Mr Brian Fisher v Swetha International Pty Ltd, Praveen Challa
[2025] FWCFB 148
•18 JULY 2025
| [2025] FWCFB 148 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
Mr Brian Fisher
v
Swetha International Pty Ltd, Praveen Challa
(C2025/3988)
| DEPUTY PRESIDENT ROBERTS COMMISSIONER P RYAN COMMISSIONER WALKADEN | SYDNEY, 18 JULY 2025 |
Application for unfair dismissal remedy under Part 3-2 of the Fair Work Act 2009 – permission to appeal refused in earlier proceedings – further appeal – decision the subject of second appeal – appeal filed outside 21-day time period prescribed by Fair Work Commission Rules 2024 – extension of time – permission to appeal.
Background
This decision concerns a Notice of Appeal filed with the Fair Work Commission (Commission) by the appellant, Mr. Brian Fisher (Appellant, or Mr. Fisher), on 16 May 2025. The appeal has its origins in earlier proceedings commenced by the Appellant in which the Appellant contended that he had been unfairly dismissed by his previous employer, Swetha International Pty Ltd (Respondent) (unfair dismissal proceedings).
The unfair dismissal proceedings were dealt with by Deputy President Saunders and ultimately dismissed by the Deputy President in a decision published on 10 February 2025.[1] In that decision Deputy President Saunders concluded that the Appellant had not been ‘dismissed’ within the meaning of s.386 of the Fair Work Act 2009 (Cth)(Act) and so could not have been unfairly dismissed by the Respondent.
The decision of Deputy President Saunders also records that at a directions hearing on 28 January 2025, the parties agreed that the hearing on 30 January 2025 would be to deal with the jurisdictional issue of whether Mr. Fisher had been dismissed within the meaning of the Act, as opposed to a full hearing on the merits of the application. The matter was heard on 30 January 2025. Deputy President Saunders further noted in his decision that after the hearing and over the period 1 to 2 February 2025, without leave or a request for leave, Mr. Fisher filed 5 emails in which he sought to make further submissions in the matter. Deputy President Saunders did not grant leave for Mr. Fisher to do so given the hearing had concluded and the matters referred to in the emails had already been squarely raised and addressed at the hearing on 30 January 2025.[2]
On 4 February 2025, and prior to the Deputy President issuing his decision, Mr. Fisher lodged a notice of appeal (First Appeal). The decision being appealed in First Appeal was described as the “Deputy President refused additional submissions post his reserving of a decision Thursday January 30, 2025”. The First Appeal also sought a ‘stay’ of the ‘whole decision.’
On 23 April 2025, a Full Bench of the Commission refused Mr. Fisher permission to appeal the decision of Deputy President Saunders (First Appeal decision).[3] Although the First Appeal was lodged prior to the Deputy President issuing his decision, it is clear from the First Appeal decision that the Full Bench considered whether there was any appealable error arising from various procedural decisions and evidentiary findings, as well as the ultimate finding that the Appellant was not dismissed. The Full Bench concluded that no arguable case had been made out that the decision of the Deputy President was attended with appealable error. The Full Bench also concluded that the public interest was not enlivened by the appeal.
The present appeal and the decision being appealed
The content of the Notice of Appeal filed by the Appellant in the present matter is lengthy and unclear. That lack of clarity extends to the identification of the decision which Mr. Fisher is now purporting to appeal.
The details provided in that part of the Notice of Appeal dealing with the decision being appealed refers to the Appellant’s alleged unfair dismissal on 4 October 2024 and the Commission matter number U2024/12018. That matter number is the matter number of the unfair dismissal proceedings dealt with by Deputy President Saunders. The Notice of Appeal also makes reference to the failure of the Commission to “…uphold a stay applied for February 4, 2025 in respect of DP Saunders hearing, restraining DP Saunders from proceeding to a decision until the interlocutory decision was addressed...”. Under the same heading, the Notice of Appeal identifies the date of the decision being appealed as 4 February 2025 and goes on to provide, over some 15 pages, a repetitive and largely incoherent account of the Appellant’s grievances about the conduct of the unfair dismissal proceedings and the outcome of the matter at first instance.
The Appellant’s grounds of appeal set out in the Notice of Appeal are also lengthy and intertwined with submissions.
Peripherally, the Notice of Appeal also appears to take issue with the decision of the Full Bench in the First Appeal decision. A stay was sought of that decision in the Notice of Appeal. The application for a stay of that decision was made even though the Full Bench in the First Appeal decision had refused the application for permission to appeal and consequently there is nothing from that decision which was capable of being ‘stayed’.
As far as we are able to ascertain, the present appeal, in substance, takes issue with the procedures adopted in the unfair dismissal proceedings before Deputy President Saunders and in particular, an alleged failure by the Commission to accede to an application on 4 February 2025 to ‘stay’ consideration of the matter until orders were made for further witnesses to be called. The Notice of Appeal also takes issue with the outcome of the unfair dismissal proceedings reflected in the Deputy President’s decision of 10 February 2025.
At least two issues arise as a consequence of the matters referred to above. The first is that Mr. Fisher has previously appealed the decision in the unfair dismissal proceedings and a Full Bench has refused him permission to appeal that decision. In that case the Appellant appears to be seeking to relitigate through this appeal, a matter that has already been determined against him by a Full Bench of the Commission.
The second issue is that on any view, the appeal has been filed outside the 21-day period prescribed by Rule 128(2) of the Fair Work Commission Rules 2024 (Rules). That Rule provides as follows:
128
…(2) The notice of appeal must be lodged:
(a) within 21 days after the date of the decision being appealed against; or
(b)if the decision was issued in the form of an order—within 21 days after the date of the order; or
(c)within such further time allowed by the FWC on application by the appellant.
Note:Subsection 598(4) of the Act provides that a decision may be made as an order.
An appeal against the decision of 10 February 2025 would have had to have been lodged by 3 March 2025 to be within time. This appeal was not lodged by that time. To the extent that Mr. Fisher is seeking to challenge any failure by the Commission to ‘stay’ the proceedings before Deputy President Saunders, the issue of the timeliness of the appeal against that decision also arises. On the Appellant’s own version of events this alleged failure occurred on 4 February 2025.
Procedural background to the appeal
On the day the Notice of Appeal was filed, the Appellant was advised by the President’s Chambers that (contrary to what was asserted in the Notice of Appeal) the appeal had not been filed within 21 days of the date on which the decision being appealed was issued. The Appellant was asked to provide details as to the reason for the delay and the grounds upon which he said that an extension of time should be granted. He did not do so.
On 5 June 2025 the Commission made directions in relation to the present appeal. Those directions noted that Mr. Fisher had filed a second Notice of Appeal against the decision of Deputy President Saunders of 10 February 2025 and that the appeal was filed outside the 21-day time period prescribed by the Rules. The directions required the parties to advise whether they consented to the matter being determined on the papers by 12 June 2025. The directions also required the Appellant to file and serve an appeal book and an outline of submissions on the issues of permission to appeal and extension of time to appeal by 4pm on 19 June 2025. The directions further advised the parties that the matter was listed for hearing in relation to permission to appeal and extension of time to appeal on 8 July 2025.
The Appellant advised that he did not consent to the matter being determined on the papers and did not file an appeal book in response to the directions.
At 12.47pm on 7 July 2025, Mr. Fisher emailed the Commission to say that he was unavailable to attend the hearing on the following day because of work commitments. He was advised by the Full Bench later that day that the matter would proceed on 8 July 2025 as previously listed.
Neither party appeared at the appeal on 8 July 2025, and the Full Bench indicated that the matter would be determined on the basis of the material that had been filed.
Extension of time
Rule 128(2) provides that a notice of appeal must be lodged within 21 days after the date of the decision being appealed against or within such further time as allowed by the Commission on application by the appellant. The Appellant did not make an application for an extension of time but contended in the Notice of Appeal that the appeal was lodged within time. That assertion is plainly wrong. In the absence of an application for an extension, it is strictly unnecessary for the Commission to consider whether a further period of time should be allowed and in that event, the matter would in the ordinary course, proceed no further. We have however determined that to deal with this matter to finality, it is appropriate to consider whether an extension of time would be granted in accordance with the usual principles applying to appeals filed outside the specified time period.
The principles relating to the exercise of the Commission’s discretion to extend time for the filing of an appeal are well-established. In Jobs Australia v Eland[4] the Full Bench said the following in relation to the predecessor provisions to Rule 128:
Time limits of the kind in Rule 56 should not simply be extended as a matter of course. There are sound administrative and industrial reasons for setting a limit to the time for bringing an appeal and it should only be extended where there are good reasons for doing so. The authorities indicate that the following matters are relevant to the exercise of the Tribunal's discretion under Rule 56(2)(c):
• whether there is a satisfactory reason for the delay;
• the length of the delay;
• the nature of the grounds of appeal and the likelihood that one or more of those grounds being upheld if time was extended; and
• any prejudice to the respondent if time were extended.[5]
In this instance the Appellant was asked to provide details as to the reasons for the delay and the grounds upon which he maintained that an extension should be granted. He chose not to respond to that request. No satisfactory explanation has therefore been advanced for the delay by the Appellant. This weighs against extending time for the filing of the appeal.
The length of the delay is not inconsiderable. The original decision was published on 10 February 2025 and the other ‘decision’ complained about was allegedly made 6 days earlier. This also weighs against extending time for the filing of the appeal.
The grounds of appeal refer to the “obstruction of justice, denial of a hearing and the blocking of up to 14 witnesses being called upon by way of subpoena.” The grounds also allege that the Respondent’s witnesses lied under oath and engaged in false, misleading and deceptive conduct and wage theft. Further, the grounds contend that the Commission “omitted and failed to address stated grounds, and gave false and misleading statements in their decision”. The grounds advanced by the Appellant do not in our view, demonstrate a likelihood of being upheld if an extension of time were granted. The grounds repeat matters that were raised and rejected by the Full Bench in the First Appeal decision. Nothing advanced by the Appellant in this matter supports the conclusion that the grounds relied upon here have any realistic likelihood of being upheld if we were to extend time.
We are also of the view that there would be a material prejudice to the Respondent if the time to appeal were extended. This is because the matters raised by the Appellant have already been dealt with by a Full Bench of the Commission and extending time would require the Respondent to expend further time and resources to respond to arguments that have already been dealt with and determined.
We decline to extend time for the lodgement of the Notice of Appeal and would dispose of the matter on that basis.
For completeness however, we would add that even if we were inclined to extend time, we would refuse permission to appeal for the reasons set out below.
Principles - permission to appeal
There is no right to appeal a decision of the Commission. An appeal may only be made with the permission of the Commission.[6] Section 604(2) requires the Commission to grant permission to appeal if it is satisfied that it is in the public interest to do so.
The decision subject to appeal was made under Part 3-2 - Unfair Dismissal - of the Act. In matters of that kind, s.400(1) provides that the Commission must not grant permission to appeal unless it considers that it is ‘in the public interest to do so’. Unlike appeals more generally,[7] here the Commission’s satisfaction with respect to the public interest criterion is an essential requirement for the grant of permission to appeal. Further, in matters such as these, appeals on a question of fact may only be made on the ground that the decision involved a ‘significant error of fact’.[8]
The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[9] The public interest is not satisfied simply by the identification of error,[10] or a preference for a different result.[11]
In GlaxoSmithKline Australia Pty Ltd v Makin, a Full Bench of the Commission identified some of the considerations that may attract the public interest:
“... 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...”[12]
It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of appealable error.[13] However, the fact 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.[14]
We have considered the grounds of appeal advanced by the Appellant and do not consider that they disclose an arguable case of appealable error. Insofar as those grounds refer to an error involving a failure to require the attendance of certain witnesses, we note firstly the Appellant has had an opportunity to deal with all aspects of the unfair dismissal proceedings in the First Appeal. Even if the point about failure to accede to a request for witness attendance had not been raised in the First Appeal, the Appellant should not now be permitted to adopt a piecemeal approach by pursuing multiple appeals from the same proceedings.
However, this was a point that was argued and dealt with in the First Appeal decision at [33]. There the Full Bench noted that the Appellant did not submit during the proceedings before Deputy President Saunders that he sought Orders to Attend to be issued to specific witnesses and in those circumstances, the Full Bench said it was unclear how any error could have occurred. There was nothing to demonstrate that any subsequent application had been made. In any case, the Appellant had been given an opportunity to prepare for and present his case, and the hearing had concluded on 30 January 2025. Had such an application been made it would have been open to the Deputy President to refuse an application for orders for witnesses to attend at that point. Further, the Full Bench observed that the matters about which any additional witnesses might have given evidence were largely uncontentious and/or not determinative of the questions to be decided. The Full Bench concluded that there was no arguable case of appealable error in relation to this ground. We would respectfully agree.
Insofar as the Appellant contends there was a failure by the Commission to ‘stay’ the proceedings before Deputy President Saunders, that is plainly wrong. The issue of a ‘stay’ in the First Appeal was dealt with administratively by the President, Justice Hatcher on 7 February 2025. As was correctly noted in correspondence to the parties, there was no decision or order to stay and that to the extent the Appellant was seeking a ‘stay of proceedings’, the proceedings before the Deputy President were concluded and there was nothing to stay.
To the extent the Appellant claims that the Deputy President erred in preferring and accepting the evidence of the Respondent’s witnesses, we are not satisfied that any case of appealable error is made out. Findings of fact based on the assessment of witnesses is generally a matter for a first instance decision-maker. We discern no basis to conclude that the Deputy President erred in any relevant respect in relation to the conclusions reached. This ground is in reality no more than a preference for a different result.
In relation to the Appellant’s complaints regarding the decision of the Deputy President not dealing with ‘grounds’ or ‘including false and misleading statements’, these are matters that have been dealt with and comprehensively rejected in the First Appeal decision. There is no arguable case of appealable error disclosed in this ground. Insofar as the Appellant’s grounds raise issues with the First Appeal decision, there is no proper basis upon which this decision could or should traverse those matters.[15]
We would conclude that there is no arguable case of appealable error in the Deputy President’s decision and there are no other considerations that would support the grant of permission to appeal.
As to public interest, we would conclude that the appeal does not raise any of the matters referred to in paragraph [30] above and that the appeal is little more than an attempt by an unsuccessful litigant to re-run failed arguments that have previously been dealt with and determined both at first instance and on appeal. The public interest does not favour the grant of permission to appeal.
Disposition
In the absence of the grant of an extension of time in accordance with the Fair Work Commission Rules 2024, the appeal can proceed no further. However, even if we granted an extension of time, we would also refuse permission to appeal.
DEPUTY PRESIDENT
[1] [2025] FWC 380.
[2] Ibid at [7].
[3] [2025] FWCFB 85.
[4] [2014] FWCFB 4822.
[5] Ibid at [5]. See also Construction, Forestry Mining and Energy Union v. Kestrel Coal Pty Ltd[2015] FWCFB 2206 at [11].
[6] Section 604(1).
[7] See s.604(2)
[8] Section 400(2).
[9] 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].
[10] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343, 197 IR 266 at [24]-[27].
[11] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343, 197 IR 266 at [26]-[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].
[12] [2010] FWAFB 5343, 197 IR 266 at [24] – [27].
[13] Wan v AIRC (2001) 116 FCR 481 at [30].
[14] Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82].
[15] John Patrick Bracken v OFX (OzForex Limited)[2023] FWCFB 174 at [30]-[33]; Inna Grabovsky v United Protestant Association NSW Ltd[2019] FWCFB 1964 at [26].
Printed by authority of the Commonwealth Government Printer
<PR789792>
0
11
0