Fair Work Act 2009
s.604 - Appeal of decisions

Permission to appeal against decision [[2016] FWC 7468] of Commissioner Bissett at Melbourne on 18 October 2016 in matter number U2016/2357.

Introduction

[1] On 8 November 2016 Ms Jessica Tye lodged a notice of appeal in which she applied for permission to appeal and appealed under s.604 of the Fair Work Act 2009 (FW Act) against a decision of Commissioner Bissett issued on 18 October 2016 1 (Decision). In the Decision, the Commissioner found that Ms Tye’s dismissal by Tase 0508 Pty Ltd trading as Bakers Delight Broadmeadows (Bakers Delight) effective from on or about 9 May 2016 was a case of “genuine redundancy”, as that expression is defined in s.389 of the FW Act, and consequently dismissed her application for an unfair dismissal remedy.

[2] Ms Tye was initially employed as a trainee manager by Bakers Delight, commencing from July 2015. On 25 April 2016 there was a meeting between Ms Tye and the principal of Bakers Delight, Ms Hayley Stein-Edwards, concerning the future of her employment. There was a dispute about what was said at this meeting, but it was not in contest that Ms Tye was informed that she would no longer continue as a trainee manager but would move back into a sales assistant role. The number of hours of work in this role that was offered was in dispute.

[3] On 29 April 2016 Ms Stein-Edwards sent Ms Tye an email attaching a written offer for the sales assistant position which involved her working 15 hours per week (as against the 30 hours she had worked in the trainee manager’s role). On 5 May 2016 a further email was sent to Ms Tye attaching a letter, dated 25 April 2016, which stated that the trainee manager’s position had been made redundant, that her employment in that role was terminated, that she would receive two weeks’ notice, and that she was invited to accept the sales assistant role which had been offered to her. Ms Tye did not accept the role, regarded herself as having been dismissed, and filed her unfair dismissal remedy application on 18 May 2016. From her perspective, what had occurred was retaliatory action for her having queried the pay rate she was offered for the sales assistant role.

[4] Under s.385(d) of the FW Act, one of the requirements for an unfair dismissal is that it “was not a case of genuine redundancy”. Under s.396(d), whether the dismissal was a case of genuine redundancy is one of four matters which the Commission must decide before dealing with the merits of any unfair dismissal remedy application. Section 389 defines “genuine redundancy” as follows:

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.

[5] In the Decision, the Commissioner concluded that the requirements of s.389 were satisfied. In relation to s.389(1)(a), the Commissioner found that Ms Tye’s former position of trainee manager was no longer performed by anyone and that the tasks formerly associated with that position had been reassigned to other persons, principally Ms Stein-Edwards. The Commissioner was therefore satisfied that Bakers Delight no longer wanted the job previously done by Ms Tye to be done by anyone. 2

[6] In relation to s.389(1)(b), the Commissioner identified that an obligation to consult arose under cl.8 of the General Retail Industry Award 2010 (Award). The Commissioner found that those obligations were complied with by Bakers Delight:

“[40] I am satisfied that Ms Tye was involved in discussions in and around January 2016 in which she was advised of the financial situation of the business and that she had discussions with Ms Stein-Edwards on how the business could save money. I am also satisfied that she was aware that other staff had their hours cut (while she retained her 30 hours per week) because of business pressures to reduce costs.

[41] I am therefore satisfied that Ms Stein-Edwards did consult with employees of Bakers Delight on the changes to be made to the business and the reasons for those changes. Ms Stein-Edwards may not have been aware of the technical requirements of the Award but she appears to have intuitively been aware of the need to engage with her staff about the issues confronting the business and the need to change.

[42] Further, I am satisfied that the time lapse between the discussions with staff in January 2016 and the agreement with Ms Tye to move back into a sales assistant role were separated by a relatively short period of time, such that the consultation in January 2016 and on-going discussion with Ms Tye with respect to her performance and that of the bakery were close enough to be seen to extend to the discussions with Ms Tye about her future and that of the trainee manager role.

[43] I am therefore satisfied that Bakers Delight complied with its Award obligations to consult about the redundancy.”

[7] In relation to s.389(2), the Commissioner noted that Ms Tye had refused the sales assistant position on offer because of the lesser hours and rate of weekly pay, but found that “there was no obligation on Bakers Delight to offer redeployment to Ms  Tye into a position such where her salary would be maintained in circumstances where no such position existed within the business”. 3 We take that to amount to a conclusion that it was not reasonable to redeploy Ms Tye.

[8] In her notice of appeal and outline of submission in support of her application for permission to appeal, Ms Tye advanced, in substance, two contentions of error:

(1) The Commissioner erred in finding that the consultation requirements of the Award had been complied with. In this respect, it was contended that the Commissioner did not consider whether and/or when Bakers Delight made a definite decision to make changes likely to render Ms Tye’s position redundant, whether Ms Tye was notified of any definitely decided changes, whether Bakers delight had discussed the changes, their effects and possible mitigation with Ms Tye as early as practicable, and whether Bakers Delight had provided Ms Tye with all relevant information about any such definitely decided changes. The general discussions which occurred in January 2016 were, it was contended, incapable of satisfying the requirements for consultation in cl.8.1 of the Award, and as a result the Commissioner erred in dismissing Ms Tye’s application.

(2) The Commissioner erred by failing to consider evidence advanced by Ms Tye that Bakers Delight had engaged in a “course of conduct” after Ms Tye had queried her pay rate, including that her hours had been reduced, she had been required to take annual leave, a claim of an overpayment was made against her, and redundancy had suddenly supplanted performance concerns as the basis for her change in employment conditions, such that a finding of genuine redundancy was precluded.

[9] Ms Tye submitted that these contentions of error gave rise to questions of importance and general application concerning the operation of the s.389 criteria (in particular, in relation to consultation, changes in operational requirements and redeployment) which called for Full Bench guidance and justified the grant of permission to appeal in the public interest.

Consideration

[10] 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. 4 There is no right to appeal and an appeal may only be made with the permission of the Commission.

[11] 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.

[12] In the Federal Court Full Court decision in Coal & Allied Mining Services Pty Ltd v Lawler and others, Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s.400 as “a stringent one”. 5 The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment6. In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of the Commission 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.” 7

[13] 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. 8 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.9

[14] An application for permission to appeal is not a de facto or preliminary hearing of the appeal. In determining whether permission to appeal should be granted, it is unnecessary and inappropriate for the Full Bench to conduct a detailed examination of the grounds of appeal. 10

[15] It is apparent from the Decision that the Commissioner, in deciding that the dismissal was a case of genuine redundancy, accepted the evidence of Ms Stein-Edwards about the basis for the dismissal. Ms Stein-Edwards’ evidence, and the Commissioner’s acceptance of it, included the following elements:

(1) Ms Stein-Edwards’ evidence concerning the poor state of the finances of the business, and her reductions to the hours of other shop assistants, was not contested. 11

(2) The Commissioner accepted Ms Stein-Edwards’ evidence that the trainee manager’s position was no longer performed or occupied by anyone, with Ms Stein-Edwards having picked up most of Ms Tye’s former duties. 12 The finding in that respect was not challenged by Ms Tye in her appeal. This was the foundation for the Commissioner’s conclusion that Bakers Delight no longer required the job previously done by Ms Tye to be done by anyone.13

(3) Unlike Ms Stein-Edwards, Ms Tye had little recollection of the events of January 2016, although she accepted that other staff had their hours cut at this time and that she had not because she was in the trainee manager role. 14 Ms Tye was therefore not in a position to contradict Ms Stein-Edwards’ evidence on this score. The evidence of Ms Stein-Edwards concerning the financial difficulties and the restructuring which occurred in January 2016 was corroborated by three other witnesses, Ms Meehan, Ms Mazzeo and Mr Deselms.15 That led the Commissioner to conclude that consultation did occur in January 2016 consistent with Ms Stein-Edwards’ evidence, and that Ms Tye was involved in discussions in which she was advised of the financial situation of the business and measures the business proposed to take to save money.16

[16] The second contention of error which we have earlier summarised that Ms Tye seeks to advance in her appeal, should permission to appeal be granted, would necessarily involve the Full Bench overturning the Commissioner’s acceptance of Ms Stein-Edwards’ evidence. That is, Ms Tye’s contention that the termination of employment of her employment was motivated by retaliation for her query concerning pay rates and that her redundancy was an artificial construct, is entirely inconsistent with the Commissioner’s acceptance of Ms Stein-Edwards’ evidence concerning the basis of the dismissal. We do not consider that the grant of permission to appeal in order to allow Ms Tye to challenge a credit finding of this nature would be in the public interest in circumstances where the Commissioner had the advantage of seeing and hearing Ms Stein-Edwards and the other witnesses give their evidence and where crucial aspects of Ms Stein-Edwards’ evidence were not challenged at first instance and/or in the appeal and were corroborated by other witnesses whose evidence was not the subject of any challenge. The second contention is otherwise not reasonably arguable in the face of the Commissioner’s acceptance of Ms Stein-Edwards’ evidence.

[17] In relation to the first contention, we again note the Commissioner’s acceptance of Ms Stein-Edwards’ evidence concerning the discussions which occurred in January 2016 as well as her conclusion that those discussions had a rational connection with the redundancy which occurred in April 2016. 17 It may be accepted that Ms Tye’s specific contention that Bakers Delight did not comply with the consultation requirement in cl.8.1(b)(iii) of the Award, in that it did not provide in writing relevant information about the proposed changes and their effects, is reasonably arguable. There was no evidence adduced before the Commissioner of any such written information having been provided, and Ms Stein-Edwards (who appeared for Bakers Delight at the permission to appeal hearing) was unable to say that such information had been provided.

[18] However it does not follow that any error in that respect necessarily attracts the public interest and justifies the grant of permission to appeal. Errors which arise from the particular facts of the case and do not involve any issue or legal question of general importance or any substantial injustice to the appellant may not enliven any public interest considerations. 18 In this case, whether relevant information was provided in writing as part of the consultation process which the Commissioner found had occurred appears to us to be a purely factual issue discrete to this case, and does not give rise to any issue of general application requiring resolution at the appellate level. Even if clause 8.1(b)(iii) of the Award was not complied with, with the result that s.389(1)(b) was not fully satisfied, it does not appear to us that consequently any substantial injustice was caused to Ms Tye. On the findings of the Commissioner, Ms Tye’s position was authentically made redundant by a business in difficult financial circumstances, she was consulted about the business’s difficulties beforehand, and the business offered (and she declined) such alternative employment as it was able to provide her. It was not in dispute that other employees in the business had suffered cuts in hours as a result of the same financial difficulties. There does not seem to us to be any real possibility that Ms Tye could ultimately demonstrate her dismissal to have been unfair even if any failure to comply with cl.8.1(b)(iii) of the Award meant that the s.389(1)(b) element of the definition of genuine redundancy could not be satisfied.

[19] For these reasons we do not consider that it would be in the public interest to grant permission to appeal. In accordance with s.400(1) of the FW Act permission to appeal must therefore be refused.

VICE PRESIDENT

Appearances:

R Ternes of counsel with G Marchetti solicitor for J Tye.

H Stein-Edwards on behalf of Tase 0508 Pty Ltd t/a Bakers Delight Broadmeadows.

Hearing details:

2016.

Melbourne:

13 December.

 1   [2016] FWC 7468

 2   Decision at [24]-[29]

 3   Decision at [51]-[54]

 4   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

 5   (2011) 192 FCR 78 at [43]

 6   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]

 7   [2010] FWAFB 5343, 197 IR 266 at [27]

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

 9   GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343 at [26]-[27], 197 IR 266; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089 at [28], 202 IR 388, 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 at [28]

 10   Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]

 11   Decision at [21]

 12   Decision at [24]-[25]

 13   Decision at [29]

 14   Decision at [31]

 15   Decision at [33]-[36]

 16   Decision at [39]-[40]

 17   Decision at [42]

 18   Qantas Airways Limited v Carter [2012] FWAFB 5776; 223 IR 177 at [58]

Printed by authority of the Commonwealth Government Printer

<Price code C, PR588236>