[2014] FWCFB 5595

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604—Appeal of decision

Piyush Jain
v
Infosys Limited T/A Infosys Technologies Limited
(C2014/767)

DEPUTY PRESIDENT GOSTENCNIK
DEPUTY PRESIDENT KOVACIC
COMMISSIONER BLAIR

MELBOURNE, 28 AUGUST 2014

Appeal against decision [[2014] FWC 1934] of Deputy President Hamilton at Melbourne on 15 April 2014 in matter number U2013/3348; whether dismissal a case of genuine redundancy; whether modern award applied to Appellant’s employment; no significant error of fact or any other appellable error identified; permission to appeal refused.

Introduction

[1] Piyush Raj Jain (Appellant) was dismissed from his employment with Infosys Technologies Ltd (Respondent) on 23 September 2013 on redundancy grounds. The Appellant was at the time of his dismissal employed in the position of Associate Manager Client Services in the Sustainability Unit of the Respondent’s business. The Respondent decided to close the Sustainability Unit for financial reasons and as a consequence of that decision the Appellant was dismissed.

[2] The Appellant lodged an application under s. 394 of the Fair Work Act 2009 (Act) for an unfair dismissal remedy. Subsequently the Respondent lodged a jurisdictional objection to the application in which it alleged that the dismissal was a case of genuine redundancy within the meaning of the Act. Prior to the commencement of the hearing to deal with the objection, the Respondent applied for and was granted permission to be represented by a lawyer. The Appellant opposed the grant of permission. His Honour concluded, inter alia, that there were complexities involved in a determination of suitable redeployment positions in overseas locations and that having regard to these complexities the grant of permission to the Respondent to be represented by a lawyer would enable the matter to be dealt with more efficiently 1.

[3] His Honour notified of the parties, through his Associate by email on 13 March 2014 of his decision to grant permission to the Respondent to be legally represented (Representation Decision), but no reasons for that decision were given 2. His Honour’s reasons for the Representation Decision were published when His Honour published his decision on the substantive question whether the Appellant’s dismissal was a case of genuine redundancy, on 15 April 20143.

[4] His Honour was satisfied that the dismissal of the Appellant was a case of genuine redundancy within the meaning of s. 389(1) of the Act 4. His Honour was also satisfied that the Respondent had examined whether there was a position into which the Appellant might be redeployed but no suitable position had been found. As the Appellant was not able to identify any specific job, position or other work into which he could have been redeployed, His Honour was unable to conclude that it would have been reasonable in all of the circumstances for the Appellant to be redeployed within the Respondent’s enterprise or within an enterprise of an associated entity of the Respondent5.

[5] By notice of appeal dated 5 May 2014 the Appellant seeks permission to appeal against both the Representation Decision and His Honour’s decision in dismissing the Appellant’s application because the Appellant’s dismissal was a case of genuine redundancy within the meaning of the Act 6. The Appellant also seeks to agitate errors said to have been made by His Honour in declining to make an order to require the attendance of a person to give evidence (Attendance Decision) and in that which the Appellant alleges was a decision by His Honour not to make an order for production of documents (Production Decision).

The nature of the appeal

[6] Each decision against which the Appellant seeks permission to appeal is a discretionary decision. Section 596(2) confers discretion on the Commission to grant permission to a person to be represented by a lawyer in the limited specified circumstances set out in that section.

[7] A decision whether a person has been unfairly dismissed turns relevantly here on whether the Commission is satisfied that the dismissal was not a case of genuine redundancy 7. As the High Court of Australia pointed out in Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission and Others8, “discretion” is a notion that indicates a number of different legal concepts9. It may refer, for example to a decision-making process in which no one consideration or a combination of considerations is necessarily determinative of the result, where the decision maker is permitted some latitude as to the choice of the decision that is to be made10. The notion of the discretion also includes the circumstance where a decision maker is required to make a particular decision if the decision maker forms a particular opinion or value judgement11.

[8] A decision which requires the decision maker to be “satisfied” of a particular state of affairs is one requiring the decision maker to form a particular opinion albeit by reference to the particular facts and circumstances of the case and is therefore a decision that may be described as discretionary 12. That s. 396 requires the question of whether a dismissal was a case of genuine redundancy to be determined before the merits of an application are considered does not change the character of the decision to be made. Ultimately it is for the Commission to be satisfied that the dismissal was not a case of genuine redundancy. Here His Honour was satisfied that the Appellant’s dismissal was a case of genuine redundancy for the reasons set out in his decision. It seems to us therefore that the appeal against that decision is an appeal from a discretionary decision.

[9] As to those parts of the appeal that concern the Attendance and Production Decisions, it seems clear enough from the terms of s. 590(2), the source of the power to make the relevant orders, that a decision whether such orders should be made is also discretionary.

[10] A party may only appeal a decision or order made by a single member of the Commission with the permission of the Commission 13. Unlike appeals against decisions made under other provisions of the Act, permission to appeal a decision made under the unfair dismissal regime in Part 3-2 will only be granted if the Commission considers it to be in the public interest to do so14. This limitation on the circumstances in which permission to appeal may be granted does not apply to the Representation Decision,15nor to Attendance or Production Decisions.16 If an error of fact is made by the first instance decision-maker in relation to a matter arising under a Part 3-2 matter, an appeal will only be available if that error of fact is a significant error of fact17. This is true in relation to each of the decisions the subject of appeal to the extent that any of the decisions is said to be affected by factual error, as each is a decision in relation to a matter arising under Part 3-2. More generally, other errors made by a first instance decision-maker must be of a kind identified in House v King18.

[11] The question of when it would be in the ‘public interest’ to grant permission to appeal in accordance with s.400 was considered by a Full Bench of Fair Work Australia in GlaxoSmithKline Australia Pty Ltd v Makin 19. The Full Bench observed:

“[26] Appeals have lain on the ground that it is in the public interest that leave should be granted in the predecessors to the Act for decades. It has not been considered useful or appropriate to define the concept in other than the most general terms and we do not intend to do so. The expression “in the public interest”, when used in a statute, classically imports a discretionary value judgment to be made to be made by reference to undefined factual matters, confined only by the objects of the legislation in question. [citing O’Sullivan v Farrer (1989) 168 CLR 210]
[27] Although 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, it seems to us that none of those elements is present in this case.”

Preliminary matters

[12] Before we consider whether permission to appeal should be granted and the substantive matters raised by the appeal it is necessary that we deal with three preliminary matters.

Permission to be represented by a lawyer

[13] The first concerns the application made by the Respondent that it be represented by a lawyer in the appeal proceedings. That application was opposed by the Appellant. On 8 July 2014 we decided to grant permission to the Respondent to be represented by a lawyer because it would enable the appeal to be dealt with more efficiently having regard to the complexity of the appeal and because it would be unfair not to allow the Respondent to be represented as it would not be able to effectively represent itself given the complexity of the appeal. These are our reasons for the grant of that permission.

[14] As is evident from the notice of appeal lodged, the Appellant raises 17 grounds of appeal. The appeal grounds raise errors said to have been made that are factual in nature and a number that are legal in nature. In particular the question whether it was reasonable in all the circumstances to redeploy the Appellant within the Respondent’s enterprise overseas or overseas to another enterprise of an associated entity of the Respondent is not without complexity. Given the size and nature of the Respondent’s global relationships the question whether particular entities within this global relationship are associated entities is also not without complexity. Other matters sought to be agitated on appeal such as the duty of a member of the Commission to provide assistance to an unrepresented party and the extent to which a member is obliged to inquire as to the existence of an applicable modern award are also not without complexity. In these circumstances taking into account the complexity of the matters that would be agitated on appeal, we were satisfied that permission to the Respondent to be represented by a lawyer should be granted because it would enable the appeal to be dealt with more efficiently.

[15] Further we were satisfied given the experience available amongst the employee resources that might be called upon and deployed by the Respondent to conduct the appeal that those employee resources lacked the necessary skill and experience to effectively conduct the appeal for the Respondent, and that the Respondent would not be able in the circumstances to represent itself effectively. Consequently we were satisfied that it be unfair not to allow the Respondent to be represented by a lawyer because in the circumstances of this appeal the Respondent is unable to represent itself effectively.

Application to admit further evidence

[16] The second matter concerns an application by the Appellant to be allowed to adduce further evidence on appeal. The Appellant sought leave to adduce additional evidence in the form of the Infosys Annual Report for 2013 – 2014, the Respondent’s Policy on Global Relocation and the Respondent’s Policy on Global Staff Mobility. During the hearing of the appeal we did not allow the Appellant to adduce that evidence 20. Our reasons for that decision are as follows.

[17] Section 607(2) of the Act provides that:

The FWC may:

(a) admit further evidence; and
(b) take into account any other information or evidence.

[18] Relevant material that comes to light subsequent to the time of an initial hearing may be admitted if it bears on an issue to be determined in the appeal 21. It is uncontroversial that the exercise of the discretion to admit further evidence is governed by the principles set out in Akins v National Australia Bank22. In Akins, the Court held at that:

Although it is not possible to formulate a test which should be applied in every case to determine whether or not special grounds exist there are well understood general principles upon which a determination is made. These principles require that, in general, three conditions need be met before fresh evidence can be admitted. These are: (1) It must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; (2) The evidence must be such that there must be a high degree of probability that there would be a different verdict; (3) The evidence must be credible. 23

[19] In considering whether to exercise the discretion in s. 607(2), it is permissible in an appropriate case to depart from the principles set out in Akins and the principles need not be strictly applied 24. However, we do not think this is an appropriate case.

[20] The first of the documents sought to be introduced as additional evidence is of marginal relevance to any issue that requires determination in this appeal or that required the determination in the matter before His Honour. The annual report was sought to be tendered in order to establish that there has been growth in the Respondent’s business over the last five years 25. That there has been such growth is accepted by the Respondent26. The annual report does not contain information about vacancies in positions to be filled within the Respondent27, or information from which it might be concluded that the Appellant was suitably qualified or experienced to fill any such vacancies28. The report does not contain information which would assist in determining whether other documents sought by the Appellant existed29.

[21] Whilst it is accepted that the annual report was not available to the Appellant at a time when he could have sought to tender that document in the proceedings before His Honour, given the concession made by the Respondent, the admission of the annual report as evidence is not necessary to make good that point. Nor would its admission serve to establish by evidence any other point that the Appellant was seeking to make. Certainly it is not evidence of the kind from which it can be said that there is a high degree of probability that there would be a different decision if it were entered into the evidence.

[22] As to the second and third documents, policies of the kind to which the Appellant refers were produced by the Respondent and given to the Appellant before the commencement of proceedings before His Honour. It also seems clear that there is not in existence a document which is a policy on international relocation in the event of redundancy 30. Given that such policies as maybe relevant to a question that requires determination were available to the Appellant at the time of proceedings before His Honour, but were not sought to be adduced as evidence, it does not seem to us appropriate that he be given permission to introduce that material into evidence in this appeal. Further as neither document deals with international redeployment of redundant employees, their relevance is marginal.

Applicant to extend time in which appeal against representation decision may be instituted

[23] The third matter concerns whether the Appellant should be given leave to institute an appeal against the Representation Decision. That decision was made on 13 March 2014. The decision was in writing and was published to the parties 31 however reasons for decision were provided later and were among the substantive reasons for decision the subject of this appeal32.

[24] The appeal (including an appeal against the Representation Decision) was lodged on 6 May 2014. Rule 56 of the Fair Work Commission Rules 2013 deals with appeals and the time period for instituting appeals. That rule relevantly provides that an appeal must be instituted within 21 days after the date of the decision appealed against. The appeal against the Representation Decision should have been instituted by no later than 3 April 2014. It was therefore instituted some 33 days after the last day available for lodgement of the appeal. Rule 56(2)(c) confers a discretion on the Commission to extend the time within which the appeal is to be lodged.

[25] Time limits of the kind in Rule 56 should not simply be extended as a matter of course. There are sound administrative and policy reasons for setting a limit to the time for bringing an appeal and it should only be extended where there are good reasons for doing so. The authorities 33 indicate that the following matters are relevant to the exercise of the Commission’s discretion under Rule 56(2)(c):

● whether there is a satisfactory reason for the delay;

● the length of the delay;

● the nature of the grounds of appeal and the likelihood that one or more of those grounds being upheld if time was extended; and

● any prejudice to the Respondent if time was extended.

[26] In broad terms the issue for the Commission is whether, in all the circumstances and having regard to the matters set out above, the interests of justice favour an extension of the time within which to lodge the appeal.

[27] The Appellant raises three broad grounds in support of his application that he should be allowed to institute the appeal against the Representation Decision outside the time prescribed in the rules. Firstly, the Appellant says that he was not aware that it was a decision about which he could appeal 34. Secondly, he says that the decision was communicated to him by email and that it did not have a reference number he could cite to lodge an appeal35. Thirdly, he says until the substantive decision that is the subject of this appeal was published he was not aware of the reasons for the Representation Decision and that he had made enquiries about being provided with an explanation for the reasons for the Representation Decision before this time but did not receive any explanation36, at least until the substantive decision was published.

[28] The first ground is unpersuasive and does not provide a satisfactory reason for the delay. It is well established in the context of the grant of an extension of time in respect of, for example, the making of an unfair dismissal remedy application, that being unaware of a right to make an application or of the time limit which pertains to making a valid application will not on its own justify extending time 37. We see no reason why the same approach should not be adopted in considering whether knowledge or awareness of a right of appeal should found a basis upon which an extension of time would be granted. We are not persuaded that it does. The second ground is also unpersuasive. Firstly, we observe that the suggestion that the absence of a reference number from the notification of the Representation Decision as a reason for being unable to lodge an appeal within time is inconsistent with an assertion that the Appellant was unaware of his right to appeal. Secondly, the absence of a reference number is no bar to instituting an appeal. Decision reference numbers are merely administrative in nature and there is no requirement in the Act that decisions that are made and published to parties carry a reference number38. Some decisions of the Commission are only recorded in transcript and do not carry reference numbers but are nonetheless appellable and are not infrequently the subject of appeal.

[29] As to the third ground, having regard to the nature of the Representation Decision it was not necessary for the Appellant to await the reasons for that decision before instituting the appeal. There was nothing to prevent the Appellant instituting the appeal, noting that the reasons had not yet been delivered, and subsequently seeking leave to amend the grounds of appeal. The circumstances in which the exercise of His Honour’s discretion to grant permission to the Respondent to be represented by a lawyer arises are limited. The grounds upon which the Respondent sought permission were set out in submissions filed beforehand to which the Appellant responded. While there is some scope to argue that different considerations arise where the decision subject to appeal involves the exercise of a discretion because in such a case the reasons may themselves provide the basis for an appeal, for example where the reasons disclose that the Member has had regard to an irrelevant consideration, we are not persuaded in the present case that significant weight should attach to the fact that His Honour‘s discretionary decision was made without reasons accompanying it.

[30] Moreover it seems to us that His Honour correctly identified, found and was satisfied of an appropriate factual basis relevant to the requirements of s. 596(2) and the exercise of his discretion. In our view His Honour correctly considered and applied the requirements of s. 596. The Appellant’s complaint as disclosed in the notice of appeal that the Representation Decision resulted in prejudice because he as a self represented litigant was not able to effectively cross examine the Respondent witnesses is a complaint about the consequence of that decision. It is not a complaint that the decision was erroneously made. The Appellant’s complaint that he was otherwise disadvantaged because the Respondent was legally represented and he was not, is a submission that he put to His Honour at first instance 39 and misunderstands the circumstance in s. 596(2)(c). That circumstance is concerned with unfairness to the person applying to be represented taking into account fairness as between that person and others in the same matter. It also misunderstands the interrelationship between each of the circumstances set out in s. 596(2). The Commission need not be satisfied that each of the circumstances is present. It only needs to be satisfied that one of the circumstances set out in s. 596(2) is present before deciding whether or not to exercise its discretion and grant permission for a party or parties to be represented. It is clear His Honour was satisfied of existence of the circumstances in s. 596(2)(a). He did not have to consider any other basis for granting permission.

[31] In these circumstances the Respondent’s appeal against the Representation Decision, should it be permitted to be lodged outside of the time prescribed, has little merit and the grounds upon which the appeal is advanced as disclosed in the notice of appeal and as argued in the written submissions filed by the Appellant have little prospect of being upheld.

[32] The length of delay is significant and the Appellant took no steps (other than lodging the substantive appeal) to institute an appeal against the representation decision after reasons for it were published on 15 April 2014. The length of delay does not assist the Appellant’s application for an extension of time. The Respondent did not assert that it would suffer any prejudice if an extension of time were granted, however the mere absence of prejudice will not on its own warrant the grant of an extension of time and ultimately we consider this factor to be neutral in the present circumstances.

[33] Therefore taking into account all of the circumstances we are not persuaded that it is in the interests of justice to extend time to institute the appeal against the Representation Decision. Accordingly, we dismiss the application to extend the time for the institution of that appeal.

Onus

[34] Before turning to consider the grounds of appeal we should make some observations about the question of onus or burden of proof in respect of unfair dismissal remedy applications in which the question whether the dismissal was a case of genuine redundancy is raised. This is because the question arises tangentially in a number of the grounds for appeal. The question arises in relation to the errors alleged in Grounds 5, 11 and 12 set out in the Appellant’s notice of appeal. 40 The question of onus or burden of proof related to whether a dismissal was a case of genuine redundancy was very recently considered by a Full Bench of this Commission in Teterin and Others v Resource Pacific Pty Limited41.

[35] It is apparent from the decision in Teterin, the question whether and the extent to which the legal concept of onus arises in relation to matters considered by a statutory tribunal such as the Commission is a difficult one. That said, in the context of the question whether a dismissal was an unfair dismissal in which there is also agitated whether the dismissal was a case of genuine redundancy, to the extent that there is a legal onus of proof or something analogous thereto, it rests with the applicant in the sense that the applicant bears the risk of failure if the satisfaction required by s. 385 including paragraph (d) is not reached. 42

[36] If a Respondent relies upon the dismissal as being a case of genuine redundancy, the Respondent would be expected to adduce sufficient evidence concerning the matters which arise for consideration in s. 389. This is because it bears the risk that without evidence the Commission might not be satisfied that the dismissal was a case of genuine redundancy. In that sense the Respondent to an unfair dismissal remedy application involving an allegation of genuine redundancy bears an evidentiary onus or something analogous thereto in respect of the matters in s. 389. 43

[37] In most cases the question of where an evidentiary onus (or something analogous to it) resides will be answered by asking; in relation to each matter about which the Commission must be satisfied, which party will fail if no evidence or no further evidence about that matter were given? The evidentiary onus will generally be the party that will fail in that event.

Consideration of Appellant’s grounds of appeal

[38] The notice of appeal sets out the 17 grounds of appeal alleging either significant errors of fact or errors of law said to have been made by His Honour in his decision. Grounds 2 and 4 are directed to the Representation Decision and for reasons already given are not considered further. Ground 3 alleges a denial of procedural fairness and ground 8 alleges error as to the Attendance and Production Decisions. The remaining grounds attack His Honour’s reasoning and conclusions relating to the constituent elements of s. 389 of the Act and we address those grounds under each of the elements of s. 389 to which they relate rather than in seriatim.

Appellant’s job no longer required to be performed by anyone (section 389 (1) (a)) - appeal grounds 1 and 5

[39] Section 389 sets out the meaning of a case of genuine redundancy and provides, relevantly, that a dismissal was a case of genuine redundancy if “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” 44.

[40] His Honour was satisfied that the Respondent no longer required the Appellant’s job to be performed by anyone because of operational requirements of the Respondent’s enterprise 45.

[41] The Appellant criticises this aspect of His Honour’s decision on the basis that His Honour “erred as a matter of law in finding that the Appellant’s dismissal was a genuine redundancy” 46. The Appellant also says that His Honour was in error because he reached his conclusion “in the absence of sufficient documentary evidences (sic)”47, that this led His Honour into making an error of law48, that His Honour should have ordered the production of business records sought by the Appellant49 and that the appropriate test to be applied under s. 389(1) is “whether there was a valid reason for the redundancy, in the sense that the reason was sound, defensible and well founded”50

[42] The Appellant’s job was that of Associate Manager Client Services in the Sustainability Unit of the Respondent. The Respondent led evidence establishing that it had closed the Sustainability Unit on financial grounds, consequently the Appellant’s job in that unit was no longer required and it had not employed any other person to carry out that job. His Honour’s reasoning is set out at [9] – [11] of his decision 51 as follows:

Mr.Ramasheshan gave evidence that on 11 September a decision was made globally by Infosys to close down the Sustainability Unit because of a lack of revenue. Mr.Jain worked in that Unit and as a consequence his position of ‘Associate Manager - Client Services’ no longer existed, and no new employees have been employed as a replacement or substitute for that position . He was not cross examined on that evidence except in a somewhat tangential fashion.
Mr.Jain agreed that the Sustainability Unit was closed because it was not making a profit : ‘They have alleged that the sustainability unit was closed because it wasn’t making a profit. Now, do you accept that? - Yes.’. He agreed that the evidence he put about the overall profitability of Infosys did not deal with a downturn in the Sustainability Unit. He agreed that the executive chairman of Infosys, Mr.Murthy, was reappointed because the business was stagnating in terms of growth and that while various units might be profitable overall they were not growing at the rate the Board wanted, and that accordingly there was a restructure of operations in which the Sustainability Unit was disbanded. Other evidence he gave was generally consistent with the submissions put by Infosys on the Sustainability Unit and its lack of profitability, including that the Unit was dissolved, that his position no longer exists, and no replacements have been appointed in substitute for his former position. There was some evidence that the same products were being sold by Infosys through different structures, but that is not a rejection of the employer’s evidence, and the evidence of Mr.Jain on the profitability of the Sustainability Unit.
Given the degree of agreement I am satisfied that the requirements of s.389(1)(a) are met . 52 (endnotes omitted)

[43] It is clear from the above passages His Honour relied upon the evidence led by the Respondent and the concession made by the Appellant that the Sustainability Unit in which he had worked had closed for financial reasons. There were also other concessions made by the Appellant before His Honour, for example that the Sustainability Unit as an independent entity has been dissolved 53, which support the conclusion of His Honour. In essence the Appellant contends that because the Respondent has not stopped selling sustainability services it means that the job that he performed continues to be performed. That contention misunderstands the enquiry that is made under s. 389(1)(a). That the Respondent may have continued to sell sustainability services does not mean it has not made an operational decision to close down the Sustainability Unit. That the operational decision was made was not in dispute. That the Appellant’s job was in the Sustainability Unit was not in dispute. That as a consequence of the operational decision of the Respondent to close the Sustainability Unit the Appellant’s job in that unit was no longer required by anyone was also not in dispute. It seems to us therefore that His Honour correctly concluded that the requirements in s. 389 (1)(a) had been met and no appellable error is apparent.

[44] To the extent that the Appellant suggests that His Honour should have sought “documentary evidence” and evidence from persons other than Mr Ramaseshan who gave evidence for the Respondent, in order to satisfy himself as to the matters in s. 389(1) (a), we reject that suggestion. No such obligation arose in the context of the case before His Honour. It is patently clear that the Respondent led sworn evidence from Mr Ramaseshan as to the matters in s. 389(1)(a) which combined with the Appellant’s concessions provided a sufficient evidentiary basis upon which His Honour could conclude on the balance of probabilities that the Respondent no longer required the Appellant’s job to be performed by anyone because of changes in the operational requirements of the Respondent’s enterprise, and he correctly did so. No appellable error is apparent.

[45] As to the submission that there is a “valid reason” test that is to be applied in relation to s. 389(1), that submission is misconceived. The requirement that a preliminary determination of whether a dismissal is a case of genuine redundancy be made by the Commission before merits are considered, takes operational decisions resulting in redundancy out of the purview of review relating to whether a dismissal is harsh unjust or unreasonable 54.

[46] The question whether a reason for dismissal was a valid reason is confined to assessing whether there was a valid reason relating to a person’s capacity or conduct 55. In a case of a redundancy related dismissal the question does not arise unless there is first a conclusion that the dismissal was not a case of genuine redundancy56and that issue is separately considered from the question whether the dismissal was harsh unjust or unreasonable57.

[47] We do not discern any appellable error in His Honour’s reasoning or conclusion in relation to s. 389(1)(a).

Compliance with consultation obligation under applicable award or enterprise agreement ((section 389 (1) (b)) – grounds 1, 6, and 7

[48] Section 389(1)(b) contains the second limb of the definition of a case of genuine redundancy. It requires that the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy. The requirement that consultation occur in relation to the redundancy only arises, for the purposes of the definition, if a modern award or enterprise agreement applied to the Appellant’s employment. Therefore His Honour was first required to determine whether there was a relevant modern award or agreement that applied to the Appellant’s employment.

[49] Apart from the non-specific ground that His Honour erred as a matter of law in finding that the Appellant’s dismissal was a genuine redundancy 58, the Appellant also asserts that His Honour erred as a matter of “law and of fact by not making reasonable efforts to find [an] alternative applicable award when His Honour found at [13] that stated award “Professional Award 2010” did not apply”59. The Appellant now asserts that with reasonable effort His Honour should have found that the “Commercial Sales Award 2010” applied to the Appellant’s employment60. Further the Appellant says that His Honour was in error in finding “that no modern award applied. Even if it did I am satisfied that Infosys conducted the requisite consultation”61.

[50] His Honour’s deals with the s. 389(1)(b) limb of the definition at [12] – [14] of his decision as follows:

It is agreed that there is no agreement in place. However Infosys submit that no modern award applies, while Mr.Jain disagrees.
Mr.Jain had the primary function of sales in his work (see Gray v. Hamilton James at 27), and he used his engineering degree to assist him in that job. This was the evidence of both Mr.Jain and Infosys. While Mr.Jain quite properly pointed to the importance of his engineering degree in assisting him in his sales function, his job did not have the principal purpose of engineering within the Professional Employees Award 2010 (eg. clause 3.2), or otherwise fall within that award. No other award was discussed by the parties and I am unable to find any other relevant award.
I conclude that no modern award applied. Even if it did I am satisfied that Infosys conducted the requisite consultation. I prefer the evidence given by Mr.Ramaseshan to that of Mr.Jain. 62 (Endnotes omitted)

[51] It is apparent from His Honour’s reasons above that he concluded that the modern award said by the Appellant to have applied to his employment did not apply. We note that the Appellant does not challenge that conclusion in his notice of appeal. However he still maintained during oral argument 63that it applied while also maintaining that the Commercial Sales Award 2010 applied64. A particular modern award will only apply if it contains particular classifications that cover a person’s employment and another modern award does not apply. In effect only one modern award can apply to a person’s employment. This is because modern awards contain provisions dealing with multiple awards covering an employer and provisions for determining which of those multiple awards covers the relevant employee.65 The Appellant cannot maintain as he seems to do, that His Honour was wrong in concluding that the Professional Employees Award 2010 did not apply and also maintain that the Commercial Sales Award 2010 applied to his employment. In any event, for the reasons identified below, neither of these modern awards applied to the Appellant’s employment.

[52] His Honour concluded that the Appellant’s position of Manager Client Services was a sales function and not one involving the performance of engineering duties. His Honour was plainly correct. Consequently the Professional Employees Award 2010 did not apply to the Appellant’s employment.

[53] His Honour observes that he was unable to identify any other modern award which applied to the Appellant’s employment. The suggestion that His Honour did not make reasonable efforts to find an alternative applicable award and had he done so he would have identified the Commercial Sales Award 2010 as applicable is flawed and is rejected. First, there is no authority for the proposition that His Honour was required to make “reasonable additional efforts” to identify an applicable award. The Appellant asserted before His Honour that a particular award applied. His Honour considered the application of that award and concluded that it did not apply to the Appellant’s employment.

[54] Secondly, if such an obligation arose, it is clear from His Honour’s reasons that he did make efforts and he was unable to identify an applicable award 66. That the Appellant now says that another award, the Commercial Sales Award 2010 applies is not evidence of any failure on His Honour’s part to make reasonable additional efforts to identify an applicable award.

[55] Thirdly the argument now advanced by the Appellant as to the application of the Commercial Sales Award 2010 to the Appellant’s employment was not an argument advanced by the Appellant before His Honour. It is a new argument sought by the Appellant to be advanced on appeal.

[56] Fourthly, even if we were minded to allow the Appellant to advance a new argument, on a proper examination of the coverage of Commercial Sales Award 2010, it seems patently clear that in order for the Appellant’s employment to have been covered by that award he would have been required to be employed away or substantially away from the Respondent’s place of business. There was no evidence before His Honour that the Appellant was employed in this way. Nor did the Appellant seek permission to adduce additional evidence which would have established that he was employed in this way.

[57] As to the Appellant’s argument that His Honour was wrong in concluding that “[E]ven if it did I am satisfied that Infosys conducted the requisite consultation” 67, we make the following observations. First, it is clear that the observation of tHis Honour’s was obiter dicta as the issue of meeting the Respondent’s consultation obligations did not arise because His Honour had already concluded that no modern award applied. Secondly, contrary to the Appellant’s submission, His Honour was not suggesting that such consultation obligations as may exist under various awards have each been complied with. His Honour was focusing on the consultation obligations under the Professional Employees Award 2010, the award asserted by the Appellant to have application. In our view this is clear from the words “even if it did” whereby His Honour is clearly referring to that award. Thirdly, there was a sufficient evidentiary basis upon which His Honour could conclude that if the Professional Employees Award 2010 applied to the Appellant’s employment, the Respondent had discharged its evidentiary burden to show that it had complied with those obligations. His Honour preferred the evidence of the Respondent’s witness about consultation to the evidence given by the Appellant. If it were necessary for His Honour to make a finding about consultation, it was open to him to do so, on the evidence. But as we indicate above such a conclusion was not necessary having regard to the finding that no modern award applied to the Appellant’s employment.

[58] We do not discern any appellable error in His Honour’s reasoning or conclusion in relation to section 389 (1) (b).

Reasonable in all the circumstances for the person to be redeployed (section 389 (2)) – grounds 9 – 17

[59] Section 389 (2) provides that a dismissal is not a case of genuine redundancy if it would have been reasonable in all of the circumstances for the person to be redeployed within the employer’s enterprise or the enterprise of an associated entity of the employer. In the case of the Appellant’s dismissal, in order that s. 389(2) is engaged, His Honour was required to find, on the balance of probabilities, that there was a job or position or other work either within the Respondent’s enterprise or that of an associated entity of the Respondent, into which it would have been reasonable in all the circumstances to redeploy the Appellant 68.

[60] As a Full Bench of this Commission in Technical and Further Education Commission v Pykett 69 observed there must be an appropriate evidentiary basis for such finding. Facts that are relevant to such a finding will usually be peculiarly within the knowledge of the employer rather than the former employee and that if an employer asserts that a dismissal was a case of genuine redundancy the employer will ordinarily be expected, relevantly under this head, to adduce evidence as to whether there was a job or a position or other work within the employer’s enterprise or that of an associated entity to which it would have been reasonable in all circumstances to redeploy the former employee70. The nature and extent of the onus of burden or proof is discussed earlier above.

[61] The Appellant criticises His Honour’s findings as to matters relating to s. 389(2) on 9 broad bases. In summary the Appellant says His Honour erred:

● in preferring the Respondent’s evidence (and in failing to provide reasons for so doing) about the positions available and redeployment efforts to the Appellant’s evidence in relation to whether there was a “bona fide exercise” to identify available positions or something done after the event of termination;
● in finding that only 18 positions were available locally, His Honour did not deal with any vacancies that were available to be filled by internal candidates, and the identified number of vacancies was not supported by documentary evidence;
● in erroneously focusing on identifying a suitable position into which the Appellant could be redeployed His Honour did not give proper regard to whether it was reasonable in all the circumstances to redeploy the Appellant;
● in not considering growth in other parts of the Respondent’s business in determining whether it was reasonable in all circumstances to redeploy the Appellant;
● in failing to consider whether it would have been reasonable to move on staff on 457 visas or considering such staff for redundancy and thereby creating a vacancy or avoiding the need to terminate the Appellant’s employment;
● in not considering international redeployment;
● in misapplying or not having regard to the decision in a Roy v SNC – Lavelin Australia Pty Ltd 71;
● in concluding that he was not satisfied that the Respondent has a facility for effecting redeployment overseas for redundant employees; and
● in failing to make a finding that it was not reasonable in all the circumstances to redeploy the Appellant to a position in an enterprise of an associated entity of the Respondent.

[62] His Honour deals with the question of redeployment for the purposes of s. 389 (2) at [15] – [21] as follows:

The issue of redeployment within s.389(2) has been considered in a number of Commission decisions including Full Bench decisions in Ulan v. Ulan Coal Mines Limited and TAFE NSW v. Pykett. I adopt the reasoning in those decisions, which it is unnecessary to repeat. Commission decisions on the issue of redeployment overseas include Roy v. SNC-Lavelin Australia Pty Ltd, in which the difficulty of redeployment overeas (sic) was recognised.
Turning to deal specifically with Mr.Jain’s submissions, in his first submission he submits that despite his contacts with Infosys worldwide, ‘Nothing was offered to me or explained about available job positions . . . and my fitment to those’, but no specific job is identified as suitable for his redeployment. This is a general submission that more should have been done, and it is consistent with his overall approach to this issue. In his second submission no specific job suitable for redeployment is identified. The third submission deals with consultation. In his fourth submission no job is identified, although it is a response to the employer’s submission which lists 18 jobs which Infosys claims were vacant positions and which they claim were not suitable for him for various reasons. Mr.Jain does not claim that any one of these 18 jobs is one to which he could have been redeployed.
In his fifth and final submission, put after proceedings and evidence had concluded, Mr.Jain sought to introduce new evidence. He claimed that there were currently a number of positions ‘with a good fitment with my profile’, and named them . In making the arrangements for final written submissions I specifically warned Mr.Jain that this was not the opportunity to introduce new material, but that submissions had to be based on the evidence he had already put. Mr.Jain said that he understood this. I have not had regard to this new material. Even if I did have regard to it, there is no basis on which I can find that it is relevant. None of the jobs currently available might have been available at the relevant period, during the period of redeployment efforts. Even if they were available then I have no basis on which I can conclude that they are suitable for Mr.Jain’s skills and experience. Infosys has not had the opportunity to test that and other material.
Mr.Rameseshan gave evidence that he discussed Mr.Jain’s skills and experience with the Regional Business Leaders - Sales and Delivery, and was notified of no suitable role being available having regard to those skills and experience. He listed 18 positions which were positions available in Australia and New Zealand. He gives reasons why these positions were not suitable to redeploy Mr.Jain to . Mr.Jain does not dispute that assessment in his subsequent submission or in his cross examination of Mr.Rameseshan, except in limited respects. In any event I accept the explanation given by Mr.Rameseshan with respect to each position. Mr.Jain gave evidence that his employer rated him as a ‘poorly performing’. He tendered an email from his employer which broke down the four quarters revenue by four managers which demonstrated this. There was no job to which Mr.Jain could have been redeployed.
Mr.Rameseshan gave evidence that redeployment locally was not a reasonable option, and gave evidence about the positions available across Australia and New Zealand, and about the reasons why Mr.Jain was not suitable for those positions. He was subject to strenuous challenge about issues such as the autonomy of local operations and managers. I prefer his evidence to contrary evidence given by Mr.Jain. This was a bona fide redeployment exercise, and it was not conducted after the redundancy took place as some form of sham.
In this case Mr.Jain has not identified or claimed that there is a specific ‘job, position or other work’ to which he could have been redeployed. Infosys identified 18 jobs that were available, and Mr.Jain did not claim that any one of them was a suitable job into which he could be redeployed. During Mr.Jain’s employment he could use Infosys intranet to access a list of positions in Australia and overseas, but again he did not identify any suitable job. In TAFE NSW v. Pykett it was found that a suitable job for redeployment must be identified before a determination can be made that an applicant could be reasonably redeployed within s.389(2). I am accordingly unable to find that it would have been reasonable to redeploy Mr.Jain within s.389(2). There is no evidentiary basis for a finding that there was a job to which he could have been redeployed.
It is unnecessary to deal further with the matter. However, Mr.Jain put a number of other submissions which it is convenient to briefly deal with. As Infosys submitted there are real practical difficulties with redeployment overseas such as visa requirements, and I am not satisfied that such issues have been dealt with to the extent as to make redeployment overseas reasonable within s.389(2). I am not satisfied that Infosys has a facility for effecting redeployment overseas of redundant employees. In any event, again, no specific suitable job has been identified. 72 (endnotes omitted)

[63] It is to be observed that His Honour turned his mind appropriately to the questions relevant in determining the matters raised for consideration by s. 389 (2). To the extent that it is suggested by the matters raised on appeal that His Honour did not correctly apply the decision in Pykett that submission is rejected. Although in a number of places in the passages reproduced above His Honour refers to “jobs” when considering whether there was a job, position or other work available into which the Appellant could be redeployed, when one reads the entirety of His Honour’s reasons above it is clear that his reference to “jobs” is a shorthand reference to the availability of a job, position or other work and that His Honour was concerned with the identification of an available job, position or other work into which the Appellant could be redeployed 73.

[64] Turning then to the specific criticisms raised by the Appellant. As to the first basis of criticism, it is not correct as the Appellant submits, that His Honour did not give reasons for preferring the Respondent’s evidence to the Appellant’s as to the availability of, and steps taken to identify available positions into which the Appellant might be redeployed. The evidence given by the Respondent on these matters is discussed by His Honour at [18] – [19] of his decision. The evidence was that there were 18 positions that were available and the Appellant did not have the skills required to fulfil the duties of any of these positions this evidence was not disputed by the Appellant. The evidence given for the Respondent also dealt with the steps taken by the Respondent to identify positions and that there were no suitable positions that had been identified into which the Appellant could be redeployed. The Appellant gave evidence by way of an assertion that this was incorrect but did not adduce any evidence to support the assertion made. For example, the Appellant did not identify any job, position or other work in Australia or abroad that was available and into which he would have been redeployed. Based on the evidence before His Honour the conclusion reached was open to him. Consequently there is no error and the reasons given adequately disclose why it is that His Honour preferred the Respondent’s evidence. No appellable error is disclosed.

[65] As to the second basis, the Appellant criticises His Honour’s decision because in finding that only 18 positions were available locally, he did not deal with any vacancies that were available to be filled by internal candidates. Further it is said by the Appellant that the identified number of vacancies was not supported by documentary evidence. There is no merit to this criticism. The conclusion that there was no job, position or other work into which he could be redeployed was based on the direct sworn evidence given by the Respondent’s witness. The Appellant did not identify any vacancies either in Australia or overseas into which the Appellant could have been redeployed. It is clear from the evidence given by the Respondent’s witness that it explored the availability of positions both in Australia and New Zealand. Indeed 18 vacant and available positions were identified however the Respondent’s skills did not match the requirements of those positions. Although the Appellant asserted that the Respondent did not consider “vacancies available for fulfilment with internal candidates” no such actual vacancy was identified by the Appellant. On a review of the evidence that was available to His Honour it was reasonably open to His Honour to reach the conclusion he did. No appellable error is disclosed.

[66] The third basis of criticism made by the Appellant is that His Honour erred in focusing on identifying a suitable position and thus, not giving proper regard to whether it was reasonable in all the circumstances to redeploy the Appellant. In this regard the Appellant submitted that it was incumbent on the Respondent to present evidence about vacancies for internal and external hiring to enable the Commission to make a finding and that His Honour incorrectly required the Appellant to identify a suitable job. Putting to one side whether this submission correctly characterises that which was required of the Respondent or of the Appellant, it seems to us clear that the Respondent led evidence about steps it took to identify jobs or positions into which the Appellant might be able to be redeployed. His Honour did not, as the Appellant submits, expect the Appellant to identify a specific job, position or other work into which he could have been redeployed. His Honour’s observation at [20] of his decision is simply a statement of fact. That the Respondent identified particular positions and gave evidence that these were the only available positions and that the Appellant did not or could not identify any other job, position or work into which he could be redeployed is a reasonable basis upon which His Honour could have concluded, and did conclude that there was not a suitable job, position or other work into which the Appellant could be redeployed. The conclusion was reasonably open on the evidence. No Appellable error is disclosed.

[67] The fourth basis of criticism is that His Honour failed to consider growth in other parts of the Respondent’s business, in determining whether it was reasonable in all circumstances to redeploy the Appellant. In the result the Appellant submitted that by confining His Honour’s inquiry to the closure of the Sustainability Unit and not considering the expansion or growth in other areas of the Respondent’s business, His Honour narrowed the test in s. 389 (2). This ground of appeal and the submissions made in support misunderstand that which is required under s. 389 (2). That the business of the Respondent is experiencing growth was not disputed by the Respondent. It does not follow that the Respondent is required by reason of growth in its business overall to maintain units in its business which are not financially viable.

[68] Moreover that the business of the Respondent is experiencing growth does not mean that there is a job, position or work that is suitable into which the Appellant could be redeployed. There was no evidence before His Honour from which such a conclusion could be drawn. There was evidence before His Honour that enquiries had been made about available positions, that particular positions had been identified, that the Appellant did not have the requisite skills to fill the requirements of the available positions and that no other positions were available. That the Respondent’s business was experiencing growth does not diminish the weight of this evidence. Evidence of business growth is no more than tangentially relevant on its own. Evidence of growth itself is not sufficiently persuasive so as to outweigh the evidence given about the actual positions available and the Appellant’s suitability to fill those positions. No appellable error is disclosed.

[69] The fifth basis for criticising His Honour’s decision is that he failed to consider whether it would have been reasonable to move on staff on 457 visas or considering such staff for redundancy and thereby creating a vacancy or avoiding the need to terminate the Appellant’s employment. Again this ground of appeal and the submissions made in support of it misunderstand that which is in issue in considering whether the Appellant’s dismissal was a case of genuine redundancy. The question whether the Appellant’s dismissal was a case of genuine redundancy does not involve a consideration of whether the process for selecting the Appellant for redundancy was fair or whether some other selection process was more appropriate. Such considerations are irrelevant 74 and had His Honour adopted such an approach he would have done so erroneously. Furthermore there is no requirement that the Respondent in effect dismiss from its employment employees engaged under a 457 visa arrangement in order to create a vacant position. His Honour rightly did not consider this issue. No appellable error is disclosed.

[70] The sixth, seventh and eighth bases upon which His Honour’s decision is criticised all concern the question of international redeployment and can be dealt with in short compass. The Appellant submitted that the Respondent had a formal international relocation policy titled “Policy on Global Relocation” and consequently His Honour should have found that the Appellant could have been redeployed to a position overseas under that policy. For this proposition the Appellant relied upon the decision in Roy. This submission misunderstands the nature of the policy said to exist and the proposition for which the decision in Roy stands. The policy on global relocation is not a policy or facility to redeploy redundant employees to international locations. Consequently the existence of the policy cannot be said to be evidence that the Respondent held out or represented itself as having a formal policy or process for effecting international redeployment of redundant employees. It follows that the passages relied upon by the Appellant in Roy had no bearing on the facts as found by His Honour.

[71] His Honour’s finding that the Respondent did not have a policy which would facilitate international relocation of redundant employees was open on the material before His Honour. Again the Appellant misunderstands the difference between a policy on global relocation of existing employees either to facilitate a request or in furtherance of the Respondent’s business objectives on the one hand, and on the other a policy that has as one of its purposes to facilitate the redeployment of redundant employees to position internationally. There was no evidence before His Honour of the latter. Consequently there is no appellable error identified.

[72] A further and more fundamental difficulty for the Appellant in advancing of these grounds is the absence of any evidence before His Honour of the existence of a suitable position overseas into which the Appellant could have been redeployed even if the policy existed. That the Respondent, as asserted by the Appellant, conducted business by utilising fixed term contracts or by utilising a global staff pool or by regularly redeploying its staffing resources internationally, even if correct, does not take the matter further. Ultimately His Honour was satisfied on the evidence before him that there was no suitable job, position or other work into which the Appellant could be redeployed. There was no evidence before His Honour that such business practices resulted in an identifiable, suitable and vacant position into which the Appellant could be redeployed. Without such evidence the conclusion urged by the Appellant could not properly have been reached by His Honour. His Honour therefore correctly concluded that the absence of any evidence of a position available overseas and the absence of a policy facilitating redeployment of redundant employees overseas it was not in all the circumstances reasonable to redeploy the Appellant. No appellable error is disclosed.

[73] The final basis for criticising His Honour’s decision relating to redeployment is that His Honour failed to make a finding that it was not reasonable in all the circumstances to redeploy the Appellant to a position in an enterprise of an associated entity of the Respondent. Putting to one side the obvious flaw in the argument - that there was no evidence about the existence of such position - in the proceedings before His Honour the Respondent’s evidence was that decisions about hiring and firing both in Australia and overseas are made locally in the jurisdiction seeking to fill a particular position and His Honour accepted that evidence as he was entitled to do. His Honour also took into account the practical difficulties with overseas employment requirements such as complying with visa requirements of overseas jurisdictions. His Honour’s conclusion that he was “not satisfied that such issues had been dealt with to the extent as to make redeployment overseas reasonable within s. 389 (2)” 75 is clearly directed to the lack of probative evidence led by the Appellant to overcome the evidence led by the Respondent of the difficulties associated with overseas redeployment and the absence of a policy for effecting redeployment overseas of redundant employee. On the evidence before His Honour, his conclusion was reasonably open. No appellable error is disclosed.

General grounds - grounds 3 and 8

[74] The Appellant raises two further grounds for appeal. First, the Appellant says that he was denied procedural fairness during the proceedings because he was not provided additional assistance as a self represented litigant in order to minimise the imbalance created by legal representation of the Respondent. Secondly, the Appellant says that His Honour erred in not granting his application for an order to produce documents and for an order requiring a person to attend the Commission. Therefore he was denied the opportunity to adduce further evidence that might have been available had the orders been made.

[75] In performing functions and exercising its powers under the Act the Commission must perform those functions and exercising those powers in a manner that, relevantly is fair and just; is quick, informal and avoids unnecessary technicalities; and is open and transparent 76. There is little doubt that these requirements result in the Commission providing assistance to an unrepresented party to put their case. This will involve ensuring that the Appellant receives a fair hearing and that the Appellant is provided with such information, instruction or advice as is necessary to ensure that end. It does not involve the Commission running the Appellant’s case for him. Nor does it require the Commission to ensure that an Appellant makes the best use of the opportunity given to him to put his case.

[76] It seems to us clear from a perusal of the transcript, that His Honour did a number of things to assist the Appellant. First, His Honour conducted the proceedings by adopting a more inquisitorial style which was clearly aimed at eliciting factual matters that were relevant to questions that he had to determine. Secondly, His Honour allowed the Appellant an adjournment in order to enable him to review documents to be tendered in evidence 77. Thirdly, Appellant was given leave to tender additional written material as evidence even though that material should have been earlier filed and served in accordance with directions that has been made. Although it is apparent from the transcript that some of the questioning of the Appellant by His Honour might be described as robust, the questions were aimed squarely at eliciting answers relevant to His Honour’s consideration of the issues that required determination. There was no denial of procedural fairness and no appellable error is otherwise apparent.

[77] Contrary to the Appellants assertion, His Honour made an order directing the Respondent to produce documents. A copy of the sealed order is annexed to this decision. It is also clear that the Respondent produced such of the documents as existed to the Commission with a copy given to the Respondent on the day of the hearing. The documents sought that were in existence were provided. That the Appellant did not make use of the documents provided is not a basis for appeal. No appellable error is disclosed.

[78] As to the order to attend, apart from the suggestion that Mr Cole the person to whom the order would have been directed would have been more appropriate than Mr Ramaseshan to give evidence, the Appellant does not point to any particular error in the exercise of the Commission’s discretion, although we note the complaint that the consequence of not being granted the order is said to be a denial of procedural fairness. We make the following observations. First, the Appellant produced no evidence before His Honour and did not seek permission to adduce any evidence before us as to the steps that he had taken to ask Mr Cole to give evidence. Before us the Appellant conceded that he did not ask Mr Cole to attend to give evidence. 78 Secondly as the Respondent points out the witnesses it chooses to call to discharge such evidentiary onus as falls upon it, is a matter for it. Thirdly, even if Mr Cole could give “more relevant evidence” as asserted by the Appellant, it does not follow that the evidence given by the witness called by the Respondent was not relevant or did not speak to the issues that required determination. Fourthly, it is not suggested by the Appellant that Mr Cole would have given evidence that would contradict the evidence given by the Respondent’s witness. Fifthly, the Appellant did not agitate the question of whether Mr Cole should be compelled to attend to give evidence at any time during the hearing before His Honour on 17 July 2014. Finally, it is to be noted that the Appellant made the application for an order only a few days before the commencement of the hearing. That fact alone is a significant matter in an assessment whether such a coercive order compelling attendance should have been made. We are not satisfied that His Honour’s discretion miscarried. Nor are we satisfied that the failure or refusal to make an order in the circumstances was a denial of procedural fairness.

Disposition of Appeal

[79] As is apparent from our reasons above, we have not identified any significant error of fact or any other appellable error in the reasoning or conclusions of His Honour.

[80] Furthermore the matters raised in this appeal do not concern issues of importance and general application. This is not a case where there is a diversity of decisions at first instance so that guidance from an appellate tribunal is required, where the decision at first instance manifests any injustice or the result is counter intuitive, or that the legal principles applied appear disharmonious compared with other recent decisions dealing with similar matters. This is a case simply where the Appellant did not like the result. In our view on the evidence available to His Honour, the result was correct.

[81] Consequently this is not a case in which permission to appeal ought properly to be given.

Conclusion

[82] Permission to appeal is refused.

$N:\Gostencnik DP\New signature.JPG$

DEPUTY PRESIDENT

Appearances:

P. Jain on his own behalf

Y. Shariff of Counsel for the Respondent

Hearing details:

Melbourne.

2014.

17 July

1 AB3; [2014] FWC 1934 at [4]

2 AB at 105

3 AB3; [2014] FWC 1934

4 AB5, AB6; Ibid at [11] and [14]

5 AB7; Ibid at [20]

6 AB 107

7 See section 385

8 (2000) 203 CLR 194

9 Ibid at 204

10 Ibid at 205

11 Ibid

12 Ibid

13 Section 604(1)

14 Section 400(1)

15 That decision is made under Part 5-1 of the Act and not Part 3-2

16 These decisions are also made under Part 5-1

17 Section 400(2)

18 (1936) 55 CLR 499; Note also the reference in the Explanatory Memorandum (EM) to the Fair Work Bill 2008 at [2320] to the decision in Coal and Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 referring to the application of House v King to appeals in the AIRC, and the intention expressed in the EM to maintaining this jurisprudence in relation to FWA appeals.

19 [2010] FWAFB 5343

20 Transcript PN 1522

21 The Australian Workers' Union v Killarnee Civil & Concrete Contractors Pty Ltd, ITF The Thompson Family Trust; Construction, Forestry, Mining and Energy Union [2011] FWAFB 4349 at [22]

22 (1994) 34 NSWLR 155

23 Ibid at [160]

24 J.J. Richards & Sons Pty Ltd v Transport Workers' Union of Australia [2010] FWAFB 9963 at [95]

25 Transcript PN 1436

26 Transcript PN 1437

27 Transcript PN 1428 – PN 1429

28 Ibid

29 Transcript PN 1430 – PN 1433

30 Transcript PN 1471 – PN 1534

31 AB 105

32 AB3; [2014] FWC 1934 at [4]

33 Stevenson-Helmer v Epworth Hospital, Print T2277, 19 October 2000 per Ross VP, Acton SDP and Simmonds C; Dundovich v P&O Ports, Print PR923358, 8 October 2002 per Ross VP, Hamilton DP and Eaves C; SPC Ardmona Operations Ltd v Esam and Organ (2005) 141 IR 338 and more recently Jobs Australia v Eland [2014] FWCFB 4822 per Ross J, Gostencnik DP and Bissett C

34 Transcript PN 40 – PN 41

35 Transcript PN 42 – PN 45

36 Transcript PN 46 – PN 54

37 See for example Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1

38 See section 601

39 AB151

40 AB107 - AB113

41 [2014] FWCFB 4125

42 Ibid [23] - [29] and [31] - [32]

43 Ibid; See also TAFE NSW v Pykett [2014] FWCFB 714 at [36] - [37]

44 Section 389 (1) (a)

45 AB5; [2014] FWC 1934 at [11]