It is difficult to succeed in an appeal in the Fair Work Commission. The Commission essentially requires an appellant to demonstrate a real error in the application of the law. This decision is an example.
“Appeal against Decision and Orders requiring reinstatement – valid reason found in circumstances of fighting and self-defence – findings that opportunity to respond denied and reinstatement appropriate also challenged – appeal merely seeks to re-agitate findings of fact
– appropriate standard of appellate review considered – whether correctness standard applies to decisions under s. 385(b) and s. 387 – correctness standard does not apply – House v The King applied – no appealable error established – public interest not satisfied- permission to appeal refused.
Introduction
[1] Mr David Weule began working for Central Queensland Services Pty Ltd as mineworker in July 2022. He was dismissed on 20 September 2024 for fighting at work. At the time he was dismissed he was employed at the Caval Ridge coal mine near Moranbah in Central Queensland. The fight was with an employee of a labour hire provider. It took place in and around a light vehicle which was on a haul road in the mine. Mr Weule maintained that he was defending himself.
[2] Mr Weule made an application for an unfair dismissal remedy under s. 394 of the Fair Work Act 2009 (Act). He was successful. Deputy President Butler decided to order the Appellant to reinstate him with continuity of employment and service and compensate him for lost pay (Decision)1. After hearing from the parties on the form of the orders the Deputy President issued a further decision2 and made final Orders on 24 June 2025 (Orders).3
[3] The Appellant seeks to appeal the Decision and Orders. An application to stay the operation of the orders was heard and determined on 27 June 2025. A stay order was made with conditions. The conditions were that Mr Weule be paid an amount equal to the wages and other payments he would have received had he been reinstated. The payments were to be made to the date the appeal is determined, less any income earned in other employment. The stay order lapses upon the determination of the appeal.
[4] The appeal is brought pursuant to s. 604 of the Act. Subsection 604(2) provides that appeals from decisions of the Commission may only proceed with the permission of the Commission. As the decision was made under Part 3-2 of the Act, s. 400(1) also applies such that permission to appeal may only be granted if it is in the public interest to do so.
[5] In her Decision the Deputy President found that the dismissal was harsh in light of the circumstances of the altercation and the lack of any other disciplinary history. The Deputy President also found the dismissal was unjust because Mr Weule was entitled to defend himself rather than allow a co-worker to attack him. His acts were found to be proportionate and reasonable in the circumstances. The Deputy President also found the dismissal was unreasonable because there was no valid reason for termination or alternatively because of the failure to provide him with a proper opportunity to respond4. Orders for reinstatement and related relief were found to be appropriate.5
[6] We refuse permission to appeal. We find that the Decision and Orders constitute an orthodox exercise of the Commission’s powers under Part 3-2 of the Act. The Appellant has established no appealable error. In the absence of error an appeal cannot succeed and permission to appeal is futile. These are our reasons.
The Decision
[7] A detailed background to the matter is found in the Decision. The evidence is canvassed in a thorough and detailed manner. Findings are made where contests arose. We don’t propose to repeat those matters here. Put briefly, Mr. Weule began working for the Respondent in July 2022. On 20 September 2024, he was dismissed following an altercation with another worker, Mr Torcello. The fight involved verbal and physical exchanges. The dismissal occurred after an investigation which found Mr Weule guilty of misconduct warranting dismissal.
[8] The issue to be determined in the proceedings at first instance was whether the dismissal was harsh, unjust, or unreasonable for the purpose of s. 385(b) of the Act. The Appellant contended that the altercation involved misconduct on Mr. Weule’s part which justified dismissal The Mining and Energy Union (MEU) which represented Mr Weule contended that he acted in self-defence.
[9] The Decision is unremarkable. It sets out the statutory framework, noting that the application was made under s. 394 of the Act, Mr Weule was protected from unfair dismissal for the purposes of s. 382, and the question that arose was whether he was unfairly dismissed. It notes that s. 385 relevantly provides that a person has been unfairly dismissed if the dismissal was harsh, unjust, or unreasonable and that in determining that question each of the matters in s. 387 must be taken into account. The Decision considers each of those matters in detail.
[10] Under s. 387(a) the question of whether there was a valid reason the Deputy President referred to long standing authority on misconduct arising from fighting. At [38] of the Decision the often quoted extract from the Full Bench decision in Newton v Toll Transport Pty Ltd [2021] FWCFB 3457 was set out6.
[11] The Decision addressed in detail the evidence concerning the fight and dealt with what were described as the significant controversies raised by the parties which were considered to be significant. Those issues were recorded in the Decision at [78] as follows:
“[78] I will next consider, in more detail, some of the significant areas of controversy between the parties. They relate to:
- whether the altercation had escalated from verbal to physical by Mr Weule saying “let’s sort it out now,” or similar;
- whether Mr Weule had undone his seatbelt in order to turn and punch, or attempt to punch, Mr Torcello; and
- whether Mr Weule had been the first of the two to make, or attempt to make, physical contact, by punching Mr Torcello or attempting to do so, or whether he had acted in self-defence;
- whether Mr Torcello had put Mr Weule into a headlock, or whether he had tried to “bear hug” Mr Weule;
- whether, in any event, Mr Weule had been at least partly at fault because he had started an argument when he should not have;
- whether Mr Hurley could have stopped the car sooner;
- whether Mr Weule could have got away from Mr Torcello rather than try to defend himself against Mr Torcello;
- whether Mr Hurley had physically broken up the altercation or whether he had just yelled at the two to stop;
- whether riding back together means Mr Weule had not been afraid;
- the extent of Mr Weule’s injuries and whether they were consistent with his
account.”
[12] Each of the matters were considered by reference to the evidence and submissions. Findings were made concerning contested evidence. Some were resolved by reference to the reliability of the accounts in the evidence and the demeanour of witnesses. The Deputy President found that the fight was initiated by Mr Torcello and Mr Weule acted in self- defence. His actions were said to be proportionate and reasonable in the circumstances. The Deputy President found no valid reason for dismissal related to his capacity or conduct.7
[13] The Deputy President referred to Full Bench authority in Chubb Security Australia Pty Ltd v Thomas8 and Read v Cordon Square Child Care Centre9 for the purposes of s. 387(b), noting that as there was no valid reason for dismissal, whether Mr Weule was given an opportunity to respond to a valid reason conduct was not relevant.10
[14] The Decision then makes a number of observations that would be relevant if the finding under s. 387(a) was wrong. Those observations amount to a finding that the Appellant had not kept an open mind during the investigation and by doing so did not give Mr Weule a proper opportunity to respond to the reason for dismissal.11
[15] For the purpose of s. 387(c), the Deputy President noted that Mr Weule was assisted by his union throughout the process and that there was no unreasonable refusal to allow him a support person during discussions related to the dismissal.
[16] Subsection s. 387(d) was considered irrelevant as the dismissal was not in relation to unsatisfactory performance.
[17] Observations were made under subsections 387(e) and (f) about the size of the employer and the presence of dedicated human resource specialists so those matters were also considered.
[18] The Decision notes under s. 387(h)12 that matters including Mr Weule’s age and the impact of losing his job, his work record, his injury during the assault, a delay on the part of the Appellant in providing Mr Weule with a skills list to assist him to obtain another job, and the steps taken by the Appellant in providing him access to its employee assistance program, were relevant.
[19] The ultimate finding on unfairness is made at [168] where the Deputy President said:
“[168] Having considered each of the matters specified in section 387 of the Fair Work Act and for the reasons set out above, I am satisfied that the dismissal of the Applicant was harsh, unjust and unreasonable. It was harsh in light of the circumstances of the altercation and the lack of any adverse disciplinary history. It was unjust because Mr Weule was entitled to defend himself rather than allow a co-worker to attack him, and his acts were proportionate and reasonable in the circumstances. It was unreasonable because there was no valid reason for termination or alternatively because of the failure to provide him with a proper opportunity to respond.”
[20] The Decision considers remedy by first addressing whether reinstatement was appropriate. Reference was made to the evidence concerning Mr Weule’s disciplinary history (or lack thereof), his extensive experience, and that he got along with work colleagues. The Decision records the Deputy President’s finding that reinstatement was appropriate. As were orders recognizing Mr Weule’s service and awarding an amount for lost pay.
[21] At [182] the Decision states:
“[182] I am satisfied that the Applicant was unfairly dismissed within the meaning of section 385 of the Fair Work Act, and I have decided that the Applicant should be reinstated, with orders as to continuity of employment and period of continuous service, and loss of pay. Directions will issue so that the parties can be heard as to the form and content of the orders.”
[22] In the further decision the Deputy President determined that Mr Weule be reinstated from 15 July 2025, that his prior service and employment be recognised, and that he be paid an amount for remuneration lost because of the dismissal. The Orders reflect those findings.
The Appeal
[23] The notice of appeal lacks focus. It sets out eight primary grounds, some with sub- grounds. The grounds allege various errors in law, including failures to consider relevant evidence and statutory safety obligations. The first ground asserts that the Deputy President erroneously applied the common law test for self-defence by improperly shifting the burden
of proof onto the Appellant rather than requiring Mr Weule to establish self-defence. The second ground contends, more broadly, that the Deputy President failed to correctly apply the test for determining whether there was a valid reason for dismissal related to employee conduct.
[24] The third ground maintains that the Deputy President did not adequately consider or appropriately weigh evidence and statutory context. The ground lists complaints about how the evidence was treated and asserts a number of failures being consideration of the Appellant’s workplace violence policies, Code of Conduct, and statutory safety obligations. The fourth ground alleges that certain findings were not reasonably supported by the evidence. Another list of challenged evidentiary findings is provided.
[25] The fifth ground claims that the Deputy President did not properly apply the correct principles when assessing whether Mr Weule was provided with adequate opportunity to respond to allegations. The sixth ground makes a general assertion that the Deputy President failed to correctly apply the appropriate test and principles in evaluating whether the dismissal was harsh, unjust, or unreasonable. The seventh ground challenges the decision to order reinstatement, arguing that insufficient consideration was given to the evidence and another list of challenged findings of fact is provided. The list repeats complaints about the treatment of the evidence concerning the Appellant’s statutory safety obligations, safety risks arising from Mr Weule’s conduct, the breakdown of the employment relationship, and Mr Weule’s lack of contrition.
[26] Finally, the eighth ground alleges that the Decision was infected with various errors of fact. It describes the errors as significant. Another list is provided, this time identifying more granular factual errors such as failing to find that Mr Weule removed his seatbelt during the incident, inadequate weight being given to witness accounts, investigation reports and assessments of the injuries arising from the fight, and the making of incorrect findings about witness credibility and the Appellant’s management of the incident.
[27] The grounds are elaborated upon in the written submissions. The submissions attempt to give the grounds some focus. They group them into four complaints. The first goes to the finding of self-defence and asserts that the correctness standard applies to the application of the test of self-defence and the Deputy President applied the test incorrectly. This is said to be caught by appeal Grounds 1, 3(e), 3(g), 4(a) to (h), 6, 8(a), 8(b)(i), 8(d). The second complaint goes to errors concerning findings in support of valid reason other than self-defence (appeal grounds 2, 3(a), 3(b), 3(c), 3(d), 6, 7(a), (b), (c), (d)). The third goes to the Deputy President’s finding that Mr Weule was not given a proper opportunity to respond to the reasons for dismissal (appeal grounds 3(f), 4(k), (l) and (m), 5, 6, 8(e)). The fourth complaint goes to asserted errors relating to reinstatement (appeal ground 7).
[28] At hearing, the Appellant challenged the Decision of the Deputy President in relation to the findings regarding self-defence, and pressed reliance on the correctness standard. The complaint about the findings in relation to Mr Weule not being given a proper opportunity to respond was maintained. As was the complaint about the appropriateness of reinstatement. The Appellant submitted that the Deputy President made significant errors of fact and reasoning, which resulted in an unjust outcome. It maintained that the finding of self-defence was mistaken and unsupported by the evidence, and that insufficient weight was given to each
of the accounts of the fight found in the evidence. The Appellant asserted that Mr Weule instigated the physical altercation and that his actions were not consistent with acting in self- defence.
[29] In his written submissions, Mr Weule submitted that the grounds of appeal should be rejected. He asserted that the Appellant has not demonstrated any substantial error of fact or law warranting permission to appeal. On the first ground, Mr Weule contended that the Deputy President correctly applied the common law test for self-defence, which requires the party asserting self-defence to provide supporting evidence. The evidence provided by Mr Weule was thoroughly examined, and there is no indication that the test was incorrectly applied.
[30] On the second ground Mr Weule submitted that the Deputy President appropriately applied the test for valid reason. It was contended that the Appellant had not established that acting in self-defence violated any statutory or regulatory safety obligations. As to the third ground, Mr Weule argued that complaints about the weight accorded to evidence does not amount to appealable error, and further stated the Appellant had not, in any event, shown that workplace policies, codes, or statutory obligations were breached where Mr Weule acted in self-defence. It was also put that the issues raised do not involve significant factual errors as contemplated by s. 400. Other findings related to opportunities to respond were also, in Mr Weule’s submission, open on the evidence.
[31] The list of findings challenged by the fourth ground were likewise said to be open on the evidence. The Deputy President’s determination that it was reasonable for Mr Weule to act in self-defence was supported by the evidence, and the correct test for proportionality in self-defence was applied. The finding that it was reasonable for Mr Weule to assert self- defence was, again, open. Findings asserted to be implausible – such as Mr Weule allegedly punching someone in the back seat while seated in the front – were said to be also supported by evidence. The Deputy President’s preference for Mr Weule’s evidence were credit findings which were reasonable and not susceptible to challenge on appeal.
[32] As to the fifth and sixth grounds which were said to be contingent on the success of earlier grounds, Mr Weule submitted they too should be rejected. On the seventh ground, which goes to reinstatement, Mr Weule submitted this as another complaint about the weight given to evidence that did not rise to appealable error. The Deputy President’s findings were, in Mr Weule’s submission, both reasonable and supported by evidence. They included evidence relating to Mr Weule’s work performance and positive standing among colleagues, which indicated sufficient trust to sustain an effective employment relationship.
[33] Finally, the eighth ground was described as a collection of complaints about subsidiary findings which should be considered immaterial. Findings about conflicting evidence about whether Mr Weule wore a seatbelt did not constitute a significant factual error. The weight to be attributed to written accounts of the incident was within the Deputy President’s discretion, and findings that about evasive testimony was open.
[34] At the hearing Mr Weule submitted that the findings giving rise to the conclusions that the dismissal was harsh, unjust and unreasonable and that reinstate was appropriate, were open. The Deputy President was best placed to evaluate the evidence, having observed the witnesses and assessed their demeanour. The bulk of the Appellant’s arguments constitute an
attempt to re-agitate factual findings, which is not the proper function of an appeal. Mr Weule makes the same submission that he was not provided with a proper opportunity to respond, arguing that the investigation conducted by Mr Everingham was deficient and that he maintained a closed mind throughout the process. It is submitted that the Deputy President’s findings were informed by her direct observations of the witnesses during the hearing.
Permission to Appeal
[35] An appeal may only be brought with the permission of the Commission. Section 400 of the Act applies to this appeal. It requires that permission only be granted if it is in the public interest to do so. The nature of permission to appeal under the Act was considered in Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54; 192 FCR 78 where Buchanan J said at [44] (Marshall J and Cowdroy J agreeing):
“The nature of the task committed to the Full Bench at this stage of the appeal process (i.e. assessing whether a “public interest” test was met) was a discretionary one involving a broad value judgment, as has recently again been emphasised. In Hogan v Hinch (2011) 85 ALJR 398, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ said (at [69]):
‘The expression “that it is in the public interest” imports a judgment to be made
by reference to the subject, scope and purpose of the Act.”
[36] Matters that may engage the public interest were described by the Full Bench in
GlaxoSmithKline Australia Pty Ltd v Makin (2010) 197 IR 266 as follows:
“… 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.”
[37] In Stephanie Muir Ridge v Mr Alex Yates [2025] FWCFB 42 the Full Bench said:
“[33] Section 400(1) dictates that permission to appeal may only be granted if the Commission is satisfied that it is in the public interest to do so. The public interest test is stringent. A would-be appellant will generally need to show there is an arguable case of appealable error. Even where an arguable case is demonstrated, that is not necessarily sufficient to warrant a grant of permission to appeal. The statutory context may be relevant in deciding whether to exercise the discretion to grant permission to appeal, without fettering that decision. In matters where s 400 applies, it will “commonly not be in the public interest to grant permission to appeal where the grounds of appeal, in substance, seek to relitigate the factual findings made at first instance,” and often it will not be in the public interest for a Full Bench to analyse “the primary factual material simply because an appellant alleges that different conclusions should have been drawn from the evidence.”
[38] We consider that this appeal, in substance, seeks to relitigate the factual findings made at first instance. Much of what is put by the Appellant simply challenges findings of fact. On unfairness it challenges the finding that Mr Weule was defending himself in the fight with Mr Torcello and the related finding that his actions were proportionate and reasonable. It asserts that the Deputy President did not give sufficient weight to evidence that favoured the Appellant’s case. The Appellant wants to re-agitate its arguments that the safety critical nature of the workplace and Mr Weule’s safety obligations outweighed any explanation by Mr Weule for his conduct. The challenge in relation to the opportunity to respond similarly asserts errors in findings of fact. The reinstatement ground seeks a different factual conclusion about the ability to restore the employment relationship. The final ground is a complaint about subsidiary findings of fact.
[39] The Appellant in its grounds and submissions simply ask us to analyse the primary factual material as it alleges that different conclusions should have been drawn. In relation to the findings about self-defence the Appellant is quite forthright. It contends that we must reconsider the evidence as the correctness standard of appellate review applies. If we were to accept that proposition we would have to reconsider the evidence and determine for ourselves the correct outcome, rather than apply the standard for appeal from discretionary decision which, as described in House v The King,13 is confined to identifying error in the reasoning process. We reject the proposition. The correctness standard does not apply.
[40] The applicability of the correctness standard to appeals under the Act was dealt with by the High Court recently in Helensburgh Coal Pty Ltd v Bartley [2025] HCA 29. The reasons of the plurality (Gageler CJ, Gordon and Beech-Jones JJ) included the following:
“[53] The appeals to the Full Bench were appeals by way of rehearing. The Full Bench properly understood that it could only exercise its powers on appeal if there was an error on the part of Commissioner Riordan in his decisions that the dismissals of the Employees were not cases of genuine redundancy. In other words, the Full Bench’s function or “role” on appeal was to determine whether there was an error on the part of Commissioner Riordan.
[54] There is a distinction between the nature of the appeal and the standard of appellate review applicable to a particular decision at first instance. The former goes to jurisdiction, the latter does not. The standards of appellate review are concerned, in essence, with the nature of an appeal – that is, the nature of the error of the primary decision-maker that the appellate court or tribunal is required to identify in order to uphold the appeal. Under the correctness standard, the appellable error is that the primary decision-maker made the wrong decision. Under House v The King, the appellable error is that the primary decision-maker made an error of the kind described in House v The King. Fundamentally, however, both standards of appellate review are concerned with identifying error.”
(Footnotes omitted)
[41] In Helensburgh Coal the decision under challenge was a decision as to whether the Commissioner was satisfied for the purpose of s. 385(d) that the dismissal was not a case of genuine redundancy. In determining that question the Commissioner was required to consider
whether s. 389, which sets out the meaning of ‘genuine redundancy’, applied. In this case the Deputy President was deciding whether she was satisfied, for the purpose of s. 385(b) that the dismissal was harsh, unjust, or unreasonable. In determining that question the Deputy President was required to take into account the matters in s. 387, including s. 387(a), being whether there was a valid reason for the dismissal related to capacity or conduct.
[42] The plurality did not resolve the question of which appellate standard applied in Helensburgh. The matter did not arise for judicial review because it was considered that the relevant Full Bench decisions identified that its role was to identify error. Any purported failure to apply the correct standard in the appellate process would not amount to jurisdictional error but would be an error within jurisdiction.14
[43] In separate reasons Edelman J considered the nature of the decision to be made under
- 3859(d) and s. 389(2) and stated that appeals under s. 604 of the Act concerning such decisions are discretionary in the sense that they are subject to the more limited appellate review under House v King. The Commission’s original decision is given deference due to its broad discretion, specialist expertise, and the open-textured statutory criteria it applies. Further the Act provides that appeals in unfair dismissal cases may only proceed if leave to appeal is granted based on public interest considerations and may only proceed on issues of fact if a significant error of fact is identified. The Commission is not bound by strict rules of evidence and is empowered to consider matters according to equity, good conscience, and the merits of the case. Precedents and legislative intent indicate that appellate intervention should be limited to the grounds set out in House v The King, reflecting an approach of appellate restraint where significant discretion has been exercised by the primary decision-maker.
[44] His Honour concluded:
“[91] For these reasons, an acceptance of Helensburgh Coal’s submission that the correctness standard of appellate review applies to ss 385(d) and 389(2) would require the rejection of the plain intention of the Commonwealth Parliament. The consequence is that the Full Bench was not in error in affording latitude in the assessment of whether there was error in the decision of the Commissioner. Without error, the Full Bench could not have made any jurisdictional error. Nevertheless, like Steward J, I agree with the reasons of Gageler CJ, Gordon and Beech-Jones JJ that any error by the Full Bench in this respect would not have been jurisdictional.”
[45] We consider this the reasoning that led to this conclusion applies equally to decisions made under s. 385(b) and s. 387. The decision here involved the consideration of an array of facts, the need to resolve conflicts in evidence, and the weighing of competing inferences. To use the language used by the High Court in Moore (a pseudonym) v The King [2024] HCA 30; 98 ALJR 1119 at [15] quoting Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 at 563 [49], the Deputy President’s decision under s. 385(b) and s. 387(a) as to whether the dismissal was harsh, unjust or unreasonable taking in account whether there was a valid reason for termination did not demand a unique outcome, in which case the correctness standard applies but rather it tolerated a range of outcomes, in which case the House v The King standard applies.
[46] We note that the same conclusion was reached by a Full Bench of the Commission in DP World Sydney Limited v Mr Lee Witherden [2025] FWCFB 133, which was decided before Helensburgh. The Full Bench said:
“[21] Where the source of the power being exercised is found in a statute, whether “judicial restraint” is or is not to apply is an issue of statutory construction. That is, the question is whether, properly construed, the statute conferring the power being exercised tolerates a range of outcomes or requires a unique decision in each case. In our opinion, an umber of features of the Act generally, and Part 3-2 of the Act in particular, are inconsistent with the submission of DP World that the correctness standard is to be applied on appeal from a finding that a dismissal was harsh, unjust or unreasonable. The Act contemplates that determination of whether a dismissal is harsh, unjust or unreasonable, and whether reinstatement is inappropriate, are matters intended to be determined by way of a discretionary assessment by an individual member of the Commission.”
[47] Mr Weule submitted that regardless of what standard of appellate review applied, the Appellant has not established error. We agree. If we are wrong and the applicable standard is not the House v King standard, we consider that the decision of the Deputy President was correct.
[48] The Appellant has not raised an arguable case of appealable error. No basis was established upon which the Full Bench could disturb the findings made at first instance and we do not consider that it is in the public interest for the Full Bench to revisit factual findings made at first instance. In the absence of error, it is not in the public interest to grant permission to appeal.
[49] For these reasons we refuse permission to appeal, and the application is dismissed.”
Appeal by Central Queensland Services Pty Ltd v David Weule [2025] FWCFB 239 delivered 24 October 2025 per Asbury VP, Cross DP and Slevin DP