1
Fair Work Act 2009
s.604—Appeal of decision
MacLeod
v
Alcyone Resources Ltd T/A Alcyone
(C2013/7008)
VICE PRESIDENT CATANZARITI
VICE PRESIDENT LAWLER
COMMISSIONER LEWIN
SYDNEY, 4 MARCH 2014
Appeal against decision [[2013] FWC 9311] of Deputy President McCarthy at Perth on 28
November 2013 in Matter Number U2013/9693.
[1] This is an appeal by Ms MacLeod against an order1 (Order) and a decision2 (Decision)
of Deputy President McCarthy in relation to an application made by Ms MacLeod under s.394
of the Fair Work Act 2009 (the Act).
[2] Ms MacLeod commenced work with Alcyone Resources Ltd T/A Alcyone (the
Respondent) on 15 June 2011 and was employed there until her employment was terminated,
on a redundancy basis, on 30 April 2013. She had been employed as an executive assistant to
the Managing Director of the Respondent.
[3] While the Respondent alleged that Ms MacLeod’s employment came to an end due to
a redundancy, Ms MacLeod filed an application for unfair dismissal remedy with the Fair
Work Commission (the Commission) alleging that she was unfairly dismissed by the
Respondent.
[4] Deputy President McCarthy issued the Decision and Order on 28 November 2013 in
which he found that the dismissal was not unfair, and dismissed Ms MacLeod’s application.
[5] Prior to the scheduled hearing for this appeal, both Ms MacLeod and the Respondent
sought permission to be represented by lawyers in the proceedings. Having formed the view
that allowing representation would enable the matters to be dealt with more effectively, the
Commission corresponded with the parties on 30 January 2014 informing them that both
parties’ had been granted leave to be represented.
[6] Subsequently, however, the Respondent’s lawyers sent a letter to the Commission
informing the Commission that, without conceding the correctness of any grounds of appeal,
the Respondent did not intend to appear in the appeal. Thus, the Respondent’s lawyers were
no longer instructed in the matter and filed a Notice of Representative Ceasing to Act.
[2014] FWCFB 1542
DECISION
E AUSTRALIA FairWork Commission
[2014] FWCFB 1542
2
[7] Following this, the Commission corresponded with Ms MacLeod’s representative,
requesting that, in light of the Respondent’s intention to not appear at the hearing, Ms
MacLeod confirm whether or not there were any objections to the matter being dealt with on
the papers. On 12 February 2014, Ms MacLeod’s representative confirmed that there were no
objections to the matter being dealt with on the papers.
Background
[8] The factual background of Ms MacLeod’s dismissal was briefly summarised by
Deputy President McCarthy in the Decision below as follows:
“[2] Between March and May 2013, the [Respondent] underwent a restructure of its
Board and the office team in Perth. The restructure included the resignation of all
previous Board members and the appointment of a new Board. On 13 March 2013, Mr
King resigned as Managing Director of the Company. The Company subsequently
operated without anyone in the position of Managing Director until Mr Michael Reed
(Mr Reed) was appointed to that position on 22 April 2013.
[3] Around 22 March 2013 the new Board decided the position of Executive Assistant
was no longer required and that no-one was needed to perform that role. On 2 April
2013, Mr Trevor Harris (Mr Harris), the Chief Financial Officer, informed the
Applicant that her position was redundant and as there were no other suitable positions
for her to be redeployed to, her employment would be terminated. The Applicant was
informed that her dismissal would take effect on 23 April 2013, although it seems the
dismissal actually took effect on 30 April 2013.”
[9] Ms MacLeod gave evidence that on 2 April 2013 she had met with Mr Harris and was
told that her position was redundant and that another employee (Ms P Ryan) would be taking
over her duties. Ms MacLeod claimed that she was told that Ms Ryan would be increasing her
working hours from 0.8 FTE to full time and that the Respondent would be employing a
junior receptionist to assist Ms Ryan in her expanded role, and that these measures were being
taken to reduce the employer’s costs. It was clear from the evidence that the junior
receptionist role involved a salary that was significantly less than Ms MacLeod’s salary in her
role as executive assistant.
[10] The Deputy President found that it was clear that Ms MacLeod was fully aware that a
junior receptionist position was being created and that a ‘junior employee’ would be
employed in that position. Deputy President McCarthy further found that the evidence
established that Ms MacLeod never raised with the Respondent that she be considered for the
position, nor did Mr Harris ever say to the Applicant that she should not register an interest or
apply for the position.
[11] Mr Harris gave evidence that he considered alternative positions within the
organisation for Ms MacLeod but could not find anything suitable. He asserted that he was of
the view that the junior receptionist role would be unsuitable for Ms MacLeod given her
previous salary and role, and that he showed more respect to Ms MacLeod by not offering the
position to her than he would have by offering her the position.
[12] In relation to any consultation between Mr Harris and Ms MacLeod with respect to her
redundancy, the Deputy President found as follows:
[2014] FWCFB 1542
3
“[23] Mr Harris had not discussed the upcoming redundancy with [Ms MacLeod] prior
to a decision to dismiss her, did not consult with her about the potential for her to be
redeployed and had no discussion with the Applicant prior to the meeting on 2 April
2013 where the Applicant was given her termination notice.”
[13] Section 389 of the Act provides:
“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.”
[14] The Deputy President found that it was not in dispute that s.389(1)(a) was satisfied,
but even if it were in dispute that he would find that s.389(1)(a) was satisfied. With respect to
s.389(1)(b), however, he said:
“[33] The modern award that is asserted to apply is the Clerks Private Sector Award
2010 (the Clerks Award). The Company [the Respondent], at one point, said it made
no submission as to whether the Clerks Award did apply and at another point conceded
that it did. I find that that the Clerks Award covered and applied to the Applicant
whilst she was employed by the Company.
[34] The Clerks Award provides that where an employer has made a definite decision
to introduce major changes that are likely to have significant effects on employees, the
employer must notify the employees likely to be affected (Clause 8.1(a)). Major
change is defined to include termination of employment (Clause 8.1(b)). The employer
must also discuss the introduction of the changes and measures to avert or mitigate the
adverse effects of the changes.
[35] Clearly the Company was obliged to consult the Applicant [Ms MacLeod]. The
question here is whether the Company fulfilled that obligation.
[36] The submissions of the Company stated that the decision to dismiss the Applicant
was made on 22 March 2013. The submissions also stated that between 22 March
2013 and 2 April 2013, Mr Harris considered whether there were any other suitable
[2014] FWCFB 1542
4
positions available that the Applicant might be redeployed to. There is no suggestion
that there was a consultation with the Applicant about the decision, rather the
Applicant was advised of the decision on 2 April 2013.
[37] Mr Harris, rather than advising the Applicant immediately after the decision on
22 March 2013, decided to explore alternative employment opportunities for the
Applicant within the enterprise. He then decided that there were no alternative
positions and proceeded to inform the Applicant of the outcome of his considerations.
Mr Harris did not inform the Applicant of his considerations and how he arrived at his
conclusions in that regard. It was reasonable for Mr Harris to explore employment
alternatives before entering into discussions with the Applicant about the redundancy.
However, it would also be reasonable to involve the Applicant in those explorations
and potential alternatives at some point.
[38] The Company thus, through Mr Harris, made all the decisions without
consultation and also made decisions about alternative positions that may have been
suitable to redeploy the Applicant into without involving the Applicant at all. By
dealing with the process in this manner the Company was making decisions in effect
on behalf of the Applicant without any of her views being known to them or her
having any opportunity to influence those views. Had the Applicant been given that
opportunity she may have informed the Company that the junior receptionist position
was not suitable or she may have informed them that it was. The Company would then
have been in the position of making a decision, with that knowledge, whether the
position was suitable or was not suitable.
[39] I am sure that Mr Harris had the best of intentions of not offending the Applicant,
but the obligation under the Clerks Award is to canvass alternatives to dismissal and
anything which may avert or mitigate the effects of the redundancy. Whilst it may not
have been obvious to Mr Harris given that the Applicant often did perform some of the
tasks involved and the nature of the work of the position, it was possible that the junior
receptionist position may have been suitable. The obligation here then involved giving
the Applicant the opportunity to have an input into the decision as to whether the
alternative position was suitable.
[40] Taking all of the above matters regarding the obligations under the Clerks Award,
I find that the Company did not fulfil the obligations under the Clerks Award to
consult the Applicant.
[41] Therefore the requirements of s.389(1)(b) were not met. The dismissal therefore
was not a genuine redundancy.
[42] As the dismissal was not a genuine redundancy, it is not necessary for me to
consider whether it would have been reasonable in all the circumstances for the
Applicant to be redeployed within the Company’s enterprise for the purpose of
determining whether the Applicant was excluded from making an unfair dismissal
application by operation of s.385(d) of the FW Act.”
[15] Having found that Ms MacLeod’s dismissal was not a genuine redundancy, the
Deputy President continued to consider whether or not the dismissal was unfair.
[2014] FWCFB 1542
5
[16] Section 387 of the Act provides the criteria that must be considered in determining
whether a dismissal was harsh, unjust or unreasonable:
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or
unreasonable, the FWC must take into account:
(a) whether there was a valid reason for the dismissal related to the
person’s capacity or conduct (including its effect on the safety and welfare of
other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason
related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a
support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—
whether the person had been warned about that unsatisfactory performance
before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be
likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource
management specialists or expertise in the enterprise would be likely to impact
on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.”
[17] In determining whether or not the dismissal was unfair, the Deputy President found as
follows:
“[43] ... The question that arises is whether, by not offering the junior receptionist job to
the Applicant, her dismissal was unfair.
[44] The Company asserted the position was not suitable because of the low level
duties involved in the position compared to the duties the Applicant had been
performing. The higher-level duties of the Applicant were not going to be performed
by the junior receptionist, but rather had been reassigned to Ms Ryan.
[45] The Applicant asserted that she was capable of performing the tasks and had
performed many, if not all, of those tasks before.
[46] The Company also asserted that the salary was significantly less than the salary
the Applicant had been receiving, a reduction from $78,000 per annum to $45,000 per
annum.
[2014] FWCFB 1542
6
[47] Whilst the Applicant now asserts that the position was suitable yet at no time
during the period she was conscious that her position might become redundant did she
make her view known to the Company. The Applicant clearly had reasonable
opportunities to make her views known to Mr Harris. Just as Mr Harris did not provide
an opportunity to the Applicant to discuss suitability for an alternative position, I
consider there was some onus on the Applicant to make it known to Mr Harris that she
may consider that position suitable.
[48] The position involved was one in quite a small office where there were only two
administrative staff employed and the new Managing Director was located in
Queensland with a projected transfer to Perth at the end of 2013.
[49] Taking all of these circumstances into account, I consider that the Company had
substantial grounds to form the view that it did that the position was not suitable for
the Applicant. I agree with the Company and find the position was not suitable.
[50] There was thus a valid reason for the dismissal, although that reason was not
related to the Applicant’s capacity or conduct. Indeed the Company was
complimentary of the Applicant’s conduct and performance. Rather, the reason was
that the Company had been restructured, the Applicant’s position was made redundant
and the Company did not consider the Applicant suitable for a new position that was
established.”
[18] Following this, the Deputy President found that there was a valid reason for dismissal
but that the dismissal did not relate to conduct, and therefore there was no valid reason for
dismissal relating to the capacity or conduct of Ms MacLeod.
[19] The Deputy President proceeded to consider each of the elements of s.387 in turn,
finding that Ms MacLeod was notified of the reason for her dismissal and was provided with
an opportunity to respond. Further, he found that there was no evidence of a request being
made for a support person to be present and that the dismissal was not related to any
unsatisfactory performance, that the size of the company’s business did impact the procedures
followed and that if the expertise of a dedicated human resource management specialist was
available to the Respondent then the consultation requirements of the Clerks Award may have
been met, but he “doubt[ed] that it would have changed the outcome.”3
[20] The Deputy President also considered that Ms MacLeod’s personal circumstances
were relevant, as she was at the stage of her career and proximity to retirement that the
dismissal had a detrimental effect on her plans and future. Also relevant considerations were
the circumstances regarding the Respondent’s reorganisation and endeavours to streamline its
administrative functions. After considering all of these factors, the Deputy President found
that the dismissal was not unfair and dismissed Ms MacLeod’s application.
The Appeal
[21] The grounds of appeal, as outlined in Ms MacLeod’s written submissions are as
follows:
[2014] FWCFB 1542
7
“Errors of Law
(a) Ground 1 - The Commission erred in deciding that the Applicant bore ‘some onus’
to inform the Respondent that she was willing to consider deployment as a Junior
Receptionist.
(b) Ground 2 - The commission erred in finding that the dismissal was not harsh on
[sic] just or unreasonable in circumstances where his honour also found that there was
no valid reason to dismiss the Applicant.
Significant Errors of Fact
(a) Ground 3 - The Commission erred in finding that the Junior Receptionist position
was ‘not suitable for the Applicant’.
(b) Ground 4 - The commission erred in finding that, had the Respondent discharged
its consultation obligations, consultation would not have changed the outcome when
there is clear, uncontradicted evidence that the Appellant would have accepted the
Junior Receptionist role and the remuneration associated with it.
(c) Ground 5 - The Commissioner [sic] failed to give reasons for finding that the
Junior Receptionist position was ‘not suitable for the Applicant’.”
(footnotes omitted)
[22] Ms MacLeod submits that she was deprived of her right to confer with the Respondent
about the options that were available to her, and that she was under no legal burden to
convince the Respondent to change its decision. Therefore, Ms MacLeod submits, the Deputy
President erred in taking into account the fact that Ms MacLeod did not make it known to the
Respondent that she may have considered that the junior receptionist role was suitable for her.
[23] Ms MacLeod abandoned her second appeal point in her written submissions,
conceding that there are circumstances in which a dismissal might not be unfair
notwithstanding that there is no valid reason for the dismissal that is connected with the
employee’s capacity or conduct.
[24] Ms MacLeod further submits that the evidence established that the she was suitable for
the junior receptionist role, as she had already performed all of the relevant duties to at least a
satisfactory standard, and prior to her dismissal Ms MacLeod had taken advice about her
position in the labour market and had concluded that were she to find other employment, her
salary would be reduced by as much as $40,000 below what she was earning at the time. Ms
MacLeod submits that she would have accepted the junior receptionist role, and that the
evidence of the Respondent did not establish that she was unsuitable for the role. Thus, Ms
MacLeod submits, the Deputy President was in error in finding that she was not suitable for
the position and that the Respondent’s lack of consultation did not affect the final outcome.
[25] Finally, Ms MacLeod submits that the Deputy President did not give reasons for his
finding that the junior receptionist position was not suitable, as there was no indication of how
the matters he referred to (viz, the relatively low level of the duties involved in the junior
receptionist role, Ms MacLeod’s capacity to perform the tasks involved in the junior
[2014] FWCFB 1542
8
receptionist role, and the relatively low salary of the junior receptionist role) informed his
conclusion.
[26] There were no submissions made in response.
Consideration
[27] In order to grant Ms MacLeod permission to appeal, the Full Bench must be satisfied
that it is in the public interest to do so.4 In GlaxoSmithKline Australia Pty Ltd v Colin Makin5
a Full Bench summarised the concept of public interest in the following terms:
“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...”
[28] We do not consider that Ms MacLeod has in this instance demonstrated that it is in the
public interest to grant permission to appeal the Deputy President’s Decision.
[29] Ms MacLeod has alleged that the Commissioner made errors of fact and errors of law.
If the error of the decision maker relied upon by Ms MacLeod is an error of fact, then the Full
Bench must be satisfied it is a significant error of fact.6 It is not enough that the Full Bench
would have arrived at a different conclusion to that of the original decision maker; the
relevant question is whether the finding made by the decision maker was reasonably open to
him or her.
[30] We are not satisfied that the Deputy President has made any significant errors of fact
in his Decision. It was open to the Deputy President, on the basis of the evidence before him
including the evidence and submissions of Ms MacLeod, to come to the conclusion that the
junior receptionist position was not suitable for Ms MacLeod. It was also open to him to come
to the conclusion that had the Respondent fulfilled its consultation obligations, the outcome
would not have been different. It was for the Deputy President to evaluate the evidence before
him and we are not satisfied that any significant errors of fact were made that resulted in a
finding that was not reasonably open to him.
[31] Further, we are not satisfied that the Deputy President made an error of law in his
approach to determining whether or not the dismissal was unfair. We accept that Ms MacLeod
was under no legal burden to convince the Respondent to change its decision, but we are not
satisfied that the Deputy President was therefore in error by taking into consideration the fact
that Ms MacLeod did not make it known to the Respondent that she was willing to consider
the junior receptionist role. Having considered Ms MacLeod’s submissions, we are of the
view that the Deputy President was entitled to take into account all of the matters that he
considered in coming to his decision, and no error is revealed in his approach.
[32] To avoid doubt, we note as a matter of principle that the availability of a more junior
role into which the employee could have been redeployed could provide a basis for finding
that a redundancy was not genuine, or that a dismissal was harsh, unjust or unreasonable.
Each case will turn on its own facts. On the facts of this case, it was open to the Deputy
[2014] FWCFB 1542
9
President to conclude that s.389(2) was not satisfied as it was reasonable for the employer to
assume that the junior receptionist position was not an appropriate position to consider for
redeployment due to its nature, as well as the lack of indication from Ms MacLeod that she
was interested in the position.
Conclusion
[33] We are not satisfied that it is in the public interest to grant Ms MacLeod permission to
appeal the Decision of the Deputy President at first instance. The conclusions reached by the
Deputy President were reasonably open to him, and accordingly, the Full Bench cannot
interfere with the decision.7 Permission to appeal is not granted.
VICE PRESIDENT
Printed by authority of the Commonwealth Government Printer
Price code C, PR548362
1 PR545104.
2 Wendy MacLeod v Alcyone Resources Ltd T/A Alcyone [2013] FWC 9311.
3 Ibid [58].
4 Fair Work Act 2009, s.400(1).
5 [2010] FWAFB 5343 at [27].
6 Fair Work Act 2009, s.400(2).
7 House v The King (1936) 55 CLR 499.
THE FAIR WORK A ISSION THE SEAA
