1
Fair Work Act 2009
s.604—Appeal of decision
Steven Jeffrey Johnson
v
Water Corporation, The Trustee for DFP Business Trust T/A DFP
Recruitment Services
(C2024/834)
DEPUTY PRESIDENT BELL
COMMISSIONER WILSON
COMMISSIONER TRAN
MELBOURNE, 22 MARCH 2024
Appeal against decision [2024] FWC 147 of Deputy President Beaumont at Perth on 23
January in matter number C2023/7473 regarding an application for extension of time –
permission to appeal refused.
[1] Mr Steven Johnson (Appellant) has lodged an appeal under s 604 of the Fair Work Act
2009 (Cth) (Act) against a decision1 (the decision) and order2 of Deputy President Beaumont
issued on 23 January 2024, for which permission to appeal is required. The decision concerned
a refusal by the Deputy President to grant an extension of time to make an application pursuant
to s 365 of the Act. Mr Johnson’s application was lodged 1,377 days late for the substantive
reason, on his account, that the alleged reasons for the adverse action taken against him had, in
substance, been concealed.
[2] This matter was listed for permission to appeal only. The parties consented to the
application being determined without holding a hearing pursuant to s 607(1)(b) of the Act. We
are satisfied, having regard to s 607(1)(a), that the question of permission to appeal can be
adequately determined without the need for oral submissions. Accordingly, the parties were
advised that the Full Bench would determine the appeal on the basis of the Appellant’s Notice
of Appeal and the written submissions filed in accordance with the directions.
[3] For the reasons that follow, permission to appeal is refused.
Decision under appeal
[4] Under section 366(2) of the Act, the Deputy President was required to exercise a
discretion concerning whether to allow a further period for Mr Johnson’s application to be made
if she was satisfied that there were “exceptional circumstances”, taking into account:
(a) the reason for the delay; and
[2024] FWCFB 126
DECISION
AUSTRALIA FairWork Commission
https://www.fwc.gov.au/documents/decisionssigned/pdf/2024fwc147.pdf
[2024] FWCFB 126
2
(b) any action taken by the applicant to dispute the dismissal; and
(c) prejudice to the employer (including prejudice caused by the delay); and
(d) the merits of the application; and
(e) fairness as between the Applicant and other persons in a similar position.
[5] The decision recording the Deputy President’s consideration was 22 pages in length,
with 124 paragraphs. It is not necessary to summarise it in detail although it is helpful to identify
various high-level factual matters to assist in understanding the context of the application for
appeal.
[6] Mr Johnson was employed or engaged as a contractor by the Water Corporation or its
predecessor in various iterations since 1990. At all times, the nature of his work concerned work
with AutoCAD. Between about November 2017 and December 2015, Mr Johnson’s company,
Cad Nausem Pty Ltd, was the relevant contracting entity.
[7] December 2017 is a date with some significance to Mr Johnson, as it was at that time
he made what was arguably a workplace complaint. On Mr Johnson’s case, that complaint led
to a series of adverse actions being taken against him (without his knowledge) in years to come.
[8] On 12 August 2019, Mr Johnson was engaged, via a recruitment firm (who is the second
respondent to this appeal). His employment contract was for 6 months and was with the second
respondent. The engagement lasted a matter of days.
[9] On 16 August 2019, Mr Johnson’s employment contract was terminated. While there
was initially a factual dispute about the date of dismissal; that issue was resolved.3 A matter of
some significance to Mr Johnson’s substantive claim was that dismissal was unlawfully
effected at the behest of the Water Corporation for undisclosed (and, on Mr Johnson’s case,
deceptively concealed) reasons that he was unaware of at the time.
[10] Mr Johnson did not undertake further work, directly or indirectly, for the Water
Corporation for another 2 months. In October 2019, he began work for a third-party contractor.
His work was again for the benefit of the Water Corporation, a matter that was known to all
parties concerned, because (on Mr Johnson’s case), the Water Corporation promptly harmed
his employment with the contractor by refusing necessary systems access that it provided to
others who worked for the same contractor at that time. While Mr Johnson says his employment
was harmed, it was not terminated. Mr Johnson continued working for that contractor until
October 2021, shortly prior to that entity entering into liquidation in November 2021.
[11] From December 2021, Mr Johnson commenced working for a second contractor, again
providing services ultimately for the benefit of the Water Corporation. According to Mr
Johnson, the Water Corporation harmed his employment with the second contractor by
disabling necessary access systems for him to perform his work (among other matters) in about
August 2023.
[2024] FWCFB 126
3
[12] Returning to Mr Johnson’s substantive claim, the Deputy President accepted that there
was a “plausible” reason why Mr Johnson did not make his general protections claim shortly
after his dismissal on 16 August 2019. That plausible reason was as a result of correspondence
from the Water Corporation at that time may have allayed Mr Johnson’s concerns about the
reasons for his dismissal.
[13] While Mr Johnson’s concerns may have been allayed at the time immediately following
his dismissal on 16 August 2019 until October 2019, the decision records Mr Johnson’s
evidence that he had nonetheless “long suspected” that the actions being taken against him were
done in retaliation of a workplace complaint he had made in December 2017.
[14] The Deputy President concluded it was open on the evidence to find that, during the
period from October 2019 to 2021 when Mr Johnson was working for the first-mentioned
contractor above that he had formed the view that the Water Corporation had harmed his
employment with that contractor due to the December 2017 complaint. In reaching that
conclusion, we note that the Deputy President relied on Mr Johnson’s ‘Statement of Actions’
attached to Mr Johnson’s Form F8 application. The Statement of Actions stated that the denial-
of-access restriction imposed on Mr Johnson in October 2019 was “likely to be a vindictive act
by my 2017 manager who objected to my workplace complaint.” Despite those matters, as the
Deputy President observed, Mr Johnson took no steps at the time to make a general protections
application or a Freedom of Information (FOI) request (see below).
[15] Notwithstanding, Mr Johnson’s case is that he did not consider he had a basis to make
a general protections application at the time concerning his August 2019 dismissal and this
remained the position until he had reviewed a suite of documents obtained through various FOI
requests. The FOI requests commenced on 17 August 2023. A limited set of documents was
provided on 28 August 2023, further documents on 27 October 2023, further documents on 2
November 2023, and the final documents were provided on 24 November 2023.
[16] Mr Johnson’s application to the Commission was made on 29 November 2023.
[17] The Deputy President’s consideration of the factors under s 366(2) can be succinctly
summarised as follows:
• Reasons for delay – the Deputy President concluded that there was no plausible
reason for delay, and it was specifically noted that since at least October 2019, it was
open – and had been “long suspected” – for Mr Johnson to have formed the view
unlawful adverse action had been taken against him from then. The reason for delay
that rested upon the fruits of the FOI requests was considered “not an acceptable
one”. This factor was found to point against exceptional circumstances.
• Actions taken to dispute dismissal – this factor was treated neutrally, weighing
neither for not against a finding of exceptional circumstances.
• Prejudice to employer – the Deputy President noted that Mr Johnson’s case was such
that it was “not unreasonable to conclude that there will be more than one witness”
that the Water Corporation might want to call and many of those witnesses were no
longer employed (although the key decision-maker may have been available). The
Deputy President’s assessment was that, having regard to the delay and all the
factors, the Water Corporation “would” suffer prejudice if the matter was allowed to
[2024] FWCFB 126
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proceed. The Deputy President concluded this was a factor weighing against
exceptional circumstances.
• Merits of the application – the Deputy President considered various legal
impediments to Mr Johnson’s claim. In relation to factual matters underpinning that
substantial dispute, the Deputy President observed that given the various contested
issues of fact and law, she was unable to determine at that stage the merits of the
claim. The Deputy President treated this factor neutrally towards the overall question
of whether exceptional circumstances existed or not.
• Fairness between the applicant and other persons in a similar position – the Deputy
President treated this factor neutrally towards the overall question of exceptional
circumstances.
[18] The Deputy President’s ultimate conclusion was that, taking the factors in s 366(2)
individually or together, there did not exist “exceptional circumstances” of the kind required by
statute and, accordingly, she was required to dismiss Mr Johnson’s application.
Principles – permission to appeal
[19] There is no right to appeal and an appeal may only be made with the permission of the
Commission. By s 604(2), and without limiting when the Commission might grant permission,
the Commission must grant permission if the Commission is satisfied that it is in the public
interest to do so.
[20] The task of assessing whether the public interest test is met is a discretionary one
involving a broad value judgment.4 The public interest is not satisfied simply by the
identification of error,5 or a preference for a different result.6 In GlaxoSmithKline Australia Pty
Ltd v Makin a Full Bench of the Commission identified some of the considerations that may
attract 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...”7
[21] 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.8 However, that the Member at first instance made an error is not necessarily
a sufficient basis for the grant of permission to appeal.
[22] An application for permission to appeal is not a de facto or preliminary hearing of the
appeal. In determining whether permission to appeal should be granted, it is unnecessary and
inappropriate for the Full Bench to conduct a detailed examination of the grounds of appeal.9
[2024] FWCFB 126
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Grounds of appeal
[23] Mr Johnson’s Form F7 ‘Notice of Appeal’ runs to 23 paragraphs over 6 pages, each
appearing to allege an independent ground of appeal. Written submissions, filed by Mr Johnson
in support expand those grounds of appeal with further elaboration of the alleged errors, run to
24 pages, excluding further submissions addressing the public interest. It is not practicable nor
necessary to set them all out.
[24] Broadly, Mr Johnson’s grounds of appeal can be grouped as follows:
• Alleged denials of procedural fairness (grounds 1, 3, 5, 19, 22);
• Alleged errors of law or having acted on a wrong principle (grounds 7, 8, 9, 10, 13,
16);
• Alleged errors of fact and/or failure to take relevant matters into account (grounds 2,
4, 6, 11, 12, 14, 15, 17, 18, 20); and
• Alleged generalised errors where conclusions were said to be contrary to the
overwhelming weight of evidence (ground 21) or a decision that is unreasonable or
highly unjust (ground 23).
[25] We record our observation that there is some overlap in many of the grounds.
Consideration
[26] A number of the grounds raised by Mr Johnson are simply speculative and indicate no
effect on the outcome. For example, Mr Johnson asserts he was only provided “44.5 hours to
prepare a response” to the respondent’s material at first instance (ground 1). Separately, he
contends that the Deputy President failed to consider his submissions when in fact the transcript
he relies upon indicates that the Deputy President asked him a specific question about it (ground
2). Separately again, Mr Johnson observes there were some “obscured” pages in the court book
at first instance (although it was clear the Deputy President had unobscured copies) (ground 5)
but again fails to make any arguable case as to their effect.
[27] Beginning in ground 6, Mr Johnson commences a largely seriatim excursion through
the Deputy President’s decision for the purpose of describing various purported errors but, in
substance, those grounds amount to no more than a disagreement with particular conclusions
or factual findings. For example, ground 16 states (contrary to the finding at paragraph [79] of
the decision) that “I provided an acceptable and reasonable explanation for the entire delay”
and the conclusion in paragraph [79] is “in error of fact and law”.
[28] Other grounds impute an implied proposition said to exist with the decision and then
allege error with the imputed proposition. For example, grounds 9 and 10 asserts an error of the
decision “implying an onus on me to make a general protections application or to lodge an FOI
request” (following the events described in paragraphs [10] and [11] above).
[29] Other grounds unfairly mischaracterise the Deputy President’s reasons. For example,
ground 13 asserts that the Deputy President wrongly held, at paragraph [78] of the decision,
that no plausible reason was given for the “entire” delay. But this ignores the totality of the final
sentence of that paragraph that states (emphasis added) “It follows that there is not a credible
[2024] FWCFB 126
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explanation for the entirety of the delay albeit a relatively small period of the delay is
reasonably explained.”
[30] Grounds 18 and 19 address errors concerning the prejudice to the employer. One matter
Mr Johnson raises as an alleged error is failure to consider contrary prejudice to him. Whatever
that position might be, s 366(2)(c) required the Deputy President to consider prejudice “to the
employer” and this is what she did. No arguable error is disclosed with either ground.
[31] Ground 21 asserts, “contrary to the overwhelming weight of evidence”, that the Deputy
President’s neutral treatment of the merits of Mr Johnson’s substantive claim reflected an error.
The matters relied upon for that ground do no more than set out a high-level exposition of Mr
Johnson’s general protections case, but they do not provide any arguable basis of error.
[32] As to the alleged factual errors, it is well established that an appellate body will not
interfere with the factual findings of a trial decision-maker unless it is concluded that a finding
cannot stand because it was contrary to incontrovertible facts or uncontradicted testimony,
glaringly improbable, or contrary to compelling inferences.10 There were no arguable matters
of any significance arising.
[33] Returning to the long-established proposition stated above, when determining whether
permission to appeal should be granted, it is unnecessary and inappropriate for the Full Bench
to conduct a detailed examination of the grounds of appeal. Support for that proposition is found
in a decision of the Full Court of the Federal Court of Australia in Trustee for The MTGI Trust
v Johnston [2016] FCAFC 140 at [82]. Paragraph [82] of that decision in turn referred, with
clear approval, to paragraphs [9]- [10] of an earlier Full Court decision in Waters v
Commonwealth (Australian Taxation Office) [2015] FCAFC 46.
[34] While it is unnecessary and inappropriate for the Full Bench to conduct a detailed
examination of the grounds of appeal, we have considered the grounds of appeal as set out in
Mr Johnson’s notice of appeal, as elaborated upon by his written submissions in support. Some
of those grounds have been specifically referred to above. We are not satisfied that the grounds
of appeal advance any sufficiently arguable error in fact or law, or any other material
miscarriage such as denial of procedural fairness, such that permission for leave to appeal
should be granted.
[35] Having regard to the factors in GlaxoSmithKline Australia Pty Ltd v Makin, we are also
not satisfied that the decision raises any of the public interest considerations identified in that
decision and nor was any other matter raised that would mandate the grant of permission to
appeal under s 604(2) of the Act.
[36] For the reasons set out above, permission to appeal is refused.
[2024] FWCFB 126
7
DEPUTY PRESIDENT
Hearing details:
Matter determined on the papers.
Printed by authority of the Commonwealth Government Printer
PR772122
1 [2024] FWC 147
2 PR770379
3 Decision at [7].
4 O’Sullivan v Farrer (1989) 168 CLR 210 at 216-217 per Mason CJ, Brennan, Dawson and Gaudron JJ: applied in Hogan
v Hinch (2011) 243 CLR 506 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] – [46].
5 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, 197 IR 266 at [24]-[27].
6 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, 197 IR 266 at [26]-[27], Lawrence v Coal & Allied
Mining Services Pty Ltd t/as Mt Thorley Operations/ Warkworth [2010] FWAFB 10089 at [28], affirmed on judicial
review; Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 178; NSW Bar Association v Brett McAuliffe;
Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663, 241 IR 177 at [28].
7 [2010] FWAFB 5343, 197 IR 266 at [24] – [27].
8 Wan v AIRC (2001) 116 FCR 481 at [30].
9 Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82].
10 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [27] – [29].
OF THE WORK C MMISSION THE SEAL
https://www.fwc.gov.au/documents/decisionssigned/pdf/2024fwc147.pdf
https://www.fwc.gov.au/documents/awardsandorders/pdf/pr770379.pdf
https://www.fwc.gov.au/documents/decisionssigned/html/2010fwafb5343.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2010fwafb5343.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2010fwafb10089.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2014fwcfb1663.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2010fwafb5343.htm
