Pepperleaf.Com.Au Pty Ltd v Simon Kahil & John Cincotta - [2025] FWCFB 92

[2025] FWCFB 92

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.604—Appeal of decision

Pepperleaf.Com.Au Pty Ltd
v

Simon Kahil & John Cincotta

(C2025/3080)

DEPUTY PRESIDENT MILLHOUSE

COMMISSIONER ALLISON
COMMISSIONER TRAN

MELBOURNE, 9 MAY 2025

Appeal against decision of Commissioner Yilmaz at Melbourne on 28 March 2025 on transcript in matter numbers U2025/795 and U2025/797 – permission to appeal refused.

Pepperleaf.com.au Pty Ltd has lodged an appeal under s 604 of the Fair Work Act 2009 (Cth) (Act) against a decision of Commissioner Yilmaz dated 28 March 2025, for which permission to appeal is required. The Commissioner’s decision was made in the context of dealing with the unfair dismissal applications made by each of the respondents to the appeal, Messrs Simon Kahil and John Cincotta, against the appellant.

In the decision, the Commissioner considered that the respondents’ unfair dismissal applications were filed prematurely and, in the circumstances of the matter, was satisfied that this constituted an irregularity that the Commission may waive under s 586(b) of the Act. Accordingly, the Commissioner exercised her discretion to waive the irregularity in the form or manner in which each of the applications was made.

The matter was listed for permission to appeal only. For the reasons that follow, permission to appeal is refused.

Relevant procedural history

The matter concerns applications for an unfair dismissal remedy made by each of the respondents to the appeal against the appellant pursuant to s 394 of the Act. The applications were filed with the Commission on 24 January 2025. On 29 January 2025, the appellant filed its Form F3 response to the applications. The appellant raised a jurisdictional objection to each application on the basis that the respondents had not been dismissed by it.

Following the allocation of the matters to the Commissioner and there being no objection to the applications being heard together, the Commissioner listed the applications for a jurisdictional hearing on 28 March 2025 to determine the date of dismissal. The parties filed written material in accordance with the directions of the Commission. In summary:

(a)the respondents contended that they were founding shareholders of the appellant, having commenced the business in 2014;
(b)the respondents said that they commenced employment with the appellant in 2016 and that they were also directors of the company;
(c)the respondents contended that their employment was summarily terminated on 6 January 2025 as an outcome of a board meeting held on that date. Evidence was filed by one of the respondents who was present at the board meeting;
(d)the appellant’s position was that the respondents were not dismissed from their employment on 6 January 2025 as investigations into their conduct were ongoing after that date. Rather, at the 6 January 2025 board meeting, resolutions were passed that allowed for the potential termination of the respondents’ employment due to serious misconduct; and
(e)the appellant contended that on 30 January 2025, resolutions were passed for the termination of the respondents’ employment, and they were notified of their dismissal on that date.

At…

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 92
Decision Date: 9 MAY 2025

CaseChat Overview and Summary

Pepperleaf.com.au Pty Ltd has appealed against the decision of Commissioner Yilmaz, who waived the irregularity of the unfair dismissal applications made by Messrs Simon Kahil and John Cincotta. The applications were filed prematurely, but the Commissioner waived the irregularity under s 586(b) of the Fair Work Act 2009 (Cth). The Full Bench refused permission to appeal, finding that the appeal did not demonstrate an arguable case of appealable error or raise issues of importance and general application. The Full Bench also found that the Commissioner did not err in applying the principles in Mihajlovic v Lifeline Macarthur and that the decision did not manifest an injustice or result in a counterintuitive outcome. The Full Bench noted that the appeal was against an interlocutory decision and that it was not in the public interest to grant permission to appeal. The Full Bench refused permission to appeal in accordance with s 400(1) of the Act. Permission to appeal is refused.

Orders