Fair Work Act 2009
s.604 - Appeal of decisions

Permission to appeal against decision [2016] FWC 4236 of SDP O'Callaghan at Adelaide on 29 June 2016 in matter number U2015/17192.

Introduction

[1] Mr Garry Bayley has applied for permission to appeal a decision of Senior Deputy President O’Callaghan issued on 29 June 2016 1 (Decision). The Decision concerned an application by Mr Bayley for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (FW Act) in respect of the termination his employment with Temples (WA) Pty Ltd (Temples). The Senior Deputy President determined that the dismissal of Mr Bayley was unfair because in, effecting the dismissal, Temples had failed to comply with its consultation obligations under the Temples (WA) Pty Ltd Transport Workers Certified Agreement (Bulkfeeds & Biosolids) 2014 (Agreement).2 The Senior Deputy President proceeded to determine that the remedy for the unfair dismissal should be an amount of compensation equivalent to three weeks’ pay, which he calculated to be $2,865.11, less tax.3 A separate order was issued to give effect to this determination.4

[2] Mr Bayley had been employed by Temples as a casual relief truck driver on work connected with a particular contract (contract) which Temples held. His employment was terminated in December 2015 because the contract was about to come to an end and Temples considered that it had insufficient other work for him to perform.

[3] In the Decision, the Senior Deputy President commenced by considering whether Mr Bayley’s dismissal was a case of “genuine redundancy” in accordance with the definition of that expression under s.389. In relation to that part of the definition in s.389(1)(a), the Senior Deputy President was satisfied that Mr Bayley’s position was no longer required at the time of dismissal on the basis of the changed contract work requirements and accordingly that s.389(1)(a) applied. 5 This conclusion involved acceptance of evidence adduced by Temples that the dismissal was the result of declining work requirements, that work under the contract had become irregular in the last two months of 2015, that Mr Bayley had been advised of these matters prior to dismissal, and that Mr Bayley had not been replaced. Reliance was also placed on the Employment Separation Certificate issued by Temples which identified that Mr Bayley had been dismissed due to lack of work.6

[4] The Senior Deputy President was not however satisfied, for the purpose of s.389(1)(b), that Temples had complied with the consultation requirements of the Agreement (which incorporated the model consultation term) 7, and he was further not satisfied that Temples had made “the necessary redeployment efforts” for the purpose of s.389(2). Accordingly consideration was given as to whether Mr Bayley’s dismissal was harsh, unjust or unreasonable having regard to the matters required to be taken into account under s.387.

[5] The Senior Deputy President made findings about all the matters identified in s.387. In relation to s.387(a), he found that there was no valid reason for Mr Bayley’s dismissal relating to his capacity or conduct. 8 Under s.387(h), the Senior Deputy President expressed his satisfaction that “Temples’ decision not to offer Mr Bayley further casual employment because of the reduction in the work which he had previously undertaken was a sound, defensible and well-founded reason for the termination of his regular casual employment,”9 but also took into account Temples’ failure to discuss with Mr Bayley its reasons for not offering him alternative work and generally consult with him in accordance with the requirements of the Agreement.10 This, as earlier stated, caused the Senior Deputy President to conclude that the dismissal was unfair.11

[6] In assessing the amount of compensation to be awarded to Mr Bayley as a remedy, the Senior Deputy President had express regard to the matters required to be taken into account under s.392(2). In relation to s.392(2)(c) (relating to the remuneration that Mr Bayley would have received had he not been dismissed), the Senior Deputy President found:

“[34] Had Mr Bayley not been dismissed on 16 December 2015, I have concluded that his employment would have been terminated three weeks later following the requisite consultations with him. I consider that three weeks is appropriate because Mr Bayley’s work patterns involved limited capacity to work on alternate weeks, which I have concluded would then impact on his ability to be involved in discussions of this nature. Further, I consider that consideration and discussion over redeployment options at different sites may have taken some time.

[35] Notwithstanding this, I am not satisfied that those consultations would have changed the outcome in this matter. Accordingly, the remuneration Mr Bayley would have received or would have been likely to have received would have been an average of three weeks’ pay, plus any attendant superannuation obligations, at the rate applicable at the time of the termination of his employment. Ms Rumble’s evidence was that this was an hourly rate of $33.51. To calculate this average, I have taken into account the average hours worked by Mr Bayley, on a weekly basis over the previous four weeks. This gives an average of 28.5 hours each week.”

[7] The grounds for the appeal set out in Mr Bayley’s notice of appeal contained 46 numbered paragraphs. Those grounds essentially challenged the conclusion that Mr Bayley was dismissed by reason of redundancy or lack of work, set out factual propositions intended to demonstrate that there was sufficient work to justify Mr Bayley’s continued employment, denied the existence of any genuine performance issues with Mr Bayley’s work, contended that Mr Bayley’s employment should have been found to be unfair on the basis that it was not supported by any valid reason, and further contended that Mr Bayley should have been compensated on the basis that he should have had the opportunity to work another 17 weeks until the end of the contract in the week ending 9 April 2016.

[8] Mr Bayley submitted that he should be granted permission to appeal because the conclusion in the Decision that his dismissal was effected on the basis of genuine redundancy involved significant errors of fact, there was no evidence to support the conclusion of genuine redundancy, and that it was in the public interest to show that the Full Bench had considered the fairness or otherwise of the Decision.

Consideration

[9] An appeal under s.604 of the FW Act is an appeal by way of rehearing and the Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision maker.¹² There is no right to appeal and an appeal may only be made with the permission of the Commission.

[10] This appeal is one to which s.400 of the FW Act applies. Section 400 provides:

(1) Despite subsection 604(2), the FWC must not grant permission to appeal from a decision made by the FWC under this Part unless the FWC 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.

[11] In the Federal Court Full Court decision in Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [43], Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s.400 as “a stringent one”. The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.¹³ A Full Bench of the Commission, in GlaxoSmithKline Australia Pty Ltd v Makin, identified some of the considerations that may attract the public interest:

“… the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters.” 14

[12] It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of appealable error.¹⁵ However, the fact that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.¹⁶

[13] In this case we are not satisfied that it would be in the public interest to grant permission to appeal. In two significant respects, we consider that the appeal is misconceived. The first is that the appeal is substantially founded on the proposition that the Senior Deputy President erred in finding that the dismissal was a case of genuine redundancy. As we have earlier set out, the finding was in fact that the dismissal was not, for the purpose of s.389, a case of genuine redundancy. To that extent, the appeal is based on a misunderstanding of what was decided.

[14] Secondly, to the extent the appeal challenges the conclusions reached by the Senior Deputy President in the course of considering the fairness of the dismissal, it ignores the fact that the dismissal was ultimately found to be unfair. That is, Mr Bayley’s challenge to the conclusion that his dismissal was justified by a shortage of work could, at best, only result in a finding that his dismissal was unfair for a different reason than that determined by the Senior Deputy President. That by itself could not operate to improve his position in respect of the remedy that was ordered.

[15] The appeal is otherwise only concerned with the Senior Deputy President’s determination of the amount of compensation to be ordered in respect of Mr Bayley’s unfair dismissal. The assessment of compensation under s.392 is a discretionary exercise guided by the matters required to be taken into account under subsection (2) and subject to the requirements of subsections (3)-(6). Mr Bayley does not contend that the Senior Deputy President failed to take into account any of the s.392(2) matters, failed to comply with any other requirement of the section, or committed any error of principle. The quantum of compensation ordered was based on the particular facts of the case as found by the Senior Deputy President, and does not manifest any injustice. We therefore do not consider appellate review of the compensation order would attract the public interest.

[16] The appeal does not otherwise raise any issue of legal importance principle or of general application.

[17] We are not satisfied that the grant of permission to appeal would be in the public interest. Permission to appeal must therefore be refused.

VICE PRESIDENT

Appearances:

G. Bayley on his own behalf.

S. Formston for Temples WA Pty Ltd.

Hearing details:

2016.

Sydney:

10 August.

 1   [2016] FWC 4236

 2   Decision at [32]

 3   Decision at [42]

 4   PR582146

 5   Decision at [19]

 6   Decision at [15]-[18]

 7   Decision at [20]-[21]

 8   Decision at [25]

 9   Decision at [29]

 10   Decision at [29]-[30]

 11   Decision at [32]

¹² This is so because on appeal the Commission has power to receive further evidence, pursuant to s.607(2); see Coal and Allied v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ

¹³ O’Sullivan v Farrer (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch (2011) 85 ALJR 398 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [44]-[46]

 14   [2010] FWAFB 5343, 197 IR 266 at [24] – [27]

¹⁵ Wan v AIRC (2001) 116 FCR 481 at [30]

¹⁶ Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089 at [28], 202 IR 288, affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663, 241 IR 177 at [28]

Printed by authority of the Commonwealth Government Printer

<Price code C, PR583914>