1
Fair Work Act 2009
s.604—Appeal of decision
Lisha Herc
v
Hays Specialist Recruitment (Australia) Pty Limited
(C2022/5849)
VICE PRESIDENT CATANZARITI
DEPUTY PRESIDENT ASBURY
DEPUTY PRESIDENT LAKE
SYDNEY, 12 DECEMBER 2022
Appeal against decision [2022] FWC 1997 of Deputy President Dean at Canberra on 2 August
2022 in U2022/1147 – appeal granted.
Background
[1] Ms Lisha Herc (Appellant) has lodged an appeal under s.604 of the Fair Work Act 2009
(FW Act), for which permission to appeal is required, against a decision of Deputy President
Dean issued on 2 August 2022. The decision concerned an application for a remedy for unfair
dismissal made by the Appellant, alleging that she had been dismissed by an entity referred to
in her Form F2 application and the decision as ‘Hays Recruitment’. The entity responding to
the appeal is Hays Recruitment (Australia) Pty Ltd which we accept is the entity against which
the Appellant’s unfair dismissal application was intended to be made.
[2] It is necessary to note at the outset that the Respondent raised five jurisdictional
objections to the Appellant’s unfair dismissal application, asserting in its Form F2 response that
the Appellant:
lodged her unfair dismissal application outside the time required in s.394(2) of the
Act;
was not an employee;
was not dismissed;
had not completed the minimum employment period as required by s.382(a) and
s.383; and
earned more than the high income threshold.
[3] In the decision the Deputy President stated that the Respondent had four jurisdictional
objections, and did not refer to the objection in relation to the minimum employment period.
The Deputy President also stated that after a number of conferences with the parties, ‘it was
decided that the jurisdictional objection relating to the high income threshold would be
determined first because prima facie, she earned more than the high income threshold’. The
Deputy President went on to find that the sum of the Appellant’s annual rate of earnings was
[2022] FWCFB 234
DECISION
AUSTRALIA FairWork Commission
[2022] FWCFB 234
2
more than the high income threshold and dismissed her application. In making that decision,
the Deputy President observed that in order to determine the high income threshold objection,
there was an assumption that the Appellant was an employee, notwithstanding that her
employment status remained in dispute and was not determined in the decision.
[4] The appeal was the subject of a hearing in relation to both permission to appeal and the
merits of the appeal. Both parties sought permission to be represented by lawyers. We were
satisfied that the appeal raised issues of complexity and permission was granted on the basis
that legal representation would allow the matter to be dealt with more efficiently.
Principles relevant to appeals
[5] The appeal is made under s.604 of the FW Act. There is no right of appeal and an appeal
may only be made with permission of the Commission. If permission is granted, the appeal is
by way of rehearing. The Commission’s powers on appeal are only exercisable if there is error
on the part of the primary decision-maker.1
[6] The Decision subject to appeal was made under Part 3-2 – Unfair Dismissal – of the
Act. Section 400(1) of the Act provides that permission to appeal must not be granted from a
decision made under Part 3-2 unless the Commission considers that it is in the public interest
to do so. The public interest test in s.400(1) is not satisfied simply by the identification of error
or a preference for a different result. In Coal & Allied Mining Services Pty Ltd v Lawler,
Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s.400 of
the FW Act as “a stringent one”.2 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 attract
the public interest. These considerations were that:
“… 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 they result in counter intuitive, or that the legal principles
applied appear disharmonious when compared with other recent decisions dealing with
similar matters…”4
[7] The decision under appeal is of a discretionary nature. In this regard, the Commission
has broad discretion under s.589 of the Act to make procedural decisions about how, when and
where a matter is to be dealt with. As the majority of the High Court held in Coal and Allied
Operations Pty Ltd v Australian Industrial Relations Commission5:
1 Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission and Others (2000) 203 CLR 194 at
[17] per Gleeson CJ, Gaudron and Hayne JJ
2 Coal & Allied Mining Services Pty Ltd v Lawler (2011) 207 IR 177 at [43]
3 O’Sullivan v Farrer and Another (1989) 168 CLR 210 at 216-217 per Mason CJ, Brennan, Dawson and Gaudron JJ;
applied in Hogan v Hinch (2011) 243 CLR 506 per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ at [69]; Coal
& Allied Mining Services Pty Ltd v Lawler (2011) 207 IR 177 at [44]-[46]
4 (2010) 197 IR 266 at [27]
5 (2000) 203 CLR 194.
[2022] FWCFB 234
3
“Discretion’ is a notion that ‘signifies a number of different legal concepts. In general
terms, it refers to a decision-making process in which ‘no one [consideration] and no
combination of [considerations] is necessarily determinative of the result.’ Rather, the
decision-maker is allowed some latitude as to the choice of the decision to be made. The
latitude may be considerable as, for example, where the relevant considerations are
confined only by the subject-matter and object of the legislation which confers the
discretion. On the other hand, it may be quite narrow where, for example, the decision
maker is required to make a particular decision if he or she forms a particular opinion or
value judgement.”6 (citations omitted).
[8] The majority in that decision also held that a decision maker charged with making a
discretionary decision has some latitude as to the decision to be made, and given this, the
correctness of the decision can only be challenged by showing error in the decision-making
process.7 Such error has also been described as the discretion not being exercised correctly. 8 It
is not open to an appeal bench to substitute its view on the matters that fell for determination
before the Member at first instance in the absence of appealable error. The classic statement as
to the approach to be taken in relation to whether there is error in a discretionary decision, and
which is applied in appeals against such decisions under s. 604 of the FW Act, was stated by
the High Court in House v The King as follows:
“The manner in which an appeal against an exercise of discretion should be determined
is governed by established principles. It is not enough that the judges composing the
appellate court consider that, if they had been in the position of the primary judge, they
would have taken a different course. It must appear that some error has been made in
exercising the discretion. 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 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.”9
Permission to appeal and merits of the appeal
[9] The Full Bench is satisfied that the grant of permission to appeal in this matter is in the
public interest. We are of the view that the appeal concerns issues of importance and general
application concerning the proper approach to considering and determining objections to unfair
dismissal applications. Permission to appeal is therefore granted in accordance with s.604(2) of
the FW Act.
6 Ibid at [19] per Gleeson CJ, Gaudron J and Hayne J.
7 Ibid at [21].
8 House v The King (1936) 55 CLR 499 at [504]-[505] per Dixon, Evatt and McTiernan JJ
9 Ibid
[2022] FWCFB 234
4
[10] For the reasons that follow, we have decided that in determining the jurisdictional
objection relating to whether the Appellant’s earnings exceeded the high income threshold, in
advance of other objections, the Deputy President erred by acting on a wrong principle and
failing to take other material considerations into account. The material considerations the
Deputy President failed to take into account before determining whether the Appellant’s
earnings exceeded the high income threshold were: whether the application was made within
the time required in s.394(2); whether the Appellant was an employee; if the Appellant was an
employee, the entity that employed her; and whether the Appellant was dismissed. While the
Commission has broad discretion to decide how a matter will be dealt with, by not determining,
in the proper order, other objections upon which the validity an application depends, will result
in an error of the kind identified in House v The King.10
[11] Absent those findings, the Deputy President could not have determined the high income
threshold objection. In reaching this conclusion, we note that the Appellant was represented by
the same firm of solicitors, both in the appeal and in the first instance proceedings. We further
note that the Appellant’s legal representative acquiesced in the process adopted by the Deputy
President for determining the matter, and now complains about the outcome of that process.
We also note that the Respondent’s contention in the appeal is that the Full Bench should uphold
a decision, that is premised on a hypothesis that it employed the Appellant, which the
Respondent does not accept and upon which it reserves its position.
[12] In the course of the appeal, we put to the representatives of the parties, our concerns
about the process adopted at first instance by the Deputy President. Both representatives
accepted that if we decided that the matter should be remitted to the Deputy President to deal
with the objections in the appropriate order, the proper course would be to quash the decision.
We have decided to adopt that course.
[13] We have done so because of uncertainty surrounding the Deputy President’s decision,
absent consideration of other objections raised by the Respondent. To allow the decision to
stand, would in our view, result in an injustice to both parties on the basis that the Appellant’s
application has been dismissed without being considered in the manner required by the Act and
the Respondent has succeeded on a basis that is unsound.
[14] Part 2 of the Form F3 Employer response to an unfair dismissal application, provides
for the employer to make jurisdictional or other objections to an application for an unfair
dismissal remedy. The Form F3 explains that jurisdictional objections relate to why an applicant
is not eligible to make an application to the Commission. The first objection in the list in item
2.2 of the Form F3 is that the application is out of time, that is that the application was lodged
more than 21 days after the dismissal took effect.
[15] The question of whether an application for an unfair dismissal remedy is made outside
the required time, is not strictly a jurisdictional objection. Quite simply, an unfair dismissal
application made outside the time required in s.394(2) is not validly made, unless and until, a
further period has been granted. In the present case, the Appellant stated in her Form F2
application that she was notified of her dismissal on 5 December 2021 and that it took effect on
5 January 2022. The Respondent stated in its Form F3 response to the application that if the
10 (1936) 55 CLR 488.
[2022] FWCFB 234
5
Appellant was dismissed, the dismissal took effect on 24 December 2021. The Appellant’s
unfair dismissal application was made on 26 January 2022. If the Respondent’s contention is
correct, then the application was made 12 days outside the time required in s.394(2). Before
any of the other jurisdictional objections can be considered, it is necessary that the question of
the date the Appellant’s dismissal took effect (if the Appellant was dismissed).
[16] The Respondent also asserted in the Form F3 that the Appellant was not an employee
of the Respondent. The Respondent contended that it entered into a contract with PayMe
Australia Pty Ltd for the services of the Appellant and that under the terms of that contract, the
Appellant was either an employee or contractor of PayMe Australia Pty Ltd and not the
Appellant or its clients. Before the Appellant can make an unfair dismissal application, she must
be found to be an employee. This is a jurisdictional objection. It is axiomatic that to make this
finding, it is necessary to identify the entity that is the employer. Only when these findings are
made, can the issue of whether the Appellant’s annual rate of earnings exceeded the high
income threshold, be determined (also a jurisdictional objection).
[17] While it may be necessary to assume that an applicant is an employee for the purposes
of determining whether an application for an unfair dismissal remedy is made outside the
required time, and if necessary, whether a further period should be granted for the application
to be made, such assumptions cannot be made with respect to other jurisdictional objections.
Where time is extended or an application is made within time, and an objection as to whether
the applicant is an employee is raised, that objection must be dealt with before consideration
can be given to other objections such as whether the person was dismissed, high income
threshold or genuine redundancy. We observe, without deciding, that there may be single cases
where objections on the grounds of no dismissal, high income threshold, minimum employment
period or genuine redundancy are made and it is convenient to decide one of these issues
without deciding the others. However, it is not a proper approach to deal with any of these
objections before finding that an application is made within the required period or granting a
further period and then determining whether an applicant is an employee and if necessary, the
identity of the employer.
Conclusion and disposition of the appeal
[18] For the reasons given, we grant permission to appeal, uphold the appeal and quash the
decision. Pursuant to s.607(3)(c), we refer the matter to Deputy President Dean to deal with in
accordance with this decision.
[19] The Orders of the Commission are:
1. Permission to appeal is granted.
2. The Appeal is upheld.
3. The Decision in [2022] FWC 1997 is quashed.
4. The matter is referred to Deputy President Dean to determine:
[2022] FWCFB 234
6
a. whether the Appellant’s unfair dismissal application was filed within the time
required in s.394(2) of the Act;
b. whether the Appellant was an employee;
c. if the Appellant was an employee, the entity that employed her;
d. whether the Appellant was dismissed; and
e. whether the sum of the Appellant’s annual rate of earnings exceeded the high
income threshold.
VICE PRESIDENT
Appearances:
Mr R Markham for the Appellant
Mr C Bell for the Respondent
Hearing details:
2022.
Microsoft Teams (Video).
10 October.
Printed by authority of the Commonwealth Government Printer
PR748822
THE THE FAIR WORK WORK COMMISSION THE SEAS
