| [2021] FWCFB 2883 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Amit Shur
v
Innovit Australia Pty Ltd
(C2021/1254)
VICE PRESIDENT CATANZARITI |
SYDNEY, 19 MAY 2021 |
Appeal against decision [2021] FWC 830] of Deputy President Cross at Sydney on 16 February 2021 in matter number U2020/10470 - permission to appeal refused.
[1] Mr Amit Shur (the Appellant) lodged an appeal pursuant to s.604 of the Fair Work Act 2009 (the Act) against a Decision by Deputy President Cross made on 16 February 2021 (the Decision), for which permission to appeal is required.
[2] The Decision concerned the Appellant’s application made under s.394 of the Act for an unfair dismissal remedy and the Respondent’s two jurisdictional objections. The Deputy President dismissed the unfair dismissal application and determined the termination was for reasons of redundancy.
[3] There is no right to appeal a Decision of the Commission and for an appeal to proceed, s.604(1) of the Act requires the Commission to grant permission to appeal.
[4] Directions were set for the filing of material by the Appellant in the permission to appeal matter. The Appellant filed a court book. The Respondent was not required to file material and did not seek to. On this basis the Appellant was content for the Full Bench to consider the permission to appeal on the papers as filed.
BACKGROUND
[5] The Appellant Mr Shur commenced employment with the Respondent on 9 March 2010. In 2012 the Appellant relocated to Israel and continued to be employed by the Respondent until the dismissal on 17 April 2020. The Appellant’s employment was terminated on the ground of redundancy. The Appellant had filed an unfair dismissal application pursuant to section 394, of the Act.
[6] The Respondent raised two jurisdictional objections to the application. Firstly, that Mr Shur was not a National System Employee and therefore not protected by the unfair dismissal provisions of the Act. This was known as the ‘Geographical Objection’. Secondly, the Respondent submitted that the Appellant’s termination of employment was a ‘Genuine Redundancy’. This was known as the ‘Genuine Redundancy Objection’.
[7] In terms of the grounds of appeal, Mr Shur provided a number of pages attached to his Form F7 Notice of Appeal, in which he set out his grounds of appeal and related arguments. Various subheadings of arguments were provided under each of these grounds of appeal. The grounds of appeal as set out in Mr Shur’s Form F7 application were:
A. There existed errors of law in the decision.
B. There existed significant errors of fact in the decision.
C. There was unreasonableness in determining credibility.
D. There existed unfairness in the procedure.
[8] In relation to the Decision, Mr Shur submitted that there were errors of law and significant errors of fact, he also argued that the evidence did not support a dismissal on the basis of redundancy. Further that there were errors, given that there was a reasonable basis to redeploy him, that there was a failure to consult with him over the decision to make his position redundant or to mitigate against the dismissal and that the Respondent had not met its obligations under the Award in this respect. He also argued there existed an unfairness in the procedure to allow the Respondent permission to be represented at the hearing on the basis of its two jurisdictional objections. Mr Shur argued that the representation was not confined to representation on the jurisdictional objections but was also permitted in regard to the merits of the matter.
[9] Mr Shur’s ground of appeal and related arguments at A (there existed errors of law in the decision) focused on the tests in section 385 (what is an unfair dismissal) and the interrelationship to the tests in section 387 (criteria for considering harshness etc.). It is clear this is not a decision related to a termination for capacity or conduct, but an examination of a redundancy decision. The Decision considers that consultation did not occur and that on that basis the redundancy was not genuine given this gap in the employer discharging this obligation. The Decision deals with the effect of this and evaluates this consultation criteria against the other tests for the redundancy.
[10] The Deputy President’s Decision dealt with the two jurisdictional objections. As to the ‘Geographical Objection’ the Decision provides the series of reasons in relation to the test of an Australian employer and Australian based employee and determines on the basis of the evidence and examining the tests that the Appellant was an Australian based employee as defined by section 35(2). Therefore the Respondent’s Geographical Objection was rejected.
[11] The Decision examined the tests in section 389 (meaning of a genuine redundancy), in terms of the meaning of genuine redundancy and comprehensive reasons are provided against the evidence in the matter. 1 The issue regarding the lack of consultation was examined with the other matters in terms of section 389(1)(b). Relevantly it was concluded that whilst there was a failure to consult, consultation would not have negated the operational reasons for the redundancy or have led to an alternative decision.
[12] There is no right to appeal 2 and an appeal may only be made with the permission of the Commission. Section 604 provides:
“(1) A person who is aggrieved by a decision:
(a) made by the FWC (other than a decision of a Full Bench or the Minimum Wage Panel); or
(b) made by the General Manager (including a delegate of the General Manager) under the Registered Organisations Act;
may appeal the decision, with the permission of the FWC.
(2) Without limiting when the FWC may grant permission, the FWC must grant permission if the FWC is satisfied that it is in the public interest to do so.
Note: Subsection (2) does not apply in relation to an application for an unfair dismissal (see section 400).”
[13] Subsection 604(2) requires the Commission to grant permission to appeal if satisfied that it is “in the public interest to do so”. The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment. 3 The public interest is not satisfied simply by the identification of error,4 or a preference for a different result.5 In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of Fair Work Australia identified some of the considerations that may attract the public interest:
“... the public interest might be attracted where a matter raises issue of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters...” 6
[14] In the Federal Court Full Court decision in Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [43], Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s 400 as “a stringent one”. The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.7
[15] As an appeal cannot succeed in the absence of appealable error, it will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. 7 The fact that the Commission member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.8
[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. 9 However it is necessary to examine those grounds to consider whether they raise an arguable case of appealable error.
[17] Dealing firstly with the Appellant’s ground of appeal in relation to the Respondent’s grant of representation at the hearing, (D – there existed unfairness in the procedure), there is complexity to the two jurisdictional objections, as set out in the Decision. The complaint of the Appellant is that the representation was granted and then was not confined to the jurisdictional objections. As is evident in the Decision, the substantive matter of the termination and the jurisdictional objections were all considered at the hearing and in the Decision. The merits of the unfair dismissal application, involving redundancy, were interwoven with the jurisdictional objections in this matter (given the necessary statutory considerations). The Decision presents these overlapping matters in terms of the consideration of the redundancy issues and the jurisdictional objections. The overlapping matters between the unfair dismissal application and the redundancy consideration would have made confining the representation at the hearing to only the jurisdictional issues unworkable.
[18] The Decision found that the dismissal was not harsh unjust or unreasonable, and that the redundancy was based on the sound reasons for the business to reduce its workforce in a difficult operating environment. The Decision set out ‘The minutes of the two meetings on 3 and 14 April 2020, clearly outline the circumstances facing the Respondent and the choices made to deal with those circumstances by making three of the 14 employees redundant.’ The Decision further concluded that there were well founded reasons for the Appellant’s dismissal, relating to the downturn in business experienced by the Respondent and that there was no persuasive evidence of any reasonable redeployment options.
[19] The Decision noted the deficiency in respect to consultation against the Award obligations. However, the Decision identified that this was mitigated by the 12 week notice period during which the Appellant was able to challenge the dismissal. Mr Shur objected to this given the late receipt of the termination information during this notice period. The Decision reasoned that had consultation occurred (taking into account the reasons supporting the redundancy), the consultation would not have changed the decision to dismiss the Appellant on the basis of genuine redundancy.
[20] Furthermore, it was noted that the payment of a 12 week redundancy payment was made in error. No entitlement was identified for this payment, given the evidence confirmed (during the hearing), that 14 employees were employed by the Respondent in April 2020.
[21] No arguable case is made out that would ultimately detract from the Respondent’s decision that the termination, based on the evidence, was for reason of redundancy. The Decision details the necessary basis for implementing the redundancy against the statutory tests. The findings were open to the Deputy President on the material before the Commission. The matters arising from cross-examination of the witnesses support the reasons for the redundancy and the Deputy President has made findings of credit against the evidence on these matters. Again, no arguable errors have been demonstrated in relation to these finding of credit issues.
[22] Against the grounds of appeal, no significant errors of fact or errors of law were confirmed in the Decision.
[23] We have considered the submissions advanced by Mr Shur and have been unable to identify any sustainable public interest grounds. Mr Shur has not satisfied us that the Decision raises any issues of importance or of general application, nor has Mr Shur identified any decisions of a similar nature to allege that this Decision is disharmonious with other decided cases.
[24] We do not consider the grant of permission to be in the public interest.
[25] To the extent that the submissions raise any contentious or appealable error, we do not consider they are seriously arguable. The Decision findings are consistent with the facts before the Deputy President at first instance and the determination accords with the legislative tests and applicable case authority for matters of redundancy. We do not consider there is any basis upon which permission to appeal should be given. Permission to appeal is therefore refused.
[26] For the reasons set out above, permission to appeal is refused.
VICE PRESIDENT
Printed by authority of the Commonwealth Government Printer
<PR729998>
Hearing details:
By consent, on the papers.
Final written submissions:
Appellant’s written submissions dated 1 April 2021.
1 Amit Shur v Innovit Australia Pty Ltd [2021] FWC 830 at [97] to [107].
2 This is so because on appeal the Commission has power to receive further evidence, pursuant to s.607(2); see Coal and Allied v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.
3 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].
4 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, 197 IR 266 at [24]-[27].
5 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, 197 IR 266 at [26]-[27], Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/ Warkworth [2010] FWAFB 10089 at [28], affirmed on judicial review; Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 178; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663, 241 IR 177 at [28].
6 [2010] FWAFB 5343, 197 IR 266 at [24] – [27].
7 Wan v AIRC [2001] FCA 1803, 116 FCR 481 at [30].
8 Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089, 202 IR 388 at [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54, 192 FCR 78, 207 IR 177; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663, 241 IR 177 at [28].
9 Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82].