The fair work system will only permit appeals against decisions to be upheld when the decision at first instance is obviously wrong and not where the appeal bench may simply have a different view to that of the person who decided the case.
“Consistent with the observation of a Full Bench of the Commission in Gelagotis v Esso
Australia Pty Ltd86 in relation to findings of fact, the Commissioner had the advantage of seeing
and hearing the witnesses and evaluating their credibility and the “feeling” of the case. Where
the Commissioner based his findings of fact on his preference for the evidence of the
Respondent over that of other witnesses, there is no basis for us to find that he “palpably
misused his advantage” or “acted on evidence that was inconsistent with facts incontrovertibly
established by the evidence”.87 It is apparent that the Commissioner found the Respondent to
be a credible and sincere witness and accepted his evidence in a number of respects, including
his understanding of and contrition for, the impact of his conduct as a member of the Sickos
Video Sharing Group, and the sincerity of his stated intention that this conduct would not be
repeated. On our review of the evidence before the Commissioner his conclusion that
reinstatement was appropriate was reasonably open and not affected by any significant error of
fact.”
Extract from Ventia Australia Pty Ltd v Pelly [2023] FWCFB 201 delivered 1 November 2023 per Asbury VP, O’Neill DP and Bissett C
I have a highly regarded and envied success rate representing employers and employees both in prosecuting and defending 
A lack of equal opportunity in today’s Australian workplaces rankles with many employees, yet it can also be a complex operational challenge for employers. 
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