Fair Work Act 2009
s.604 - Appeal of decisions

Permission to appeal against decision [[2016] FWC 4899] of Senior Deputy President Hamberger at Sydney on 2 August 2016 in matter number U2015/14144.

Introduction

[1] On 21 August 2016 Ms Christina Adams lodged a notice of appeal in which she applied for permission to appeal and appealed under s.604 of the Fair Work Act 2009 (FW Act) against a decision of Senior Deputy President Hamberger issued on 2 August 2016 1 (Decision). In the Decision, the Senior Deputy President found that Ms Adams’ dismissal by the Blamey Community Group on 24 October 2015 was a case of “genuine redundancy”, as that expression is defined in s.389 of the FW Act, and consequently dismissed her application for an unfair dismissal remedy.

[2] The Blamey Community Group (BCG) is a not-for-profit organisation which provides support to families of Australian Defence Force members in the Wagga Wagga region. Its funding is almost entirely derived from grants received from the Department of Defence’s Family Support Funding Program (FSFP). Such grants are usually made on an annual basis, and are required to be authorised by the Minister for Defence upon the recommendations of the Family Support Advisory Committee. Ms Adams was employed by BCG as its co-ordinator in 2014. Throughout her employment, she was the sole employee of BCG. The officers and executive committee of BCG consisted of volunteer community members.

[3] On 24 October 2015 Ms Adams was informed by letter signed by BCG’s President that her employment was terminated. The letter relevantly stated:

“As per our phone conversation on the 23 October 2015, the new executive committee team of the Blamey Community Centre met to discuss the future direction of the business and whether at this point in time, a Co-Ordinator was required to continue running the centre due to the level of financial difficulty the community centre is currently faced with.

The result of this meeting was that it was agreed that there is no longer a viable position for a paid Co-Ordinator to maintain running the day to day operation; and the centre will be maintained by volunteers in a care-taker mode until clear strategic direction is formed by the committee. As the co-ordination position is on a Casual employment basis, and subject to sufficient funding, the current position has been made redundant.”

[4] Ms Adams lodged an unfair dismissal remedy application on 9 November 2015.

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

389 Meaning of genuine redundancy

(1) A person’s dismissal was a case of genuine redundancy if:

(a) the person’s employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; and

(b) the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.

(2) A person’s dismissal was not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within:

(a) the employer’s enterprise; or

(b) the enterprise of an associated entity of the employer.

[6] As earlier stated, the Senior Deputy President determined that Ms Adams’ dismissal was a case of genuine redundancy. In relation to that part of the definition in s.389(1)(a) the Senior Deputy President found as follows (footnotes omitted):

“[16] It is clear from the evidence that at the time of Ms Adams’ dismissal, the BCG had very little money in the bank, and its debts (including wages owed to Ms Adams) exceeded its financial assets. While it had applied for funding for the co-ordinator position from the FSFP, it had not yet received any money; indeed, its application had not yet been approved.

[17] The BCG held an annual general meeting (AGM) on 20 October 2015 to elect a new committee. Immediately after the AGM, a committee meeting was held. Ms Adams was present at both meetings. During the latter meeting, the newly-elected President, Ms Tinney, flagged the difficulty of continuing to employ a co-ordinator in the organisation’s unfavourable financial circumstances.

[18] A teleconference of certain committee members was held on 23 October 2015. According to the minutes of the meeting:

‘It was decided by the meeting that with the present level of debt the BCG has that it is necessary to reduce the overheads until such time as a viable strategic business plan is discussed and implemented and the financial situation is improved. As the Co Ordinator disagreed with continuing in the role in a voluntary capacity and due to the period of time remaining before the Co Ordinator vacated the position that it is in the best financial interest of the BCG to continue for the remainder of the year without a paid Co Ordinator.’ 


[19] This was followed by the President’s letter to Ms Adams terminating her employment. Since Ms Adams’ dismissal, no one else has been employed as co-ordinator of the Blamey Community Centre. To the extent that they are still performed, the co-ordinator’s duties are now carried out by volunteers.

[20] In 2016, the BCG (now renamed Kapooka Neighbourhood House) engaged a Projects Facilitator to help deliver a Work for the Dole project to improve the centre, including upgrades to external areas, some internal upgrades and administrative improvements. I am satisfied that this role is quite different from Ms Adams’ former position.

[21] There was some evidence, particularly that led from Mrs Newsome, that the BCG could have reasonably expected that the FSFP funding was about to come through, and that this funding could have been used, inter alia, to back pay Ms Adams, and to continue to employ her. It is certainly arguable that the BCG could indeed have continued to employ Ms Adams. The decision to dismiss her may or may not have been reasonable or sensible. But that is not the test. I am satisfied that the decision to terminate Ms Adams was because the BCG decided to change the way it operated. The BCG no longer required her job to be performed by anyone because of changes in its operational requirements.”

[7] In relation to s.389(1)(b), the Senior Deputy President found that the consultation requirements of the Social, Community, Home Care and Disability Services Industry Award 2010 2 (Award) had been complied with, in that Ms Adams had attended both the meetings referred to in paragraph [17] of the Decision, and the financial difficulties associated with the continuation of her position and the alternate options of her working voluntarily or taking unpaid leave until funding was forthcoming had been discussed with her. In relation to s.389(2), the Senior Deputy President found that there was no other paid position to which Ms Adams could have been redeployed because she was the only employee.

[8] Ms Adams’ grounds of appeal were lengthily and somewhat discursively expressed. Her main challenge to the appeal, as elaborated upon in her written and oral submissions, was to the following effect:

• there was no operational decision to abolish her position; there was only a question as to whether it could be funded;



• BCG intended to continue her position provided that funding was forthcoming;



• the Senior Deputy President’s findings at paragraph [16] of the Decision that BCG’s debts exceeded its financial assets was in error and that its application for funding had not yet been approved were incorrect;



• the correct position was that BCG had funds on hand to pay Ms Adams’ wages for the next fortnight, and the funding application had been approved; and



• receipt of the funding could reasonably have been expected within seven days of the date of dismissal, at which time Ms Adams could have been back-paid any wages owing.

[9] Ms Adams also had a subsidiary challenge to the finding that consultation had occurred as required by the Award.

Consideration

[10] An appeal under s.604 of the FW Act is an appeal by way of rehearing and the Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision maker. 3 There is no right to appeal and an appeal may only be made with the permission of the Commission.

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

(1) Despite subsection 604(2), the FWC must not grant permission to appeal from a decision made by the FWC under this Part unless the FWC considers that it is in the public interest to do so.

(2) Despite subsection 604(1), an appeal from a decision made by the FWC in relation to a matter arising under this Part can only, to the extent that it is an appeal on a question of fact, be made on the ground that the decision involved a significant error of fact.

[12] In the Federal Court Full Court decision in Coal & Allied Mining Services Pty Ltd v Lawler and others, Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s.400 as “a stringent one”. 4 The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment5. 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.” 6

[13] It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of appealable error. 7 However, the fact that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.8

[14] Insofar as Ms Adams’ appeal challenged the findings made by the Senior Deputy President in relation to s.389(1)(a), it is necessary to state at the outset that consideration of whether the employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the enterprise does not involve a merits review of the employer’s decision to make the person’s job redundant. It is not to the point that it may have been open to the employer to make a different operational decision which may have allowed the relevant employee’s job to be retained. As was stated in Low
v Menzies Property Services Pty Ltd, “Whether it was objectively fair or justifiable to decide to abolish a position is beside the point, as long as the employer acted as it did because of changes in its operational requirements.” 9 What s.389(1)(a) requires is for findings of fact to be made as to whether, firstly, the employer has made the decision that the relevant employee’s job is no longer required to be performed by anyone and, secondly, whether that decision was made because of changes in the operational requirements of the enterprise. If there was an ulterior motive for the decision - that is, if the real reason for the decision did not genuinely relate to any change in operational requirements, whatever the ostensible reason may have been - then it will not be possible to make the second finding of fact. However once these findings of fact are made, the element of the genuine redundancy definition contained in s.389(1)(a) is satisfied and no further inquiry is necessary.

[15] In this case, it is likely that an alternative decision could reasonably have been made to continue Ms Adams’ employment on the basis of the reasonable expectation that funding for her position would shortly be forthcoming and any wages owing to her could then be paid. However, for the reasons stated, that is not a relevant consideration under s.389(1)(a). We consider that the evidence before the Senior Deputy President clearly demonstrated the following propositions:

• on 23 October 2015 a decision was made by BCG’s Executive Committee to abolish the paid position occupied by Ms Adams for at least the remainder of the calendar year and to have her duties performed by volunteers; and



• the reason for the decision was that, because of a delay in the receipt of the FSFP funding and advice that BCG’s liabilities exceed its financial resources, the Executive Committee considered that it would be financially imprudent to continue Ms Adams’ employment; and



• Ms Adams’ position had not been restored or filled since her dismissal.

[16] In these circumstances, we consider that a conclusion that the s.389(1)(a) element of the genuine redundancy definition was satisfied was unavoidable. A decision to abolish a position on the basis the position could not operationally be maintained because of a lack of financial resources is one to which s.389(1)(a) squarely applies.

[17] Ms Adams’ challenge to the Senior Deputy President’s conclusion that BCG’s liabilities exceeded its cash resources rested primarily on the fact that BCG had an unbanked amount of $783.05 at the time of her dismissal. It is not clear however whether this fact was known to the Executive Committee on 23 October 2015 when the decision was made to dismiss Ms Adams. The Treasurer’s report for the Executive Committee meeting on 26 October 2016 (two days after the dismissal) reported that “$783.05 was found in the tin in the filing cabinet”. However the same report stated that even if this amount had been applied to pay Ms Adams wages and two other outstanding amounts, there would have been left $172.88 in BCG’s account with two other amounts totalling $1960.03 still overdue. Whatever the precise financial position was at 23 October 2015, we consider it is clear that the Executive Committee had a genuine basis for the view that BCG’s financial position was precarious and that it would not be prudent to continue Ms Adams’ employment.

[18] On 21 October 2016 BCG was informed by email that FSFP funds in the amount of $47,400 could be forwarded to BCG once a tax invoice for that amount had been forwarded to the Department of Defence and processed. It could be inferred from this email that BCG’s grant application had been approved and, if so, the Senior Deputy President may have erred in finding otherwise in paragraph [16] of the Decision. However if this finding was in error, it was not a significant error in the sense that it could not have affected the conclusion reached in relation to s.389(1)(a). As earlier stated, the reason for the decision taken to abolish Ms Adams’ position was clear. Ms Adams did not contend in her appeal grounds or submissions that the Senior Deputy President should have found that financial considerations were not the real reason for the decision or that there was some other, ulterior, reason for it. A conclusion that the grant of funds had been approved and payment would be forthcoming in the near future could not therefore operate to displace the conclusion that the exigent financial circumstances as at 23 October 2015 caused a decision to be made to abolish Ms Adams’s position.

[19] We do not consider that Ms Adams has demonstrated any arguable case that the Senior Deputy President erred in relation to his finding that the consultation element of the genuine redundancy definition in s.389(1)(b) had been satisfied. The fact that the difficult financial situation was raised with her, and alternative options for her to continue her work on an unpaid basis until funding was secured were discussed, demonstrates clearly that the consultation requirements in clause 8.1 of the Award were discharged. It must be borne in mind that Ms Adams’ employment was overwhelmingly the main cost overhead being borne by BCG, so that it must have been clear to her when these discussions occurred that BCG’s precarious financial position necessarily put her continued employment in jeopardy.

[20] We note that in her oral submissions, Ms Adams contended that her reputation in the defence community had been damaged by her dismissal by BCG, and that rumours had spread that it arose out of some form of wrongdoing on her part. We accept the genuineness of her concerns on that score. However that cannot support her case for the grant of permission to appeal, because there is nothing in the Decision which could give any credence to such rumours or in any way cause detriment to Ms Adams’ reputation. Indeed the Senior Deputy President was at pains to say (in paragraph [25] of the Decision) that he understood Ms Adams’ sense of grievance with her dismissal, and the forthcoming availability of funds might reasonably mean that her employment could continue. We would add that the evidence makes it clear that:

(1) There was never any suggestion on the part of BCG, or any basis in the evidence to conclude, that the termination of Ms Adams’ employment was because of any shortcoming by Ms Adams in the performance of her duties.

(2) The financial situation which caused Ms Adams’ dismissal appears primarily to have been the result of delays in BCG’s application for FSFP funding for the 2015-16 financial year due to incompetence on the part of BCG’s officers at the relevant time. That financial situation was in no way the fault of Ms Adams.

[21] We do not consider that Ms Adams has demonstrated any arguable case that the Senior Deputy President erred in concluding that her dismissal was a case of genuine redundancy. We do not consider that the appeal raises any issue which calls for consideration at the appellate level. For these reasons, we are not satisfied that it would be in the public interest to grant permission to appeal. In accordance with s.400(1), permission to appeal must therefore be refused.

VICE PRESIDENT

Appearances:

C. Adams on her own behalf.

No appearance for the Respondent.

Hearing details:

2016.

Melbourne:

10 October.

 1   [2016] FWC 4899

 2   MA000100

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

 4   (2011) 192 FCR 78 at [43]

 5   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]

 6   [2010] FWAFB 5343, 197 IR 266 at [27]

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

 8   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]

 9   [2014] FWC 7829 at [16]

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