Affinity Nursing Recruitment Pty Ltd v Thomas [2025] FWC 2344

Fair Work Commission refuses employer’s attempt to halt unfair dismissal proceedings pending appeal

An employer’s challenge to a preliminary jurisdictional decision did not justify stopping an unfair dismissal application from proceeding. The Commission refused a stay, finding that the employer had not established that the appeal should prevent the substantive matter from continuing.

Case details

Case: Affinity Nursing Recruitment Pty Ltd v Meera Thomas [2025] FWC 2344
Commission: Fair Work Commission
Decision-maker: Vice President Gibian
Date: 11 August 2025
Legislation: Sections 604 and 606 of the Fair Work Act 2009
Outcome: Application for a stay refused
Original decision: Commissioner Durham, 11 July 2025

Background

Ms Thomas was a former casual employee of Affinity Nursing Recruitment Pty Ltd. She lodged an unfair dismissal application under s394 of the Fair Work Act 2009.

The employer raised a jurisdictional objection, arguing that Ms Thomas had not completed the minimum employment period required to qualify for unfair dismissal protection.

Commissioner Durham rejected that objection on 11 July 2025, finding that Ms Thomas had satisfied the minimum employment period requirements under the Act. The matter was consequently programmed for a hearing on the substantive unfair dismissal issues, listed for 16 September 2025.

Affinity Nursing filed an appeal on 1 August 2025 and sought a stay of the Commissioner’s decision pending the outcome of that appeal.

The employer’s arguments

Affinity Nursing argued that the Commissioner had made errors in determining that Ms Thomas satisfied the minimum employment period.

Two principal grounds were emphasised:

The Commissioner allegedly erred in finding that Ms Thomas had a subjective expectation of ongoing employment, as required when assessing casual employment under s384(2)(a)(ii).
The Commissioner allegedly erred in finding that Ms Thomas had been continuously employed, despite gaps between periods of casual engagement and an alleged contractual arrangement under which each engagement constituted a separate contract.

The employer argued that it would be inefficient and costly for the parties to prepare for a substantive hearing that might become unnecessary if the appeal succeeded. It also pointed to the overlap between the preparation required for the appeal and the substantive proceedings.

The legal issue: Could the Commission stay the proceedings?

The application raised an important distinction between staying a decision under s606(1) of the Act and staying the underlying proceedings themselves.

Section 606(1) gives the Commission power to stay the operation of a decision that is the subject of an appeal. However, the Vice President explained that this does not necessarily give the Commission power to suspend the entire underlying case.

He considered earlier decisions, including:

CFMEU v Collinsville Coal Operations Pty Ltd [2014] FWC 4276;
Woodside Energy Ltd v Australian Workers’ Union [2022] FWC 2573; and
PHI (International) Australia Pty Ltd v Nash [2024] FWC 1735.

Those decisions indicated that there must be an operative decision with an ongoing or future effect capable of being stayed. A stay cannot simply be used to achieve a separate order suspending proceedings.

In this case, the original decision had dismissed the employer’s jurisdictional objection. It had not made an order requiring the employer to do anything or otherwise imposed an ongoing obligation.

The Vice President was not satisfied that staying the dismissal of the jurisdictional objection would prevent the Commissioner from continuing to hear the unfair dismissal application.

Affinity Nursing had also not separately appealed the procedural directions made for the preparation of the substantive hearing.

Was there an arguable appeal?

The Vice President considered whether the employer had demonstrated an arguable case with reasonable prospects of success, both in relation to permission to appeal and the substantive appeal.

He expressed some doubt about the employer’s argument concerning Ms Thomas’ expectation of ongoing employment. The evidence, as he understood it, indicated that she had already been offered a further engagement before being told that she would be removed from the register because of alleged unsatisfactory performance.

However, he accepted that the employer’s argument concerning continuity of employment and the separate contracts of engagement raised an arguable ground with some reasonable prospects of success. That ground might require the Full Bench to revisit existing authority.

Importantly, accepting that an appeal raises an arguable issue does not automatically mean that the underlying proceedings should be suspended.

The balance of convenience

The Vice President also considered the competing interests of the parties.

Affinity Nursing argued that it should not be required to incur the costs of preparing for a hearing that might prove unnecessary.

Ms Thomas opposed the stay. She wanted her unfair dismissal application to proceed without further delay, notwithstanding the employer’s appeal.

The Vice President acknowledged the employer’s concerns about potentially wasted costs. However, he also recognised Ms Thomas’ entitlement to have her application determined in the usual course.

He considered that the Commissioner dealing with the substantive application was better placed to decide whether the hearing should proceed. That Commissioner had greater knowledge of the case and was better positioned to assess the issues, the likely hearing requirements and any prejudice caused by delay.

The substantive matter was listed for a one-day hearing and appeared to involve limited issues. The Vice President was not persuaded that the balance of convenience favoured granting a stay.

Decision

The application for a stay was refused.

The substantive unfair dismissal proceedings were therefore not stopped by the stay application and remained subject to the existing hearing arrangements.

The decision did not determine whether Ms Thomas had been unfairly dismissed. Nor did it determine the employer’s appeal against the original jurisdictional decision. It dealt only with whether the decision should be stayed pending the appeal.

Why this decision matters

The decision illustrates that an employer cannot necessarily suspend an unfair dismissal application simply by appealing an adverse preliminary jurisdictional finding.

There are two distinct questions:

Whether the employer has an arguable basis for appealing the preliminary decision; and
Whether there is a proper legal and practical basis for stopping the underlying proceedings while the appeal is determined.

Even where an appeal raises an arguable issue, the Commission must consider whether the decision is capable of being stayed under s606(1), and whether the balance of convenience supports a stay.

For employees, the decision is a useful reminder that an employer’s appeal does not automatically bring the substantive unfair dismissal process to a halt. The Commission may allow the matter to continue, particularly where the hearing is relatively short, the issues are limited and delay would prejudice the employee.

For employers, the decision highlights the importance of identifying precisely what order is being sought and establishing that the Commission has power to make it. An application to stay a decision cannot necessarily be used as a substitute for an application to suspend the underlying proceedings.

Representatives

Applicant/Appellant: Affinity Nursing Recruitment Pty Ltd — V. Bulut of counsel, instructed by Dentons.
Respondent: Meera Thomas — G. Dircks, agent.

Commission Member

Vice President Gibian.