1 Fair Work Act 2009 s.604 - Appeal of decisions Recording Oasis Pty Ltd and Ms Barbara Sotiriadis v Ms Kirsten Kae Beck (C2026/43) DEPUTY PRESIDENT GRAYSON COMMISSIONER MATHESON COMMISSIONER SLOAN SYDNEY, 4 MARCH 2026 Appeal against decision [2025] FWC 3868 of Commissioner McKinnon at Sydney on 18 December 2025 in matter number C2025/8143 – Permission to appeal refused [1] Recording Oasis Pty Ltd and Barbara Sotiriadis (Appellants) have lodged an appeal under section 604 of the Fair Work Act 2009 (Act) against a decision of Commissioner McKinnon issued on 18 December 2025.1 [2] The Commissioner’s decision was brief. It is convenient to reproduce it in its entirety: “[1] Ms Kirsten Kae Beck was employed by Recording Oasis Pty Ltd trading as Gold Coast Plastic Surgery (GCPS) from on or about 26 February 2024 until 1 August 2025. Ms Beck says she was dismissed by reason of redundancy and that the dismissal was unlawful because it was motivated by reasons related to her pregnancy. GCPS agrees that Ms Beck was made redundant but says she was not dismissed. It says after notice of redundancy was given, Ms Beck was offered and accepted a casual part-time role (the jurisdictional objection). It is not in dispute that Ms Beck decided not to proceed with the casual role before it commenced. GCPS denies any disability or pregnancy discrimination in relation to the alleged dismissal of Ms Beck. [2] On 18 August 2025, Ms Beck applied for the Commission to deal with a general protections dispute involving dismissal under section 365 of the Fair Work Act 2009 (Cth) (the Act). The question is whether Ms Beck has been dismissed. At a hearing today, I found that Ms Beck has been dismissed. [3] My reasons were shortly stated. Both parties agree that Ms Beck’s full-time role as Digital Marketing Manager was made redundant by GCPS. It is also not in dispute that Ms Beck no longer held the role of Digital Marketing Manager after 1 August 2025 when her notice of termination took effect. The separate offer of casual employment, which was accepted by Ms Beck before she decided not to proceed with that offer, is a distraction. Her employment on a casual basis, which would have been comprised of a [2026] FWCFB 49 DECISION [2026] FWCFB 49 2 series of separate contracts of employment commencing on 6 August 2025, never commenced. Ms Beck was dismissed from the role of Digital Marketing Manager, and it is that dismissal which is the subject of this application. It is not necessary to deal with separate submissions in relation to whether there was a repudiation of Ms Beck’s contract, or whether Ms Beck resigned, or was forced to do so. Order [4] The jurisdictional objection is dismissed.” [3] The Appellants require permission to appeal pursuant to section 604(1) of the Act. The matter was listed before the Full Bench for permission to appeal only. For the reasons that follow, permission to appeal is refused. Permission to appeal – principles [4] Without limiting when the Commission might grant permission, section 604(2) provides that the Commission must grant permission to appeal if it is satisfied that it is in the public interest to do so. [5] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.2 The public interest is not satisfied simply by the identification of error or a preference for a different result.3 Considerations that may attract the public interest include that the matter raises issues of importance and general application, that there is a diversity of decisions at first instance so that guidance from a Full Bench is required, or that the decision at first instance reveals an injustice.4 [6] Where the public interest is not engaged, the Commission may grant permission to appeal on general discretionary grounds. In determining whether to grant permission to appeal, it is unnecessary and inappropriate to conduct a detailed examination of the appeal grounds.5 However, it is necessary to engage with the 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.6 However, an error by the Member at first instance is not necessarily a sufficient basis for the grant of permission to appeal. Grounds of appeal [7] The Appellants raised two appeal grounds. We will deal with them in turn. Ground 1 – Significant errors of fact [8] The Appellants contended that the decision contained three “significant errors of fact”, namely: (1) in the Commissioner’s finding that the offer of casual employment was a “distraction”. The Appellants submitted that the offer reflected Recording Oasis’s attempts to meet its obligations under section 389(2) of the Act to offer Ms Beck [2026] FWCFB 49 3 redeployment. They argued that the Commissioner’s remark undermined the clear legislative intent demonstrated by that section, as recognised by the High Court in Helensburgh Coal Pty Ltd v Bartley [2025] HCA 29, that in a redundancy situation an employer is required to take steps to maintain the employment relationship; (2) in the Commissioner’s finding that Ms Beck’s employment on a casual basis never commenced and that she was dismissed on 1 August 2025, after her employment contract for the role of Digital Marketing Manager was terminated. The Appellants submitted that the employment relationship between Recording Oasis and Ms Beck continued after 1 August 2025, even though her employment contract as Digital Marketing Manager had come to an end. They contended that the employment relationship ended on 6 August 2025 as a result of Ms Beck not commencing work in the casual role, despite having signed a contract accepting that role. The Appellants characterised this as a resignation; and (3) in the Commissioner’s failure to consider the evidence and submissions relating to Ms Beck’s resignation. This error was said to be reflected in the Commissioner’s statement that it was “not necessary to deal with separate submissions in relation to whether there was a repudiation of Ms Beck’s contract or whether Ms Beck resigned, or was forced to do so”. [9] The appeal notice refers to these matters as “significant” errors of fact. However, by their submissions, the Appellants acknowledge that s 400 of the Act, which mandates that an error of fact be “significant” in order for an appeal to be made of a decision regarding an application for unfair dismissal remedy, does not apply to these proceedings. In any event, in our view, with the possible exception of the alleged error described in paragraph [8(2)], none of these are properly to be regarded as “errors of fact”. Rather, they call into question the Commissioner’s reasoning process and the correctness of her conclusions. They do not, in any event, reveal any appealable errors. [10] Although the decision is brief, it is sufficiently clear that the Commissioner did not accept that the offer of casual employment to Ms Beck maintained the employment relationship with the result that Ms Beck’s failure to commence working on a casual basis was to be regarded as a resignation. Rather, the Commissioner can be seen to have found that the employment relationship had ended, and the offer of a casual position was for a new and different employment relationship. This is demonstrated in her adopting the language “Ms Beck was dismissed from the role of Digital Marketing Manager”, “separate offer of casual employment” and “her employment on a casual basis…never commenced”. [11] There was evidence before the Commissioner that supported her finding: on the redundancy of the Digital Marketing Manager role, Recording Oasis made payments to Ms Beck in lieu of notice and for accrued annual leave; Ms Beck was locked out of the email address that she had used in that role and was given a new one; the company required Ms Beck to sign a new employment contract; and there was a break (albeit short) between Ms Beck finishing in the Digital Marketing Manager role and her anticipated commencement in the casual Social Media Coordinator role. The Commissioner’s reference to casual employment comprising “a series of separate contracts of employment” highlighted the difference between [2026] FWCFB 49 4 the proposed casual position and Ms Beck’s previous permanent role as Digital Marketing Manager. [12] The evidence before the Commissioner identified other significant differences between the positions: as Digital Marketing Manager, Ms Beck had been employed on a full-time basis, whereas correspondence between the parties suggested that as Social Media Coordinator she would work eight hours per week (noting that the contract of employment expressly provided, in relation to hours of work, that Recording Oasis did not guarantee to provide Ms Beck with a minimum or maximum amount of work); she would work remotely; and, she would have fewer responsibilities. [13] The asserted errors must be seen in that context. As to the first, the Appellants sought to elevate the Commissioner’s remark to a declaration that efforts by an employer to redeploy an employee whose role had become redundant was a “distraction” and therefore of no consequence in deciding whether there had been a dismissal. But the Commissioner cannot properly be seen to be making a statement of such far-reaching breadth. Her reference to the offer of casual employment being a distraction simply reflected her rejection of the Appellants’ argument that the offer and the acceptance of that offer had the effect of maintaining the employment relationship. [14] As to the second asserted error, the Appellants contended that the decision was incongruous with other decisions of the Commission which recognise the distinction between the termination of an employment contract and the termination of the employment relationship.7 But there is no basis to contend that the Commissioner failed to appreciate that distinction. Rather, she can be taken not to have accepted the case the Appellants put in that regard. In light of the matters traversed above and the totality of the evidence before the Commissioner, we find no arguable appealable error in the Commissioner’s conclusion. [15] The third asserted error similarly falls away. The statement on which the Appellants rely does not demonstrate that the Commissioner failed to have regard to the parties’ evidence and submissions on the question of resignation. She just did not need to traverse that question in her decision, having determined that Ms Beck had been “dismissed by reason of redundancy”. [16] During the hearing before the Full Bench, the Appellants raised an additional concern stemming from the following sentence in the decision: “It is also not in dispute that Ms Beck no longer held the role of Digital Marketing Manager after 1 August 2025 when her notice of termination took effect.” [17] The Appellants contended that there was no document in evidence in which Recording Oasis gave Ms Beck notice of termination. They submitted that the relevant correspondence in that regard was a letter of 31 July 2025 that Recording Oasis sent to Ms Beck which was titled “Variation to Terms and Conditions of Employment”.8 That letter said nothing about termination. [2026] FWCFB 49 5 [18] However, also on 31 July 2025, Ms Sotiriadis sent an email to Ms Beck which stated in part:9 “In line with your entitlement, payment of two weeks in lieu of notice will be made into your nominated bank account on Monday 4 August.” (Emphasis in original) [19] Ms Beck’s evidence included the payslip recording that payment. In light of these matters, we are not persuaded that the Commissioner erred in her reference to “notice of termination”. [20] For these reasons, we consider that ground 1 does not reveal an arguable case of appealable error. It rises no higher than asserting a preference for a different result. Ground 2 – lack of familiarity with the materials and predetermination [21] This ground is comprised of a number of contentions. The first was that the Commissioner had made her decision without having read all of the Appellants’ material. That contention stemmed from the following exchange between the Commissioner and the Appellants’ representative at the commencement of the hearing:10 THE COMMISSIONER: …I’ve read the materials in this case, so I have a good understanding of the issues between you. I understand we have Ms Beck, for witnesses for the applicant, and then we have, I think, three witnesses for the respondent, Ms Noorzai, is that right? MS NOORZAI: We have five witnesses, who are on standby, yes. [22] It is too big a stretch to assert on the basis of that exchange alone, as the Appellants did, that “the Commissioner made her decision without considering two of the witness statements that were filed by and relied upon by the Appellants”.11 The Commissioner twice stated during the hearing that she had read the parties’ material, including in the passage above. It is obvious from a reading of the hearing transcript that the Commissioner was familiar with the material before her and understood the submissions being made by the parties. In the absence of cogent and persuasive reasons, we would not lightly conclude that she did not. [23] The second contention was that the Commissioner was unaware of Ms Beck’s alternative submission that she had been forced to resign. That cannot be accepted. The alternative submission was put in Ms Beck’s written submissions to the Commissioner, which the Commissioner stated she had read. Further, during the hearing, Ms Beck’s representative confirmed that she was relying on forced resignation in the alternative (see the passage reproduced at [27] below). That the Commissioner was aware of the submission is also demonstrated by her reference to the issue of being “forced to resign” at [3] of the decision. [24] The third and related contention is that the Commissioner prevented the Appellants’ representative from cross-examining Ms Beck in relation to the redundancy process and her resignation. However, the transcript of the proceedings before the Commissioner does not bear that out. [2026] FWCFB 49 6 [25] There were two occasions on which the Commissioner interrupted the Appellants’ representative, Ms Noorzai, in her cross-examination of Ms Beck. The first involved this exchange:12 [MS NOORZAI]: …So with the email marketing role, was this not a role you had been offered three times previously, and declined? THE COMMISSIONER: Ms Noorzai, what’s the relevance of this line of questioning? MS NOORZAI: Redeployment opportunity had been offered previously, which she had declined. THE COMMISSIONER: Why is that relevant? … MS NOORZAI: Because it had been offered previously, and the company also offered company-funded training, which Ms Beck declined. For that reason, a new person had to be employed into that role. That’s why that role was not offered to her. THE COMMISSIONER: But this is not a merits hearing on whether it was a genuine redundancy, Ms Noorzai. This is a question of whether Ms Beck was dismissed. There’s no dispute that she was made redundant from the role of digital marketing manager, and there’s also no dispute that she was offered a casual role, and that she accepted that role, before changing her mind. MS NOORZAI: Correct. I’ll move on from that line of questioning. Thank you, Commissioner. Okay, so is it true that you did accept the redeployment opportunity that was offered to you? THE COMMISSIONER: I’ve already said to you, Ms Noorzai, my understanding is, there’s no dispute about that. So what’s the point of the question? Unless I’m wrong. Ms Slater, am I wrong? Is that disputed? MS SLATER: No, it’s not disputed. THE COMMISSIONER: Thank you. [26] We make two observations about that exchange. First, the Commissioner was clearly attempting to preclude cross-examination on matters which were not in dispute. That is entirely unexceptional. Second, it was open to Ms Noorzai to explain to the Commissioner why the cross-examination was necessary for the purposes of the Appellants’ case and seek to press the questions. She did not do so. [2026] FWCFB 49 7 [27] The second relevant exchange was this:13 MS NOORZAI: …So Ms Beck, when you say you were pressured into accepting the new role, describe how so. THE COMMISSIONER: Again, what’s the relevance of the question? This is not an unfair dismissal hearing, or a case of genuine redundancy hearing. It’s [a] hearing about whether or not Ms Beck was dismissed. MS NOORZAI: So if she had not signed the new employment contract, then she would have been dismissed. But she accepted the new role. Ms Beck’s position, as I understand it, is that she was pressured into signing that contract. So I’m just trying to gain clarity, as to how she was pressured into signing that contract. THE COMMISSIONER: But Ms Slater, is it the contention that the casual contract of employment was never validly entered into, because of some kind of coercion or pressure? MS SLATER: We don’t put it exactly like that. We say that if there is an argument by the respondent that it was ending of the employment at Ms Beck’s initiative, and that’s accepted by the Commission, we would characterise it then as a forced resignation and rely on 386(1)(b). But it’s not our primary contention. THE COMMISSIONER: Right. Okay. All right. Ms Noorzai. MS NOORZAI: Okay. So if I can take you to page 42 of the court book. [28] This exchange shows that while the Commissioner interrupted the cross-examination, she did not stop it. Ms Noorzai was permitted to pursue her line of questioning, which she went on to do. [29] The Appellants’ fourth contention was that there was “a very real question as to whether the Commissioner had predetermined her outcome without regard to the evidence before her”.14 This was, in effect, a conclusion that the Appellants asked us to draw from the first to third contentions. In the absence of any substance in those contentions, such a conclusion cannot be drawn. [30] A fifth contention was that the Commissioner “did not reserve her decision and provide herself with an opportunity to review the materials after the hearing”. It may be that this was an adjunct to the first contention (that the Commissioner had not read all of the Appellants’ material). However, to the extent that the Appellants are to be taken to be challenging the Commissioner’s delivery of an ex tempore decision more broadly, we observe that the Commissioner stated that she had read the parties’ material in advance of the hearing. The facts of the matter were of limited compass and broadly agreed. The hearing was short, lasting approximately 80 minutes. Only Ms Beck and Ms Sotiriadis were cross-examined, and the cross-examination was not extensive. The statements of the other four witnesses for the [2026] FWCFB 49 8 Appellants were admitted into evidence without objection. The Appellants’ oral submissions were very brief. Ms Beck’s closing oral submissions were more substantial, but broadly consistent with her written submissions. In the circumstances, there is nothing untoward or exceptional in the Commissioner delivering her decision ex tempore. Conclusions [31] For the reasons given, we do not consider that the Appellants have advanced an arguable case that the decision was attended by appealable error. While her reasons were briefly stated, the Commissioner’s conclusion was sound. [32] We are not satisfied that it is in the public interest to grant permission to appeal. The appeal does not raise any genuine issue of law, principle or wider application. We are also mindful that the practical effect of the decision is to empower the Commission to conduct a conference under section 368 of the Act. If that fails to resolve the dispute and Ms Beck makes a general protections court application, the Appellants will, in most likelihood, be able to agitate their jurisdictional objection again. [33] We do not consider that permission to appeal should be granted on general discretionary grounds. Order [34] Permission to appeal is refused. DEPUTY PRESIDENT Appearances: T Plummer of Irwell Law, with permission, on behalf of Recording Oasis Pty Ltd and Ms Barbara Sotiriadis. K Beck appeared for herself. Hearing details: 2026 Sydney 19 February [2026] FWCFB 49 9 Printed by authority of the Commonwealth Government Printer <PR797347> 1 Kirsten Kae Beck v Recording Oasis Pty Ltd; Barbara Sotiriadis [2025] FWC 3868. 2 O’Sullivan v Farrer (1989) 168 CLR 210, 216-217 (Mason CJ, Brennan, Dawson and Gaudron JJ), applied in Hogan v Hinch (2011) 243 CLR 506 [69] (Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ); Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 [44]-[46]. 3 Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089 [28], affirmed on judicial review in 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 [28]. 4 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343; 197 IR 266 [27]. 5 Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 [82]. 6 Coal & Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194, 204. 7 Citing in particular Jacqueline Luff v North Shore Occupational Therapy Pty Ltd [2025] FWC 2272. 8 Appeal Book, p 76. 9 Statement of Kirsten Kae Beck, 20 October 2025, Exhibit “KB-8”. 10 Appeal Book, p 6. 11 Form F7 – Notice of Appeal, Section 2 par 28. 12 Appeal Book, pp 12-13 PN74-PN85. 13 Appeal Book, p 15 PN100-PN106. 14 Appellants’ Written Submissions, 6 February 2026, par 29.