1 Fair Work Act 2009 s.604—Appeal of decision Anthony Dewar v Commonwealth of Australia as represented by the Department of Climate Change, Energy, the Environment and Water (C2026/1901) DEPUTY PRESIDENT COLMAN DEPUTY PRESIDENT BEAUMONT COMMISSIONER LIM MELBOURNE, 20 MARCH 2026 Appeal against decision [2026] FWC 58 of Deputy President Dean at Canberra on 12 January 2026 in matter U2025/11816 [1] Anthony Dewar has lodged an appeal under s 604 of the Fair Work Act 2009 (FW Act) against a decision of Deputy President Dean on 12 January 2026 ([2026] FWC 58) which dismissed Mr Dewar’s application for an unfair dismissal remedy against the Commonwealth of Australia, as represented by the Department of Climate Change, Energy, the Environment and Water (Department). The matter was listed before us in relation to permission to appeal only. The parties consented to the matter being determined without a hearing, and we are satisfied that it can be adequately determined without the parties making oral submissions. [2] In her decision, the Deputy President considered each of the matters that s 387 of the FW Act requires the Commission to take into account in considering whether a person’s dismissal was harsh, unjust or unreasonable. The Deputy President concluded that there was a valid reason for Mr Dewar’s dismissal (s 387(a)) which was his repeated unauthorised absences from work despite directions that he return to the workplace, and his failure to provide a reasonable explanation for his absences. The Deputy President found that Mr Dewar was notified of the reason for his dismissal and given an opportunity to respond to it (ss 387(b) and (c)), and that there was no refusal by the Department to allow Mr Dewar to have a support person present at discussions about the dismissal (s 387(d)). The Deputy President noted that the dismissal did not relate to unsatisfactory performance and that the consideration in s 387(e) was not relevant; and, in respect of ss 387(f) and (g), that the Department adopted a dismissal process that one would expect of an organisation of its kind. In connection with s 387(h), the Deputy President noted Mr Dewar’s length of service and the effect of the dismissal on Mr Dewar. The Deputy President concluded that, taking into account the required matters, Mr Dewar’s dismissal was not harsh, unjust or unreasonable, and was not unfair. [3] Mr Dewar requires the Commission’s permission in order to appeal from the Commissioner’s decision. Section 400 of the FW Act applies to this appeal, because the [2026] FWCFB 65 DECISION [2026] FWCFB 65 2 decision under appeal was made under Part 3-2. Section 400(1) states that the Commission must not grant permission to appeal unless it is in the public interest to do so. Section 400(2) provides that an appeal on a question of fact can only be made on the ground that the decision involved a significant error of fact. Consideration of the public interest involves a broad value judgment (Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [44]). Matters that may engage the public interest include issues of importance and general application, or that the decision manifests an injustice (GlaxoSmithKline Australia Pty Ltd v Makin (2010) 197 IR 266 (Makin) at [27]). In deciding whether to grant permission to appeal, it is unnecessary and inappropriate to conduct a detailed examination of the appeal grounds (Trustee for the MTGI Trust v Johnston [2016] FCAFC 140 at [82]). However, it is necessary to engage with the appeal 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 ultimately succeed in the absence of error (Coal & Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 at 204). [4] Mr Dewar’s notice of appeal contains three grounds. The first ground contends that the Deputy President erred by finding that he had no reasonable explanation for his absences because he had provided a detailed explanation on 9 May 2025. Mr Dewar contended that the Deputy President did not engage with his central contention that the workplace safety disclosures he had raised were very serious. But the Deputy President found that Mr Dewar did not raise any safety concerns prior to the Department notifying him that it was considering the termination of his employment and that none of the matters raised by him justified his unauthorised absences or his repeated failure to notify the Department of these absences. The Deputy President also found that to the extent that Mr Dewar did not want to interact with particular officers of the Department, there were other ways he could have provided notification of his absences. Insofar as Mr Dewar challenges the Deputy President’s factual findings, it is well established that an appeal bench will afford a measure of deference to the factual findings made by a member at first instance, and that generally, such findings will stand unless they can be shown to be wrong by incontrovertible facts or are glaringly improbable (see AEU v Bendigo Kangan Institute of TAFE [2021] FWCFB 3649 at [37]-[39]). It is not arguable that this is the case here. We see no apparent basis to doubt the correctness of the Deputy President’s findings. It appears to us that Mr Dewar simply disputes the Deputy President’s assessment that he had no reasonable justification for his absences or his failure to notify the Department of absences, but we see no arguable discretionary or other error in this regard. [5] Mr Dewar’s second ground of appeal contends that the Deputy President failed to determine whether his absences were legally protected under s 84 of the Workplace Health and Safety Act 2011 (Cth), ss 340-341 of the FW Act, or the relevant enterprise agreement, and that these were threshold matters that required determination before a conclusion could be reached about whether his absences were unauthorised. We do not consider this appeal ground to be arguable. Given the Deputy President’s conclusion that no safety concerns were raised prior to the Department’s notification to Mr Dewar that it was considering dismissing him, we fail to see how s 84 can be said to have been invoked or was otherwise applicable. Further, we do not find Mr Dewar’s contentions about the effect of ss 340-341 or the enterprise agreement to be supported by reason. They present no arguable case of error. [6] Appeal ground 3 contends that the Deputy President denied Mr Dewar procedural fairness by adopting the Department’s characterisation of events without explaining why his [2026] FWCFB 65 3 defences were rejected. Mr Dewar further submits that the absence of reasons in the Deputy President’s decision prevents a meaningful appellate review of her decision. But the acceptance of one party’s evidence or submissions does not amount to a denial of procedural fairness, and it is plain both that Mr Dewar had a meaningful opportunity to be heard, and that the Deputy President gave reasons for her conclusions. We note that Mr Dewar elected not to cross- examine the Department’s witnesses and we can identify no arguable basis to impugn the Deputy President’s acceptance of the unchallenged evidence. [7] None of the appeal grounds present an arguable error in the Deputy President’s decision. We do not consider that it is in the public interest to grant permission to appeal. None of the matters referred to in Makin are present, nor is there any other element that engages the public interest. In such a case we are required by s 400(1) to refuse permission to appeal. We note however that Mr Dewar’s notice of appeal was lodged 2 days outside the 21-day period prescribed by the Fair Work Commission Rules 2024 (see r 128). Unless the Full Bench grants an extension of time, there is no competent application before the Commission. Having regard to the usual considerations that bear on the exercise of this discretion, and in light of our conclusion that there is no arguable case of appealable error and that it is not in the public interest to grant permission to appeal, the appropriate course is to refuse to extend the time within which the notice of appeal may be lodged. We would in any event have refused permission to appeal. [8] The application for permission to appeal is dismissed. DEPUTY PRESIDENT Determined on the papers Printed by authority of the Commonwealth Government Printer <PR797813>