Fair Work Act 2009
s.604 - Appeal of decisions

Appeal against decision [2017] FWC 3577 of Commissioner Wilson at Melbourne on 9 August 2017 in matter number U2017/2308 – unfair dismissal – genuine redundancy – permission granted – appeal dismissed.

[1] Mr Jason Law has lodged an appeal, for which permission is required, against a decision and order of Commissioner Wilson dated 9 August 2017. The Commissioner found that Mr Law’s dismissal by Amalgamated Pest Control Pty Ltd (Company) was a genuine redundancy within the meaning of s.389 of the Fair Work Act 2009 (Act), and dismissed his application for an unfair dismissal remedy.

[2] Mr Law was employed as the supervisor of the Company’s Darwin branch. He relocated to Darwin from Queensland to take up the role in June 2016, having previously worked for the Company as a contractor in Queensland. On 22 August 2016 Mr Law and other employees were advised in writing that the business had been sold to Flick Anticimex, another pest control company, but that business would continue as usual. 1

[3] However, within several months, the businesses were brought together, and their respective Darwin branches merged. From mid October 2016 Mr Law reported to Flick’s Northern Territory manager, Mr Van Veen.

[4] On 24 January 2017 Mr Van Veen told Mr Law that his position was to be made redundant, but that there was a possibility for him to become a contractor to the Company. 2 In a conversation on 30 January 2017, Mr Van Veen told Mr Law that a position as an employed pest control technician had become available.3 Mr Law did not indicate to Mr Van Veen that he wished to take up either role.

[5] On 5 February 2017 Mr Van Veen sent Mr Law an email and an attached letter, stating that his employment would be redundant with effect from 25 February 2017, and noting that if Mr Law wanted to take up the offer to become a contractor, the relevant agreement would need to be signed prior to 25 February. 4

[6] On 6 February 2017, Mr Law sent Mr Van Veen an email stating that he wished to pursue the contractor option, but on condition that he receive an exit payment and certain other benefits. 5 Mr Van Veen replied on 10 February 2017 advising that the Company did not accept this counter offer and that Mr Law’s position would become redundant effective that day. At a meeting that day, Mr Van Veen told Mr Law to contact him in ten days’ time to discuss the possibility of becoming a contractor.6

[7] Mr Law contends that his dismissal was not a case of genuine redundancy for the purposes of s.389 of the Act. In particular, he submits that the Company did not comply with its award obligations to consult with him about the redundancy, including by not providing relevant information to him in writing.

Permission to appeal

[8] An appeal under s.604 of the 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.⁷ There is no right to appeal and an appeal may only be made with the permission of the Commission.

[9] 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.

[10] In Coal & Allied Mining Services Pty Ltd v Lawler and others, the Federal Court characterised the test under s400 as ‘stringent’.⁸

[11] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.⁹ 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.”¹⁰

[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.¹¹ However, the fact that a member of the Commission at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.¹²

[13] 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.¹³

Relevant statutory provisions

[14] It is convenient to set out the statutory provisions that were at issue in the proceeding before the Commissioner. Section 385 provides that a person has not been unfairly dismissed if their dismissal was a case of genuine redundancy. The expression ‘genuine redundancy’ is defined by the Act in s.389 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.”

[15] Further, s.396 of the Act requires the determination of four matters before consideration of the merits of an unfair dismissal application. It provides as follows:

‘396 Initial matters to be considered before merits
The FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:

(a) whether the application was made within the period required in subsection 394(2);

(b) whether the person was protected from unfair dismissal;

(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;

(d) whether the dismissal was a case of genuine redundancy.’

Grounds of appeal

[16] Mr Law’s notice of appeal sets out 14 grounds of appeal. Grounds 1 to 6 allege errors on the part of the Commissioner in the manner in which the hearing was conducted. Grounds 7 to 10 submit that the Commissioner was wrong to conclude that the Company had complied with its consultation obligations under the Pest Control Industry Award 2010 (Award). Grounds 11, 13 and 14 challenge the Commissioner’s findings concerning the reason for Mr Law’s dismissal. Ground 12 concerns the question of redeployment.

Alleged procedural errors (grounds 1 – 6)

[17] Ground 1 alleges that the Commissioner conducted a ‘jurisdiction and arbitration conference / hearing by telephone’ without seeking the views of the parties, contrary to s.398(4). It further alleges that the Commissioner conducted a hearing without taking into account the views of the parties and without considering whether it was the most effective way to resolve the matter, contrary to s.399(1).

[18] There is no substance in this ground. The Commissioner clearly did take into account these considerations. 14 Furthermore, Mr Law’s representative agreed at the outset of the proceedings before Commissioner Wilson that the matter would be conducted as a telephone conference. This is what then occurred.15

[19] By grounds 2 and 4, Mr Law contends that the Commissioner erred by requiring him to present his case first and address both the Company’s jurisdictional challenge (i.e. that the dismissal was a genuine redundancy) as well as the merits of his application. He submits that s.396 required the Commissioner to determine first whether the dismissal was a case of genuine redundancy, and only then consider the merits.

[20] Section 396 states that the Commission ‘must decide’ the four matters listed (including whether the dismissal was a case of genuine redundancy) ‘before considering’ the merits of the unfair dismissal claim. It does not require the Commission to conduct separate proceedings in relation to the four matters on the one hand, and the merits on the other. In our view, it is perfectly possible for the Commission to conduct a single proceeding, whether by conference or hearing, addressing both one of the four ‘initial matters’ and the merits. Simply by conducting a single proceeding the Commission is not considering the merits. Indeed in the present case, the Commissioner stated clearly that the jurisdictional objection of the employer concerning genuine redundancy had been made good and that the merits of the application were therefore ‘unnecessary to consider’. 16

[21] This interpretation of s.396 is harmonious with other relevant provisions in Part 3-2 of the Act. In particular, one of the four matters that the Commission is required to determine before considering the merits is whether the application was filed within the period set out in s.394(2), namely 21 days from the dismissal or such further period as the Commission may allow under s.394(3). Importantly, in considering an application to extend time under s.394(3), the Act says that the Commission must take into account (but not determine) the merits of the application (s.394(3)(e)). Mr Law’s construction of s.396 would render the interaction between that section and s.396 unworkable.

[22] Ground 3 submits that the Commissioner erred by requiring Mr Law to present his case first, and contends that Full Bench authority requires that a person challenging the jurisdiction of the Commission should present its case first. However, the authorities cited in the notice of appeal all pre-date the Act. The appropriate reference point for determining the question of which party should present its case first are the procedural provisions relating to unfair dismissal matters in Division 5 of Part 3-2, and the general provisions relating to conduct of matters before the Commission in Division 3 of Part 5-1. We do not discern in these provisions any general rule or presumption as to which party should present its case first. The Commissioner explained to the parties who would go first, how he proposed to conduct the proceedings and why. Mr Law’s representative did not object. 17

[23] Grounds 5 and 6 submit that the Commissioner erred by conducting the proceeding by telephone. Mr Law submitted that the matter was complex and involved contested facts, and that the Commission was not able to assess the credibility of witnesses as he could not see them. However, it is evident from the transcript that, following a discussion with the parties’ representatives as to how the proceeding would be conducted, the Commissioner asked Mr Hatton whether he objected to the proceeding being conducted by telephone. Mr Hatton answered ‘no’. 18 It is well-established that parties are bound by the conduct of their representatives.19

[24] We do not identify any appealable error in relation to grounds 1 to 6.

Compliance with consultation obligations (grounds 7 - 10)

[25] Ground 7 addresses the findings that the Commissioner was required to make in relation to the question of whether Mr Law’s dismissal fell within the definition of ‘genuine redundancy’ in s.389. The ground does not contain a contention of error on the part of the Commissioner. It does however itself contain an error, by asserting that the Award required consultation to occur before the Company made a definite decision about the redundancy; 20 in fact consultation is to occur ‘as early as practicable after a definite decision’.

[26] Ground 8 and 9 contend that the Commissioner erred in finding that the notice of impending termination provided by Mr Van Veen to Mr Law on 24 January 2017 constituted consultation under the Award and that it occurred as soon as practicable after a decision had been made to effect the relevant changes; and that the Commissioner erred in finding that the conversations between Mr Van Veen and Mr Law after 24 January 2017 constituted consultation.

[27] Ground 10 submits that the Commissioner erred by failing to find that the Company had not provided Mr Law with information in writing as required by clause 8.1(b)(iii) of the Award.

[28] Clause 8 of the Award deals with consultation and relevantly provides as follows:

‘8.1 Consultation regarding major workplace change

(a) Employer to notify

(i) Where an employer has made a definite decision to introduce major changes in production, program, organisation, structure or technology that are likely to have significant effects on employees, the employer must notify the employees who may be affected by the proposed changes and their representatives, if any.

(ii) Significant effects include termination of employment; major changes in the composition, operation or size of the employer’s workforce or in the skills required; the elimination or diminution of job opportunities, promotion opportunities or job tenure; the alteration of hours of work; the need for retraining or transfer of employees to other work or locations; and the restructuring of jobs. Provided that where this award makes provision for alteration of any of these matters an alteration is deemed not to have significant effect.

(b) Employer to discuss change

(i) The employer must discuss with the employees affected and their representatives, if any, the introduction of the changes referred to in clause 8.1(a), the effects the changes are likely to have on employees and measures to avert or mitigate the adverse effects of such changes on employees and must give prompt consideration to matters raised by the employees and/or their representatives in relation to the changes.

 (ii) The discussions must commence as early as practicable after a definite decision has been made by the employer to make the changes referred to in clause 8.1(a).

(iii) For the purposes of such discussion, the employer must provide in writing to the employees concerned and their representatives, if any, all relevant information about the changes including the nature of the changes proposed, the expected effects of the changes on employees and any other matters likely to affect employees provided that no employer is required to disclose confidential information the disclosure of which would be contrary to the employer’s interests.’

[29] The Commissioner’s conclusions in relation to the question of the Company’s compliance with its consultation obligations are as follows:

[35] The second of the “genuine redundancy” criteria involves a necessary finding that the employer has complied with any consultation obligation in the applicable modern award or enterprise agreement. In this regard, I note that the consultation clause of the Award, referred to above, requires notification to the affected employee or employees, together with an attendant obligation that there be discussions over the proposed change about measures to avert or mitigate adverse effects, and then genuine consideration of what is brought forward, if anything.

[36] The evidence shows that Mr Van Veen discussed alternatives with Mr Law, who considered those matters and took time to do so, and later put forward his own proposal for resolution of the matter. While that process did not lead to agreement, the evidence shows nonetheless that Amalgamated Pest Control complied with the consultation/discussion/consideration obligations it held under clause 8 of the Award.

[30] Clause 8.1 requires an employer to notify employees once it has decided to introduce major change that (relevantly) will lead to termination of employment, and to discuss the relevant changes with affected employees.

[31] Contrary to what is contended in ground 8, the Commissioner did not make a finding that the notice of impending termination provided to Mr Law (orally) on 24 January 2017 constituted consultation. Rather, the Commissioner noted that consultation under the Award requires notification, and concluded that the Company complied with the ‘consultation / discussion / consideration obligations’ under clause 8. Earlier in his decision the Commissioner set out the discussion that occurred between Mr Van Veen and Mr Law on 24 January 2017, and made a finding of fact that the evidence about that conversation ‘indicates that Mr Van Veen communicated to Mr Law that his position was to be redundant.’ 21 It is abundantly clear that the Commissioner found the Company had complied with its notification obligations under clause 8.1(a).

[32] Grounds 8 to 10 challenge the Commissioner’s conclusion that the Company complied with its obligations to discuss the redundancy with Mr Law. At [36], the Commissioner finds that Mr Van Veen discussed alternatives with Mr Law, and that Mr Law considered those alternatives and put forward his own proposal. The Commissioner finds that although that ‘process’ did not lead to agreement, it satisfied the ‘discussion obligations’ in clause 8.1.

[33] Clause 8.1(b) concerns the obligation to discuss change and comprises three elements. First, sub-clause (i) requires an employer to discuss with affected employees the change, its likely effects, and mitigation measures, and to give consideration to matters raised by the employee. In his decision, the Commissioner addresses the discussions that occurred between Mr Van Veen and Mr Law from 24 January 2017 and 10 February 2017. 22 It is not necessary to repeat them here. No specific allegation is raised that the Company did not discuss the change. It is evident that the Commissioner was satisfied that these discussions met the requirements in clause 8.1(b)(i). The Commissioner made no error in this connection.

[34] Clause 8.1(b)(ii) then requires that the discussions must commence as early as practicable after a definite decision has been made to make the changes referred to in the previous sub-clause. Ground 8 challenges the Commissioner’s finding that this requirement was satisfied. The Commissioner makes no separate finding in relation to this point, but it is clear to us (and Mr Law does not contest) that the Commissioner was satisfied that this requirement had been satisfied. Mr Law does not advance any particular contention as to when the Company ought to have commenced the discussions, nor does the material presented in support of the application for permission to appeal point to tardiness or delay on the part of the Company in connection with the commencement of discussions.

[35] Lastly, clause 8.1(b)(iii) provides that ‘for the purposes of such discussion’, the employer must provide certain information to employees in writing. Ground 10 contends that the Commissioner erred by not finding that the Company failed to comply with this requirement. Again, there is no separate finding in the Commissioner’s decision in relation to compliance with this element of clause 8.1(b); the Commissioner’s conclusion at [36] in relation to the Company’s compliance with its consultation obligations is a composite one. We make no criticism of this. The decision sets out the evidence, the provisions of clause 8.1, a summary of the evidence as it relates to the clause, and a finding. However, the question is whether there is any error in the conclusion that the Company complied with the obligation to provide information in writing.

[36] Clause 8.1(b)(iii) requires written information to be provided to employees ‘for the purposes of such discussion’, those plainly being the discussions referred to in the previous sub-clauses. The employer is to provide relevant written information concerning the changes and their effects on employees. In the present context, the change or changes in question were the acquisition of Amalgamated Pest Control by Flick, and later the Company’s decision that it no longer required Mr Law’s position. The effect of this later decision was that Mr Law’s employment in the position of Darwin office supervisor would end.

[37] The Company provided Mr Law with information in writing about these matters. In his decision, the Commissioner sets out the letter from the Company to Mr Law and other employees of 22 August 2016. This advised of the acquisition, and stated that it would (at that stage) be ‘business as usual.’ 23 On 5 February 2017, following discussions that occurred between Mr Van Veen and Mr Law, the Company sent Mr Law the email and attached letter referred to earlier, advising that his employment would be redundant effective from 25 February, and addressing the option of him becoming a contractor.

[38] It appears that the letter of 5 February 2017 was a response to a request from Mr Law in a meeting with Mr Van Veen on 3 February 2017 that the Company provide certain information in writing. The Commissioner notes Mr Van Veen’s evidence about this conversation:

He said: "Could you put something in writing about my position being made redundant and provide me with an estimate payout figure. Also could you let me know what the equipment costs associated with becoming a Pest Control Contractor are."

I said: "Okay. How does a finish date of 25 February 2017 in relation to your position as Branch Supervisor sound?"

He said: "That sounds fine." 24

[39] The Company provided Mr Law the information in writing that he had requested. 25 We do not suggest that there is any onus on an employee to request information in writing in order for the obligation in clause 8.1(b)(iii) to be enlivened. However, the clause provides that relevant information is to be provided to employees, and an employee’s request of particular information may inform the question of what information is relevant.

[40] The written information required by clause 8.1(b)(iii) does not need to be provided at any particular time or as part of any sequence of events. It does not need to be provided before the discussions commence, or at the time when they commence. The written information must however be provided ‘for the purposes of such discussion’.

[41] In the present case, the discussions included the meeting between Mr Law and Mr Van Veen on 24 January 2017, when Mr Law was told that his position would be redundant but that there was a possibility of him becoming a pest control technician or contractor. The discussions also included subsequent conversations referred to in the Commissioner’s decision. 26 In our view, they also included the written correspondence between the parties. The ordinary meaning of the term ‘discussions’ includes both oral and written communications.27 In the present case we consider the email and letter of 5 February 2017 and Mr Law’s written response of 6 February 2017 (his ‘counter offer’ concerning the contractor possibility) to be part of the discussions. Indeed the last-mentioned letter commences by Mr Law stating: ‘Thank you for taking time to speak with me on Friday and to formalise the conversations we have had over the past week.’

[42] The Commissioner refers to the discussions, correctly in our view, as a ‘process’ that met the requirements of clause 8.1. It is for the purposes of such discussion that information must be provided in writing. The letter of 5 February 2017 provided such information. It was itself part of the ‘discussions’. It addressed the change relating to Mr Law’s position and the effect it would have on Mr Law. It also provided information about the contractor option, should Mr Law wish to take it up. It provided the information Mr Law had requested. We accept that this written information was provided towards the end of the process. However, clause 8.1(b)(iii) does not require otherwise, as long as the information is provided in time to achieve the relevant purpose.

[43] We note that the effective date of the redundancy was brought forward from 25 to 10 February 2017, evidently following a terse exchange between Mr Law and Mr Van Veen on the morning of 6 February 2017. 28 There was no further conversation between Mr Van Veen and Mr Law in relation to the change of the effective date of redundancy, although there were further discussions between the two concerning the possibility of Mr Law becoming a contractor; at a meeting on 10 February 2017, Mr Van Veen told Mr Law to contact him in ten days to further discuss this possibility.

[44] In our view, the bringing forward of the effective date of the redundancy was a matter which the Company was required to ‘discuss’ with Mr Law. It is part of the ‘effect’ on the employee occasioned by the change that is contemplated by clause 8.1 of the Award. However, as noted, the discussion concerning Mr Law’s redundancy was a process that was partly oral and partly in writing. After the change in date was advised, there was a further discussion between Mr Van Veen and Mr Law. The change in date was not mentioned. However, Mr Law did not object to or contest the change in date. Mr Van Veen again raised the mitigation measure of a contracting possibility. In our view, clause 8.1 did not require the change in date to be specifically addressed in conversation between the parties. As with the initial effective date of redundancy, 25 February 2017, Mr Law was advised of the date and there was then an opportunity for Mr Law to raise any issues he had with it. We do not consider the bringing forward of the effective date of redundancy to have deprived the dismissal of the status of a genuine redundancy for the purposes of the Act. In the latter respect, we note that the question of consultation in relation to the change in effective date of redundancy was not raised at first instance, or in the appeal grounds, and was mentioned only obliquely at the very conclusion of oral argument before the Full Bench.

The reason for the dismissal (grounds 11, 13 and 14)

[45] Mr Law contends by ground 11 that the Commissioner erred in finding that the Company no longer required Mr Law’s job to be performed by anyone because of changes to operational requirements. He contends that this finding was against the body of the evidence and counterintuitive. Mr Law calls into question the genuineness of the operational reason provided by the Company on the basis that his dismissal for redundancy followed closely after he had raised issues concerning his contractual entitlements with the Company. Ground 13 provides an alternative theory of the true reason for Mr Law’s dismissal, namely that it occurred for alleged conduct grounds.

[46] The Commissioner noted in his decision Mr Law’s evidence that there were tensions between him and Mr Van Veen, and that they had differences of opinion, including in relation to a question of reimbursement for vehicle running costs and the repair of tyres. 29

[47] The Commissioner also noted the conflicting evidence of Mr Law and Mr Van Veen about a conversation on 3 February 2017. According to Mr Law, Mr Van Veen told him that when he ‘stirred the pot with head office [concerning the issue with his tyres] they didn’t appreciate it’. 30 Mr Van Veen denied saying this.31 The Commissioner does not make any finding as to whether or not Mr Van Veen did make this statement, and does not make general findings about whose evidence he prefers. However, even if Mr Law’s evidence were accepted on this point, it does not appear to us to suggest that he was targeted for redundancy for conduct-related reasons.

[48] The Commissioner specifically considered and rejected Mr Law’s contention that he had been targeted for redundancy because he had ‘stirred the pot with head office’ and thereby become a nuisance. He concluded that the evidence did not support a finding that this was the Company’s reason (or among its reasons) for dismissing Mr Law. 32 Rather, the Commissioner made a finding that the Company no longer required Mr Law’s job to be performed by anyone because of changes in the operational requirements of its enterprise.33 We do not identify an error in this regard.

[49] In relation to ground 13, the contention is made that the bringing forward of the effective date of Mr Law’s redundancy in fact reflected a decision by the Company to terminate his employment for conduct. The conduct in question is evidently said to be Mr Law’s ‘aggressive outburst’ at a meeting with Mr Van Veen on 6 February 2017, which is referred to in Mr Van Veen’s letter to Mr Law of 10 February 2017. The Commissioner does not address this contention in his decision, although it was raised in Mr Law’s contentions. 34 It is not necessary for a decision-maker to refer to every piece of evidence and every contention advanced by a party. However, this submission was in our view centrally relevant to the jurisdictional question, namely whether the dismissal constituted a genuine redundancy. We accept that the Commissioner’s failure to address this point was an error. If Mr Law had been terminated because of his conduct before his redundancy took effect, the dismissal would not have been a case of genuine redundancy.

[50] However, having examined all of the material on appeal, we do not consider that this is what occurred. Mr Van Veen’s letter of 10 February 2017 refers to Mr Law’s earlier ‘aggressive outburst’, and says that the Company had ‘reviewed its position’ and decided to withdraw the offer of employment as a pest control technician. It then states that ‘as a result’, the effective date of redundancy would be 10 February 2017. We read this to be a ‘result’ of the Company’s review of its position, not the outburst. Further, at the start of his letter, Mr Van Veen clearly reiterated that because of the merger and relocation of branches, there was no longer a need for a branch supervisor in Darwin, and that Mr Law’s position was redundant. This was the reason for dismissal. Such was the conclusion reached by the Commissioner. 35 In our view, this conclusion was correct.

[51] Mr Law also contends, by ground 14, that the Commissioner erred in failing to criticise the Company for not calling Mr Newby, the ultimate decision-maker in relation to the redundancy of Mr Law’s position. However, Mr Law could have sought an order that Mr Newby attend the hearing and give evidence. He did not do so. In any event, Mr Van Veen, as the Northern Territory manager, had detailed knowledge of the relevant issues and the decision to dismiss Mr Van Veen. He was the central witness for the Company. We see no reason why the Commissioner should have criticised the Company for not calling Mr Newby.

Redeployment (ground 12)

[52] Ground 12 claims that the Commissioner erred in finding that it was incumbent on Mr Law to establish that it would have been reasonable to redeploy him within the Company’s business or an associated entity. The Commissioner makes no such finding. In addressing the question of redeployment, 36 he notes that Mr Law ‘failed to ask a question about employment in other states, or at all. When Mr Law followed up his proposal on 9 February there was again no mention of relocation.’ In our view, this was simply a statement of Mr Law’s apparent preferences, not of legal or evidentiary onus. Mr Law had expressed interest in the possibility of becoming a contractor, rather than taking up alternative employment as a pest control technician that had been raised by the Company; and he did not express interest in relocation.

[53] The Company clearly gave consideration to redeploying Mr Law to the technician role in Darwin. This was not a supervisory role, and was evidently at a lower level than Mr Law’s position. Mr Law’s evidence before the Commission seems to have been that he rejected the suggestion that he had declined this opportunity. 37 However, there does not appear to be any evidence that he wanted or would accept this position, nor does Mr Law make any submission to this effect now. The information in writing that Mr Law requested from the Company did not include information about the position. His letter of 6 February 2017 expressed interest only in the contractor role.

[54] Mr Law submits that he would have considered a role outside of Darwin. However, the Commissioner finds that there was ‘no evidence before the Commission that there were such positions available in places other than Darwin.’ 38As the Full Bench observed in Technical and Further Education Commission v Pykett, to show that it would have been reasonable for an employer to redeploy a person, it is not necessary to identify a particular job or position in which the dismissed employee could have been redeployed. However, the Commission must be satisfied on the balance of probabilities, based on the evidence, that there was a ‘job or a position or other work’ to which it would have been reasonable to redeploy the person.39 In the present case, there simply was no evidence of other work, other than the pest control technician position in Darwin.

[55] The Commissioner concluded that the Company had satisfied its ‘obligation’ to consider redeployment. By this we consider the Commissioner to have determined that he was not satisfied that it would have been reasonable for the Company to redeploy Mr Law. We do not consider that this conclusion discloses any error on the part of the Commissioner.

Conclusion

[56] As we have identified an error that is relevant to a jurisdictional question that was before the Commissioner, we consider that it is in the public interest to grant permission to appeal. However, we have concluded that in relation to the subject matter of the error identified, the Commissioner nonetheless reached the correct conclusion.

[57] As we consider that it is in the public interest to grant permission to appeal, we are required by s.604 to grant permission, and we do so. However, we have concluded that the Commissioner was correct in his determination that Mr Law’s dismissal was a case of genuine redundancy. Accordingly, we dismiss the appeal.

DEPUTY PRESIDENT

Appearances:

Mr Steve Hatton, Solicitor for the Appellant
Mr Tass Liveris, of counsel for the Respondent

Hearing details:

2017
Melbourne
Darwin
5 October

 1   Paragraph 9 of the decision

 2   Paragraph 17 of the decision

 3   Paragraph 18 of the decision

 4   Paragraph 21 of the decision

 5   Paragraph 24 of the decision

 6   Witness statement of Mr Van Veen, paragraph 51

⁷ This is so because on appeal the Commission has power to receive further evidence, pursuant to s607(2); see Coal and Allied v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ

⁸ (2011) 192 FCR 78 at [43] per Buchanan J (with whose judgment Marshall and Cowdroy JJ agreed)

⁹ 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]

¹⁰ [2010] FWAFB 5343, 197 IR 266 at [27]

¹¹ Wan v AIRC (2001) 116 FCR 481 at [30]

¹² 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]

¹³ Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]

 14   PN69-80, transcript of proceedings of 1 June 2017

 15   PN81, PN97-98

 16   Paragraph 42 of the decision

 17   PN114-117

 18   PN71 to 77

 19   See Smits v Roach, 227 CLR 423

 20   See paragraph 20 of the notice of appeal; compare clause 8.1(b)(ii) of the Award

 21   Paragraph 17 of the decision

 22   Paragraphs 17 to 25 of the decision

 23   Paragraph 9 of the decision

 24   Paragraph 20 of the decision; Statement of Mr Van Veen in the proceedings before Commissioner Wilson, Exhibit R2, paragraph 39

 25   The passage above is extracted from Mr Van Veen’s statement, however Mr Law agreed in cross examination that he had requested something in writing concerning his position becoming redundant together with an estimate of his payout figure: PN435

 26   See paragraphs 18, 19, 20, 21, 23 and 25

 27   See the definitions in the Concise Oxford Dictionary and the Macquarie dictionary. See also the discussion in Australian Meat Industry Employees Union, [2015] FWCFB 5228 at [24] and [25]

 28   See the termination letter of 10 February 2017

 29   Paragraphs 14 to 16 of the decision

 30   Paragraph 19 of the decision

 31   Paragraph 20 of the decision

 32   Paragraph 33 of the decision

 33   Paragraph 34 of the decision

 34   See paragraphs 66 to 68 of the Applicant’s submissions on jurisdiction and merit at first instance.

 35   Paragraphs 33 and 34 of the decision

 36   Paragraphs 37 to 41 of the decision

 37   Paragraph 23 of the decision

 38   Paragraph 41 of the decision

 39   (2014) 240 IR 130 at [36]

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