Fair Work Act 2009
s.604 - Appeal of decisions

Appeal against decision [2014] FWC 3333 of Commissioner Cloghan at Perth on 22 May 2014 in matter number U2014/3574 - Permission to appeal - Procedure adopted by the Commission - Requirement for a conference or hearing - Fair Work Act 2009 - ss. 397, 385, 389, 394, 400, 604.

Introduction

[1] This decision concerns an application for permission to appeal by Maria Tino who was dismissed from her employment with Regis Resources Ltd (Regis) in December 2013. In a decision handed down in May 2014, Commissioner Cloghan dismissed Ms Tino’s unfair dismissal application on the ground that the dismissal was a case of genuine redundancy. Ms Tino seeks permission to appeal against that decision.

[2] At the hearing of the appeal Mr R. Jones, agent, appeared for Ms Tino. Mr N. Ellery, solicitor, appeared for Regis.

Background

[3] The background circumstances are conveniently summarised in the Commissioner’s decision as follows:

“[10] Ms Tino commenced employment with the Employer as a Casual Laboratory Assistant on 16 January 2013.

[11] On 15 April 2013, Ms Tino commenced full-time employment as the Site Accounts Administrator.

[12] Ms Tino was employed at the Employer’s Garden Well Mine (GWM) which is one of three goldmines comprising the Duketon Gold Project.

[13] In August 2013, Mr B Wyatt was appointed Registered Manager/General Manager for GWM. On his appointment, Mr Wyatt was required to undertake an organisational review of GWM.

[14] Between September and December 2013, Mr Wyatt undertook the organisational review with a particular focus on staffing levels.

[15] With respect to the administrative staff, Mr Wyatt was assisted by Ms Hately, Site Administration Superintendent and Ms Gledhill, the then Human Resources and Office Manager located in Perth, Western Australia.

[16] Mr Wyatt identified during the organisational review that GWM was operating with eight (8) site administration staff, whereas the other two mine sites were successfully operating with three (3) site administration staff. Mr Wyatt came to the conclusion that GWM could operate with four (4) site administration staff.

[17] Unrelated to Mr Wyatt’s organisational review, three (3) of the eight (8) administration staff gave notice of their resignation of employment in or about early December 2013.

[18] On 2 December 2013, Ms R Botten was appointed as the Human Resources and Office Coordinator at the Perth, Head Office. As part of her interview for the position in November 2013, Ms Botten was informed about the organisational review of GWM and part of her immediate role, if appointed, would be managing the likely redundancies out of the review.

[19] On or about 11 December 2013, Ms Hately advised Ms Botten that, as a result of Mr Wyatt’s organisational review, the position of Site Accounts Administrator was to be abolished. Ms Botten was required to see if there was any alternative suitable appointments available that Ms Tino could be redeployed into.

[20] Ms Botten subsequently made inquiries and advised Ms Hately that there were no alternative suitable appointments at the time, or in the foreseeable future, that Ms Tino could be redeployed into.

[21] Mr Bradley White is Ms Tino’s husband. Mr White was also employed at GWM as a Loader Operator.

[22] On 15 December 2013, Mr White raised with Mr Boston safety issues at GWM.

[23] Mr Boston met with Mr White on 16 December 2013 at 9:00 am and advised him that he [Mr Boston] had raised Mr White’s safety issues with Mr Wyatt and that Mr Wyatt would follow up the issues directly with Mr White. Mr White states that, “I then told Roger [Mr Boston] that I will be taking these issues to the mines department as I could not continue doing my job without some sort of plan in place”.

[24] On leaving Mr Boston’s office, Mr White met his wife who was returning to her office. Ms Tino informed her husband that she was required to attend a meeting with Mr Wyatt at 11:45.

[25] The 11:45 meeting was attended by Mr Wyatt, Ms Hately and the Applicant. At the meeting, Ms Tino was informed that her position had been made redundant and that there were no alternative positions available at that time.

[26] Further, at the 11:45 meeting, Ms Tino was given correspondence dated 16 December 2014 (sic) which is entitled “Termination of your employment by reason of redundancy”. The correspondence refers to the organisational review, operational requirements, Ms Tino’s entitlements on being made redundant, when employment would cease and referring the Applicant to the Fair Work Ombudsman’s website. The correspondence makes it clear that the decision to make her redundant was not a reflection of her work performance and that Mr Wyatt was willing to provide a reference for Ms Tino.

[27] After being advised that her position had been made redundant, Mr White requested that both he and his wife meet with Mr Wyatt. Mr White asserts that he stated to Mr Wyatt that, “if you had an issue with me you could sort it out with me not my wife” and “because you expected me to leave if you got rid of Maria”.

[28] Mr Wyatt states that the focus of the meeting related to Mr White’s workplace issues and Ms Tino’s redundancy was hardly discussed. Subsequently, Mr White had a meeting with Mr Boston and offered to be made redundant, if the package [redundancy] was right.

[29] On 18 December 2013, Ms Tino and Mr White left the mine site.

[30] On 20 December 2013, the Applicant attended the Perth Head Office with Mr White. Present at the meeting on 20 December 2013, were Mr Harp, Chief Operating Officer and Ms Botten. Ms Tino was again informed that the Site Accounts Administrator had been abolished and options for redeployment had been considered but no suitable alternative positions were available. Ms Tino was required to sign a deed of separation. The Applicant requested time to consider whether she signed the document or not.

[31] On 23 December 2013, Ms Tino advised the Employer that she would not sign the deed.

[32] On 24 December 2013, the Employer sent correspondence to Ms Tino referring to the meeting on 20 December 2013 and confirming her termination of employment due to her position being made redundant. Ms Tino was paid a redundancy payment.

[33] On 6 January 2014, Ms Tino made application to the Commission seeking a remedy for alleged unfair dismissal from her former Employer. The Employer’s response asserts Ms Tino’s dismissal was as a consequence of a genuine redundancy and accordingly, cannot constitute an unfair dismissal.”

[4] The legislative provisions required to be applied by the Commissioner were ss. 385 and 389 of the Fair Work Act 2009 (the Act). Section 385 provides that a dismissal that is a case of genuine redundancy is not an unfair dismissal. Section 389 contains the definition of genuine redundancy for the purposes of s.385. It provides:

“389 Meaning of genuine redundancy

(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.”

The Appeal and Grounds of Appeal

[5] An appeal in relation to an unfair dismissal matter is governed by the provisions of s.604 and s.400 of the Act. Section 604 of the Act deals with appeals generally. These requirements are modified with respect to unfair dismissal appeals by s.400 of the Act, which 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 the FWC 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.”

[6] The grounds of appeal relate primarily to the conclusion of the Commissioner concerning the second element of the definition of genuine redundancy in s.389, namely whether the employer had complied with its award obligation to consult about the redundancy. With respect to this element the Commissioner said:

“Did the Employer consult with Ms Tino after making the decision to abolish the Site Accounts Administrator position?

[43] Neither the Applicant nor the Employer submitted that there was any consultation with Ms Tino prior to the decision to abolish the Site Accounts Administrator position.

[44] I do not consider that the 11:45 am meeting on 16 December 2013 was for the purposes of consultation but to advise Ms Tino of the decision that her position had been abolished, give her notice and that there were no suitable alternative positions available.

[45] Having been advised of the decision at the 11:45 am meeting, I consider that any opportunity for consultation at the subsequent afternoon meeting on the same day, was overtaken by Mr White’s safety issues. Further, the meeting allegedly focussed on Ms Tino’s dismissal being “engineered” as payback for Mr White raising safety issues at the mine site.

[46] At the meeting on 20 December 2013, the Employer again discussed with Ms Tino the redundancy. Ms Tino was asked to consider signing a deed of separation which reflected termination of employment by reason of redundancy.

[47] I am satisfied that, in the somewhat difficult circumstances, the Employer in broad terms complied with the provisions of paragraph 389(1)(b) of the FW Act.”

The Procedure adopted by the Commissioner

[7] In the appeal proceedings the Full Bench raised an issue concerning the procedure adopted by the Commissioner to determine the issue of whether the termination of Ms Tino’s employment was a case of genuine redundancy. The Commissioner made directions for the parties to file evidence and written submissions on the basis that the matter would be determined on the written submissions. After filing written evidence and submissions the parties indicated to his chambers that they did not wish to make further oral submissions. The Commissioner then proceeded to determine the matter on the basis of the material filed.

[8] Section 397 of the Act provides that the Commission must conduct a conference or hold a hearing in relation to a matter under the unfair dismissal Part of the Act if, and to the extent that, the matter involves facts the existence of which are in dispute. In so far as the Commissioner relied on untested evidence without holding a conference or hearing, the failure to conduct a conference or hearing as required by s.397 may constitute a reason for reconsidering the conclusion he reached. However, any reconsideration would need to follow the procedure required by the Act. Otherwise the Full Bench would be making the same error made by the Commissioner.

[9] In these circumstances we consider that we should adopt a course that ensures the provisions of the Act are followed and there is a full and proper consideration of the factual and legal matters that were required to be determined. We do not propose to say more about the grounds of appeal in the absence of that full and proper consideration.

Conclusions

[10] As the appeal raises important questions about the procedure adopted by the Commission to determine the matter and the proper application of the Act, we consider that it is in the public interest that we grant permission to appeal. We allow the appeal and remit the matter to Deputy President McCarthy to hear and determine the matter.

VICE PRESIDENT

Appearances:

Mr R. Jones, agent, for Ms Tino.

Mr N. Ellery, solicitor, for Regis Resources Ltd.

Hearing details:

2014.

Perth.

30 July.

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