1
Fair Work Act 2009
s.604 - Appeal of decisions
Qantas Airways Limited
v
Mr Jarrod McRae
(C2017/2707)
JUSTICE ROSS, PRESIDENT
DEPUTY PRESIDENT COLMAN
COMMISSIONER CIRKOVIC MELBOURNE, 2 AUGUST 2017
Appeal from decision of Commissioner Riordan on 13 April 2017 in matter number
U2016/13792 – dismissal of employee – review of dismissal pursuant to company policy –
date of dismissal – policy did not suspend dismissal – significant error of fact - appeal upheld
[1] Qantas Airways Limited has lodged an appeal, for which permission is required,
against a decision issued by Commissioner Riordan on 13 April 2017 (Decision). The
Decision concerned an application by Mr McRae to extend the 21 day period within which to
file his unfair dismissal application.
[2] At issue in this matter was a Qantas policy that allows employees to challenge
dismissal and other disciplinary action. The Commissioner found that Mr McRae’s
employment did not terminate until Qantas notified him that his internal appeal had been
unsuccessful. Based on this later date, the Commissioner found that Mr McRae’s unfair
dismissal application was filed within 21 days of dismissal, and that no extension of time was
necessary.
[3] The application for permission to appeal was listed for hearing before us on 11 July
2017. On 10 July 2017, Mr McRae’s representative advised the Commission that Mr McRae
did not oppose Qantas’ application for permission to appeal, and that he would not be
attended the hearing.
[4] Later that day, Deputy President Colman conducted a telephone mention. The parties
advised that there had been settlement discussions concerning Mr McRae’s unfair dismissal
application, and an agreement had been reached, subject to certain matters. The unfair
dismissal application had not been discontinued. Qantas wished to press its appeal because of
the broader implications of the Decision for it and for other employers. The parties advised
that, in the event that the Full Bench granted permission to appeal, they would be content to
have the substantive appeal dealt with on the papers.
[5] The Full Bench proceeded to hear Qantas’ application for permission to appeal on 11
July 2017. Having considered the oral argument, the Notice of Appeal and the written
[2017] FWCFB 4033
DECISION
E AUSTRALIA FairWork Commission
[2017] FWCFB 4033
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submissions filed by Qantas, as well as the position of the respondent, permission to appeal
was granted.
[6] The Full Bench issued directions later on 11 July 2017, confirming that the appeal
would be dealt with on the papers, and directing the parties to file written submissions in
respect of the appeal. Qantas filed written submissions but Mr McRae did not.
[7] This decision deals with our reasons for granting permission to appeal on 11 July 2017
and our analysis and disposition of the substantive appeal.
Permission to appeal
[8] An appeal under s604 of the Fair Work Act 2009 (Act) is an appeal by way of
rehearing and the Commission’s powers on appeal are only exercisable if there is error on the
part of the primary decision maker.1 There is no right to appeal and an appeal may only be
made with the permission of the Commission.
[9] The appeal in this matter is one to which s400 of the Act applies. The provision states:
(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.
[10] In Coal & Allied Mining Services Pty Ltd v Lawler and others, the Full Federal Court
characterised the requirements of s.400 as “stringent”.2
[11] The task of assessing whether the public interest test is met is a discretionary one
involving a broad value judgment.3 In GlaxoSmithKline Australia Pty Ltd v Makin a Full
Bench of the Commission identified some of the considerations that may eliven the public
interest:
“... 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.”4
[12] 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.5
[13] In support of its application for permission to appeal, Qantas submitted several
contentions as to why it was in the public interest that permission be granted. It contended
that the Decision disclosed significant errors of law and fact that warranted the granting of
appeal, and that the Decision has broader implications, as to the effective date of termination,
for employers whose policies may permit an internal appeal. It also contended that the
Decision manifests an injustice. Finally, it was submitted that the public interest is served in
[2017] FWCFB 4033
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ensuring that the jurisdiction vested in the Commission is properly exercised and in
accordance with established principle.
[14] It was our opinion on 11 July 2017 that the application for permission to appeal had
raised a seriously arguable case that the Commissioner had made a significant error of fact in
relation to the dismissal date of Mr McRae. We return to this question in considering the
substantial appeal further below. Further, we agreed with Qantas that the Decision raised a
question of broader significance for other employers with internal review policies. It appeared
also that the Decision below was not concordant with the Full Bench authority in Ayub.
[15] For these reasons we decided to grant permission to appeal.
Grounds of Appeal
[16] In its Notice of Appeal Qantas advances four grounds.
[17] Ground 1 contends that the Commission erred as a matter of fact and law in finding
that the termination date of Mr McRae was 7 November 2016. It submits that there was no
evidentiary or legal basis on which it could be inferred that the termination date was 7
November 2016 rather than 19 October 2016. It also says that the Commissioner’s
conclusions on this question are inconsistent with other findings made in the Decision. 6
[18] Grounds 2 and 3 concern the consequential error that flows from what is put in
Ground 1: that the Commissioner wrongly concluded that Mr McRae had submitted his unfair
dismissal application within the 21 day period required by the Act, and that the Commissioner
failed to consider whether there were exceptional circumstances for the purposes of s.394.
[19] Ground 4 contends that the Commissioner erred in misapplying the decision of Ayub v
NSW Trains7.
[20] By ground 5, Qantas says that it was denied procedural fairness, as the parties had
approached the hearing before the Commissioner on the basis that it would address whether
exceptional circumstances existed, such as to support an extension of the 21 day period. It
contends that it was not provided any notice or opportunity to address the Commissioner’s
view that the 21 day period had actually been complied with.
Ground 1
[21] We have concluded that ground 1 of the appeal should be upheld. In our view, Mr
McRae’s employment was terminated on 19 October 2016, not on 7 November 2016. The
relevant facts can be briefly stated. They bear out our conclusion.
[22] On 19 October 2016, Mr McRae was handed a letter from Mr Paul Crawford.8 It
stated: ‘Qantas have decided to terminate your employment effective immediately’
(emphasis in the original text). The letter advised Mr McRae that before his ‘departure today’,
he was required to return Qantas property. It advised that Mr McRae would be paid 4 weeks’
wages instead of notice, and that his ‘final termination payment’ would be processed and paid
once clearance procedures had been completed. Those procedures were finalised and the
termination payment was made to Mr McRae in the next pay period.9
[2017] FWCFB 4033
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[23] The letter of 19 October 2017 also stated that if Mr McRae did not agree with this
‘outcome,’ he could ‘seek to appeal the decision in accordance with the Appeals section of the
Qantas Group Standards of Conduct Policy.’
[24] The Policy is in clear terms. Section 17.7 is entitled ‘Appeals against decision to
terminate employment’. It states:
Where an Employee’s employment is terminated and the Employee is aggrieved by the
decision, the Employee may appeal against the decision on any of the grounds set out at 17.4.
(emphasis added)
[25] Section 17.9 of the Policy is entitled ‘Outcome of Appeals’. It states:
(a) Appeals may be upheld or dismissed;
(b) Where an appeal is dismissed, there will be no change to the process or decision which was
the subject of the appeal.
(c) Where an appeal is upheld, the Company will, at its discretion, determine what action will be
taken. Such action may include, but will not be limited to:
….
(iv) reinstatement. (emphasis added)10
(d) An upheld appeal will not necessarily result in the appealed decision being changed.
[26] Clause 21 of the Policy defines ‘dismissal’ as ‘when the Company terminates an
Employee’s employment by giving them notice, or payment in lieu of notice.’
[27] Mr McRae sought an internal appeal of the decision to dismiss him. On 7 November
2016, Mr John Walker wrote to Mr McRae, noting that Mr McRae had ‘appealed the decision
to terminate (his) employment’11. Mr Walker stated that he had carefully considered the
information provided Mr McRae and had determined that it ‘did not warrant a review of the
decision to terminate.’
[28] In the Decision, the Commissioner states:
[13] Obviously the Applicant was aware he had been dismissed on 19 October 2016.
However, the Applicant exercised his right as an employee of Qantas and sought an internal
review of the decision to terminate his employment. Until the review was finalised, the
Applicant was hopeful that the decision to terminate him would be overturned. Every
employee who seeks an internal review would hope that their termination would be rescinded.
Such a desire would be normal behaviour.’
[14] The Applicant only became aware of the Respondent’s reliance on the 19 October
2016 date on 8 November – one day before the expiration of the statutory time. In effect, this
meant that the Applicant only become aware of his actual date of termination on the 20th day
after his dismissal.
[29] The Commissioner concludes:
[29] ‘I note that Mr Walker advised Mr McRae that his decision was final. Such a phrase
would infer that 7 November is the accurate date of terminate.’
…
[2017] FWCFB 4033
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[31] The decision of the Full Bench in Ayub is on point. I adopt the obiter and reasoning of
the Full Bench and find that the termination date of the Applicant was when he was notified of
the outcome of his appeal, i.e. 7 November 2016.’
[30] In our opinion, the Commissioner’s conclusions are inconsistent with the facts. The
letter of 19 October 2016 was very clear. Qantas had decided to terminate Mr McRae’s
employment immediately. Mr McCrae was to depart that day. The letter said he could seek to
appeal under the policy. But there was no suggestion that any such appeal would suspend or
affect the decision to dismiss Mr McRae.
[31] Similarly, nowhere does the Policy state or imply that a decision to dismiss an
employee is suspended, or otherwise ceases to have effect, if an internal appeal is made. To
the contrary, the above provisions of the Policy proceed on the basis that the decision to
dismiss stands.
[32] The Commissioner notes at [13] that Mr McRae was aware that he had been
dismissed, and that he sought a review of the decision to terminate him. It is no doubt the
case, as the Commissioner says, that Mr McRae was hopeful that the decision to terminate
him would be overturned. But the decision had been made. Unless overturned, it stood.
[33] It is not the case that Mr McRae became aware of the Respondent’s reliance on the 19
October 2016 date only on 8 November 2016. He was clearly told on 19 October that he was
dismissed immediately.
[34] In our view, there was nothing to suggest to Mr McRae that his decision to seek an
internal appeal would alter, suspend or otherwise affect Qantas’ decision to dismiss him. If
Mr McRae’s internal appeal had been successful, ‘reinstatement’ was a possible option. The
reference to reinstatement underscores the fact that the employee has been dismissed. Further,
reinstatement is a possible, but not necessary consequence of an appeal being upheld. As
clauses 17(c) and (d) of the Policy make clear, Qantas retains a discretion as to what action is
taken, and whether an appealed decision is changed.
[35] The position would be very different if the Policy had said that, when an employee
lodges an internal appeal, the relevant decision is suspended, or the status quo ante applies.
But the policy in this case relevantly sets up an internal review that occurs after the decision
to dismiss has been taken and is in effect.
[36] The reasoning in the Full Bench decision in Ayub is relevant to the present matter, and
to the consideration of Ground 1. However, the facts of that case are distinguishable from
those of the present case. At [12] of the Decision, in Ayub the Full Bench stated:
‘Our conclusion is that, in respect of dismissal without notice, s394(2)(a) is to be interpreted
on the basis that the dismissal cannot take effect for the purposes of Pt 3-2 of the FW Act until
an employee knows, or at least has a reasonable opportunity to find out, that he or she has
been dismissed. It is in that sense the dismissal is regarded as having been communicated to
the employee.’
[37] Mr McRae knew that he had been dismissed. Unlike the facts in Ayub, there was no
ambiguity about his dismissal. His dismissal was not conditional on other events. It was
clearly expressed. The letters of 19 October and 8 November 2016, and the Policy document,
all point to this conclusion.
[2017] FWCFB 4033
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[38] Accordingly, Ground 1 of the appeal must be upheld. It discloses a significant error of
fact for the purposes of s.400(2). It is significant because it led to an unsupportable
conclusion, namely that Mr McRae’s unfair dismissal application was filed within the 21 day
period required by s394.
[39] It is not necessary for us to consider the other grounds of appeal.
[40] The consequence of our decision for Mr McRae’s unfair dismissal application is that it
was filed outside the 21 day period required by s.394(2)(a). If his unfair dismissal application
is to proceed, Mr McRae must request a further period in accordance with s 394(3). As noted
earlier, there have been discussions between the parties concerning a settlement of Mr
McRae’s unfair dismissal application. As at the date of this decision, the Commission has not
received a notice of discontinuance. Accordingly, it is appropriate that the application for an
extension of time be remitted to Commissioner Riordan for determination, subject to any
discontinuance that may be filed by Mr McRae before the matter is listed for hearing.
Conclusion and orders
[41] We are satisfied that Qantas has demonstrated appealable error in relation to ground 1
of the appeal. We uphold the appeal and quash the Decision.
[42] We order as follows:
(1) Permission to appeal is granted.
(2) The appeal is upheld.
(3) The Decision ([2017] FWC 1756) is quashed.
(4) Mr McRae’s application for an extension of the 21 day period to file his unfair
dismissal application is remitted to Commissioner Riordan for determination.
PRESIDENT
Appearances:
Mr B Rauf of counsel for Qantas Airways Limited
No appearance for Mr McRae
Hearing details in relation to permission to appeal:
2017
Melbourne:
[2017] FWCFB 4033
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11 July
Written submissions concerning the appeal:
Qantas Airways Limited: 17 July 2017
Mr McRae: No submission
Printed by authority of the Commonwealth Government Printer
Price code C, PR595023
1 See Coal and Allied v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ
2 (2011) 192 FCR 78 at [43], per Buchanan J (with whom Marshall and Cowdroy JJ agreed).
3 O’Sullivan v Farrer (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v
Hinch (2011) 85 ALJR 398 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal &
Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [44] to [46]
4 Ibid at [27]
5 Wan v AIRC (2001) 116 FCR 481 at [30]
6 Reference is made to paragraphs [4], [5], [8], [13], [14], [15], [20], [24], [27] and [30], which refer to the
dismissal of Mr McRae on 19 October 2016.
7 [2016] FWCFB 5500
8 Page 37 of the Appeal Book
9 Appellant’s outline of submissions at [19(b)], page 81 of the Appeal Book
10 Sections 17 to 20 of the Policy are contained at pages 40-42 of the Appeal Book. At the telephone mention on
10 July 2017, the Commission requested a complete copy of the Policy. Qantas provided this to the
Commission the next date.
11 Page 47and 48 of the Appeal Book
