Kianah Ashton v Aldi Stores - [2025] FWCFB 227

[2025] FWCFB 227

FAIR WORK COMMISSION

DECISION
Fair Work Act 2009
s.604 - Appeal of decisions
Kianah Ashton
v
Aldi Stores
(C2025/8705)

DEPUTY PRESIDENT SLEVIN
DEPUTY PRESIDENT GRAYSON
COMMISSIONER CRAWFORD

SYDNEY, 10 OCTOBER 2025

Appeal against decision [[2025] FWC 2388] of Commissioner Simpson at Brisbane on 15 August 2025 in matter number C2025/3512
The Appeal
[1]     Ms Kianah Ashton has lodged an appeal, for which permission to appeal is required, under s 604 of the Fair Work Act 2009 (Cth) (Act) against a decision[1] of Commissioner Simpson dated 15 August 2025. The Commissioner’s decision was about a general protections application under s. 365 of the Act made against ALDI Stores (ALDI).
[2]     At the time the general protections application was made, Ms Ashton had already made an unfair dismissal application under s. 394 of the Act. The Commissioner’s decision was to dismiss the general protections application because s 725 of the Act stops two applications being made concerning the same dismissal.
[3]     The Commissioner’s decision was made on his own initiative. There had been delays in progressing proceedings due to Ms Ashton’s health. The Commissioner considered that the issue of the two applications could be determined even though Ms Ashton’s health prevented her from progressing her challenge to the dismissal.
[4]     This decision deals with Ms Ashton’s appeal and whether permission to appeal should be granted.
Background

[5]     The background to the matter is set out in the Commissioner’s decision at [3] to [38]. Put briefly, Ms Ashton was dismissed on 20 December 2024. An unfair dismissal application was filed on 9 January 2025, within the 21-day time limit in s. 394(2). That matter faced delays due to Ms Ashton’s health. A conciliation scheduled for February 2025 was postponed, and subsequent directions hearings were adjourned as Ms Ashton remained unfit to participate.

[6]     On 30 April 2025, Ms Ashton filed a second application, the general protections claim alleging her dismissal contravened the general protections in Part 3-1 of the Act. As s 725 prohibits multiple applications regarding the same dismissal, the Commission informed Ms Ashton that the general protections application was not available to her because an unfair dismissal had been filed.
[7]     Ms Ashton was invited to take steps to ensure she only had one application before the Commission. Ms Ashton was informed that if she wished to continue her unfair dismissal application, she should withdraw the general protections claim. If she wished to make a general protections application she should discontinue both applications and refile a general protections application seeking an extension of the 21 day time limit for such applications which is found is s.366(1) of the Act.
[8]     Ms Ashton expressed a preference for the general protections claim, but did not take steps to ensure that only one application was before the Commission.
[9]     Ms Ashton continued to provide medical certificates that she was unable to engage in proceedings. Following a number of exchanges with the Commissioner’s…

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 Kianah Ashton v Aldi Stores

Details

AGLC: Kianah Ashton v Aldi Stores [2025] FWCFB 227
Case: [2025] FWCFB 227
Decision Date: 10 OCTOBER 2025

CaseChat Overview and Summary

Kianah Ashton has appealed against a decision made by Commissioner Simpson at the Fair Work Commission, concerning a general protections application she made against Aldi Stores. The application was dismissed on the basis that section 725 of the Fair Work Act 2009 prohibited two applications regarding the same dismissal. The appeal before the Full Commission is to determine whether permission to appeal should be granted.

The primary legal issue for the Full Commission to decide was whether there were grounds to grant permission to appeal. The Act requires that permission must be granted if it is in the public interest. Permission may also be granted on other grounds. The Full Commission considered whether the appeal raised any issues of importance and general application, or whether the result was manifestly unjust or counterintuitive. They found that the appeal did not meet these criteria.

The Full Commission found that the Commissioner's decision was correct, as section 725 did prevent Ms Ashton from bringing the general protections application while she had an unfair dismissal application on foot. The Full Commission noted that Ms Ashton's grounds of appeal went beyond the jurisdictional issue, but this was not a basis for granting permission to appeal. The Full Commission concluded that an arguable case of appealable error had not been made out, and that the public interest was not satisfied. They refused permission to appeal.

The Full Commission noted that Ms Ashton is still pursuing her unfair dismissal proceedings against Aldi Stores. She may contact the chambers of Commissioner Simpson to progress that matter.

Orders