Matter reviewed:  FWCFB 714
Ross J, Booth DP and Bissett C
TERMINATION OF EMPLOYMENT – genuine redundancy – reinstatement – ss.389, 390, 604 Fair Work Act 2009 – appeal – Full Bench – appeal against decision that employee was unfairly dismissed and orders on remedy – test under s.400 FW Act ‘a stringent one’ [Coal & Allied] – task of assessing whether public interest test is met considered in Makin – Full Bench satisfied it is in public interest to grant permission to appeal – appeal raises novel questions about proper construction of s.389(2) FW Act and whether reinstatement order must specify position to which employee is to be appointed – central issue in contention is whether there must be an identified ‘job’ or ‘position’ to which applicant could have been redeployed in order to enliven s.389(2) – ascertaining meaning of section necessarily begins with ordinary and grammatical meaning of words used – words must be read in context by reference to language of FW Act and legislative purpose – use of past tense directs attention to circumstances which pertained at time person was dismissed – ‘redeployed’ should be given ordinary and natural meaning – meaning of s.389(2) considered extensively in Honeysett – Commission must find, on balance of probabilities, that there was a job or position or other work within employer’s enterprise (or that of an associated entity) to which it would have been reasonable in all the circumstances to redeploy dismissed employee – must be an appropriate evidentiary basis for such finding – such interpretation consistent with ordinary and natural meaning of words, Explanatory Memorandum and Full Bench authority – Full Bench identified matters as to which it would ordinarily be expected employer wishing to rely on ‘genuine redundancy’ exclusion to adduce evidence – found Commissioner erroneously focussed on inadequacy of appellant’s redeployment policy – failed to make finding that there was a job, position or other work to which employee could have been redeployed – such finding a necessary step – failure to make finding an error which warrants correction on appeal – Full Bench accepted Commission’s power to order reinstatement is found in s.390(1) FW Act – s.391(1) a limitation upon that power rather than an independent source of power – nature and scope of reinstatement order considered in Sinclair – not persuaded of any relevant distinction between s.170EE IR Act and ss.390 and 391 FW Act – Sinclair remains apposite – Blackadder does not assist appellant – open to Commissioner not to specify particular position and leave it to employer to choose position to comply with order – Full Bench found Commissioner did not make finding that there was no position to which employee could have been redeployed nor was such finding implicit – permission to appeal granted – appeal upheld – decision and orders quashed – matter remitted to McKenna C to determine in accordance with Full Bench decision.
On 16 June 2014 Commissioner McKenna made orders for the reinstatement of Ms Pykett, within 21 days, on terms and conditions no less favourable than those on which she was employed immediately before her dismissal, orders for continuity of employment and compensation for lost remuneration.
Application [NSD654/2014] pursuant to section 39B of the Judiciary Act filed 30 June 2014. The applicant is also seeking a stay of the orders of Commissioner McKenna until further order of the Court.
Judgment in relation to the application for a stay was handed down by Perram J on 4 July 2014. The application was dismissed.
The matter was heard before a Full Court, consisting of Buchanan, Perram and Griffiths JJ, on 23 February 2015. Judgment was handed down on 23 March 2015.
On 23 February 2015 the Full Court Ordered that:
- The application stand dismissed,
- Any application for costs be made within 7 days,
- Any response to any application for costs be provided within a further 7 days, and
- Unless the Court requires further assistance, any application for costs be dealt with on the papers.
The Judgment handed down on 23 March 2015 dismissed the first respondent's application for costs.