STATEMENT AND DIRECTIONS

Fair Work Act 2009
s.604—Appeal of decision

NSW Trains
v
Mr Todd James
(C2021/4959)

Appeal against decision [2021] FWC 4733 of Deputy President Saunders at Newcastle on 3 August 2021 in matter number U2021/3757.

[1] This Full Bench has been constituted to hear and determine the appeal from a decision of Deputy President Saunders ([[2021] FC 4733]) in which the Deputy President determined that Mr James had been demoted in his employment within the meaning of s.386(2)(c) of the Fair Work Act 2009 (Cth) (the Act). The Deputy President determined that the demotion involved a significant reduction in Mr James’ remuneration, and therefore, Mr James had been dismissed within the meaning of s.386 of the Act.

[2] The appeal raises a number of issues concerning the proper construction and correct application of s.386 of the Act, in particular:

1. Does the expression ‘employment … has been terminated’ in s.386(1)(a) mean that the:

•  employment relationship has been terminated

•  contract of employment has been terminated, or

•  employment relationship or the contract of employment has been terminated?

2. Where an employer imposes fundamental changes to an employee’s contractual arrangements and the employee continues to work for the employer, can those changes give rise to the termination of one employment relationship and the commencement of a new employment relationship?

3. What is the meaning of the expression ‘demoted in employment’ in s.386(2)(c)?

4. What is the meaning of the expression ‘a significant reduction in … remuneration or duties’ in s.386(2)(c)(i)?

5. What is the meaning of the expression ‘remains employed with the employer that effected the demotion’ in s.386(2)(c)(ii)?

6. If a person is ‘demoted in employment’ and the demotion does ‘involve a significant reduction in … remuneration or duties’ within the meaning of s.386(2)(c), then has the person been ‘dismissed’ within the meaning of s.386(1) even if the person’s employment has not been terminated on the employer’s initiative within the meaning of s.386(1)?

7. If the answer to question 6 is ‘yes’, then where an employer imposes fundamental changes to an employee’s contractual arrangements that are detrimental to the employee, but the employee ‘remains employed by the employer’, is it only where those changes constitute a ‘demotion in employment’ involving ‘a significant reduction in … remuneration or duties’ that the employee has been ‘dismissed’ within the meaning of s.386?

8. If an employer exercises rights under a statute, enterprise agreement or contract of employment to demote a person and the demotion involves a significant reduction in the person’s remuneration or duties within the meaning of s.386(2)(c)(i), has the person been ‘dismissed’ within the meaning of s.386?

[3] Given the importance of the issues raised in the appeal, the President has decided to refer this matter to a 5 Member Full Bench. The hearing listed for Thursday, 7 October at 11.00am (AEDT) was adjourned and it will be relisted for 9.30am on Monday, 13 December 2021.

[4] NSW Trains (the Appellant) has applied pursuant to s.596(2) of the Act for permission to be represented at the hearing by Mr Michael Seck of Counsel, instructed by McCullough Robertson Lawyers. Mr James (the Respondent) has also applied for permission to be represented at the hearing by Mr Yaseen Shariff SC and Ms Vanja Bulut. The applications for permission to be represented will be decided by no later than 4.00pm on Wednesday 10 November 2021.

[5] The Directions issued 10 September 2021 are now vacated. The following Amended Directions are made:

1. The Appellant is granted liberty to file a replacement written submission concerning permission to appeal and the merits of the appeal. The replacement submission will completely replace the earlier submissions and shall be filed in the Commission and served on the Respondent by 4.00pm on Friday, 5 November 2021.

2. The Respondent shall file in the Commission and serve on the Appellant a written submission in response to the Appellant’s submission by 4.00pm on Friday, 26 November 2021.

3. The Appellant shall file in the Commission and serve on the Respondent a written submission in reply by 4.00pm on Friday 3 December 2021.

4. The written submissions filed in accordance with Directions 1 to 3 must include submissions directed at each of the issues set out at [2] above.

5. The parties shall file in the Commission and serve on the other party a document, not exceeding one A4 page in length, which indicates whether the other party’s application for permission to be represented at the hearing of the appeal by a lawyer or paid agent (see [4] above) is opposed and, if so, the reasons for that opposition, by 4.00pm on Monday, 8 November 2021.

6. The parties must only provide the Full Bench with any relevant authorities from which they intend to read on the day of the hearing. Any party that wishes to read from authorities on the day of the hearing shall provide an index or replacement index and electronic copies of the authorities 24 hours prior to the hearing. These should be provided as hyperlinks from the index of authorities.

7. The parties are granted liberty to apply to the Presiding Member of the Full Bench to vary the above directions. Any such application should be made in writing and sent to the Presiding Member’s Associate as identified at the foot of the notice of listing.

8. All submissions are to be filed in both Word and PDF format and sent to chambers.ross.j@fwc.gov.au.

9. The matter will be listed for hearing on Monday 13 December 2021 at 9:30am (AEDT), a separate Notice of Listing will be issued shortly.

PRESIDENT

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