This extract from an appeal decision of the Fair Work Commission sets out the principles which apply when the Commission is deciding whether to grant permission for an appeal to be heard.
“Permission and approach to appeals against decisions concerning unfair dismissal
[20] An appeal under s. 604 of the FW Act is an appeal by way of rehearing and the Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision maker.8 There is no right to appeal, and an appeal may only be made with the permission of the Commission.
[21] The present matter is an appeal from a decision made under Part 3-2 of the FW Act, which concerns unfair dismissals, and is therefore subject to s. 400 of the FW Act. Section 400(1) states that the Commission ‘must not’ grant permission to appeal unless it considers that it is in the public interest to do so. Section 400(2) provides that an appeal on a question of fact can only be made on the ground that the decision involved a ‘significant’ error of fact. The Federal Court has described the requirements in s. 400 as ‘stringent’.9
[22] A decision as to whether it is in the public interest to grant permission to appeal is discretionary and involves a broad value judgment.10 Considerations that may attract the public interest include that a matter raises issues of importance and general application, there is a diversity of decisions at first instance so that guidance at appellate level is required, the decision at first instance manifests an injustice, the result is counter intuitive, or legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters.11 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.12 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.
[23] The decision subject to appeal in this matter is also properly viewed as a discretionary decision. The appeal is therefore to be considered in accordance with the principles in House v the King13 expressed in that decision as follows:
“It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.” 14”
Shea v CareFlight Limited [2026] FWCFB 1 delivered 2 January 2026 per Asbury VP, Cross DP and Slevin DP