1
Fair Work Act 2009
s.604 - Appeal of decisions
Ms Deborah Hallam
v
Sodexo Remote Sites Australia Pty Ltd
(C2017/4642)
DEPUTY PRESIDENT GOSTENCNIK
DEPUTY PRESIDENT COLMAN
COMMISSIONER MCKINNON SYDNEY, 19 DECEMBER 2017
Appeal against decision [2017] FWC 4105 of Commissioner Spencer at Brisbane on 4 August
2017 in matter number U2017/3968 – permission granted.
[1] Deborah Hallam has applied for permission to appeal a decision of Commissioner
Spencer issued on 4 August 2017 (the Decision) in which the Commissioner dismissed her
application for a remedy in relation to unfair dismissal under s.394 of the Fair Work Act 2009
(FW Act).
[2] Sodexo Remote Sites Australia Pty Ltd (Sodexo) opposes the application on public
interest grounds and because it says the Decision contains no significant error of fact or other
appealable error.
[3] Ms Hallam was one of hundreds of employees whose positions were made redundant
after Sodexo decided to outsource its four labour ‘relief pools’ in late 2016. The dismissal
consequent on the redundancy of Ms Hallam’s position took effect on 24 March 2017. At the
time of her dismissal, she was employed as a full time fly in, fly out “Relief Project Manager”
and was one of seven relief pool managers in Queensland.1 Four were redeployed to other
managerial roles as part of the restructure. The remaining three were made redundant.2
[4] The parties sought permission to be represented by lawyers under section 596 of the
FW Act. On 26 September 2017, we advised the parties that given the complexity of the
matter, we were satisfied that legal representation would enable the matter to be dealt with
more efficiently and that permission was granted.
[5] The application for permission to appeal was heard before us on 3 October 2017. Both
parties filed written materials including submissions and supplementary submissions. We
have taken those materials into account in our consideration of the application.
1 Witness statement of Shalyn Jones at paragraph 11.
2 Witness statement of Shalyn Jones at paragraph 12.
[2017] FWCFB 6847
DECISION
E AUSTRALIA FairWork Commission
[2017] FWCFB 6847
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Grounds of appeal
[6] Ms Hallam’s notice of appeal challenges the Decision on the basis that it was a
“significant error of fact and/or law” to find that the dismissal was a genuine redundancy.
[7] Specifically, Ms Hallam relied on the following grounds:
a. The Commissioner failed to find that Sodexo could have, and should have, offered her
a position as a Camp or Village Manager at or around 22 November 2016;
b. The Commissioner failed to find that Ms Hallam could have been employed in the role
of Property Administrator at or around 12 December 2016 and/or at or around
8 February 2017;
c. The Commissioner failed to find that there were a variety of other positions that Ms
Hallam could have, and should have, been redeployed to by Sodexo; and
d. In all the circumstances, the Commissioner failed to find that Sodexo reasonably had
the capacity to redeploy Ms Hallam to another position in its company, or its
associated entities, and ought to have offered to so redeploy her.
[8] In the hearing of this matter on 20 November 2017, Ms Hallam sought to amend the
Notice of Appeal to add a further ground of appeal, namely that her dismissal was for
personal conduct reasons and not because her position was redundant. In doing so, she sought
to introduce new evidence related to when the decision to dismiss her was made, and the
reasons for it, arguing that it was probative of the date of the relevant decision and the real
reason for the decision, which she now contended was to get rid of “poor performers”.
[9] On our review of the material, there was no contention from Ms Hallam that she was
dismissed for personal performance or conduct reasons at first instance. The appeal process is
not intended to provide an avenue for an unsuccessful party to re-run their case or redress
deficiencies in the manner in which their case was run at first instance.3 We are not persuaded
that it is appropriate to allow the amendment sought.
[10] The documents in question were discovered in separate proceedings conducted by Ms
Hallam’s own legal representatives. Ms Hallam has not satisfactorily explained why those
documents could also not have been sought and produced at an appropriate stage such as to
enable them to form part of Ms Hallam’s case below. We are also conscious that this is not
the first time Ms Hallam has sought to introduce documents only discovered at a late stage.4
The Act requires the Commission to perform its functions in a manner that is fair, just and
quick.5 It is inconsistent with such an approach to continually expand the scope of
proceedings because relevant inquiries were not made at the appropriate time.
3 Melbourne Stadiums Ltd v Sauter [2015] FCAFC 20 at [128]; Esso Australia Pty Ltd v Australian Workers Union & Ors
[2015] FWCFB 210 at [17] (citing KA Murphy v SF Finance Pty Ltd (unreported, Print P1395, AIRCFB, 29 May 1997);
Curtis v Darwin City Council (2012) 224 IR 174 at [80]).
4 C2017/3968 Transcript 5 July2017, PN22-PN32
5 Fair Work Act 2009, section 577
http://www.fwc.gov.au/decisionssigned/html/2015fwcfb210.htm
[2017] FWCFB 6847
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Permission to appeal
[11] An appeal under section 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.6 There is no right to appeal and an appeal may only be made with the
permission of the Commission.
[12] Section 400 of the FW Act also applies in this case. It 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.
[13] In Coal & Allied Mining Services Pty Ltd v Lawler and others, the Federal Court
characterised the test under s400 as ‘stringent’.7
[14] The task of assessing whether the public interest test is met is a discretionary one
involving a broad value judgment.8 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.”9
[15] 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.10 However, the fact that a member of the Commission at first instance
made an error is not necessarily a sufficient basis for the grant of permission to appeal.11
6 On appeal, the Commission has power to receive further evidence, pursuant to s607(2); see Coal and Allied v AIRC (2000)
203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ
7 (2011) 192 FCR 78 at [43] per Buchanan J (with whose judgment Marshall and Cowdroy JJ agreed)
8 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]
9 [2010] FWAFB 5343, 197 IR 266 at [27]
10 Wan v AIRC (2001) 116 FCR 481 at [30]
11 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]
[2017] FWCFB 6847
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[16] An application for permission to appeal is not a de facto or preliminary hearing of the
appeal. In determining whether permission to appeal should be granted, it is unnecessary and
inappropriate for the Full Bench to conduct a detailed examination of the grounds of appeal.12
Relevant statutory provisions
[17] It is convenient to set out the statutory provisions that were at issue in the initial
proceeding. Section 385 provides that a person has not been unfairly dismissed if their
dismissal was a case of genuine redundancy. The expression ‘genuine redundancy’ is defined
by the Act in section 389 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.”
Camp or Village Manager Role
[18] The first ground of appeal relates to an alleged failure on the part of the Commissioner
to find that Sodexo could have, and should have, offered Ms Hallam a position as a Camp or
Village Manager at or around 22 November 2016;
[19] According to Ms Hallam, on 22 November 2016, Sodexo had vacancies in the role in
which Ms Hallam was employed, and also knew it would soon be making her role redundant.
In failing to “quarantine” a Camp/Village Manager position for Ms Hallam, or advise her that
her position was in doubt and invite her to express interest in November 2016, Ms Hallam
considers that Sodexo failed to do all that it ought reasonably to do to redeploy her.13
[20] This argument misunderstands the statutory test. Subsection 389(2) states 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. Subsection 389(2) places no obligation
on an employer to redeploy, or to do everything possible to achieve a redeployment outcome.
12 Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]
13 This ground relates to a list of “Job Names” and “Job Open Dates” (the List) said to relate to job vacancies at Sodexo in the
period from 1 August 2016 to 12 April 2017, produced by Sodexo in response to an Order to Produce issued by the
Commission on 23 June 2017.
[2017] FWCFB 6847
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The exception is applied at the time of dismissal.14 It operates so that a dismissal that would
otherwise be a case of genuine redundancy under subsection 389(1) will not be so if it would
have been reasonable in all the circumstances for the person to be redeployed within the
employer’s enterprise, or with an enterprise of an associated entity of the employer.
[21] In this case, the time of dismissal was 24 March 2017. At that time, it is not evident
that there were any job vacancies for Camp or Village Managers either open or in
contemplation. The evidence indicates that in some part of the business, some months earlier
and again some months later, expressions of interest for people in those roles were sought. In
any event, Ms Hallam already occupied a position of this kind15 and had not been usefully
employed for some months. This speaks against the proposition that there was an available
role of this kind for her to fill.
[22] The Commissioner considered the range of roles said to be suitable for Ms Hallam,
including specifically in relation to “Relief Project/Camp Manager”.16 She considered
whether it would have been reasonable to “quarantine positions” or extend the length of the
redeployment period, following a suggestion from Counsel that one option available to
Sodexo in the circumstances was “quarantining positions… starting with those project or
camp manager positions in late November 2016”.17
[23] The Commissioner found that “positions advanced by the Applicant as prospective
options for redeployment, were established on the evidence to be unsuitable, based on the
Applicant’s qualifications and experience at the time of the redundancy”18, and that there was
“no identified position within the Respondent’s operation, or its associated entities’
enterprises where it would have been reasonable to redeploy the Applicant”. The fact that
there was a more detailed consideration of the role of Property Administrator does not in our
view mean other potential roles were not considered.19
[24] In our view, the Commissioner’s consideration of the evidence about the possibility of
redeployment into Camp or Village Manager roles does not disclose any arguable case of
appealable error.
Property Administrator role
[25] This ground of appeal is concerned with whether the Commissioner failed to find that
Ms Hallam could have been employed in the role of Property Administrator at or around 12
December 2016 and/or at or around 8 February 2017. There are two limbs to this argument.
The first is that, having demonstrated on the evidence that Ms Hallam could perform each of
the 22 duties required of the role, the Commissioner was wrong to find that Ms Hallam
required the necessary qualification for it. The second limb contends that there was no or
insufficient evidence before the Commission to support a finding that redeployment to that
14 Ulan Coal Mines Ltd v Honeysett [2010] FWAFB 7578 at [28]; TAFE NSW [2014] FWCFB 714 at [35]
15 Transcript PN593, 5 July 2017
16 Decision at [81]
17 Transcript PN800, 5 July 2017
18 Decision at [106]
19 Transcript PN142-146, 14 July 2017
[2017] FWCFB 6847
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role would have required Ms Hallam to undertake 12 months’ retraining, which would have
been unreasonable in the circumstances.20
[26] On our review of the evidence, it appears to have been established that with training,
Ms Hallam could have performed the “main assignments” of the Property Administrator role.
However, Sodexo also required the person occupying the role to have relevant knowledge of
the real estate industry and “current registration to be able to perform the property
management”.21 Ms Hallam had neither. In the circumstances, the Commissioner’s factual
finding that at the relevant time, the position was unsuitable for Ms Hallam, does not disclose
an arguable case of appealable error.
[27] The relevant finding on retraining is found at [104] of the Decision, where the
Commissioner accepted the evidence before her concerning the time it would take to obtain
the qualification.22 We do not identify any arguable case of appealable error in relation to the
findings about the Property Administrator role.
Other available positions
[28] A further ground of appeal advances the argument that the Commissioner failed to
find that Sodexo had a variety of other positions that Ms Hallam could have, and should have,
been redeployed into.
[29] We have already noted that the Commissioner considered the range of positions
potentially available to Ms Hallam, and made relevant findings.
[30] Whether redeployment would have been reasonable in the circumstances is not limited
to a consideration of what positions were appropriate for a particular employee at the relevant
time. Other relevant considerations also arise, including the views of the employees
concerned.
[31] Ms Hallam asserted23 that had she known about certain vacant positions at Sodexo
before her dismissal she would have “sought more information about them and sought to be
redeployed to one of those positions”. This evidence must be weighed against the fact that
some of those positions were known to Ms Hallam between 2 March 2017 and 24 March
2017.24 Rather than making inquiries or seeking redeployment, she rejected them out of hand.
25 The Commissioner took account of this and we do not consider her approach or analysis in
this regard reveals an arguable case of appealable error.
The general capacity of Sodexo to redeploy
[32] The final ground of appeal relates to whether Sodexo generally had the capacity to
redeploy Ms Hallam to another position in its company, or its associated entities, and ought
reasonably to have offered to do so.
20 [2010] FWAFB 7578
21 Transcript PN956, 5 July 2017
22 See also Transcript at PN952-PN954, 5 July 2017
23 Statutory declaration of Deborah Hallam, 3 July 2017
24 Housing Manager, Sourcing Manager - FM
25 Witness statement of Shalyn Jones at Annexure 6
[2017] FWCFB 6847
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[33] The argument essentially contends that because Sodexo is a large multi-national
company, its size, resources and turnover means that it will almost inevitably be in a position
to redeploy redundant employees. In the absence of an identified existing position, Counsel
argued it was reasonable that one be created.
[34] We do not accept this submission, which would amount to a finding that section
389(2) has limited or no application to employers of a certain size. There is no basis for
reading such a limitation into the legislative scheme of the FW Act.
[35] As the Full Bench observed in TAFE NSW v Pykett26, to show that it would have been
reasonable for an employer to redeploy a person, it is not necessary to identify a particular job
or position in which the dismissed employee could have been redeployed. However, the
Commission must be satisfied on the balance of probabilities, and based on the evidence, that
there was a ‘job or a position or other work’ to which it would have been reasonable to
redeploy the person. In the present case, the evidentiary burden did not reach the requisite
threshold. This ground of appeal does not disclose an arguable case of appealable error.
Consultation obligations
[36] In order to find that the dismissal was a genuine redundancy, the Commissioner was
required to be satisfied that Sodexo complied with any obligation in a modern award or
enterprise agreement that applied to Ms Hallam’s employment and required it to consult about
the redundancy.27
[37] The fact of award or agreement coverage was in issue in the proceedings. Ms Hallam
did not rely on a failure of consultation in arguing that the redundancy was not a case of
genuine redundancy. However, for the reasons which follow, we consider there is disclosed
on the face of the Decision an arguable case of appealable error in the Commissioner’s
consideration of subsection 389(1)(b) of the Act.
[38] The Commissioner considered the consultation processes undertaken by Sodexo.28
However, it is at least arguable that she did not make a finding about whether there was an
obligation to consult under the relevant award or agreement. A failure to make such a finding
would have the result that the Commissioner could not have been satisfied that the criterion in
subsection 389(1)(b) had been met. Accordingly, we consider that an arguable case of
appellable error is established.
[39] It follows that the finding at [113] of the Decision that the dismissal was a case of
genuine redundancy was arguably erroneous, and the arguable error is one going to
jurisdiction.
26 (2014) 240 IR 130 at [36]
27 FW Act, s.389(1)(a)
28 Decision at [75]
[2017] FWCFB 6847
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Conclusion
[40] As we have identified an arguable case of jurisdictional error in the Decision, we
consider that it is in the public interest to grant permission to appeal and we do so.
[41] The substantive appeal will be listed for hearing in due course and directions for the
conduct of the appeal will follow separately.
DEPUTY PRESIDENT
Appearances:
Mr R W Haddrick, Counsel with Ms A Langtree, Solicitor for the Appellant
Mr T Lange, Solicitor for the Respondent
Hearing details:
2017
3 October
11 November
Melbourne via Video Link to Brisbane
Final Written Submissions:
Appellant’s Submissions dated 27 November 2017.
Respondent’s Submissions dated 24 November 2017.
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