[1] Kelly McCracken has lodged an appeal under s 604 of the Fair Work Act 2009 (Act) against a decision of Commissioner Harper-Greenwell issued on 12 June 2025 ([2025] FWC 1625) in which the Commissioner declined to grant an extension of time for Ms McCracken’s application under s 365 of the Act, and dismissed the application. The matter was listed for permission to appeal only. The parties consented to the Full Bench determining the matter without holding a hearing, and we are satisfied that it can be adequately determined without the parties making oral submissions (see s 607(1)).
[2] Section 366(1) provides that an application under s 365 must be made within 21 days after the dismissal took effect, or within such further period as the Commission allows. Section 366(2) provides that the Commission may allow a further period if it is satisfied that there are exceptional circumstances, taking into account the matters in s 366(2)(a) to (e). Ms McCracken’s application was lodged one day after the end of the 21-day period. She asked the Commissioner to allow a further period under s 366(2).
[3] In her decision, the Commissioner considered each of the matters in s 366(2) and the arguments that Ms McCracken advanced in respect of them. In relation to the reasons for the delay, the Commissioner stated that, although Ms McCracken may have felt overwhelmed and was unrepresented, this was not uncommon, and that ignorance was not an acceptable reason for delay. The Commissioner found that the medical evidence did not demonstrate that Ms McCracken’s depression and anxiety had prevented her from filing her application within time, and that other evidence about her activities at the time supported this finding. The Commissioner considered that the reasons provided by Ms McCracken for her delay were not exceptional, and that they weighed against an extension of time.
[4] As to the other mandatory considerations in s 366(2), the Commissioner considered that Ms McCracken had made attempts to dispute her dismissal, which weighed marginally in her favour. She found that there was no prejudice to the employer, and that no issue of fairness as
between Ms McCracken and other persons in a similar position arose, both of which she regarded as neutral considerations. The Commissioner found that the merits of the claim involved a factual dispute which the Commission does not resolve at this stage of a matter, and that this was a neutral factor. The Commissioner was not satisfied that there were exceptional circumstances and dismissed the application.
Permission to appeal
[5] There is no right to an appeal from the Commissioner’s decision. An appeal may only be brought with the permission of the Commission under s 604(1). Section 604(2) provides that the Commission must grant permission if it is satisfied that it is in the public interest to do so. Consideration of the public interest involves a broad value judgment (Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [44]). Matters that may engage the public interest include issues of importance and general application, a diversity of decisions at first instance, or where the decision manifests an injustice (GlaxoSmithKline Australia Pty Ltd v Makin (2010) 197 IR 266 at [27]). Where the public interest is not engaged, the Commission may grant permission to appeal on general discretionary grounds.
[6] In deciding whether to grant permission to appeal, it is unnecessary and inappropriate to conduct a detailed examination of the appeal grounds (Trustee for the MTGI Trust v Johnston [2016] FCAFC 140 at [82]). However, it is necessary to engage with the appeal grounds to consider whether they raise an arguable case of appealable error. An appellant must ordinarily demonstrate that there is such a case in order to be granted permission to appeal, as an appeal cannot succeed in the absence of error (Coal & Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 at 204). However, the fact that a member at first instance may have made an error is not necessarily a sufficient basis to grant permission to appeal.
Grounds of appeal
[7] In her notice of appeal, Ms McCracken submitted that the Commissioner erred because the evidence supported a different result. She contended that the Commissioner did not adequately consider her medical certificate, which stated that her condition would have impacted her ability to file her claim on time, whereas the Commissioner found that the certificate did not say that she was unable to file the application within time. Ms McCracken perceives some contradiction here. We do not. The certificate did not state that she was unable to file within time, merely that her condition would have impacted her ability to do so. Ms McCracken submitted that the Commissioner placed insufficient weight on the certificate, and excessive weight on her ability to conduct everyday matters, but there is no arguable error here. Ms McCracken simply argues for a different weighting without identifying any mistake. Ms McCracken said that the Commissioner did not adequately consider her evidence about miscalculating the 21-day period. But again this submission disagrees with the Commissioner’s consideration without identifying error. Ms McCracken said that the Commissioner did not allow her partner to give evidence that he found the information on the Commission’s website confusing, but does not explain what mistake this entailed. What her partner thought about the website appears to be irrelevant. Ms McCracken said that she found the Commission’s website confusing, but she did not point to any alleged mistake on the website.
[8] Ms McCracken believes that the Commissioner should have accepted her arguments
about the reasons for delay and the existence of exceptional circumstances. But an insistence for a different weighting and outcome does not speak to any appealable error in the Commissioner’s decision.
Conclusion and disposition
[9] We do not consider that the appeal grounds disclose an arguable case of appealable error. The Commissioner considered each of the mandatory factors and their significance in the usual way. We are not satisfied that it is in the public interest to grant permission to appeal, nor do we consider that permission to appeal should be granted on general discretionary grounds.
[10] Permission to appeal is refused.