[2014] FWCFB 1043



Fair Work Act 2009

s.604 - Appeal of decisions

Mackay Taxi Holdings Ltd T/A Mackay Whitsunday Taxis
Ms Kaye Wilson



Appeal against decision [[20132] FWC 8634] of Commissioner Booth at Brisbane on 4 November 2013 in matter number U2013/9954 - whether changes to job were operational changes that gave rise to a redundancy - duties continuing to be performed - scope of s.389(1) too narrowly construed - rigidity in business systems.

[1] This decision concerns an appeal by Mackay Taxi Holdings Ltd t/a Mackay Whitsunday Taxis (“the Appellant”) against a decision of Commissioner Booth in [2013] FWC 8634 handed down on 4 November 2013 in U2013/9954. The Respondent is Ms Kaye Wilson.

[2] The Commissioner’s decision concerns two matters. The first of these was a decision under s.394(2) of the Fair Work Act 2009 (“the Act”) in relation to whether or not the application should be accepted in a different time to that stipulated under s.394(2)(a) of the Act. The second matter concerned an application by the Appellant under s.389 of the Act. In that matter the Commissioner was required to determine whether or not the application before her should be dismissed for reasons that it concerned a genuine redundancy.

[3] It is only the second matter which is the subject of this appeal.

[4] At the outset we note that the Commissioner’s decision was made off the documents, with the consent of the parties.


[5] The approach to an appeal in the context of s.389 of the Act was considered by a Full Bench in Ulan Coal Mines Limited v Honeysett and Others 1 (“the prior full bench”) as follows:

[6] We apply the approach of the prior full bench.

Legislative provisions

[7] Section 385 of the Act provides that a person has been unfairly dismissed if the Fair Work Commission (“the Commission”) is satisfied that:

[8] Section 389(1) of the Act provides that a person’s dismissal was a case of genuine redundancy if:

[9] Section 389(2) of the Act, however, provides that 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:

Summary of evidence before the Commissioner

[10] The evidence before the Commissioner was of limited nature, and because the matter was determined off the documents, the statements before her were not subject to any examination. We will firstly summarise the Respondent’s claims as they were before the Commissioner, and then turn to those of the Appellant.

[11] In summary, the Respondent:

[12] The Respondent was of the belief that she could have performed the new position at the required level and was of the belief the new recruit would need to be trained in the business.

[13] The Respondent also held that:

[14] The Respondent also stated that she was of the belief that her position “was not redundant in that all duties in my role would have to be done by someone and [her employer] never indicated my job was being cut up and given to other staff, it is my belief the new person would do my job with the additional new tasks.” (Our emphasis)

[15] The Respondent’s claims went on to the effect that:

[16] The Respondent also claimed that since her dismissal a further person had been employed in the office to assist with taxi driver documentation, and that she could have done that job. There was no evidence as to whether this person had been employed at the time of the termination or subsequently.

[17] The evidence before the Commissioner in respect of the Appellant’s claims (through a statement by Mr Gary Button, the Manager of the Appellant’s business, was concise, and is set out largely in full below:

Commissioner’s decision

[18] On the basis of the above evidence, the Commissioner reasoned as follows:

Grounds for Appeal

[19] The grounds of the appeal were not carefully elucidated, in that there are no discretely formulated grounds. The Appellant provided more so a series of generally argued, overlapping grounds.

[20] The Appellant contends generally that the Commissioner’s decision contains significant errors of fact and law.

[21] It was claimed that the Commissioner erred in her conclusion that the changes were to “an existing and continuing role” and did not meet the statutory definition of a genuine redundancy.

[22] The Appellant also claimed that the Commissioner’s description of the change as comprising no more than added on qualifications to the existing job was an error in fact. That is to say, the Appellant argued that the qualifications were required to give effect to new higher level duties, not as mere add-ons, and they were the foundation to the new job or position.

[23] The Appellant also contends that the Commissioner had erred in that she confused the tasks and duties associated with the Respondent’s job with the job itself. That is, the tasks and duties which comprise the Respondent’s job may well have continued to be required to be performed, but not within the structure of the job as it had been.

[24] The Appellant also contends that it was not open to the Commissioner to accept the Respondent’s claim that some unspecified body of her former duties were being performed by a new employee. This is because there was no specificity to the claim by the Respondent in this regard, and that it was not made out that this person was employed at the time or contemporaneously with the Respondent’s termination.

Appeal in the public interest

[25] At the outset we make clear our view as to whether the appeal is in the public interest.

[26] This appeal concerns the scope of meaning of s.389 of the Act (and the consequent scope of meaning of what might constitute a redundancy under the Act in certain operational circumstances). We consider that it is in the public interest to grant permission to appeal, as a consequence.


[27] We observe generally that the Commissioner dealt with this matter off the documents and was not in a position to resolve any factual conflicts, and was otherwise left to make inferential findings from the materials before her. Further, the Commissioner was not in a position to reach findings on the basis of credit as the witness statements had been left unexamined.

[28] The onus falls on the employer, which seeks the relief, in these matters to make out its case. It is the employer, after all, that is the repository of the facts relevant to a finding that the dismissal was a genuine redundancy as set out at s.389 of the Act.

[29] Was it made out that there was a redundancy within the meaning of the Act?

[30] The Appellant had set about seeking to increase the skill level of its bookkeeping/accounting responsibilities. This goal was to be achieved by ensuring the incumbent possessed a suitable qualification.

[31] The Respondent did not hold any qualifications, having left school at Year 11, it appears. The Commissioner found as much:

[32] The higher level duties and responsibilities did not in their own right constitute a full time permanent position or job.

[33] Thus, a large body of the tasks that comprised the Respondent’s job continued to be performed. We note here that the Commissioner referred to the new role being “70%” of the Respondent’s previous role. We do not know where this claim is found in the material before the Commissioner, though it is broadly reflective (regardless) of the state of the evidence.

[34] The job, however, was not the same job. The requirement for a formal qualification was not added to a job as if a mere administrative initiative. The qualifications required were reflective of new and higher level duties which were to be carried out by an appropriately qualified bookkeeper. Given the manner in which the matter proceeded, the Commissioner was not in a position to set aside the Appellant’s evidence in this regard.

[35] The job was therefore a new job, despite the fact that it incorporated many of the former tasks performed by the Respondent.

[36] Contrary to the Commissioner’s findings, we think the changes to the position referred to above are operational changes. That is, they are changes that give effect to a change in the operational focus of a position to the benefit or advantage of the employer (be it to meet governance requirements or to improve efficiency).

[37] Whether the original duties or tasks continue to be required to be performed is not necessarily relevant: it is the operationally-driven changes to the position that need to be made out.

[38] We think this point was made sufficiently clear by the Full Bench in Ulan Coal Mines Limited v Howarth and Others. 2

[39] In that decision, the Full Bench endorsed the proposition that it does not matter if discrete duties or tasks survive the operational change or restructure and continue to be performed. The question to be determined, in actuality, is whether the former position itself survives:

[40] In the case before the Full Bench cited above, the employer had restructured its operations by increasing the number of trade qualified mineworkers, but this did not mean the duties of the functions and duties performed previously by the retrenched mineworkers were no longer required to be performed. Those positions continued to be performed by more senior mineworkers, in some instances. The case, however, is distinguishable from the current circumstances in so far as there was also a reduction in the number of employees.

[41] Further, the examples provided by the Explanatory Memorandum, referred to above, are not exhaustive, but they are demonstrative of the kinds of changes in operational circumstances that can affect enterprises. Such changes may, as here, alter or extend the range of duties that comprise a job and the qualification mix required as a consequence. Equally, the duties that comprise a job may be redistributed and continue to be performed by others (and the job disappear). Or else the job itself and the body of duties associated with it may disappear altogether (with a downturn, an efficiency drive, a contractual change, a change in business focus, or a technological development etc).

[42] On the unexamined and uncontested evidence before the Commissioner, the job as it had been had become a more complex job at the higher end, requiring the exercise of duties by a person who was a qualified bookkeeper, which the Respondent was not. The fact that a body of the former duties associated with the Respondent’s position continued to be required to be performed in whole or in part is beside the point.

[43] The operational objective on the part of the Appellant to rely on the qualified services of a bookkeeper to improve the “capacity of the administration to function at a higher level” brought about a real and genuine change to the position as it had been performed by the Respondent. This is the kind of change that ordinarily would give rise to a redundancy (where the incumbent does not possess the qualifications to give effect to the operational objective).

[44] In any event, the Commissioner did not reject the evidence as put to her, but rather formed a contrary view: that the introduction of a requirement for formal competencies to give effect to higher end bookkeeping outcomes whilst requiring the continuation (to a considerable volume) of the former duties and tasks did not signal a new position had been created.

[45] We disagree. The genuineness of the rationale for the new qualifications was not attacked. It is reasonable in such circumstances that an employer, as the bearer of risks, might re-organise the manner in which work is conducted and with what degree of specialism. If this were not the case, significant rigidities would be introduced into business improvement systems.

[46] There was more put to us by the Appellant in relation to the reallocation of lower order activities amongst junior staff and trainees, and the diminution of a deal of process requirements related to the Respondent’s position, as it was.

[47] Generally, we think the Commissioner, because she took the view that because a certain volume of duties and tasks remained to be carried out and that as a result the position or job itself had not changed or been restructured to a sufficient degree to achieve another operational purpose, fell into error. In this regard, the Commissioner too narrowly construed the scope of s.389(1)(a) of the Act.

Further matter relevant to the jurisdictional question

[48] That said, there is one matter relevant to the jurisdictional question that needs to be determined.

[49] We note that the Commissioner made no reference in her decision to the requirements of s.389(2) of the Act, which provides an exclusion from the jurisdictional bar when it would have been reasonable in all the circumstances for the Respondent to have been redeployed to an alternative position. Section 389(2) of the Act is set out above.

[50] It is true that the Commissioner turned her mind to whether the Respondent could have been trained to perform the additional duties which made up the new position, but she made no express finding in that respect, let alone a finding that went to s.389(2) of the Act.

[51] The only evidence, as it was, before the Commissioner in this respect was a disputed claim between the Appellant and the Respondent.

[52] This is not a point of criticism, however. The Commissioner had found that the dismissal had not met the requirements of s.389(1)(a) of the Act, and there was no obligation upon her to make further findings that would have been of superfluous effect. But the situation facing the Full Bench, of course, is different, given our findings.

[53] The Respondent had contended that she should have been re-deployed to “the new position”.

[54] The Appellant contended that the competency level required to deliver the bookkeeping and other functions (such as Accounts Payable) required too lengthy a period of training and was too expensive to underwrite. Thus while the Respondent was free to apply for the position, she was not redeployed to that position as it would not be reasonable in the circumstances to so.

[55] The Respondent further contended, to the contrary, that she was capable of performing the duties with assistance, financial support and without extensive delay. In essence the Respondent contends it was reasonable in the circumstances to redeploy her to the new position.

[56] We observe, in this particular regard, that the Full Bench in Re: Ulan [2010] FWAFB 7578 commented generally that redeployment may be possible where the training requirement is reasonable:

[57] The Full Bench appears here in some part to have recast (in the converse) Item 1552 of the Explanatory Memorandum to the Fair Work Bill 2008, which states:

[58] That said, the materials before the Commissioner also gave rise to a claim that another person had been appointed at or following her termination to a position to carry out the Respondent’s former duties. This matter was left unexplored in the decision, though (if only potentially) it may have had relevance to the prospects or otherwise of the Respondent’s redeployment for the purposes of s.389(2) of the Act.

[59] To reach a conclusion as to the reasonableness of redeployment for the purposes of s.389(2) of the Act, the Commission must make a finding on the requisite, civil burden of proof. The Commissioner made no such findings. The various claims in relation to redeployment were left unresolved, and the materials that did bear on the issues above were not subject to examination.

[60] Because there was no finding in relation to s.389(2) of the Act, the threshold jurisdictional status of the application was therefore left undetermined in its entirety.

[61] We would be satisfied that the jurisdictional objection under s.389 of the Act would be made out, but only pending the determination of this final matter (under s.389(2) of the Act). Such an approach to an outstanding determination of a factual issue under s.389 of the Act was adopted in [2010] FWAFB 3488. The same approach has been reflected in the more recent decision of a further full bench in [2013] FWC 4982 at 40 and 54.

[62] We add finally that there was no contest between the parties on appeal as to the Commissioner’s finding that the requirements of s.389(1)(b) of the Act was made out, and the parties did not contest this matter at first instance either, it appears.


[63] We have granted leave to appeal in the public interest, for the reasons given earlier.

[64] We grant permission to appeal and uphold the appeal, and quash the Commissioner’s decision for reason it construed too narrowly the legislative scope (under s.389(1) of the Act) for operational changes to give rise to a redundancy.

[65] Having quashed the Commissioner’s decision, we have determined that in the circumstances it is desirable to remit the determination of the final, unaddressed threshold jurisdictional matter (under s.389(2) of the Act) to Commissioner Simpson to determine in the ordinary course.

w seal FWC



Determined on basis of written materials

Hearing details:

Determined on basis of written materials

Final written submissions:

Appellant - 30 December 2013

Respondent - 24 January 2014

 1   [2010] FWAFB 7578.

 2   [2010] FWAFB 3488.

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