of time;
b)In relation to s 366(2)(b), the Deputy President accepted that Mr Vieira took action to dispute the dismissal by engaging in further communications with the respondent. The Deputy President determined that this factor weighed marginally in favour of an extension of time;
c)In relation to s 366(2)(c), the Deputy President did not consider there to be any significant prejudice to the Respondent. In relation to s 366(2)(e), the Deputy President did not consider there to be any matters that are relevant to fairness between Mr Vieira and other persons in a like position. Consequently, the Deputy President considered s 366(2)(c) and (e) as neutral matters; and
d)In relation to s 366(2)(d), the Deputy President considered Mr Vieira’s submission that he had a strong case because he was dismissed wholly or partly for exercising his workplace right to lodge a Workcover claim and because of his temporary illness or injury. The Deputy President noted that the Respondent denied that it had dismissed Mr Vieira for the alleged reasons and further noted the Respondent’s submission that it had dismissed Mr Vieira for reason of redundancy and that he was paid a severance payment and payment in lieu of notice. In the circumstances, the Deputy President considered that the merits would depend on the findings made by a court after hearing the evidence called by the parties. Consequently, the Deputy President regarded the merits as a neutral consideration.
Principles - Permission to Appeal
There is no right to appeal from a decision of the Commission as s 604(1) requires that an appellant must first obtain permission to appeal.
Section 604(2) provides that the Commission must grant permission if it is satisfied that it is in the public interest to do so. The task of assessing whether a “public interest” test is met is a discretionary one involving a broad value judgment. Considerations that may attract the public interest have been identified by a Full Bench of the Commission in GlaxoSmithKline Australia Pty Ltd v Makin[2] in the following terms:
… the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance 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.
If the public interest is not engaged, the Commission may still grant permission to appeal on general discretionary grounds.
It will be rare for permission to appeal to be granted unless an arguable case of appealable error is demonstrated. However, the fact of an error at first instance, is not necessarily a sufficient basis for the grant of permission to appeal. Furthermore, an application for permission to appeal is not a de facto or preliminary hearing of the appeal and it is not appropriate for the Full Bench to conduct a detailed examination of the grounds of the appeal. However, the Full Bench will engage with the grounds of appeal to consider whether they raise an arguable case of appealable error (see generally Qantas Ground Services Pty Ltd t/a QGS v Rogers [2019] FWCFB 2759 at [11] – [12]).
Whether Arguable Error
Mr Vieira’s first ground of appeal is that the Deputy President made a material error of fact in referring as follows in the Decision at [2]: “Mr Vieira’s assertion that the respondent told him to address his dismissal through ‘Workcover channels’…”.
Mr Vieira contends that he did not make this assertion in his submission to the Deputy President or in his written materials. Mr Vieira contends that the Deputy President mistakenly attributed this statement to him when it in fact came from the Respondent.
In section 1.5 (Timeframe to apply) of Mr Vieira’s General Protections Dismissal Form F8, Mr Vieira provided information in support of an extension of time. The information included the following statement by Mr Vieira:
My understanding at the time, based on advice from my employer and the structure of the Workcover process, was that any issues relating to my dismissal and psychological harm were to be addressed through Workcover channels.
The Deputy President’s reference to Mr Vieira’s assertion (as extracted at paragraph [10] above), is entirely consistent with the statement made by Mr Vieira in section 1.5 of the Form F8. Consequently, Ground 1 does not disclose an arguable appealable error.
Mr Vieira’s second ground of appeal is that the Deputy President erred in determining that the merits of his case were neutral despite a “highly unusual and significant set of circumstances” being his psychological injury recognised by the Respondent’s own psychiatrist, the fact that he received no income while on certified medical leave despite the Respondent conceding his injury was work-related, that Mr Vieira was dismissed on his first day back at work when he was attempting to return to work on a certified reduced capacity, and the Respondent’s claim that the dismissal was unrelated to the Workcover process. Mr Vieira submitted that the Deputy President accepted the Respondent’s claim that the that the dismissal was unrelated to the Workcover process without scrutiny or weighing of further evidence. Mr Vieira also submitted that the Deputy President accepted at “face value” the Workcover insurer’s classification of the Respondent’s conduct as “reasonable management action”, despite serious and plausible allegations of psychological harm and procedural failure. Mr Vieira submitted that Deputy President’s failure to engage with the seriousness of the allegations renders his conclusion irrational and unjust.
Ground 2 also does not disclose an arguable appealable error.
We note that the Deputy President was considering whether he was satisfied there were “exceptional circumstances” so as to extend time for Mr Vieira’s general protections dismissal application. In doing so, the Deputy President was required under s 366(2) to consider the five considerations in that sub-section including the consideration in sub-section (d) being “the merits of the application”.
The Deputy President dealt with his assessment of the merit consideration in an entirely conventional and proper manner. The Deputy President recounted the conflicting accounts of the parties regarding the reasons for the dismissal. Given the conflicting accounts, the Deputy President assessed the merits as a neutral consideration. This was done by the Deputy President in the course of deciding whether to grant an extension of time.
It is well established that that the Commission should not embark on a detailed consideration of the merits of a substantive case in determining whether to grant an extension of time, especially where the matter involves disputed facts. Furthermore, while s 366(2) requires the Commission to take into account the merits of an application in deciding whether to grant an extension of time, the substantial merits of the case cannot be fully examined or agitated at the stage of an extension of time. The Deputy President’s assessment of the merits as “neutral” was entirely in accordance with the orthodox approach of weighing merits in an extension of time application, particularly where there are disputed facts.
Furthermore, we consider that Mr Vieira’s contention that the Deputy President accepted at “face value” the Workcover insurer’s classification of the Respondent’s conduct as “reasonable management action” is simply not borne out by the Decision. The Decision makes no such reference to any assessment by the insurer. We also reject Mr Vieira’s contention that the Deputy President’s reasons were irrational or unjust. The Deputy President’s reasons are entirely logical and well-reasoned.
Conclusion and disposition
As we have noted, the two appeal grounds do not disclose arguable appealable error.
We also reject Mr Vieira’s contention that the public interest is engaged in respect of grant of permission to appeal. Mr Vieira submitted that it is contrary to the interests of justice for his general protections application to be dismissed based on a statement he never made where serious and arguable contraventions of the Act are alleged. Mr Vieira contended that the appeal raises important issue of procedural fairness, misattribution of fact and proper consideration of psychological injury and causation. We do not accept Mr Vieira’s contentions in that regard and do not consider that there is any public interest ground engaged.
Furthermore, we do not consider that permission to appeal should be granted on any general discretionary grounds.
Consequently, permission to appeal is refused.
DEPUTY PRESIDENT
Determined on the Papers.
[1] [2025] FWC 2175.
[2] [2010] FWAFB 5343 at [27].
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