This extract from a recent unfair dismissal appeal sets out the principles which apply to determining whether an appeal can lie, and the principles applicable to that issue in unfair dismissal cases.
“Principles on appeal – permission to appeal and public interest
[8] Appeals under s 604 of the FW Act can only proceed with the Commission’s permission. Where an appellant can demonstrate an arguable case of appealable error, the Commission has a broad discretion to grant permission to appeal. A decision as to whether it is in the public interest to grant permission to appeal is discretionary and involves a broad value judgment.2
[9] Section 400 applies to appeals from decisions made in relation to unfair dismissal applications:
“400 Appeal rights
(1) Despite subsection 604(2), the FWC must not grant permission to appeal from a decision made by the FWC under this Part unless the FWC considers that it is in the public interest to do so.”
[10] The public interest test in s 400 requires more than just showing that an appealable error was made: permission can only be granted if the Full Bench is satisfied that it is in the public
1 Khouri v Coulson Aviation (Australia) Pty Ltd [2025] FWC 2819 (‘Decision’).
2 See: O’Sullivan v Farrer (1989) 168 CLR 210; Hogan v Hinch (2011) 85 ALJR 398 at [69]).
[2026] FWCFB 219
3
interest to do so. It might be in the
public interest to grant permission to appeal if the matter raises important issues that have general application, or if there is a diversity of decisions at first instance such that guidance from a Full Bench is required, or if the decision at first instance reveals an injustice, or if the result is counter intuitive, or if the legal principles applied appear disharmonious when compared with decisions dealing with similar matters.3 The public interest test in s 400 is a stringent one and the Full Bench must apply a broad value judgment on whether it is in the public interest to grant permission to appeal.4
[11] In appeals relating to unfair dismissal matters, s 400(2) modifies the test in relation to discretionary error by providing that appeals on a question of fact can only be made on the ground that the decision involved a ‘significant error of fact.’5 A significant error of fact can be characterised as an error that vitiates the ultimate exercise of the discretion.6 It is well-established that s 400(2) of the FW Act manifests an intention that the threshold for a grant of permission to appeal is higher in respect of unfair dismissal appeals than the threshold pertaining to appeals generally, the test is stringent,7 and that s 400(2) evinces an intention of the legislature that appeals in unfair dismissal matters are more limited than appeals with respect to other matters.8
[12] Coulson Aviation argues that permission should be granted because, inter alia, “the effect of the decision of reinstatement is of significant public interest as it undermines safety of aviation operations, particularly relating to the operation of firefighting aircraft which regularly occur in public areas and involve carrying civilian volunteers.”
[13] An appeal under s 604 is an appeal by way of rehearing and the Commission’s powers on appeal are only to be exercised for the correction of error.9”
Appeal by Coulson Aviation (Australia) Pty Ltd v Stewart Khouri [2026] FWCFB 219 delivered 21 August 2026 per Asbury VP, Easton DP and O’Keeffe DP