Rhylie De Graaff v Uconnex Pty Ltd - [2025] FWCFB 216

[2025] FWCFB 216

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.604—Appeal of decision

Rhylie De Graaff
v

Uconnex Pty Ltd

(C2025/8435)

DEPUTY PRESIDENT COLMAN
DEPUTY PRESIDENT GRAYSON COMMISSIONER SLOAN

MELBOURNE, 24 SEPTEMBER 2025

Appeal against decision on transcript of Deputy President Bell at Melbourne on 21 August 2025 in matter number C2025/5072 – permission to appeal refused

Rhylie De Graaff has lodged an appeal under s 604 of the Fair Work Act 2009 (Act) against a decision of Deputy President Bell made on transcript on 21 August 2025 in which the Deputy President dismissed Mr De Graaff’s application under s 365 after concluding that he had not been dismissed by the respondent, Uconnex Pty Ltd. The matter was listed before us for permission to appeal only. The parties consented to the Full Bench determining the matter without holding a hearing, and we are satisfied that it can be adequately determined without the parties making oral submissions (see s 607(1) of the Act).

Section 365 states that if a person has been dismissed and alleges that the dismissal contravened Part 3-1, the person may apply to the Commission to deal with the dispute. The respondent objected to the application on the ground that Mr De Graaff was not dismissed but had instead voluntarily resigned after three months of employment. In his decision, the Deputy President read out s 386 of the Act, which defines when a person has been ‘dismissed’, and cited Mr De Graaff’s resignation letter of 30 May 2025. The Deputy President noted Mr De Graaff’s contention that his employment had become untenable because of a pattern of conduct by the respondent, which was said to include its failure to address his concerns about the impact of the working environment on his physical and mental health, and numerous other matters. The Deputy President concluded that he was not satisfied that Mr De Graaff’s evidence rose to a level that demonstrated that he had been forced to resign. In particular, the Deputy President did not consider that Mr De Graaff was publicly blamed for systemic problems outside his control, that there was any threat or action by the respondent that gave him no choice but to resign, or that he was directed to participate in discriminatory practices. The Deputy President further found that there was insufficient evidence of alleged award breaches. The Deputy President accepted that Mr De Graaff had been labouring under significant mental health challenges but that these were not caused by the employer. The Deputy President concluded that Mr De Graaff was not dismissed within the meaning of s 386 and dismissed his s 365 application.

Permission to appeal

An appeal may only be brought with the permission of the Commission under s 604(1). Section 604(2) provides that the Commission must grant permission to appeal if it is satisfied that it is in the public interest to do so. Consideration of the public interest involves a broad value judgment (Coal & Allied Mining Services Pty…

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 216
Decision Date: 24 SEPTEMBER 2025

CaseChat Overview and Summary

In the Fair Work Commission, Rhylie De Graaff has appealed a decision by Deputy President Bell, who dismissed Mr De Graaff's application for an unfair dismissal remedy under section 365 of the Fair Work Act 2009. The respondent, Uconnex Pty Ltd, had objected to the application on the basis that Mr De Graaff had not been dismissed, but had voluntarily resigned. The appeal was considered by the Full Bench without a hearing, based on the parties' consent and the Commission's view that oral submissions were unnecessary. The legal issues for the Full Bench to decide were whether the appeal grounds raised an arguable case of appealable error, and whether permission to appeal should be granted.

The Full Bench found that none of the appeal grounds presented an arguable case of appealable error. Mr De Graaff's first ground, concerning the application of section 386 to his general protections claim, was dismissed as the definition of 'dismissed' in section 386 does indeed apply to section 365 claims. The second ground, which argued for a reverse onus in section 365 applications, was also rejected as the reverse onus applies only to the prohibited reason for adverse action, not to whether such action occurred. The Full Bench noted that the Deputy President was correct to focus on whether Mr De Graaff had been dismissed, as this was the threshold issue raised by the respondent's objection. The fourth ground, regarding procedural fairness and the application of an 'unfair dismissal' framework, was dismissed as there was no evidence of a denial of procedural fairness. Finally, the fifth ground, which claimed that the Deputy President failed to engage with Mr De Graaff's evidence, was rejected as the Full Bench found that the Deputy President had indeed considered the evidence in question.

The Full Bench concluded that the appeal grounds did not disclose an arguable case of appealable error and that the Deputy President's decision was orthodox and appropriately assessed the case. As such, the Full Bench refused permission to appeal, finding that it was neither in the public interest nor appropriate to grant permission on general discretionary grounds. The decision was made without a hearing, based on the parties' consent and the Full Bench's assessment of the appeal grounds.

Orders