1
Fair Work Act 2009
s.604 - Appeal of decisions
Mr Navdeep Singh
v
MSS Security Pty Ltd
(C2016/3445)
VICE PRESIDENT CATANZARITI
DEPUTY PRESIDENT GOSTENCNIK
COMMISSIONER CIRKOVIC
SYDNEY, 31 MAY 2016
Appeal against decision [2016] FWC 1857 of Commissioner Williams at Perth on 30 March
2016 in matter number U2015/8926; no arguable case of appellable error made out; public
interest not enlivened; permission to appeal refused.
[1] Mr Navdeep Singh has applied for permission to appeal and appealed a decisioni
issued by Commissioner Williams on 30 March 2016 (Decision). In that Decision the
Commissioner determined to dismiss an unfair dismissal remedy application lodged by Mr
Singh pursuant to s.394 of the Fair Work Act 2009 (FW Act) and issued an order to that
effect,ii on the basis that Mr Singh had not been dismissed and consequently the unfair
dismissal jurisdiction was not enlivened.
[2] On 9 June 2015, Mr Singh received a “Letter of Warning/Demotion” in which MSS
Security Pty Ltd (Respondent) informed Mr Singh that he would be returned to the role of
Revenue Protection Officer in light of the Respondent determining that Mr Singh was no
longer suitable for Supervisory positions. In his applicationiii Mr Singh contended that the
“Letter of Warning/Demotion” had the effect of terminating his employment relationship with
the Respondent. The Respondent submittediv that the “Letter of Warning/Demotion” had the
effect of demoting Mr Singh without terminating the employment relationship and, that as a
consequence, Mr Singh had not been terminated within the meaning of s.386(1) of the FW
Act.
[3] In determining whether Mr Singh’s employment relationship with the Respondent had
been terminated, the Commissioner considered whether Mr Singh had been dismissed within
the meaning of s.386 of the FW Act. In considering whether there was a termination of the
employment relationship the Commissioner found:
“[38] It is clear from the evidence that the respondent employer did not express any
intention to terminate Mr Singh’s employment. Nothing was put in writing to him that
he was dismissed or that his employment was terminated. Mr Singh concedes in his
evidence that he was never told he was dismissed or that he was terminated. The
[2016] FWCFB 3546
DECISION
E AUSTRALIA FairWork Commission
[2016] FWCFB 3546
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respondent’s actions throughout have been consistent with not intending to terminate
or dismiss Mr Singh. Nothing the respondent has done amounts to an express
termination of his employment.
[39] Mr Singh has not resigned from his employment. Mr Singh simply has not
returned to do any work for the respondent since the meeting on 9 June 2015. He has
not advised his employer verbally or in writing that he is resigning from his
employment. This then is not a case of constructive dismissal under section 386(1) (b)
of the Act.
[40] What Mr Singh argues is that the respondent has repudiated his employment
contract. Whether there has been a repudiation is a question of fact. Not every breach
of contract is a repudiation. A repudiatory breach does not automatically terminate the
contract but confers an elective right of termination on the innocent party.
[41] There is a body of case law that deals with this situation. Deputy President
Gooley in the matter of Terence Lollback v the University of Southern Queensland
considered the circumstances where a demotion is not a termination of employment.
This particular matter concerned a circumstance where an employee had been demoted
which the employer argued was authorised by the terms of an enterprise agreement
and so was not a termination of employment and so not a dismissal.
[42] After considering the line of authority Deputy President Gooley found that she
was bound by the decision of the Full Bench of the Australian Industrial Relations
Commission in Elizabeth Gorczyca v RMIT University which had concluded that:
“The respondent argues there has not been a termination because the certified
agreement permits the demotion without regard to the income loss and
provides in effect that it is not a termination. We think that the latter
proposition is correct. There has not been a termination because the certified
agreement operates to preclude there being one in the circumstances of this
case. Put another way we think, at law there has been no termination and if
there has been no termination we do not see, notwithstanding the provisions of
s.170CD(1B) that there has been a termination for purposes of the Act.”
[43] Deputy President Gooley also considered another Full Bench decision of the
Australian Industrial relations Commission in Charlton v Eastern Australian Airlines
Pty Limited which turned its attention more broadly to when the termination of
employment occurs and held as follows:
“[32] Consistent with the decision in Boo Hwa Chan, a termination of
employment occurs when a contract of employment is terminated. This
necessarily occurs when the employment relationship comes to an end.
However, it can also occur even though the employment relationship continues.
Where a contract of employment has been terminated, but the employment
relationship continues, this will be because a new contract of employment has
come into existence. Therefore, whether the appellant's demotion involved his
employment being "terminated by the employer" within the meaning of
s.170CE turns on whether his contract of employment was terminated
notwithstanding the continuing employment relationship. This question is
[2016] FWCFB 3546
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answered by reference to general law principles relating to the termination of
contracts of employment, unconstrained by the Convention.
[33] The question of when a demotion constitutes a termination of employment
within general law principles relating to termination of contracts of
employment, unconstrained by the Convention, was given careful consideration
by the Full Court of the Supreme Court of South Australia in Advertiser
Newspapers Pty Ltd v IRC & Grivell. We respectfully adopt that analysis.
Although the decision related to a different statutory context, that context
required a consideration of general law principles that are equally applicable
in the present case.
[34] Unless the contract of employment or an applicable award or
certified/workplace agreement authorises an employer to demote an employee,
a demotion, not agreed to by the employee, that involves a significant reduction
in remuneration will amount to a repudiation of the contract of employment. If
that repudiation is accepted, either expressly or by conduct, then the contract
of employment is terminated. If, in such circumstances, the demoted employee
then remains in employment with the employer, this occurs pursuant to a new
contract of employment in respect of the demoted position. It may be noted that
where the employment continues with the employee allegedly acquiescing in a
reduction in salary or other terms of employment, difficult questions may arise
as to whether the continued employment involves the continuation of the
original contract of employment (but with the employer breaching that contract
by paying the reduced salary), a consensual variation of the terms of the
original contract or the termination of the original contract and a substitution
of a new contract of employment.” (Underlining added)
[44] The Deputy President in that case accepted that the demotion authorised by the
applicable enterprise agreement was not a termination.
[45] This principle, that a demotion arising from the application of a clause in an
agreement is not a termination of employment at the initiative of the employer nor is it
a repudiation of the contract of employment, was earlier accepted and applied by
Senior Deputy President Drake in the case of Michelle Holland v Qantas Airways
Limited.
[46] The broader statement of principle identified by the Full Bench above is that a
demotion of an employee by an employer which involves a significant reduction in
remuneration that is not agreed to by an employee will not amount to a repudiation of
the employment contract if it is authorised by a contract of employment, an applicable
award or a certified/workplace agreement.
[4] The Commissioner concluded:
“[49] After investigating the concerns raised by other employees the respondent was
dissatisfied with Mr Singh’s performance as a Supervisor and no longer required him
to fulfil the role of PTA’s Operations Supervisor and he was to then be returned to the
role of Revenue Protection Officer. This action of the respondent, changing his
[2016] FWCFB 3546
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remuneration and duties, was expressly authorised by his contract of employment and
so did not constitute a dismissal under section 386(1) of the Act.
[50] Consequently I find Mr Singh has not been dismissed by the respondent.
Consequently Mr Singh is not able to make an application under section 394 of the
Act.”
[5] In “Attachment NS1” of his notice of appeal, Mr Singh identified that which he
contended were a number of errors in the findings of the Commissioner. In particular, Mr
Singh contended that the Commissioner relied on one term of the employment contract but
erred in not considering the other facts and not giving consideration to the other more
prevailing terms of the same contract. Furthermore, Mr Singh contended that the
Commissioner did not give full consideration of all of the findings made in the decisions to
which reference is made in the Decision. Mr Singh also contended that the Commissioner
only looked at the demotion and ignored all the other facts of the case in considering whether
there was a repudiation of the contract or not, and, that the Commissioner erred in finding that
an employment relationship exists between the Appellant and the Respondent in the absence
of an employment contract.
[6] In “Attachment NS2” of his notice of appeal, Mr Singh contended that there was
public interest in granting permission to appeal. In particular, Mr Singh contended that the
Commissioner ignored serious breaches of law and company policies, and, denied equal
opportunity in the workplace. Mr Singh further contended that the Commissioner did not look
into all of the merits of his unfair dismissal application and denied Mr Singh natural justice
and procedural fairness.
[7] In oral submissions, Mr Singh referred to the judgment of Ross J in Whittaker v Unisys
Australia Pty Ltdv in support of his contention that determining whether there was a
repudiation of the contract requires that a comparison be made between the Appellant’s
former position and the new position that was offered.vi Mr Singh contended that the
Commissioner made no such comparison between Mr Singh’s previous position and the new
position offered to him by the Respondent. Mr Singh further contended that his complaint of
bullying, harassment and intimidation was not investigatedvii and that the Respondent denied
him access to work material that could have been used to defend the allegations made against
him.viii
Consideration
[8] 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. There is no right to appeal and an appeal may only be made with the
permission of the Commission.
[9] This appeal is one to which s.400 of the FW Act applies.ix 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.
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(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.
[10] 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”.x The task of assessing whether the public interest test
is met is a discretionary one involving a broad value judgmentxi. 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.”xii
[11] 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 an appealable error.xiii However, the fact that the Member at first instance made an error is
not necessarily a sufficient basis for permission to appeal to be granted.xiv
[12] The errors of fact asserted by Mr Singh largely involving a complaint that the
Commissioner accepted the evidence and submissions relied on by the Respondent rather than
accepting those on which Mr Singh relied without pointing to any matter of probative value
which might point to the possibility of an erroneous factual finding. Moreover, generalised
assertions such as:
a failure to give “consideration to other more prevailing terms of the contract”;xv
the Commissioner ignored “the fact that the Respondent had made several false
statements”;xvi
the Commissioner did not give “consideration to all findings”xvii in decisions to
which he referred; and
the Commissioner “ignored all other facts of this case”xviii
without pointing to the particular relevant terms of the contract said to have been ignored, the
false statements said to have been made, the particular relevant facts in the decisions said to
have been ignored or the other relevant facts said to have been ignored does not demonstrate
an arguable case of appellable error.
[13] We are therefore not satisfied that Mr Singh demonstrated an arguable case of
appellable error on the part of the Commissioner in determining that his unfair dismissal
remedy application be dismissed. We are also not persuaded that the matters identified by the
Appellant in NS2 going to public interest enliven the public interest.
[2016] FWCFB 3546
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[14] There is no basis for us to be satisfied that the grant of permission to appeal would be
in the public interest, and therefore in accordance with s.400(1) of the FW Act, permission to
appeal must be refused.
VICE PRESIDENT
Appearances:
Mr N Singh appeared in person.
Ms S Pedlow for the Respondent.
Hearing details:
2016.
Melbourne.
May 18.
Printed by authority of the Commonwealth Government Printer
Price code C
i Navdeep Singh v MSS Security Pty Ltd [2016] FWC 1857
ii PR578316.
iii Form F2 lodged by Mr Singh, paragraph 1.3
iv Respondents submissions, paragraph 20.
v [2010] VSC 9.
vi PN50 of the transcript.
vii PN57 of the transcript.
viii PN60 of the transcript.
ix See Australia Postal Corporation v Gorman [2011] FCA 975 at [37]
x (2011) 192 FCR 78 at [43]
xi 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]
xii [2010] FWAFB 5343 at [27], 197 IR 266
xiii Wan v AIRC (2001) 116 FCR 481 at [30]
xiv 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 288, 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]
xv Attachment NS1 to the Notice of Appeal.
THE FAIR WORK CO COMMISSION AF NOISS THE SEAA
[2016] FWCFB 3546
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xvi Ibid.
xvii Ibid.
xviii Ibid.
