It is very difficult to appeal a decision in an unfair dismissal case, as this extract from an appeal decision shows.
“Consideration
[34] Section 604(1) of the Act makes it clear that there is no right to appeal, and an appeal may only be made with the permission of the Commission. Other than with respect to certain decisions of a delegate, or the General Manager of the Commission, the question of permission to appeal must be decided by a Full Bench.6 Generally, the Full Bench must grant permission to appeal if satisfied that is in the public interest to do so.7 Otherwise, the Full Bench has a broad discretion as to whether permission to appeal should be granted.8
[35] The discretion of the Commission to grant permission is more confined in case of an application for permission to appeal from a decision of the Commission made in unfair dismissal proceedings under Part 3-2 of the Act. Section 400 of the Act provides:
(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.
(2) Despite subsection 604(1), an appeal from a decision made by the FWC in relation to a matter arising under this Part can only, to the extent that it is an appeal on a question of fact, be made on the ground that the decision involved a significant error of fact.
[36] Both subsections (1) and (2) of s 400 of the Act demonstrate an intention that the avenue to appeal a decision in unfair dismissal proceedings is to be limited. Section 400(1) manifests an intention that the threshold for a grant of permission to appeal is higher in respect of unfair dismissal appeals than that pertaining to appeals generally.9 Permission to appeal can only be granted if the Full Bench is satisfied it is in the public interest to do so and no general or residual discretion exists if that threshold is not met. Section 400(2) indicates a particular sensitivity with respect to revisiting factual findings made in unfair dismissal proceedings by limiting review on appeal based on an alleged mistake of fact to one that involves a significant error of fact. Section 400(2) represents a basal pre-condition to an exercise of power by the Full Bench to correct an error of fact.10
[37] The statutory purpose of restricting the avenue of appeal with respect to a decision in unfair dismissal proceedings, and constraining the grounds on which such an appeal can be made, is not difficult to discern. The apparent objective is to limit the time, costs and inconvenience associated with unfair dismissal proceedings. The object of Part 3-2 of the Act includes to establish procedures for dealing with unfair dismissal that are “quick, flexible and informal”, including that the procedures and remedies provided for ensure a “fair go all round” is accorded to both the employer and employee concerned.11 An unconstrained right of appeal, or a threshold for permission to appeal being granted which is too low, would hinder the achievement of the object of the Part.
[38] The task of assessing whether it is in the public interest to grant permission to appeal is a discretionary one involving a broad value judgment.12 The public interest is not satisfied simply by the identification of error or a preference for a different result.13 The Full Bench of the Commission, in GlaxoSmithKline Australia Pty Ltd v Makin, identified some of the considerations that may attract the public interest:14
… the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters.
[39] Further, it will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of appealable error.15 An application for permission to appeal, however, is not to be regarded as a de facto or preliminary hearing of the appeal. In determining whether to grant permission to appeal, it is not necessary, and would not be appropriate, to conduct a detailed examination of the appeal grounds.16 It is necessary to engage with the grounds of appeal for the purpose of considering whether they raise an arguable case of appealable error.
[40] It is not possible, or appropriate, to attempt to confine or fetter the broad discretionary assessment required to be made in each case as to whether it is in the public interest to grant permission to appeal. However, the statutory context to which we have referred does suggest that it will commonly not be in the public interest to grant permission to appeal where the grounds of appeal, in substance, seek to relitigate the factual findings made at first instance. There may, of course, be cases in which it can be demonstrated that something has gone seriously wrong in the decision-making at first instance which demands reconsideration of the evidentiary material and the factual findings on appeal. It will often not be in the public interest, though, for a Full Bench of the Commission to engage in a detailed analysis of the primary factual material simply because an appellant alleges that different conclusions should have been drawn from the evidence.
[41] We are not satisfied that it is in the public interest to grant permission to appeal in this matter and, in those circumstances, permission to appeal must be refused. The grounds of appeal do not raise issues of importance or general application to the jurisdiction of the Commission under Part 3-2 of the Act. It appears to us that the basis upon which the Commissioner made his factual findings and decided to award an unfair dismissal remedy discloses an orthodox approach to the fact-finding task and the determination of whether an unfair dismissal remedy should be ordered. We have set out in some detail the Commissioner’s reasons and the basis upon which South32 seeks to appeal. The Decision dealt with the matter in a conventional way and in accordance with the requirements of the Act. “
Appeal by Illawarra Coal Holdings Pty Ltd T/A South32 v Sleiman [2024] FWCFB 364 delivered 10 September 2024 per Gibian VP, Wright DP and Slevin DP