DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Ms Deborah Hallam
v
Sodexo Remote Sites Australia Pty Ltd
(C2017/4642)

Appeal against decision [2017] FWC 4105 of Commissioner Spencer at Brisbane on 4 August 2017 in matter number U2017/3968 – permission granted.

[1] Deborah Hallam has applied for permission to appeal a decision of Commissioner Spencer issued on 4 August 2017 (the Decision) in which the Commissioner dismissed her application for a remedy in relation to unfair dismissal under s.394 of the Fair Work Act 2009 (FW Act).

[2] Sodexo Remote Sites Australia Pty Ltd (Sodexo) opposes the application on public interest grounds and because it says the Decision contains no significant error of fact or other appealable error.

[3] Ms Hallam was one of hundreds of employees whose positions were made redundant after Sodexo decided to outsource its four labour ‘relief pools’ in late 2016. The dismissal consequent on the redundancy of Ms Hallam’s position took effect on 24 March 2017. At the time of her dismissal, she was employed as a full time fly in, fly out “Relief Project Manager” and was one of seven relief pool managers in Queensland. 1 Four were redeployed to other managerial roles as part of the restructure. The remaining three were made redundant.2

[4] The parties sought permission to be represented by lawyers under section 596 of the FW Act. On 26 September 2017, we advised the parties that given the complexity of the matter, we were satisfied that legal representation would enable the matter to be dealt with more efficiently and that permission was granted.

[5] The application for permission to appeal was heard before us on 3 October 2017. Both parties filed written materials including submissions and supplementary submissions. We have taken those materials into account in our consideration of the application.

Grounds of appeal

[6] Ms Hallam’s notice of appeal challenges the Decision on the basis that it was a “significant error of fact and/or law” to find that the dismissal was a genuine redundancy.

[7] Specifically, Ms Hallam relied on the following grounds:

a. The Commissioner failed to find that Sodexo could have, and should have, offered her a position as a Camp or Village Manager at or around 22 November 2016;

b. The Commissioner failed to find that Ms Hallam could have been employed in the role of Property Administrator at or around 12 December 2016 and/or at or around 8 February 2017;

c. The Commissioner failed to find that there were a variety of other positions that Ms Hallam could have, and should have, been redeployed to by Sodexo; and

d. In all the circumstances, the Commissioner failed to find that Sodexo reasonably had the capacity to redeploy Ms Hallam to another position in its company, or its associated entities, and ought to have offered to so redeploy her.

[8] In the hearing of this matter on 20 November 2017, Ms Hallam sought to amend the Notice of Appeal to add a further ground of appeal, namely that her dismissal was for personal conduct reasons and not because her position was redundant. In doing so, she sought to introduce new evidence related to when the decision to dismiss her was made, and the reasons for it, arguing that it was probative of the date of the relevant decision and the real reason for the decision, which she now contended was to get rid of “poor performers”.

[9] On our review of the material, there was no contention from Ms Hallam that she was dismissed for personal performance or conduct reasons at first instance. The appeal process is not intended to provide an avenue for an unsuccessful party to re-run their case or redress deficiencies in the manner in which their case was run at first instance. 3 We are not persuaded that it is appropriate to allow the amendment sought.

[10] The documents in question were discovered in separate proceedings conducted by Ms Hallam’s own legal representatives. Ms Hallam has not satisfactorily explained why those documents could also not have been sought and produced at an appropriate stage such as to enable them to form part of Ms Hallam’s case below. We are also conscious that this is not the first time Ms Hallam has sought to introduce documents only discovered at a late stage. 4 The Act requires the Commission to perform its functions in a manner that is fair, just and quick.5 It is inconsistent with such an approach to continually expand the scope of proceedings because relevant inquiries were not made at the appropriate time.

Permission to appeal

[11] An appeal under section 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. 6 There is no right to appeal and an appeal may only be made with the permission of the Commission.

[12] Section 400 of the FW Act also applies in this case. It 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.

[13] In Coal & Allied Mining Services Pty Ltd v Lawler and others, the Federal Court characterised the test under s400 as ‘stringent’. 7

[14] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment. 8 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.” 9

[15] 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. 10 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.11

[16] 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. 12

Relevant statutory provisions

[17] It is convenient to set out the statutory provisions that were at issue in the initial proceeding. 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 section 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.”

Camp or Village Manager Role

[18] The first ground of appeal relates to an alleged failure on the part of the Commissioner to find that Sodexo could have, and should have, offered Ms Hallam a position as a Camp or Village Manager at or around 22 November 2016;

[19] According to Ms Hallam, on 22 November 2016, Sodexo had vacancies in the role in which Ms Hallam was employed, and also knew it would soon be making her role redundant. In failing to “quarantine” a Camp/Village Manager position for Ms Hallam, or advise her that her position was in doubt and invite her to express interest in November 2016, Ms Hallam considers that Sodexo failed to do all that it ought reasonably to do to redeploy her. 13

[20] This argument misunderstands the statutory test. Subsection 389(2) states 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. Subsection 389(2) places no obligation on an employer to redeploy, or to do everything possible to achieve a redeployment outcome. The exception is applied at the time of dismissal. 14 It operates so that a dismissal that would otherwise be a case of genuine redundancy under subsection 389(1) will not be so if it would have been reasonable in all the circumstances for the person to be redeployed within the employer’s enterprise, or with an enterprise of an associated entity of the employer.

[21] In this case, the time of dismissal was 24 March 2017. At that time, it is not evident that there were any job vacancies for Camp or Village Managers either open or in contemplation. The evidence indicates that in some part of the business, some months earlier and again some months later, expressions of interest for people in those roles were sought. In any event, Ms Hallam already occupied a position of this kind 15 and had not been usefully employed for some months. This speaks against the proposition that there was an available role of this kind for her to fill.

[22] The Commissioner considered the range of roles said to be suitable for Ms Hallam, including specifically in relation to “Relief Project/Camp Manager”. 16 She considered whether it would have been reasonable to “quarantine positions” or extend the length of the redeployment period, following a suggestion from Counsel that one option available to Sodexo in the circumstances was “quarantining positions… starting with those project or camp manager positions in late November 2016”.17

[23] The Commissioner found that “positions advanced by the Applicant as prospective options for redeployment, were established on the evidence to be unsuitable, based on the Applicant’s qualifications and experience at the time of the redundancy” 18, and that there was “no identified position within the Respondent’s operation, or its associated entities’ enterprises where it would have been reasonable to redeploy the Applicant”. The fact that there was a more detailed consideration of the role of Property Administrator does not in our view mean other potential roles were not considered.19

[24] In our view, the Commissioner’s consideration of the evidence about the possibility of redeployment into Camp or Village Manager roles does not disclose any arguable case of appealable error.

Property Administrator role

[25] This ground of appeal is concerned with whether the Commissioner failed to find that Ms Hallam could have been employed in the role of Property Administrator at or around 12 December 2016 and/or at or around 8 February 2017. There are two limbs to this argument. The first is that, having demonstrated on the evidence that Ms Hallam could perform each of the 22 duties required of the role, the Commissioner was wrong to find that Ms Hallam required the necessary qualification for it. The second limb contends that there was no or insufficient evidence before the Commission to support a finding that redeployment to that role would have required Ms Hallam to undertake 12 months’ retraining, which would have been unreasonable in the circumstances. 20

[26] On our review of the evidence, it appears to have been established that with training, Ms Hallam could have performed the “main assignments” of the Property Administrator role. However, Sodexo also required the person occupying the role to have relevant knowledge of the real estate industry and “current registration to be able to perform the property management”. 21 Ms Hallam had neither. In the circumstances, the Commissioner’s factual finding that at the relevant time, the position was unsuitable for Ms Hallam, does not disclose an arguable case of appealable error.

[27] The relevant finding on retraining is found at [104] of the Decision, where the Commissioner accepted the evidence before her concerning the time it would take to obtain the qualification. 22 We do not identify any arguable case of appealable error in relation to the findings about the Property Administrator role.

Other available positions

[28] A further ground of appeal advances the argument that the Commissioner failed to find that Sodexo had a variety of other positions that Ms Hallam could have, and should have, been redeployed into.

[29] We have already noted that the Commissioner considered the range of positions potentially available to Ms Hallam, and made relevant findings.

[30] Whether redeployment would have been reasonable in the circumstances is not limited to a consideration of what positions were appropriate for a particular employee at the relevant time. Other relevant considerations also arise, including the views of the employees concerned.

[31] Ms Hallam asserted 23 that had she known about certain vacant positions at Sodexo before her dismissal she would have “sought more information about them and sought to be redeployed to one of those positions”. This evidence must be weighed against the fact that some of those positions were known to Ms Hallam between 2 March 2017 and 24 March 2017.24 Rather than making inquiries or seeking redeployment, she rejected them out of hand. 25 The Commissioner took account of this and we do not consider her approach or analysis in this regard reveals an arguable case of appealable error.

The general capacity of Sodexo to redeploy

[32] The final ground of appeal relates to whether Sodexo generally had the capacity to redeploy Ms Hallam to another position in its company, or its associated entities, and ought reasonably to have offered to do so.

[33] The argument essentially contends that because Sodexo is a large multi-national company, its size, resources and turnover means that it will almost inevitably be in a position to redeploy redundant employees. In the absence of an identified existing position, Counsel argued it was reasonable that one be created.

[34] We do not accept this submission, which would amount to a finding that section 389(2) has limited or no application to employers of a certain size. There is no basis for reading such a limitation into the legislative scheme of the FW Act.

[35] As the Full Bench observed in TAFE NSW v Pykett 26, 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, and 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. In the present case, the evidentiary burden did not reach the requisite threshold. This ground of appeal does not disclose an arguable case of appealable error.

Consultation obligations

[36] In order to find that the dismissal was a genuine redundancy, the Commissioner was required to be satisfied that Sodexo complied with any obligation in a modern award or enterprise agreement that applied to Ms Hallam’s employment and required it to consult about the redundancy. 27

[37] The fact of award or agreement coverage was in issue in the proceedings. Ms Hallam did not rely on a failure of consultation in arguing that the redundancy was not a case of genuine redundancy. However, for the reasons which follow, we consider there is disclosed on the face of the Decision an arguable case of appealable error in the Commissioner’s consideration of subsection 389(1)(b) of the Act.

[38] The Commissioner considered the consultation processes undertaken by Sodexo. 28 However, it is at least arguable that she did not make a finding about whether there was an obligation to consult under the relevant award or agreement. A failure to make such a finding would have the result that the Commissioner could not have been satisfied that the criterion in subsection 389(1)(b) had been met. Accordingly, we consider that an arguable case of appellable error is established.

[39] It follows that the finding at [113] of the Decision that the dismissal was a case of genuine redundancy was arguably erroneous, and the arguable error is one going to jurisdiction.

Conclusion

[40] As we have identified an arguable case of jurisdictional error in the Decision, we consider that it is in the public interest to grant permission to appeal and we do so.

[41] The substantive appeal will be listed for hearing in due course and directions for the conduct of the appeal will follow separately.

DEPUTY PRESIDENT

Appearances:

Mr R W Haddrick, Counsel with Ms A Langtree, Solicitor for the Appellant

Mr T Lange, Solicitor for the Respondent

Hearing details:

2017

3 October

11 November

Melbourne via Video Link to Brisbane

Final Written Submissions:

Appellant’s Submissions dated 27 November 2017.

Respondent’s Submissions dated 24 November 2017.

 1   Witness statement of Shalyn Jones at paragraph 11.

 2   Witness statement of Shalyn Jones at paragraph 12.

 3   Melbourne Stadiums Ltd v Sauter [2015] FCAFC 20 at [128]; Esso Australia Pty Ltd v Australian Workers Union & Ors [2015] FWCFB 210 at [17] (citing KA Murphy v SF Finance Pty Ltd (unreported, Print P1395, AIRCFB, 29 May 1997); Curtis v Darwin City Council (2012) 224 IR 174 at [80]).

 4   C2017/3968 Transcript 5 July2017, PN22-PN32

 5   Fair Work Act 2009, section 577

 6   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

 7   (2011) 192 FCR 78 at [43] per Buchanan J (with whose judgment Marshall and Cowdroy JJ agreed)

 8   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]

 9   [2010] FWAFB 5343, 197 IR 266 at [27]

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

 11   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]

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

 13   This ground relates to a list of “Job Names” and “Job Open Dates” (the List) said to relate to job vacancies at Sodexo in the period from 1 August 2016 to 12 April 2017, produced by Sodexo in response to an Order to Produce issued by the Commission on 23 June 2017.

 14   Ulan Coal Mines Ltd v Honeysett [2010] FWAFB 7578 at [28]; TAFE NSW [2014] FWCFB 714 at [35]

 15   Transcript PN593, 5 July 2017

 16   Decision at [81]

 17   Transcript PN800, 5 July 2017

 18   Decision at [106]

 19   Transcript PN142-146, 14 July 2017

 20   [2010] FWAFB 7578

 21   Transcript PN956, 5 July 2017

 22   See also Transcript at PN952-PN954, 5 July 2017

 23   Statutory declaration of Deborah Hallam, 3 July 2017

 24   Housing Manager, Sourcing Manager - FM

 25   Witness statement of Shalyn Jones at Annexure 6

 26   (2014) 240 IR 130 at [36]

 27   FW Act, s.389(1)(a)

 28   Decision at [75]

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