Appeal against decision [2025] FWC 2418 of Commissioner Mirabella at Melbourne on 18 August 2025 in matter number C2025/6149 – Permission to appeal refused

Kaylee Wright has lodged an appeal under s.604 of the Fair Work Act 2009 (the ‘Act’) against a decision of Commissioner Mirabella issued on 18 August 2025.[1] The decision related to an application that Ms Wright had made under section 365 of the Act seeking that the Commission deal with a general protections dispute involving dismissal. The Respondent, Diabetes Australia, had raised a jurisdictional objection to the application, namely that it had not dismissed Ms Wright, within the meaning of s.386 of the Act. In her decision, the Commissioner upheld that objection and dismissed the application.

Ms Wright requires permission to appeal.[2] The matter was listed before the Full Bench for permission to appeal only. For the reasons that follow, permission to appeal is refused.

The Background and the Decision

As the reasons for the Commissioner’s decision were given on transcript and not in a published decision, we will briefly outline the facts of the matter.

On 2 April 2024, Ms Wright commenced employment with Diabetes Victoria. Her employment contract stated that she was employed on a fixed-term basis until 28 June 2024. Ms Wright subsequently entered into a second contract with Diabetes Victoria, which was stated to be for a fixed term until 30 June 2025.

In approximately February 2025, Diabetes Victoria decided to resign as a member of Diabetes Australia. The two organisations came to an arrangement under which Diabetes Australia would offer employment to certain employees of Diabetes Victoria, including Ms Wright.

Diabetes Australia made an offer of employment to Ms Wright in a document titled “Contract of Employment” dated 14 March 2025 (‘Contract’). The Contract provided that Ms Wright would be engaged as a Customer Services Officer; that her employment with Diabetes Australia would commence on 22 April 2025 and Ms Wright would be engaged on a fixed term basis ending on 30 June 2025. The Contract did not contain an option for renewal or extension. The Contract provided that Ms Wright’s prior service with Diabetes Victoria from 2 April 2024 would be recognised for the purposes of calculating long service leave accruals, redundancy entitlements and the minimum employment period as defined in s.383 of the Act. Ms Wright executed the Contract online on 20 March 2025.

Ms Wright’s employment with Diabetes Australia came to an end on 30 June 2025.

Ms Wright commenced proceedings under s.365 of the Act. She alleged that she had been subjected to adverse action and discrimination by Diabetes Australia, on the basis of a disclosed mental health condition. She claimed that after expressing a need for support and reasonable accommodations, she experienced a series of distressing events and actions that undermined…

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.

Continue reading Kaylee Wright v Diabetes Australia

Details

AGLC: Kaylee Wright v Diabetes Australia [2025] FWCFB 236
Case: [2025] FWCFB 236
Decision Date: 22 OCTOBER 2025

CaseChat Overview and Summary

Kaylee Wright has lodged an appeal against a decision of Commissioner Mirabella, who dismissed her application for unfair dismissal against Diabetes Australia. The Full Bench of the Fair Work Commission, consisting of Deputy President Grayson, Commissioner Crawford, and Commissioner Sloan, was tasked with determining whether to grant permission for the appeal to proceed. The appeal primarily focused on whether Ms Wright had been dismissed within the meaning of the Fair Work Act 2009 (the Act). The Full Bench found that the Commissioner had correctly determined that Ms Wright's employment ended due to the expiration of her fixed-term contract, and not through dismissal by Diabetes Australia.

The key legal issues centered on whether the Commissioner had erred in concluding that Ms Wright was not dismissed, and whether there was an arguable case of appealable error. Ms Wright argued that the Commissioner had failed to properly apply the legal test for dismissal and that her contract should be considered in the context of a continuous employment relationship with Diabetes Victoria. The Full Bench held that the Commissioner's decision was consistent with the relevant case law and did not demonstrate any error in applying the legal test for dismissal. Furthermore, Ms Wright's arguments regarding the continuous employment relationship did not present a convincing case that the Commissioner had erred in her findings.

The Full Bench also considered whether to admit new evidence, including statements from Ms Wright, copies of her contracts with Diabetes Victoria, and excerpts from her bank statements. The Full Bench declined to admit the new evidence as it was either available at the time of the initial hearing or did not meet the criteria for fresh evidence under the principles established in Akins v National Australia Bank. The Full Bench concluded that there was no arguable case of appealable error in the Commissioner's decision and that it was not in the public interest to grant permission to appeal. The Full Bench refused permission to appeal.

The Full Bench's decision was based on the Commissioner's thorough examination of the evidence and application of the law, and the Full Bench found no basis to interfere with the Commissioner's conclusions. The appeal was dismissed, and permission to appeal was refused.

Orders