Passed Over For Promotion? What The ACU Case Teaches Employers

Not everyone who puts their hand up for a promotion is going to get it. That’s business. The risk isn’t saying no. The risk is saying no badly.

A recent Full Bench decision of the Fair Work Commission, Thomas v Australian Catholic University [2026] FWCFB 245, is a good reminder of what a defensible “no” looks like. It also carries a lesser-known lesson about what happens when you resolve a dispute through conciliation.

What Happened In Thomas v Australian Catholic University?

Dr Zachary Thomas, a lecturer at the Australian Catholic University (ACU), applied for a promotion. ACU assessed his application and decided he didn’t meet the required standard.

Dr Thomas disagreed. He argued ACU hadn’t properly applied the promotion clause in its enterprise agreement, which required promotion criteria to be published and applications to be assessed on merit. One of his main complaints was that some of his publications had been left out of the assessment.

He took the dispute to the Commission under the agreement’s dispute resolution procedure. Deputy President Slevin held a conference, and both parties agreed he would take written submissions and then give an opinion to resolve the dispute.

His opinion was that ACU’s decision was comfortably open to it, there were no procedural defects, and the outcome was reasonable, made in good faith and in line with the university’s procedures and the agreement.

Dr Thomas appealed. On 18 September 2026 the Full Bench dismissed the appeal.

Why Did The Full Bench Throw Out The Appeal?

Short version: you can’t appeal an opinion.

Under the Fair Work Act, you can appeal a “decision” of the Commission, with permission. But the Act says that when the Commission deals with a dispute by making a recommendation or expressing an opinion, rather than arbitrating it, the outcome is not a decision.

That’s exactly what happened here. The dispute went through conciliation, the parties agreed to an opinion, and the Deputy President never arbitrated. There was nothing to appeal.

The Full Bench went further. Even if it had been a decision, it saw no arguable error. Dr Thomas said nothing authorised ACU to exclude his publications. The Full Bench pointed out he couldn’t show anything that required them to be included. Fair process, reasonable outcome. Permission to appeal would have been refused anyway.

What Did The Commission Actually Look At?

This is the bit worth paying attention to.

The Commission didn’t re-mark Dr Thomas’s application or decide whether he deserved the promotion. It looked at whether ACU followed its process, applied its criteria and reached an outcome that was reasonably open to it.

That’s good news for employers. You don’t have to prove you made the perfect call. You have to show you made a fair one.

Does This Apply To Small Businesses?

Yes, even if you’ll never go near an enterprise agreement.

Every modern award has a dispute resolution clause. If an employee raises a dispute about something the award covers and you can’t sort it out internally, it can end up at the Commission. Classification and reclassification disputes are a common example.

Promotion knock-backs can also turn into bigger claims if the employee believes the real reason was something protected, such as pregnancy, age, carer’s responsibilities, a complaint they made or leave they took. That’s general protections or discrimination territory, and those claims are much harder to defend when there’s no paper trail.

And if you have a written promotion or internal recruitment policy, expect to be held to it.

How Do You Make Promotion Decisions That Stand Up?

You don’t need a university-sized process. You need a clear one that you actually follow.

• Set the criteria first. Put in writing what the role needs and how you’ll judge it, before you look at who’s applied.
• Share the criteria. People can’t say the goalposts moved if they could see them from the start.
• Assess everyone the same way. Against the criteria. Not gut feel, and not who’s loudest in the team meeting.
• Say what counts as evidence. The publications argument in the ACU case is a live example. If certain work won’t be considered, say so upfront.
• Write down your reasons. A few dot points per applicant is enough. That’s your defence if it’s ever challenged.
• Give honest feedback. Tell unsuccessful applicants what’s missing and what would get them there next time.
• Follow your own policy. If it’s out of date, fix it before the next round, not halfway through one.

What Should You Do If An Employee Disputes A Promotion Decision?

Do this now

• Stay calm and listen. Getting defensive only makes it worse.
• Pull together your criteria, notes and reasons for the decision.
• Follow the dispute resolution clause in your award, agreement or policy.
• Check whether the employee has hinted at a protected reason, such as “is this because I’m pregnant?” If they have, get advice before you respond.

Do this once it’s resolved

• Review your promotion process for gaps.
• Tighten your policy so the criteria and evidence rules are clear.
• Brief any managers who make promotion decisions on how to run them.

What If The Dispute Ends Up At The Fair Work Commission?

Most disputes are dealt with by conciliation. If you’re asked to agree to the Commission member giving an opinion, understand what you’re signing up to.

As the ACU case shows, an opinion generally can’t be appealed. It also isn’t binding in the way an arbitrated outcome is. That can work for you or against you. Arbitration is a different path, and it’s only available if your dispute clause allows it. If you’re unsure which way to go, get advice before the conference, not after.

The HR Gurus Take

This case is a win for common sense. The Commission isn’t there to second-guess every business decision about who gets the next role. It’s there to check you played fair.

Plenty of business owners avoid promotion decisions, or fudge them, because they’re worried about the fallout. The fix isn’t avoiding the conversation. It’s having a process you can point to.

Clear criteria, consistent assessment and honest reasons put you in a strong position. If your process lives in your head, you’re exposed.

Frequently Asked Questions

Do employees have a legal right to be promoted?

No. There’s no general right to promotion in Australia. But you must follow any promotion terms in your award, agreement, contract or policy, and you can’t refuse a promotion for a discriminatory or otherwise unlawful reason.

Can the Fair Work Commission overturn a promotion decision?

It depends on your dispute clause. In the ACU case, the Commission gave an opinion after conciliation and found the decision was reasonable. Where arbitration is allowed, the Commission can make a binding decision, but the focus is on whether your process was fair and the outcome was reasonably open to you.

What’s the difference between an FWC opinion and a decision?

An opinion or recommendation is given when the Commission helps resolve a dispute without arbitrating it. Under the Fair Work Act, that outcome isn’t a “decision”, so it can’t be appealed to a Full Bench.

What should promotion criteria include?

The skills, experience, qualifications, performance and behaviours the role needs, plus what evidence you’ll accept and how you’ll weigh it.

Do small businesses need a written promotion policy?

It’s not a legal requirement, but a short documented process makes your decisions easier to explain and defend. If you do have a policy, follow it.

What if an employee says they were passed over because of pregnancy, age or another protected reason?

Take it seriously and get advice quickly. That’s a potential general protections or discrimination claim, and your documented reasons will be your most important evidence.

Need A Promotion Process That Holds Up?

Promotion decisions don’t have to be a minefield. HR Gurus helps SME owners cut through the BS with simple, defensible processes and straight answers when things get tricky. Talk to us today.

This article is general information only and isn’t legal advice for your specific situation.