Katherine Gardiner v Tracey Leo & Thamarrurr Development Corporation
[2025] FWCFB 29
•7 FEBRUARY 2025
| [2025] FWCFB 29 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s 604—Appeal of decision
Katherine Gardiner
v
Tracey Leo & Thamarrurr Development Corporation
(C2025/455)
| DEPUTY PRESIDENT BINET | PERTH, 7 FEBRUARY 2025 |
Appeal against decision [2025] FWC 7 of Commissioner Riordan at Sydney on 2 January 2025 in matter number C2024/7430 - permission to appeal refused.
Ms Katherine Gardiner has lodged an appeal under s 604 of the Fair Work Act 2009 (Cth) against a Decision[1] and Order[2] issued by Commissioner Riordan on 2 January 2025. In the Decision, the Commissioner declined to grant an extension of time for the filing of Ms Gardiner’s application under s 365 of the Act against Ms Tracey Leo & Thamarrurr Development Corporation (Respondents). Ms Gardiner requires permission to appeal.
The matter was listed before the Full Bench for permission to appeal only. The parties consented to the matter being determined without holding a hearing under s 607(1)(b) of the Act. We are satisfied, having regard to s 607(1)(a), that the question of permission to appeal can be determined without the need for oral submissions. Accordingly, the application has been determined on the material filed by Ms Gardiner.
For the reasons that follow, permission to appeal is refused.
Decision under appeal
The Commissioner’s decision concerned Ms Gardiner’s application under s 365 of the Act, which was made 84 days after her dismissal took effect on 24 July 2024. The Commissioner noted that this was 63 days outside the 21-day statutory timeline. The parties at first instance did not seek to cross-examine each other’s witnesses and consented to having the matter determined on the papers.[3]
The Commissioner proceeded to consider whether to allow for a further period for Ms Gardiner’s application to be made under s 366(2). The Commissioner found that all the criteria in s 366(2) were neutral except for s 366(2)(a).
Ms Gardiner contended to the Commissioner that her application had been made late due to medical circumstances;[4] the Respondents had told her that “she had no rights”;[5] and she had become homeless due to the dismissal.[6] Ms Gardiner provided a medical certificate dated 12 December 2024 that stated she was receiving medical treatment for the period 24 July 2024 to 16 October 2024 and that she was unfit to continue her usual occupation for this period of time.[7] Ms Gardiner also provided a photo of a makeshift dwelling, stating that it was where she was living.[8]
The Respondents contended that medical certificate Ms Gardiner submitted was backdated and merely stated that Ms Gardiner was ‘unfit to perform her role’. Further, the medical certificate did not demonstrate why Ms Gardiner could not submit her application within the 21-day deadline. The Respondents denied that they had told Ms Gardiner that she had “no rights”, but regardless it was not an exceptional circumstance that Ms Gardiner could have undertaken her own research. Lastly, the Respondents submitted that the Full Bench decision in Ellikuttige v Moonee Valley Racing Club Inc[9] was directly relevant to Ms Gardiner’s circumstances of homelessness. The Commissioner noted the Full Bench in Ellikuttige affirmed the decision at first instance which found that any evidence of homelessness (or other factors) must present a link to the delay in filing an application.[10]
The Commissioner was sympathetic to Ms Gardiner’s circumstances but accepted the Respondent’s submissions. The Commissioner noted the Respondents’ unchallenged evidence that Ms Gardiner made enquiries about her payslips post termination, which shows that she had telephone service at this time. The Commissioner also found that Ms Gardiner had not brought any evidence that she had sought advice from a third party about her situation. The Commissioner found that Ms Gardiner had not provided satisfactory grounds to justify the delay in filing her application.[11]
In weighing up the criteria in s 366 of the Act, the Commissioner found that Ms Gardiner had not substantiated an exceptional circumstance and thus he did not grant her an extension of time to file her application under s 365.
Principles – permission to appeal
There is no right to appeal. An appeal may only proceed with the permission of the Commission.
Section 604(2) of the Act requires the Commission to grant permission to appeal if satisfied that it is “in the public interest to do so.” The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgement.[12] The public interest is not satisfied simply by the identification of error, or a preference for a different result.[13] The public interest might be attracted where a matter raises issues of importance and general application, where there is a diversity of decisions at first instance so that guidance from an appellate court is required, 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.[14]
It will rarely be appropriate to grant permission to appeal unless the appellant demonstrates an arguable case of appealable error. This is because an appeal cannot succeed in the absence of an appealable error.[15] However, that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.
An application for permission to appeal is not a de facto or preliminary hearing of the appeal. In determining whether permission to appeal should be granted, it is unnecessary and inappropriate for the Full Bench to conduct a detailed examination of the grounds of appeal.[16]
It is well established that an appellate body will not interfere with the factual findings of a first instance decision-maker unless it is concluded that a finding cannot stand because it was contrary to incontrovertible facts or uncontradicted testimony, glaringly improbable, or contrary to compelling inferences.[17]
Where a finding or conclusion involves the exercise of a discretion, where some latitude is afforded, an appellate body will also generally not interfere with the conclusions of the decision-maker. As stated by the High Court in Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission:[18]
““Discretion” is a notion that “signifies a number of different legal concepts.” In general terms, it refers to a decision-making process in which “no one [consideration] and no combination of [considerations] is necessarily determinative of the result.” Rather, the decision-maker is allowed some latitude as to the choice of the decision to be made. The latitude may be considerable as, for example, where the relevant considerations are confined only by the subject-matter and object of the legislation which confers the discretion. On the other hand, it may be quite narrow where, for example, the decision-maker is required to make a particular decision if he or she forms a particular opinion or value judgment.”
For there to be a legal error, it is not enough that a different member or an appellate body might have reached a different conclusion. The appellant must show that the Commissioner acted on a wrong principle; took into account irrelevant matters; mistook facts; or that the outcome is unreasonable or plainly unjust.[19]
Grounds of appeal and public interest
In Ms Gardiner’s Notice of Appeal, she sets out the following grounds of appeal (reproduced verbatim):
My words were taken out of context: my throat issue was the only communication issue I had while at work, this was in reply to TDC making up stuff about my performance, nothing to do with the breakdown I had due to being unfairly dismissed.
I am embarrassed, ashamed and not proud of having a breakdown, I did not want to admit it. I was told Commissioner Riordan’s words, “A medical certificate will do it”. I didn’t think I would have to provide personal details.
I have reason to believe Employsure has released private confidential information about an ongoing discrimination case, that Employsure is aware of.
The previous employer up until a couple of weeks ago was trying to access medical information about me.
Previous case decided on by Commissioner Riordan shows a lack of consistency in [his] decision-making, see case: Jennifer Forlonge v Citywide Service Solutions Pty Ltd.
I have no lawyers, TDC, 3 different lawyer names so far. Fairwork website states: that it will take into consideration the vitmits [sic] lack of a lawyer, I feel this has not happened.
It has been proven my dismissal was unfair. Due to adverse actions taken when I uncovered questionable reporting by the coordinator.
I have been and still am being adversely affected, as you already know about my living conditions, and my breakdown, not being able to gain employment due to this and the ruined reputation. On the day this was released 2 employers decided I was not suitable, one feedback was due to short contracts.
Please note while they have housing/rent, electricity, food, travel, car/fuel, phone, all paid for by you tax payer, and also now me on $400 per week, the victim. This is not equal, Nulty.
Ms Gardiner submits that it is in the public interest to grant permission to appeal as she is the “victim” and that the Respondent’s behaviours and agreement of the Commissioner is “reflective of the behaviours committed by perpetrators that drive domestic and family violence.”[20]
The Respondents did not file any submissions.
Consideration
In addition to her Notice of Appeal, Ms Gardiner also submitted a document that largely traversed her employment with the Respondents and the events leading up to her dismissal. We have considered Ms Gardiner’s grounds and submissions in support of her application. We are not satisfied that Ms Gardiner’s grounds of appeal give rise to an arguable case of appealable error.
It is difficult to discern from Ms Gardiner’s Notice of Appeal and submissions the alleged errors with the Commissioner’s decision. Grounds 3, 4, 7 8 and 9 are to do with unrelated matters; Ms Gardiner’s grievances against the Respondents’ representative; and her dissatisfaction with the outcome of the Decision.
Grounds 1 and 2 relate to Ms Gardiner’s medical issues. Ground 1 seems to suggest that the Commissioner reaching a finding that she had not established a link between the medical issues with her throat and the delay in filing was incorrect because she did not make that argument. This does not give rise to an appealable error and does not support Ms Gardiner’s case. Ground 2 raises a contention that Ms Gardiner had a mental breakdown but that she did not raise it with the Commissioner at first instance. This does not give rise to appealable error. Ground 2 also seems to suggest that Ms Gardiner provided a medical certificate based on an alleged comment from the Commissioner. Even if this were correct, Ms Gardiner has not satisfactorily explained how this would have changed the outcome of the matter.
Ground 5 refers to the Commissioner’s decision in Jennifer Forlonge v Citywide Service Solutions Pty Ltd,[21]where the Commissioner was satisfied that there were exceptional circumstances and granted the applicant in that matter an extension of time. This case was not put to the Commissioner at first instance, and even if it had been, we note that unlike Ms Gardiner’s case, the applicant in Forlonge provided an extensive report from her regular treating medical practitioner that explained how the applicant’s medical condition affected her ability to file her application.
With regards to ground 6, Ms Gardiner has not provided any evidence or submission to support her contention that the Commissioner did not take into consideration that she was unrepresented.
Conclusion
We are not persuaded that it would be in the public interest to grant permission to appeal. We do not find that a reasonably arguable case has been advanced that the Decision was attended by appealable error.
We have considered whether the appeal attracts the public interest, and we are not satisfied, for the purposes of s 400 of the Act, that:
(a)there is a diversity of decisions at first instance so that guidance from an appellate body is required of this kind;
(b)the appeal raises issues of importance and/or general application;
(c)the decision manifests an injustice, or the result is counter intuitive, or
(d)the legal principles applied by the Commissioner were disharmonious when compared with other decisions dealing with similar matters.
It follows that we must refuse permission to appeal.
Permission to appeal is refused.
DEPUTY PRESIDENT
[1] [2025] FWC 7.
[2] Ibid.
[3] Ibid at [4].
[4] Ibid at [9].
[5] Ibid at [11].
[6] Ibid at [16].
[7] Ibid at [9].
[8] Ibid at [16].
[9] [2018] FWCFB 4988.
[10] [2025] FWC 7 at [17].
[11] Ibid [20].
[12] O’Sullivan v Farrer and another (1989) 168 CLR 210 at [216]-[217] per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch (2011) 243 CLR 506 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78; (2011) 207 IR 177 at [44]-[46].
[13] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343 [26]-[27], 197 IR 266; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth[2010] FWAFB 10089 at [28], 202 IR 388, affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office[2014] FWCFB 1663 at [28].
[14] GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343 at [27]; (2010) 197 IR 266.
[15] Wan v AIRC (2001) 116 FCR 481 at [30].
[16] Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82].
[17] Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [27]-[29].
[18] [2000] HCA 47; 203 CLR 194 at [19].
[19] House v The King (1936) 55 CLR 499 at 505.
[20] Notice of Appeal, 3.1.
[21] [2018] FWC 941.
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