1 Fair Work Act 2009 s.604 - Appeal of decisions Mr Johnnu Beyene v C&H Acquisition Pty Ltd (C2026/4559) DEPUTY PRESIDENT SLEVIN DEPUTY PRESIDENT GRAYSON COMMISIONER WALKADEN SYDNEY, 15 JUNE 2026 Appeal against decision [[2026] FWC 847] of Deputy President Dobson at Brisbane on 16 March 2026 in matter number C2025/10056 - permission to appeal refused. [1] Mr Johnnu Beyene has lodged an appeal under s 604 of the Fair Work Act 2009 (Act) against a decision of Deputy President Dobson issued on 16 March 2026 (Decision)1. [2] Mr Beyene worked as a rigger for C&H Acquisition Pty Ltd (C&H). He was a member of the Construction, Forestry and Maritime Employees Union. He participated in industrial action in May 2025. He claims that, following the industrial action, treatment by C&H forced him to resign. He resigned on 29 September 2025. He made application to the Commission under s 365 seeking that it deal with a dispute alleging his dismissal involved contraventions of Part 3-1 of the Act. C&H raised a jurisdictional objection to the application being that the resignation was not forced within the meaning of s 386(1) and so there was no dismissal. [3] Mr Beyene contended before the Deputy President that the conduct that forced him to resign was assigning him to training following a period of protected industrial action, a failure by C&H to investigate a discrimination complaint he made, a failure to provide him with his usual duties, disciplinary action taken against him for taking personal leave, and the dismissal of another union delegate. Mr Beyene’s case was that this conduct led him to believe that dismissal was inevitable, so he resigned [4] The Decision of the Deputy President was that she was not satisfied that Mr Beyene had been forced to resign as resignation was not the probable result of C&H’s conduct. The Deputy President applied the test set out in a number of Full Bench cases including Bupa Aged Care Australia Pty Ltd v Shahin Tavassoli [2017] FWCFB. That test is to the effect that the conduct of the employer must be engaged in with the intention of bringing the employment to an end, or that termination of the employment was the probable result of the conduct such that the employee had no effective or real choice but to resign. The Deputy President found that Mr Beyene’s belief that his employment was at risk was unreasonable. C&H’s conduct, including training requirements, investigation procedures, work allocation, and disciplinary action was [2026] FWCFB 141 DECISION [2026] FWCFB 141 2 found to be reasonable. The Deputy President found that the apprehension arising from the dismissal of another union delegate was misplaced because that dismissal arose from specific conduct that was described as serious and was unrelated to Mr Beyene’s circumstances. The Deputy President found that Mr Beyene had options to address the employer’s conduct other than resigning, such as dispute resolution or lodging complaints, which he did not pursue. The Deputy President concluded that Mr Beyene had not demonstrated that he had no real, effective or meaningful option but to resign and so he was not dismissed within the meaning of the Act. His application under s 365 was dismissed. [5] An appeal from a decision of the Commission can only proceed with the permission of the Commission. Section 604(2) provides that permission to appeal must be granted if it is in the public interest to do so. Consideration of the public interest involves a broad value judgment. Matters that may engage the public interest include issues of importance and general application, a diversity of decisions at first instance, or where the decision manifests an injustice – the public interest will not be satisfied simply by the identification of error or the preference for a different result.2 The Full Bench also has a broad discretion as to whether permission to appeal should be granted.3 Considerations which have traditionally been treated as justifying exercising the discretion include that the decision is attended with sufficient doubt to warrant its reconsideration and that substantial injustice may result if leave is refused4. An appeal will only succeed if appealable error is established. In deciding whether to grant permission to appeal, it is not necessary, nor appropriate, to conduct a detailed examination of the appeal grounds5. It may be necessary to engage with those grounds to determine if there is an arguable case of appealable error as an appeal cannot succeed in the absence of error. [6] By his notice of appeal Mr Beyene raises two grounds of appeal. First, the Deputy President erred in concluding that Mr Beyene was not dismissed. Second, the Deputy President erred in her assessment of the evidence by failing to take into account relevant considerations and mistook facts. In relation to the public interest, he asserts that the matter raises matters of general importance regarding construction of and standard to be applied under s 386(1)(b). He also asserts a manifest injustice as his dispute has not been considered on its merits. Mr Beyene’s submission focused on error arising from the Deputy President’s finding as to the alternatives Mr Beyene had to address C&H’s conduct rather than resigning. He also contends that as the Deputy President found Mr Beyene could have challenged C&H’s imputed conducted through his union, the decision increased the burden on a union member to prove that the employer’s conduct forced the resignation. This was said to be contrary to the public interest. [7] We are not satisfied that the public interest is attracted by Mr Beyene’s appeal. There are no issues of importance and general application that arise. The test under s386 has been considered a number of times by appellate benches of this Commission. It is well settled and there is not a diversity of decisions on the issue at first instance. Nor does the decision manifest an injustice. We do not accept the argument that the Decision stands for a proposition that union members are held to a higher standard under s 386. Mr Beyene’s preference for a different result does not attract the public interest. [8] Further, we can see no error in the Deputy President’s application of the test in s 368(1). The Decision refers to previous decision of Full Benches of this Commission and applies them to the facts in Mr Beyene’s case. The question addressed in the Decision was whether [2026] FWCFB 141 3 C&H’s conduct was engaged in with the intention of bringing the employment to an end or that termination of employment was the probable result of that conduct because Mr Beyene had no effective or real choice but to resign. The Deputy President considered the conduct and found that the test was not met. Mr Beyene’s appeal does not point to arguable error to justify the grant of permission to appeal under s 604(2). Nor are we satisfied that the decision is attended by sufficient doubt to warrant its reconsideration or that a substantial injustice may result if leave is refused. [9] The application for permission to appeal is refused. DEPUTY PRESIDENT Appearances: Mr S Truwavas instructed by Mr R Tate for the Appellant. Mr M Felman KC and Ms Michela Frømyhr instructed by Mr A Lambert and Mr J Allen for the Respondent. Hearing details: 19 May 2026 Via Microsoft Teams Video Printed by authority of the Commonwealth Government Printer <PR811003>