Appeals in the fair work system

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




Extract from Ventia Australia Pty Ltd v Pelly [2023] FWCFB 201 delivered 1 November 2023 per Asbury VP, O’Neill DP and Bissett C