1
Fair Work Act 2009
s.604 - Appeal of decisions
Mackay Taxi Holdings Ltd T/A Mackay Whitsunday Taxis
v
Ms Kaye Wilson
(C2013/7378)
SENIOR DEPUTY PRESIDENT RICHARDS
COMMISSIONER SPENCER
COMMISSIONER SIMPSON
BRISBANE, 12 FEBRUARY 2014
Appeal against decision [[20132] FWC 8634] of Commissioner Booth at Brisbane on 4
November 2013 in matter number U2013/9954 - whether changes to job were operational
changes that gave rise to a redundancy - duties continuing to be performed - scope of
s.389(1) too narrowly construed - rigidity in business systems.
[1] This decision concerns an appeal by Mackay Taxi Holdings Ltd t/a Mackay
Whitsunday Taxis (“the Appellant”) against a decision of Commissioner Booth in [2013]
FWC 8634 handed down on 4 November 2013 in U2013/9954. The Respondent is Ms Kaye
Wilson.
[2] The Commissioner’s decision concerns two matters. The first of these was a decision
under s.394(2) of the Fair Work Act 2009 (“the Act”) in relation to whether or not the
application should be accepted in a different time to that stipulated under s.394(2)(a) of the
Act. The second matter concerned an application by the Appellant under s.389 of the Act. In
that matter the Commissioner was required to determine whether or not the application before
her should be dismissed for reasons that it concerned a genuine redundancy.
[3] It is only the second matter which is the subject of this appeal.
[4] At the outset we note that the Commissioner’s decision was made off the documents,
with the consent of the parties.
APPROACH TO THE APPEAL
[5] The approach to an appeal in the context of s.389 of the Act was considered by a Full
Bench in Ulan Coal Mines Limited v Honeysett and Others1 (“the prior full bench”) as
follows:
1 [2010] FWAFB 7578.
[2014] FWCFB 1043
DECISION
E AUSTRALIA FairWork Commission
[2014] FWCFB 1043
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“[20] The appeals are brought pursuant to s.604 of the Fair Work Act. Section 604(2)
provides that Fair Work Australia must grant permission to appeal if it is satisfied that
it is in the public interest to do so. As indicated already, the applications were made
under s.394 which is in Part 3-2 of the Fair Work Act. There are special provisions
relating to appeals from decisions under Part 3-2. These provisions are in s.400 of the
Fair Work Act. That section is:
‘400 Appeal rights
(1) Despite subsection 604(2), FWA must not grant permission to appeal from
a decision made by FWA under this Part unless FWA considers that it is in the
public interest to do so.
(2) Despite subsection 604(1), an appeal from a decision made by FWA 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.’
[21] Section 400(1) provides that despite subsection 604(2) the tribunal must not grant
permission to appeal from a decision under Part 3-2 of the Act unless it considers that
it is in the public interest to do so. Therefore we must not grant permission to appeal
unless we consider that it is in the public interest. Section 400(2) provides that an
appeal from a decision under Part 3-2 of the Fair Work Act 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. Therefore, to the extent that this appeal is on a question of
fact, unless there is a significant error of fact no appeal lies.
[22] The approach to be taken to an appeal pursuant to s.45 of the Workplace
Relations Act 1996 (the WR Act) was outlined in Coal and Allied Operations Pty Ltd
v Australian Industrial Relations Commission (Coal & Allied). [(2000) 203 CLR 194]
The following passage indicates that the powers of a Full Bench of the Australian
Industrial Relations Commission (the Commission) were only exercisable under that
section in the case of error in the decision at first instance:
‘17 Because a Full Bench of the Commission has power under s 45(6) of the
Act to receive further evidence on appeal, an appeal under that section is
properly described as an appeal by way of rehearing. And because there is
nothing to suggest otherwise, its powers under sub-s (7) are exercisable only if
there is error on the part of the primary decision-maker. And that is so
regardless of the different decisions that may be the subject of an appeal under
s 45.’ [(2000) 203 CLR 194 per Gleeson CJ, Gaudron and Hayne JJ.]
[23] Because there is no relevant difference in the terms of s.604 of the Fair Work Act,
this analysis applies equally to an appeal to a Full Bench of Fair Work Australia under
that section. Section 400(2) reinforces this construction and adds an additional
requirement, namely, that where an error of fact is involved the error must be
substantial. The majority in Coal & Allied explained in the following passage how
error may be identified where a discretionary decision is involved:
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‘21 Because a decision-maker charged with the making of a discretionary
decision has some latitude as to the decision to be made, the correctness of the
decision can only be challenged by showing error in the decision-making
process. And unless the relevant statute directs otherwise, it is only if there is
error in that process that a discretionary decision can be set aside by an
appellate tribunal. The errors that might be made in the decision-making
process were identified, in relation to judicial discretions, in House v The King
in these terms:
“If the judge acts upon a wrong principle, if he allows extraneous or
irrelevant matters to guide or affect him, if he mistakes the facts, if he
does not take into account some material consideration, then his
determination should be reviewed and the appellate court may exercise
its own discretion in substitution for his if it has the materials for doing
so [reference omitted].’” [(2000) 203 CLR 194 per Gleeson CJ,
Gaudron and Hayne JJ.]
[24] For these reasons an appeal under s.604 of the Fair Work Act should be
characterised as an appeal by way of rehearing and the authorities in relation to the
corresponding [Workplace Relations] Act provisions are applicable to appeals under
s.604, subject only to the qualification in s.400(2). An appeal cannot succeed in the
absence of error on the part of the primary decision-maker and any error of fact must
be substantial.”
[6] We apply the approach of the prior full bench.
Legislative provisions
[7] Section 385 of the Act provides that a person has been unfairly dismissed if the Fair
Work Commission (“the Commission”) is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy
[8] Section 389(1) of the Act provides that 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
[2014] FWCFB 1043
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[9] Section 389(2) of the Act, however, provides 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 within:
(a) the employer’s enterprise; or
(b) the enterprise of an associated entity of the employer.
Summary of evidence before the Commissioner
[10] The evidence before the Commissioner was of limited nature, and because the matter
was determined off the documents, the statements before her were not subject to any
examination. We will firstly summarise the Respondent’s claims as they were before the
Commissioner, and then turn to those of the Appellant.
[11] In summary, the Respondent:
claimed that she was informed by her employer on 28 March 2013 that he was
“making my position redundant and that because I didn’t have a Cert IV in
Bookkeeping then I wasn’t qualified for the new position and that he didn’t have a
spot for me.”
was also informed that she would need to meet the costs of any training herself;
was informed that she could apply to the new position and that recognition of prior
learning/experience may assist her in advancing towards the new qualification;
was informed on 24 April 2013 following the completion of the recruitment process
that she had been unsuccessful and the new position has been filled by a new recruit.
[12] The Respondent was of the belief that she could have performed the new position at
the required level and was of the belief the new recruit would need to be trained in the
business.
[13] The Respondent also held that:
“I believe I could have performed the new position to a high standard, undertaken the
required study and could have been guided in the new tasks by the support of the
Company’s accountant, who had been performing many of the tasks to be done by this
new position.” (Our emphasis)
[14] The Respondent also stated that she was of the belief that her position “was not
redundant in that all duties in my role would have to be done by someone and [her employer]
never indicated my job was being cut up and given to other staff, it is my belief the new
person would do my job with the additional new tasks.” (Our emphasis)
[15] The Respondent’s claims went on to the effect that:
“none of the tasks I was doing could just disappear. All my tasks were very relevant to
the fluent functioning of the administration needs of taxi owners and operators, also
[2014] FWCFB 1043
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had the Mackay Taxi Holdings’ [...] obligations of statistics and payments with the
Transport and Main Roads which is the overarching government regulator of the taxi
industry in Queensland. None of these tasks could be cancelled and at no time did [the
employer] say that my tasks were being split up and given to other staff [or] that my
dismissal [was] due to a downturn in industry.”
[16] The Respondent also claimed that since her dismissal a further person had been
employed in the office to assist with taxi driver documentation, and that she could have done
that job. There was no evidence as to whether this person had been employed at the time of
the termination or subsequently.
[17] The evidence before the Commissioner in respect of the Appellant’s claims (through a
statement by Mr Gary Button, the Manager of the Appellant’s business, was concise, and is
set out largely in full below:
I make this statement in relation to the jurisdictional objection of the Respondent, that
the termination was a genuine redundancy and therefore beyond jurisdiction.
1. The board of the organisation determined that the administration of the business
required restructuring, with a view to increasing the capacity of the
administration to function at a higher level than was currently the case.
2. I was required by the board to explore the requirements of implementing the
necessary changes, and in consultation with the board it was determined that the
new role would require a person with formal book-keeping training, skills and
experience.
3. It was also identified that there was not sufficient work to keep a book-keeper
occupied full-time, so the decision was made to incorporate some existing tasks
within the book-keeper role.
4. Ultimately that meant that an existing administration position would no longer
be required, and consultation in relation to that was held with the Applicant in
this matter.
5. We determined that for the Applicant to acquire the necessary training to be able
to move into the new role, would require at a minimum, twelve months of study.
6. We had previously sought to engage the Applicant in upskilling and she was
resistant to any training, even short courses, so we did not have confidence that
she would undertake or complete the necessary training.
7. The training also represented a considerable outlay in funds which we could not
at that point afford, and the simple fact was that we needed to make the change
at that time and could not afford to wait twelve months in the hope that the
Applicant may ultimately become qualified.
8. We therefore advertised the position and allowed the Applicant to apply for the
position.
9. We received an application for the position from a person who had the training,
skills and experience we required, so the decision was made to appoint that
person.
10. This left the applicant without a position, and as no other vacancies existed at
that time into which we could place her, we then proceed to terminate her
employment.
Commissioner’s decision
[2014] FWCFB 1043
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[18] On the basis of the above evidence, the Commissioner reasoned as follows:
[22] There appears no dispute about the consultation requirements of s.389(1)(b).
However the parties are at odds about whether the decision to change the role amounts
to a genuine redundancy.
[23] From the material of both parties, it is apparent the Respondent decided to
employ a qualified bookkeeper, for example a person possessed of a Certificate IV,
which the Applicant does not possess but says she was willing to acquire if assisted by
the Respondent. It is also apparent that the duties undertaken by the Applicant
remained to be discharged. She submits that indeed a further person has been engaged
to undertake such duties.
[24] The Applicant asserts that the new role includes some 70% of her previous role,
and the Respondent does not appear to dispute this. The statement of Mr Button
confirms that “some existing tasks” would be transferred to the bookkeeper, the major
change being, however, the decision of the Respondent to engage a person with
“formal book-keeping training, skills and experience”. That is, the Applicant’s job, or
a significant part of it was still required, but qualifications added to the role.
[25] Mr Button also submits that the Respondent advertised the position, allowing the
Applicant to apply for it, but that she was not successful, another applicant being more
suitable. This, the Respondent submits, is a genuine redundancy because “the
Applicant was not successful in obtaining the new position and consequently was
displaced from her old role, and that her employment was terminated as a result.”
[26] On the Respondent’s own evidence, a decision was made to engage a qualified
bookkeeper in lieu of the Applicant’s job, incorporating a sufficient proportion of the
Applicant’s duties into the new role to justify full-time employment. The Respondent
adduced no evidence as to the fate of the balance of the Applicant’s role, all of which
appears to be ongoing.
Conclusion
[...]
[28] I am not convinced that the changes instituted by the Respondent resulted in a
genuine redundancy, but were changes to an existing and continuing role. This cannot
satisfy the statutory definition of genuine redundancy, which requires that the job is no
longer required to be performed by anybody.
[29] I therefore dismiss the Respondent’s jurisdictional objections.
Grounds for Appeal
[19] The grounds of the appeal were not carefully elucidated, in that there are no discretely
formulated grounds. The Appellant provided more so a series of generally argued,
overlapping grounds.
[2014] FWCFB 1043
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[20] The Appellant contends generally that the Commissioner’s decision contains
significant errors of fact and law.
[21] It was claimed that the Commissioner erred in her conclusion that the changes were to
“an existing and continuing role” and did not meet the statutory definition of a genuine
redundancy.
[22] The Appellant also claimed that the Commissioner’s description of the change as
comprising no more than added on qualifications to the existing job was an error in fact. That
is to say, the Appellant argued that the qualifications were required to give effect to new
higher level duties, not as mere add-ons, and they were the foundation to the new job or
position.
[23] The Appellant also contends that the Commissioner had erred in that she confused the
tasks and duties associated with the Respondent’s job with the job itself. That is, the tasks and
duties which comprise the Respondent’s job may well have continued to be required to be
performed, but not within the structure of the job as it had been.
[24] The Appellant also contends that it was not open to the Commissioner to accept the
Respondent’s claim that some unspecified body of her former duties were being performed by
a new employee. This is because there was no specificity to the claim by the Respondent in
this regard, and that it was not made out that this person was employed at the time or
contemporaneously with the Respondent’s termination.
Appeal in the public interest
[25] At the outset we make clear our view as to whether the appeal is in the public interest.
[26] This appeal concerns the scope of meaning of s.389 of the Act (and the consequent
scope of meaning of what might constitute a redundancy under the Act in certain operational
circumstances). We consider that it is in the public interest to grant permission to appeal, as a
consequence.
Consideration
[27] We observe generally that the Commissioner dealt with this matter off the documents
and was not in a position to resolve any factual conflicts, and was otherwise left to make
inferential findings from the materials before her. Further, the Commissioner was not in a
position to reach findings on the basis of credit as the witness statements had been left
unexamined.
[28] The onus falls on the employer, which seeks the relief, in these matters to make out its
case. It is the employer, after all, that is the repository of the facts relevant to a finding that the
dismissal was a genuine redundancy as set out at s.389 of the Act.
[29] Was it made out that there was a redundancy within the meaning of the Act?
[30] The Appellant had set about seeking to increase the skill level of its
bookkeeping/accounting responsibilities. This goal was to be achieved by ensuring the
incumbent possessed a suitable qualification.
[2014] FWCFB 1043
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[31] The Respondent did not hold any qualifications, having left school at Year 11, it
appears. The Commissioner found as much:
[23] From the material of both parties, it is apparent the Respondent decided to
employ a qualified bookkeeper, for example a person possessed of a Certificate IV,
which the Applicant does not possess but says she was willing to acquire if assisted by
the Respondent. [...]
[32] The higher level duties and responsibilities did not in their own right constitute a full
time permanent position or job.
[33] Thus, a large body of the tasks that comprised the Respondent’s job continued to be
performed. We note here that the Commissioner referred to the new role being “70%” of the
Respondent’s previous role. We do not know where this claim is found in the material before
the Commissioner, though it is broadly reflective (regardless) of the state of the evidence.
[34] The job, however, was not the same job. The requirement for a formal qualification
was not added to a job as if a mere administrative initiative. The qualifications required were
reflective of new and higher level duties which were to be carried out by an appropriately
qualified bookkeeper. Given the manner in which the matter proceeded, the Commissioner
was not in a position to set aside the Appellant’s evidence in this regard.
[35] The job was therefore a new job, despite the fact that it incorporated many of the
former tasks performed by the Respondent.
[36] Contrary to the Commissioner’s findings, we think the changes to the position referred
to above are operational changes. That is, they are changes that give effect to a change in the
operational focus of a position to the benefit or advantage of the employer (be it to meet
governance requirements or to improve efficiency).
[37] Whether the original duties or tasks continue to be required to be performed is not
necessarily relevant: it is the operationally-driven changes to the position that need to be made
out.
[38] We think this point was made sufficiently clear by the Full Bench in Ulan Coal Mines
Limited v Howarth and Others.2
[39] In that decision, the Full Bench endorsed the proposition that it does not matter if
discrete duties or tasks survive the operational change or restructure and continue to be
performed. The question to be determined, in actuality, is whether the former position itself
survives:
[15] These were the circumstances in which it was necessary to consider the meaning
and application of the relevant statutory provisions and, in particular, the expression
“the person’s employer no longer required the person’s job to be performed by
anyone” in s.389(1)(a) of the Act. These words have long been used and applied in
industrial tribunals and courts as a practical definition of redundancy (see e.g. R v
2 [2010] FWAFB 3488.
[2014] FWCFB 1043
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Industrial Commission of South Australia; Ex parte Adelaide Milk Supply Cooperative
Limited (1977) 16 SASR 6; Termination, Change and Redundancy Cases (1984) 8 IR
34 and (1984) 9 IR 115; Short v F.W. Hercus Pty Limited (1993) 40 FCR 511). They
have also been adopted in the National Employment Standards provided under the Act
in dealing with entitlements to redundancy payments (see s.119).
[16] The Explanatory Memorandum to the Fair Work Bill 2008 provides examples as
to when a dismissal will be a case of genuine redundancy:
“1547 Paragraph 389(1)(a) provides that a person’s dismissal will be a case of
genuine redundancy if his or her job was no longer required to be performed by
anyone because of changes in the operational requirements of the employer’s
enterprise. Enterprise is defined in clause 12 to mean a business, activity,
project or undertaking.
1548 The following are possible examples of a change in the operational
requirements of an enterprise:
a machine is now available to do the job performed by the employee;
the employer‘s business is experiencing a downturn and therefore the
employer only needs three people to do a particular task or duty instead
of five; or
the employer is restructuring their business to improve efficiency and
the tasks done by a particular employee are distributed between several
other employees and therefore the person‘s job no longer exists.”
[17] It is noted that the reference in the statutory expression is to a person’s “job” no
longer being required to be performed. As Ryan J observed in Jones v Department of
Energy and Minerals (1995) 60 IR 304 a job involves “a collection of functions, duties
and responsibilities entrusted, as part of the scheme of the employees’ organisation, to
a particular employee” (at p. 308). His Honour in that case considered a set of
circumstances where an employer might rearrange the organisational structure by
breaking up the collection of functions, duties and responsibilities attached to a single
position and distributing them among the holders of other positions, including newly-
created positions. In these circumstances, it was said that:
“What is critical for the purpose of identifying a redundancy is whether the
holder of the former position has, after the re-organisation, any duties left to
discharge. If there is no longer any function or duty to be performed by that
person, his or her position becomes redundant…” (at p.308)
This does not mean that if any aspect of the employee’s duties is still to be performed
by somebody, he or she cannot be redundant (see Dibb v Commissioner of Taxation
(2004) FCR 388 at 404-405). The examples given in the Explanatory Memorandum
illustrate circumstances where tasks and duties of a particular employee continue to be
performed by other employees but nevertheless the “job” of that employee no longer
exists.
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[18] In Kekeris v A. Hartrodt Australia Pty Ltd [2010] FWA 674 Hamberger SDP
considered whether a dismissal resulting from the restructure of a supervisory team
was a case of genuine redundancy. As a result of the restructure, four supervisory team
leader positions were replaced by three team leader positions. The Senior Deputy
President said:
“When one looks at the specific duties performed by the applicant prior to her
termination they have much in common with those of two of the new positions
in the new structure. The test is not however whether the duties survive.
Paragraph 1548 of the explanatory memorandum makes clear that it can still be
a ‘genuine redundancy’ where the duties of a previous job persist but are
redistributed to other positions. The test is whether the job previously
performed by the applicant still exists.” (at par [27])
[19] In the present case, the Commissioner appears not to have drawn an appropriate
distinction in his reasoning between the “jobs” of the mineworkers who were
retrenched and the functions performed by those mineworkers or take proper account
of the nature of the restructure at the mine which led to an overall reduction in the size
of the non-trades mineworker workforce. The Company restructured its operations in
various ways including by outsourcing certain specialised, ancillary and other work
and increasing the proportion of trade-qualified mineworkers and outbye crews. As a
result, it was identified that there were 14 non-trades mineworker positions which
were surplus to the Company’s requirements. The mineworkers whose employment
was to be terminated were determined according to the seniority principle as provided
in the Agreement. This did not mean that the functions or duties previously performed
by the retrenched mineworkers were no longer required to be performed. It also did
not mean that the positions of some of these mineworkers (e.g. in underground crews)
did not continue, although those positions might after the restructure be filled by more
senior non-trades mineworkers transferred from other parts of the operations or by
trade-qualified mineworkers. However fewer non-trades mineworker jobs were
required overall at the mine as a result of the operational changes introduced and, for
this reason, the jobs of the 14 mineworkers selected for retrenchment could be said to
no longer exist.
[20] These circumstances readily fit within the ordinary meaning and customary usage
of the expression in s.389(1)(a) of the Act where a job is no longer required to be
performed by anyone because of changes in the operational requirements of the
employer’s enterprise.
[40] In the case before the Full Bench cited above, the employer had restructured its
operations by increasing the number of trade qualified mineworkers, but this did not mean the
duties of the functions and duties performed previously by the retrenched mineworkers were
no longer required to be performed. Those positions continued to be performed by more
senior mineworkers, in some instances. The case, however, is distinguishable from the current
circumstances in so far as there was also a reduction in the number of employees.
[41] Further, the examples provided by the Explanatory Memorandum, referred to above,
are not exhaustive, but they are demonstrative of the kinds of changes in operational
circumstances that can affect enterprises. Such changes may, as here, alter or extend the range
[2014] FWCFB 1043
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of duties that comprise a job and the qualification mix required as a consequence. Equally, the
duties that comprise a job may be redistributed and continue to be performed by others (and
the job disappear). Or else the job itself and the body of duties associated with it may
disappear altogether (with a downturn, an efficiency drive, a contractual change, a change in
business focus, or a technological development etc).
[42] On the unexamined and uncontested evidence before the Commissioner, the job as it
had been had become a more complex job at the higher end, requiring the exercise of duties
by a person who was a qualified bookkeeper, which the Respondent was not. The fact that a
body of the former duties associated with the Respondent’s position continued to be required
to be performed in whole or in part is beside the point.
[43] The operational objective on the part of the Appellant to rely on the qualified services
of a bookkeeper to improve the “capacity of the administration to function at a higher level”
brought about a real and genuine change to the position as it had been performed by the
Respondent. This is the kind of change that ordinarily would give rise to a redundancy (where
the incumbent does not possess the qualifications to give effect to the operational objective).
[44] In any event, the Commissioner did not reject the evidence as put to her, but rather
formed a contrary view: that the introduction of a requirement for formal competencies to
give effect to higher end bookkeeping outcomes whilst requiring the continuation (to a
considerable volume) of the former duties and tasks did not signal a new position had been
created.
[45] We disagree. The genuineness of the rationale for the new qualifications was not
attacked. It is reasonable in such circumstances that an employer, as the bearer of risks, might
re-organise the manner in which work is conducted and with what degree of specialism. If this
were not the case, significant rigidities would be introduced into business improvement
systems.
[46] There was more put to us by the Appellant in relation to the reallocation of lower order
activities amongst junior staff and trainees, and the diminution of a deal of process
requirements related to the Respondent’s position, as it was.
[47] Generally, we think the Commissioner, because she took the view that because a
certain volume of duties and tasks remained to be carried out and that as a result the position
or job itself had not changed or been restructured to a sufficient degree to achieve another
operational purpose, fell into error. In this regard, the Commissioner too narrowly construed
the scope of s.389(1)(a) of the Act.
Further matter relevant to the jurisdictional question
[48] That said, there is one matter relevant to the jurisdictional question that needs to be
determined.
[49] We note that the Commissioner made no reference in her decision to the requirements
of s.389(2) of the Act, which provides an exclusion from the jurisdictional bar when it would
have been reasonable in all the circumstances for the Respondent to have been redeployed to
an alternative position. Section 389(2) of the Act is set out above.
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[50] It is true that the Commissioner turned her mind to whether the Respondent could have
been trained to perform the additional duties which made up the new position, but she made
no express finding in that respect, let alone a finding that went to s.389(2) of the Act.
[51] The only evidence, as it was, before the Commissioner in this respect was a disputed
claim between the Appellant and the Respondent.
[52] This is not a point of criticism, however. The Commissioner had found that the
dismissal had not met the requirements of s.389(1)(a) of the Act, and there was no obligation
upon her to make further findings that would have been of superfluous effect. But the
situation facing the Full Bench, of course, is different, given our findings.
[53] The Respondent had contended that she should have been re-deployed to “the new
position”.
[54] The Appellant contended that the competency level required to deliver the
bookkeeping and other functions (such as Accounts Payable) required too lengthy a period of
training and was too expensive to underwrite. Thus while the Respondent was free to apply
for the position, she was not redeployed to that position as it would not be reasonable in the
circumstances to so.
[55] The Respondent further contended, to the contrary, that she was capable of performing
the duties with assistance, financial support and without extensive delay. In essence the
Respondent contends it was reasonable in the circumstances to redeploy her to the new
position.
[56] We observe, in this particular regard, that the Full Bench in Re: Ulan [2010] FWAFB
7578 commented generally that redeployment may be possible where the training requirement
is reasonable:
[34] It may be appropriate to make some concluding remarks about the operation of
s.389 (2). It is an essential part of the concept of redeployment under s.389 (2)(a) that
a redundant employee be placed in another job in the employer’s enterprise as an
alternative to termination of employment. Of course the job must be suitable, in the
sense that the employee should have the skills and competence required to perform it
to the required standard either immediately or with a reasonable period of
retraining.[...] . (Our emphasis)
[57] The Full Bench appears here in some part to have recast (in the converse) Item 1552 of
the Explanatory Memorandum to the Fair Work Bill 2008, which states:
1552. There may be many reasons why it would not be reasonable for a person to be
redeployed. For instance, the employer could be a small business employer where
there is no opportunity for redeployment or there may be no positions available for
which the employee has suitable qualifications.
[58] That said, the materials before the Commissioner also gave rise to a claim that another
person had been appointed at or following her termination to a position to carry out the
Respondent’s former duties. This matter was left unexplored in the decision, though (if only
[2014] FWCFB 1043
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potentially) it may have had relevance to the prospects or otherwise of the Respondent’s
redeployment for the purposes of s.389(2) of the Act.
[59] To reach a conclusion as to the reasonableness of redeployment for the purposes of
s.389(2) of the Act, the Commission must make a finding on the requisite, civil burden of
proof. The Commissioner made no such findings. The various claims in relation to
redeployment were left unresolved, and the materials that did bear on the issues above were
not subject to examination.
[60] Because there was no finding in relation to s.389(2) of the Act, the threshold
jurisdictional status of the application was therefore left undetermined in its entirety.
[61] We would be satisfied that the jurisdictional objection under s.389 of the Act would be
made out, but only pending the determination of this final matter (under s.389(2) of the Act).
Such an approach to an outstanding determination of a factual issue under s.389 of the Act
was adopted in [2010] FWAFB 3488. The same approach has been reflected in the more
recent decision of a further full bench in [2013] FWC 4982 at 40 and 54.
[62] We add finally that there was no contest between the parties on appeal as to the
Commissioner’s finding that the requirements of s.389(1)(b) of the Act was made out, and the
parties did not contest this matter at first instance either, it appears.
Conclusion
[63] We have granted leave to appeal in the public interest, for the reasons given earlier.
[64] We grant permission to appeal and uphold the appeal, and quash the Commissioner’s
decision for reason it construed too narrowly the legislative scope (under s.389(1) of the Act)
for operational changes to give rise to a redundancy.
[65] Having quashed the Commissioner’s decision, we have determined that in the
circumstances it is desirable to remit the determination of the final, unaddressed threshold
jurisdictional matter (under s.389(2) of the Act) to Commissioner Simpson to determine in the
ordinary course.
SENIOR DEPUTY PRESIDENT
Appearances:
Determined on basis of written materials
O FAIR NORA COMMISSION AUSTRALIA THE SEAL OFFAIR
[2014] FWCFB 1043
14
Hearing details:
Determined on basis of written materials
Final written submissions:
Appellant - 30 December 2013
Respondent - 24 January 2014
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