FWAFB 8453
FAIR WORK AUSTRALIA
REASONS FOR DECISION
Fair Work Act 2009
s.604 —Appeal of decisions
VICE PRESIDENT WATSON
SYDNEY, 2 OCTOBER 2012
Appeal against decision [ FWA 5322] of Commissioner Cribb at Melbourne on 26 June 2012 in matter numbers U2011/4986, U2011/4988, U2011/4991 and U2011/4993. Denial of natural justice - procedural fairness - leave refused to call a witness - admission of supplementary evidence to evidence that has already been filed - introduction of new evidence not previously disclosed to the other side - public interest - natural justice and proceedings before Fair Work Australia - genuine redundancy - redeployment - Fair Work Act ss.389, 394, 400, 604.
 This decision concerns an application for permission to appeal by Abigroup Contractors Pty Ltd (Abigroup) against the decision of Commissioner Cribb on 26 June 2012 in relation to applications by Mr John Crema, Mr Paul Edwards, Ms Christine Comley and Mr Ray Allan (the employees) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act).
 By virtue of s.389 of the Act, the first matter that was required to be determined by the Commissioner was whether the terminations of employment were genuine redundancies within the meaning of s.389 of the Act. The Commissioner ultimately concluded that the terminations did not fall within that definition, because it was reasonable in all the circumstances for the employees to be re-employed in the employer’s enterprise. The Commissioner proceeded to find that the dismissals of the employees were harsh, unjust and unreasonable.
 The appeal in this matter raises a narrow issue concerning the evidence relating to the question of whether or not the dismissals were a case of genuine redundancy. In particular, the appeal relates to a ruling of the Commissioner that Abigroup not be permitted the opportunity to call a particular witness to give evidence regarding possible redeployment.
 At the hearing of the appeal in Melbourne on 21 August 2012, Mr S Wood S.C with Mr J Snaden of counsel appeared on behalf of Abigroup and Mr M Sayers appeared on behalf of the employees.
 At the conclusion of the hearing we indicated that we were satisfied that the Commissioner had erred in denying Abigroup the opportunity to lead evidence on the issue of redeployment. We were satisfied that the evidence that was proposed to be led was relevant to the issue of genuine redundancy and it was in the interests of justice and procedural fairness to the parties to allow Abigroup to lead that evidence. We found that the Commissioner erred in her approach and the decision attracts the public interest because of the denial of procedural fairness to the parties. For that reason we granted permission to appeal in the matter. We remitted the matter back to Commissioner Cribb, as agreed between the parties, to determine the matter further, after giving the parties an opportunity to lead the additional evidence in relation to the question of genuine redundancy.
 This decision provides our reasons for these conclusions.
(1) A person’s dismissal was a case of genuine redundancy if:
(a) the person’s employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; and
(b) the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.
(2) A person’s dismissal was not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within:
(a) the employer’s enterprise; or
(b) the enterprise of an associated entity of the employer.
 An appeal under s.604 of the Act in a matter of this nature is determined by reference to the provisions of s.400 of the Act. Section 400 provides:
“400 Appeal rights
(1) Despite subsection 604(2), FWA must not grant permission to appeal from a decision made by FWA under this Part unless FWA considers that it is in the public interest to do so.
(2) Despite subsection 604(1), an appeal from a decision made by FWA in relation to a matter arising under this Part can only, to the extent that it is an appeal on a question of fact, be made on the ground that the decision involved a significant error of fact.”
 The employees were employed by Abigroup in its Building Division as daily hire labourers under a CW1 classification to perform “peggy” work which consists of general cleaning and housekeeping tasks around site sheds and amenities. The employees worked on either the Cranbourne East or Mernda school projects that were part of the Partnerships Victoria in Schools Program (PVIS). At the end of 2010, the projects achieved practical completion and no further work was required on the projects.
 At the time that the PVIS projects were completed, Abigroup experienced a downturn in its Building Division and was informed in November and December 2011 that it was unsuccessful in tendering for a number of new projects. This downturn, coinciding with the completion of the PVIS projects, meant that Abigroup required fewer daily hire labourers in its Building Division and consequently there were no suitable positions available for the employees on any other projects in the Building Division.
 After making relevant inquiries, Abigroup also concluded that there were no suitable positions available in Abigroup’s other business units into which the employees could be redeployed. Given these circumstances, Abigroup terminated the employees’ employment on the grounds of redundancy at the end of January 2011.
 The employees made their applications for unfair dismissal remedy to Fair Work Australia on 11 February 2011. Directions were made for the filing of material on 7 April 2011 and the matter was listed for a 4 day hearing beginning on 5 July 2011.
 The employees filed their witness statements on 3 May 2011 and contended that their dismissals were not a case of genuine redundancy within the meaning of s.389 of the Act. Mr Crema, Mr Alan and Ms Comely submitted that there were jobs available within Abigroup into which they could be redeployed. Mr Edwards made the same submission but identified 25 projects which he contended required labour within the classifications he was qualified to fill, one of which was the Peninsula Link (PenLink) Project.
 On 24 May 2011, Abigroup filed witness statements from Mr John Hanrahan, Mr Keith Stevens and Mr Warrick Hanby which provided responses to the employee’s contentions that it would have been reasonable for Abigroup to redeploy them. These statements stated that the projects Mr Edwards identified did not require labour as they were either fully staffed or had not been tendered yet to Abigroup. In response to the PenLink Project, Mr Hanby submitted that after making inquiries to the Human Resources Manager at PenLink he was told that there were not suitable vacancies.
 On 28 June 2012, the Construction, Forestry, Mining and Energy Union (CFMEU) wrote to the representative for Abigroup, Minter Ellison Lawyers (Minter Ellison) on behalf of the employees. The CFMEU requested the classification and employment date of any construction worker engaged by Abigroup in the period from 1 December 2010 to March 31 2011 on the 25 projects indentified by Mr Edwards in his witness statement as well as another site which was identified after his statement was filed (redeployment information).
 On 30 June 2012, Minter Ellison provided the CFMEU with a list of 16 CW1 employees that had commenced employment between 1 December 2010 and 31 January 2011 with Abigroup on the PenLink Project. It was further stated that there were no new CW1 employees employed in the period 1 December 2010 to 31 January 2011 on the other 25 projects indentified in the CFMEU’s 28 June letter.
 On the first day of the hearing Abigroup foreshadowed that they may seek to call Mr Gareth Baines, the construction manager from the PenLink Project, as a witness to give oral evidence in regard to the issue of redeployment and the suitability of the employees to be re engaged to work on the PenLink Project. 1 Mr Sayers, who represented the employees at the hearing of the matter, indicated that if Mr Baines was to be called, he anticipated that he would want to cross-examine him, albeit for not very long.2
 Mr Baines had not filed a witness statement and therefore Abigroup indicated that it would seek leave to call him if necessary. Counsel for Abigroup submitted that the reason for calling Mr Baines was that after receiving the letter from the CFMEU requesting the redeployment information and providing their response that the only CW1 positions subsequently filled were on the PenLink Project, they now believed the evidential focus of the matter would be on whether it was reasonable to redeploy the employees into one of the 16 CW1 positions it had filled on that project. 3
 On the third day of the hearing, Abigroup sought leave to call Mr Baines. In doing so, Abigroup clarified the reasons why it intended to call Mr Baines. Counsel for Abigroup submitted that they did not intend to introduce new evidence from Mr Baines about the skills the employees possessed. Rather they intended Mr Baines to provide evidence about the requirements of the vacant CW1 positions on the PenLink Project and consequently why the employees were not suitable for these CW1 roles. 4 Abigroup indicated that Mr Baines would be referring to evidence that had already been introduced in the course of the hearing.
 Mr Sayers objected to Mr Baines being called as a witness and contended that it was never put to the employees at the time of their termination that their skills were an issue in them not being able to be redeployed. 5 The Commissioner upheld the objection and denied Abigroup the opportunity to call Mr Baines. The Commissioner said that if she was to hear evidence from Mr Baines, she would have unbalanced material before her as the employees would not be able to reply and give evidence about their skills in detail and that the evidence of Mr Baines would not be of any value from the Tribunals’ perspective.6
 In the Commissioner’s decision she said:
“ I have carefully considered all of the material before me and I am satisfied that Abigroup had vacancies for jobs which were potentially suitable for the applicants - the CWI labourer positions on the PenLink project, Engineering division. The CWI classification is the base level classification in the Agreement and is the same classification as that of each of the applicants. Unlike the situation in the second Ulan Coal decision, there was no policy within Abigroup against redeployment between divisions. Mr Hanby, in fact, explored redeployment possibilities in all of the divisions of the Southern Region of Abigroup. The vacancies on the PenLink project and the filling of them occurred at the same time that Mr Hanby and Mr Currie were discussing redeployment possibilities for the applicants on the PenLink project. No reason was given during the hearing as to why the applicants were found to be not suitable by Mr Currie. Mr Hanby did not ask Mr Currie for the reason. He simply accepted Mr Currie’s view that there were no suitable vacancies for the applicants on the PenLink project.
 Mr Hanby’s evidence also was that some of the vacancies were filled by persons who had just finished a 10 week training course and who had required supervision and support once “on the job”. The applicants had experience ranging upwards from two years working in the CWI classification and for the company. I have not been persuaded that it would not have been reasonable for the applicants to have been redeployed into four of the 16 vacancies and, if necessary, for the applicants to have undertaken the 10 week training course, as four of the successful applicants were required to do. Any perceived inadequacies on the part of the applicants would be likely to have been remedied by the training. It would seem unreasonable for four current employees to have been dismissed when four other people, who are not employees of the company, are offered employment and a 10 week training course with on the job support and supervision after the course.
 Therefore, as it would have been reasonable in all of the circumstances for the applicants to have redeployed within Abigroup’s enterprise, the requirements of s.389(2)(a) have not been met.
 Consequently, as the applicants’ dismissals were not cases of genuine redundancy, the requirements of s.385(d) have been met.”
Grounds of appeal
 The Abigroup appeal is confined to the impact of the ruling on Mr Baines’ evidence on the jurisdictional issue of whether the termination of the employees was a genuine redundancy.
 Abigroup submits that the denial of the opportunity to call evidence from Mr Baines, led to an error regarding the Commissioner’s finding that the termination of the employees was not a case of genuine redundancy (redundancy findings) and that it would have been reasonable in all the circumstances for each of the employees to be redeployed within Abigroup’s enterprise (redeployment findings). 7 Abigroup submits that if they had the opportunity to lead the evidence that was the subject of the Baines decision, this would have resulted in a finding that the termination of the employees was a genuine redundancy. Abigroup further submits that the Baines decision resulted in a denial of natural justice.
 Abigroup submits that the redundancy findings and the redeployment findings were in error and the denial of natural justice constitutes a failure on the Commissioner’s behalf to properly exercise the Tribunal’s jurisdiction. 8
 Mr Sayers for the employees submits that there was no denial of natural justice and that Abigroup was afforded the opportunity to present evidence of the type it sought from Mr Baines through its other witnesses. 9 Mr Sayers further submits that it was open on the evidence before the Commissioner to make the redundancy and redeployment findings and that these findings were only made after the Commissioner gave consideration to the relevant facts that emerged from the evidence.10
Was Abigroup denied natural justice as a result of the decision regarding Mr Baines’ evidence?
 It is well established that the application of the principles of natural justice depend on the circumstances. 11 The key question is not whether the rules of natural justice apply, but what is the nature of the opportunity that must be given in a particular case. The rules of natural justice are flexible, requiring fairness in all the circumstances, including the nature of the power exercised and the statutory powers governing its exercise.12
 It cannot be doubted that Fair Work Australia is required to afford the parties an adequate opportunity to present their cases. It is common in proceedings before Fair Work Australia that the parties are required to provide details of their evidentiary case to each other and the tribunal in advance of the hearing by the filing and serving of witness statements. This process carries with it the expectation that the parties should anticipate the matters that are at issue and at the subsequent hearing generally limit their evidence to the matters contained in the witness statements.
 However, it will often be the case that a party seeks to supplement that evidence by further evidence which responds to other proposed evidence or otherwise completes the party’s evidentiary case. Procedural fairness requires some latitude being given to the parties to enable them to do this especially if an aspect of the facts could not have been reasonably anticipated earlier. It is also in the interests of a fair and just determination of the matter that all relevant evidence is considered. When a party seeks to introduce new evidence not previously disclosed to the other side a good reason should be provided. The tribunal should ensure that the other party is not ‘ambushed’ and has a fair opportunity to deal with that evidence. Evidence of a relevant matter should not be excluded lightly and every effort should be made by the tribunal and the party seeking to lead further evidence to ensure that no consequent unfairness arises from the admission of further evidence.
 It is clear from the circumstances in this matter outlined above that the nature of the vacancies on the PenLink project was a matter directly related to the conclusion reached by the Commissioner that it was reasonable to redeploy the employees to that project. On any view therefore the evidence of Mr Baines was relevant to an important issue that was required to be determined.
 Abigroup may have been at fault in not anticipating the importance of the evidence of Mr Baines and providing the other party with a witness statement. Even if it only became aware of the potential argument regarding PenLink after it filed its witness statements it could have sought to supplement its evidence earlier. Nevertheless it did not foreshadow its intentions until the first day of the hearing and did not make the application until the third day of the hearing.
 When the application to lead the evidence was made it was incumbent on the Commissioner to ascertain whether the evidence was capable of being relevant to the determination of the matter, whether there was a sufficient reason for not giving notice of the evidence earlier and whether any consequent unfairness could have been avoided. It was significant that the matter arose from the way in which the employees had developed their case by contending that redeployment to the PenLink project would have been reasonable. This circumstance demonstrated that the evidence was likely to be relevant and that the matter could have been reasonably anticipated by the employees to be the subject of further employer evidence. In our view the rules of procedural fairness required the Commissioner to allow the evidence to be called and ensure that the employees had an adequate opportunity to deal with that evidence. In denying Abigroup the opportunity to lead the evidence the Commissioner denied Abigroup procedural fairness.
Conclusion and Disposition of the Appeal
 As the matter involves important questions of procedural fairness and the fair and just determination of a matter before the tribunal we grant permission to appeal.
 We have concluded above that Abigroup was denied procedural fairness in the matter. However it does not follow from our conclusion that the unfair dismissal application should have necessarily been determined differently. Indeed we are in no position to assess whether this is the case as the totality of the evidence ultimately led in the matter would need to be considered. We consider that the best course is to allow the appeal, quash the decision of the Commissioner, and as suggested by the parties, remit the matter to the Commissioner to be re-determined after admitting and considering the further evidence the parties wish to lead on this matter.
VICE PRESIDENT WATSON
S Wood SC and J Snaden for Abigroup Contractors Pty Ltd
M Sayers for Mr Crema, Mr Edwards, Ms Comely and Mr Allan
1 Transcript of proceedings 5 July 2011 at PN19.
2 Transcript of proceedings 6 July 2011 at PN852.
3 Transcript of appeal proceedings, 21 August 2012 at PN 129, PN137, PN144 and PN 145.
4 Transcript of Proceedings 7 July 2011 at PN1136 and 1143.
5 Ibid at PN1139.
6 Ibid at PN 1142 and 1148.
7 Exhibit W1 at para 4.
8 Appellant’s notice of appeal dated 16 July 2012 at para 4.
9 Exhibit S1 at para 4.
10 Ibid at para 24.
11 Heatley v Tasmanian Racing and Gaming Commission (1977) 137 CLR 487 at 514.
12 Bread Manufacturers of N.S.W. v. Evans  HCA 69; (1981) 56 ALJR 89, at pp 94, 101.
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