Kristijan Tasev v Tusk Group Pty Ltd
[2025] FWCFB 99
•15 MAY 2025
| [2025] FWCFB 99 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Kristijan Tasev
v
Tusk Group Pty Ltd
(C2025/2422)
| DEPUTY PRESIDENT MILLHOUSE COMMISSIONER ALLISON | MELBOURNE, 15 MAY 2025 |
Appeal against decision [2025] FWC 795 and order PR785377 of Deputy President Bell dated 28 March 2025 at Melbourne in matter number U2024/12252 – permission to appeal refused
Mr Kristijan Tasev has lodged an appeal under s 604 of the Fair Work Act 2009 (Act) against a decision[1] of Deputy President Bell (Decision) delivered on 28 March 2025. The Decision relates to an unfair dismissal application made by Mr Tasev against Tusk Group Pty Ltd (Tusk). In the Decision, the Deputy President found that Mr Tasev was not dismissed by Tusk but voluntarily resigned. As an unfair dismissal application requires a “dismissal” to have occurred, the Deputy President ordered that Mr Tasev’s application be dismissed.
This matter was listed for permission to appeal only. For the reasons that follow, permission to appeal is refused.
Decision under appeal
From around 23 August 2023, Mr Tasev was employed by Tusk, a recruitment and labour hire company, pursuant to an employment contract under which Mr Tasev could be assigned to perform work for Tusk’s clients on an on-hire basis. Mr Tasev was on-hired by Tusk to work on assignment for Toll at a Kmart Distribution Centre. Following an incident with another employee on 7 October 2024, Toll instructed Tusk it did not want Mr Tasev to return to site. From 14 October 2024, Mr Tasev was assigned by Tusk to perform on-hire work at Holman Industries.
Mr Tasev filed an unfair dismissal application against Tusk on 14 October 2024. On 6 November 2024, Holman Industries notified Tusk that it no longer wished Mr Tasev to perform work for it. Tusk attempted to find an alternative assignment for Mr Tasev and on 8 November 2024 contacted Mr Tasev to advise him that it had found an opportunity for him. On 11 November 2024 Mr Tasev emailed Tusk, relevantly stating as follows:
“Thank you for reaching out. While I did attempt to secure a recent job opportunity, it
unfortunately didn’t come through. However, after careful consideration, I am inclined
to decline any future positions for the time being.
I have concerns that accepting another assignment may undermine the seriousness of
my case with Fairwork and jeopardize my standing. My primary focus at this stage is to
ensure that the situation I’ve faced is addressed properly and that the unjust treatment
I’ve experienced is formally acknowledged.
I appreciate your understanding and support in this matter.”
The Deputy President rejected Mr Tasev’s contention that he had been dismissed by Tusk, finding that the terms of Mr Tasev’s employment contract made it clear that a change in assignment did not end his employment relationship with Tusk. Further, upon the conclusion of each assignment, Tusk promptly and successfully found Mr Tasev new work assignments, demonstrating the parties’ ongoing employment relationship. Rather, the Deputy President found that it was the email sent by Mr Tasev on 11 November 2024 that ended his employment relationship with Tusk. As Mr Tasev was not dismissed by Tusk, his unfair dismissal claim was dismissed.
Principles – permission to appeal
Mr Tasev seeks permission to appeal the Decision pursuant to s 604 of the Act. There is no right to appeal, and an appeal may only be made with the permission of the Commission. Section 400 of the Act applies to this appeal, as it is from a decision made under Part 3-2 of the Act. By 400(1), 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 on the ground that the decision involved a significant error of fact. The test under s 400 is “a stringent one.”[2]
The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[3] The public interest is not satisfied simply by the identification of error or a preference for a different result.[4] Considerations that may attract the public interest include that the matter raises issues of importance and general application, that the decision manifests an injustice or that the result is counterintuitive.[5]
It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. 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 preliminary hearing of the appeal. In determining whether to grant permission to appeal, it is unnecessary and inappropriate to conduct a detailed examination of the appeal grounds.[6] However, it is necessary to engage with the grounds to consider whether they raise an arguable case of appealable error
Grounds of appeal and public interest
Mr Tasev’s Notice of Appeal identifies four grounds of appeal which Mr Tasev expanded upon in written and oral submissions.
Ground 1 (Error in finding no dismissal occurred) and Ground 2 (Failure to recognise employer’s role in making continued employment untenable) each refer to Mr Tasev’s primary contention that the Deputy President erred in concluding that he was not dismissed but instead voluntarily resigned. It is contended that the Deputy President did not properly consider the “constructive dismissal doctrine” by failing to take account of Tusk’s conduct that made continued employment “untenable.” This alleged conduct included:
allowing Toll to remove Mr Tasev from the Kmart site:
not adequately supporting Mr Tasev to return to the Toll assignment;
failing to redeploy Mr Tasev to a suitable assignment equivalent to the Toll assignment; and
backdating a “final warning” without investigation or right of reply.
In the alternative, Mr Tasev submits the Deputy President erred in finding that Mr Tasev resigned. In this regard Mr Tasev submits his email of 11 November 2024 was not a resignation, but a protest, demonstrated by the fact that it states, “I am inclined to decline any future positions for the time being” (emphasis added). Mr Tasev also submits there is evidence to show his employment with Tusk continued past 11 November 2024, including a pay advice from Tusk dated April 2025.
By Ground 3 (Failure to properly consider relevant evidence) Mr Tasev submits “the Commission over-relied on Tusk’s evidence… without properly assessing [his] perspective on Tusk’s unfair treatment and bias.” Mr Tasev submits it was unfair that he was removed from the Toll assignment for a range of reasons including that another employee involved in the incident was allowed to return to work and the CCTV footage did not support his removal. He also submits that the warning he received was unfair.
Under Ground 4 (Public Interest) Mr Tasev submits there are serious questions of law and fairness regarding the treatment of labour hire workers in similar circumstances. In addition, Mr Tasev raised issues to do with Tusk’s handling of the case.
Consideration
We are not satisfied that it would be in the public interest to grant permission to appeal for two reasons.
First, Mr Tasev’s appeal grounds do not identify an arguable case of appealable error in the Decision. The Deputy President’s finding that Mr Tasev was not dismissed by Tusk appears to be supported by the weight of the evidence before the Commission at first instance. This includes the express terms of the employment contract, the on-hire assignment Mr Tasev commenced with Holman Industries following the conclusion of his assignment to Toll, and the further assignment identified by Tusk for Mr Tasev when his assignment with Holman Industries also concluded. To the extent that Mr Tasev’s appeal grounds seek to challenge the weight the Deputy President placed on the evidence before him and re-ventilate the substantive matter, there is no arguable basis to conclude that any evidence or submission that was relevant to the Deputy President’s dispositive reasoning has been overlooked.
Nor has an arguable contention been advanced that the Deputy President erred in finding that Mr Tasev resigned. It is apparent that Mr Tasev disagrees with the conclusion reached but his position before us shifted between contending that he had been forced to resign by reason of Tusk’s failure to secure him viable redeployment options following the cessation of the Toll assignment, and contending that he remained an employee of Tusk by reason of receiving a pay advice from it dated 10 April 2025.
Mr Tasev sought to rely upon the 10 April 2025 pay advice and accompanying email from Tusk as fresh evidence in the appeal. We have declined to exercise our discretion to admit this material pursuant to s 607(2) of the Act. We are not satisfied that the requirements for the admission of fresh evidence on appeal as set out in Akins v National Australia Bank[7] are met. Significantly, we are not persuaded that the material is of such a nature that there is a high degree of probability that there would be a different decision. We observe that Mr Tasev has not addressed the competency of his unfair dismissal application if he now takes the view that he remains an employee of Tusk.
Second, there is nothing in the Decision which raises any matter of principle or law or any issue of wider application. The matter was determined entirely on the basis of its particular facts. The Decision does not manifest any injustice. Because we are not satisfied that the grant of permission to appeal would be in the public interest, permission to appeal must be refused in accordance with s 400(1) of the Act.
Orders and disposition
For the reasons given, permission to appeal is refused.
DEPUTY PRESIDENT
Appearances:
K Tasev, on his own behalf for the appellant.
N Tindley, for the respondent.
Hearing details:
2025.
6 May.
Melbourne (Microsoft Teams).
[1] Kristijan Tasev v Tusk Group Pty Ltd [2025] FWC 795
[2] Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54; 192 FCR 78; 207 IR 177 at [34] and [43]
[3] O’Sullivan v Farrer (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 at [44]-[46]
[4] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343; 197 IR 266 at [24]-[27]; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/ Warkworth[2010] FWAFB 10089 at [28], affirmed on judicial review; Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 178; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663; 241 IR 177 at [28]
[5] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343, 197 IR 266 at [24]-[27]
[6] Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]
[7] [1994] 34 NSWLR 155 at 160
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