Mr Colin McKerlie v Private Fleet Pty Ltd - [2025] FWCFB 228

[2025] FWCFB 228

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.604 - Appeal of decisions

Mr Colin McKerlie
v

Private Fleet Pty Ltd

(C2025/8082)

DEPUTY PRESIDENT SLEVIN

DEPUTY PRESIDENT GRAYSON

COMMISSIONER CRAWFORD

SYDNEY, 13 OCTOBER 2025

Appeal against decision [[2025] FWC 2185] of Commissioner Sloan at Sydney on 28 July 2025 in matter number U2025/8790 - permission to appeal only – recusal application – application refused – application for orders for production - appeal proceedings by way of rehearing - application refused.

Mr Colin McKerlie (Appellant) has lodged an appeal under s 604 of the Fair Work Act 2009 (Act) against a decision of Commissioner Sloan to dismiss an application for an unfair dismissal remedy on jurisdictional grounds (Appeal proceedings). Permission to appeal is required. The matter was set down matter for hearing on Tuesday 7 October 2025 before this Full Bench of the Commission to consider whether to grant permission.

At the commencement of the hearing Mr McKerlie made two applications. A recusal application seeking that we disqualify the presiding member from participating in the Full Bench and an application for orders that the Respondent produce documents. This decision concerns the recusal and the application for orders for production.

Recusal Application

Background

On 1 October 2025, the Appellant made an application to the presiding member of this Full Bench asking that he recuse himself from further involvement in the Appeal proceedings or any other matter in which the Appellant is a party. The Appellant provided written submissions in support of his application and relied on various documents.

In those submissions the Appellant asked the presiding member to disqualify himself from sitting in the Appeal proceedings on the basis of a decision in another matter McKerlie v Fat Prophets[2024] FWC 1939 (earlier proceedings). In that matter the Appellant’s application for an unfair dismissal remedy was dismissed on jurisdictional grounds. The earlier proceedings are unrelated to these proceedings.

On 3 October 2025 the presiding member issued a non-published decision declining to recuse himself and advised the Appellant that if he wished to press the recusal application before the Full Bench this could be done at the commencement of the hearing on 7 October 2025.

Following the presiding member issuing the decision the Appellant sent further correspondence indicating the application would be pressed and enclosing:

a.a previous complaint to the President of the Commission regarding the decision of the presiding member in the earlier proceedings;
b.Enclosing various Facebook posts, internet searches, online opinion pieces and newspaper articles regarding appointees to the Commission; and
c.The decision in the earlier proceedings.

In the earlier proceedings the Appellant’s application for an unfair dismissal remedy was dismissed on the basis that he was engaged as an independent contractor and was not an employee. The Appellant contends that in the reasoning for that decision an error of fact was made concerning the treatment of annual leave. The Appellant asserts that the Decision incorrectly found that the…

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.

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Details

Case: [2025] FWCFB 228
Decision Date: 13 OCTOBER 2025

CaseChat Overview and Summary

Mr Colin McKerlie has appealed a decision by Commissioner Sloan dismissing his application for unfair dismissal remedies on jurisdictional grounds. McKerlie sought permission to appeal the dismissal of his application. The appeal hearing was held before a Full Bench of the Fair Work Commission on 7 October 2025, where McKerlie made two applications: a recusal application seeking disqualification of the presiding member and an application for orders for production of documents. This decision concerns these two applications.

The Full Bench considered McKerlie's recusal application based on alleged bias and incompetence of the presiding member from a previous unrelated case. The Full Bench rejected the application, finding no reasonable apprehension of bias and no actual bias demonstrated. The Full Bench also dismissed McKerlie's application for orders for production, finding no necessity for the documents in the appeal proceedings, which are not a de novo hearing but a rehearing for correction of errors.

The Full Bench adjourned the proceedings to prepare reasons for the recusal application refusal and to consider the application for orders for production. The application for permission to appeal will proceed to be heard on 4 November 2025.

Orders