Appeals in the fair work system

This extract from a Fair Work Commission appeal decision explains the height of the bar which must be overcome in any appeal in the Commission which involves discretionary factors including an appeal against a decision in an unfair dismissal case.

“The approach to determining appeals from discretionary decisions

[77] The task of determining whether the dismissal of a person who is protected from unfair

dismissal was harsh, unjust or unreasonable, involves the exercise of discretion. The discretion

is wide and constrained only by the requirement to take into account the matters specified in

paragraphs (a) – (h) of s. 387 of the Act. Section 387(h) itself confers on the decision-maker a

wide scope to take into account matters which he or she considers to be relevant.

[78] The determination of whether a dismissal is harsh, unjust or unreasonable requires the

making of an evaluative judgment by the decision-maker. Accordingly, no single consideration

and no combination of considerations is necessarily determinative of the result, and the

decision-maker has some latitude as to the choice of decision to be made.13 The same principle

applies to a decision in relation to remedy, as to whether reinstatement is inappropriate, and

compensation should instead be awarded, in respect of a dismissal which has been found to be

harsh, unjust and/or unreasonable.14 In this regard, s. 390(3) confers a wide discretion for the

Commission to determine whether reinstatement is inappropriate, where a finding that a person

was unfairly dismissed has been made.15

[79] In an appeal from a discretionary decision of this nature, an appellate tribunal is only

authorised to set aside the decision if error on the part of the decision-maker has been

demonstrated.16 It is not sufficient to argue that a different result should have been reached in

the exercise of the discretion,

17 and it is not the role of an appellate tribunal to consider whether

it would have made a different decision on the same facts. The error must usually be of one of

the types identified in House v The King as follows:18

“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

[2023] FWCFB 156


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.”

[80] It follows that an appellate tribunal is not authorised to set aside a discretionary decision

based on a preference for an outcome different to that determined by the first instance decisionmaker. In this connection, the High Court said in Norbis v Norbis:


“The principles enunciated in House v. The King were fashioned with a close eye on the characteristics of

a discretionary order in the sense which we have outlined. If the questions involved lend themselves to

differences of opinion which, within a given range, are legitimate and reasonable answers to the questions,

it would be wrong to allow a court of appeal to set aside a judgment at first instance merely because there

exists just such a difference of opinion between the judges on appeal and the judge at first instance. In

conformity with the dictates of principled decision-making, it would be wrong to determine the parties’

rights by reference to a mere preference for a different result over that favoured by the judge at first

instance, in the absence of error on his part. According to our conception of the appellate process, the

existence of an error, whether of law or fact, on the part of the court at first instance is an indispensable

condition of a successful appeal.”

[81] Nor is appealable error demonstrated by a contention that the decision-maker should

have given more or less weight to a particular consideration. In the High Court decision in

Gronow v Gronow, Aickin J (with whom Mason and Wilson JJ agreed) said: “It is however a

mistake to suppose that a conclusion that the trial judge has given inadequate or excessive

weight to some factors is in itself a sufficient basis for an appellate court to substitute its own

discretion for that of the trial judge”.

20 It is only where a relevant matter has been given no

weight because it was not considered at all that error in the exercise of the discretion will be


[82] The remaining appeal grounds in the present case concern errors of fact said to involve

the way the Commissioner dealt with the evidence of the Appellants’ witnesses, findings of

credit, relevance and the weight placed on the evidence. The test set out in s. 400 in relation to

an appeal on a question of fact has been described as “a stringent one”.

22 To be characterised

as significant, a factual error must vitiate the ultimate exercise of discretion.

23 In a misconduct

case, a significant fact is foundational to a conclusion in relation to whether misconduct took


[83] As we have earlier stated, it is necessary that an error fact be significant in the sense that

it vitiates the ultimate exercise of discretion. It is apposite to the grounds of appeal in the present

case, that:

“The reasons under challenge must be read as a whole. They must be considered fairly. It is erroneous to

adopt a narrow approach of combing through the words of the decision maker with a fine appellate tooth

comb, against the prospect that a verbal slip will be found warranting the inference of error of law.”


Low Latency Media Pty Ltd T/A Frameplay, Frameplay Holdings Corporation v Eric Rossi [2023] FWCFB 156 delivered 6 September 2023 per Catanzariti VP, Asbury VP and Lake DP