Amadon Travel Management t/as World Business Travel v David Joseph

[2014] FWC 1228

[2014] FWC 1228

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s 604 - Appeal of decisions

Amadon Travel Management t/as World Business Travel
v
David Joseph
(C2014/2921)

DEPUTY PRESIDENT SAMS SYDNEY, 18 FEBRUARY 2014

Appeal against decision [2014] FWC 687 and Order [PR547081] of Commissioner Roberts - application for remedy for unfair dismissal - application dismissed on grounds of genuine redundancy at first instance - appeal - appeal upheld - remitted to Commissioner to determine whether dismissal ‘harsh, unjust or unreasonable’ - dismissal found to be ‘harsh’ - compensation ordered - stay application - no reasonable prospects of success - unnecessary to consider balance of convenience - stay order refused.

Introduction

[1] This decision concerns an application filed by Amadon Travel Management t/as World Business Travel (the ‘appellant’) for an order staying the order of 22 January 2014 made by Commissioner Roberts [PR547081], arising from his decision in Joseph v Amadon Pty Ltd t/as World Business Travel[2014] FWC 682. The Commissioner ordered the appellant to pay compensation of $9,320.72 in two equal instalments on 11 February 2014 and 3 March 2014 to Mr David Joseph (the ‘respondent’) following the Commissioner’s finding that the dismissal of the respondent was ‘harsh’ (and therefore ‘unfair’) within the meaning of s 387 of the Fair Work Act 2009 (the ‘Act’).

Statutory provisions and applicable principles

[2] The right to appeal a decision of the Commission, made under Part 3-2 of the Act, is discretely set out at s 400 as follows:

‘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 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.’

[3] While these provisions are to be read in conjunction with the Commission’s general appeal provisions found at s 604 of the Act, it is obvious that there are different considerations the Full Bench must have regard to when determining appeals in its unfair dismissal jurisdiction. These are, firstly, the different emphasis on the public interest test and secondly, that if an appeal concerns a question of fact, the appellant must establish a ‘significant’ error/s of fact.

[4] The particular provisions dealing with stay applications are set out at s 606 as follows:

‘606 Staying decisions that are appealed or reviewed

(1) If, under section 604 or 605, the FWC hears an appeal from, or conducts a review of, a decision, the FWC may (except as provided by subsection (3)) order that the operation of the whole or part of the decision be stayed, on any terms and conditions that the FWC considers appropriate, until a decision in relation to the appeal or review is made or the FWC makes a further order.

(2) If a Full Bench is hearing the appeal or conducting the review, an order under subsection (1) in relation to the appeal or review may be made by:

(a) the Full Bench; or

(b) the President; or

(c) a Vice President; or

(d) a Deputy President.

(3) This section does not apply in relation to a decision to make a protected action ballot order.’

[5] The principles to be applied by the Commission in considering an application for a stay order are now well settled. These principles are set out in the decision of Ross VP (as he then was) in P Edghill v Kellow Falkiner Motors Pty Ltd (Print S2639), which was adopted by the Full Bench of the Australian Industrial Relations Commission (AIRC) in Kellow-Falkiner Motors Pty Ltd v Edghill (Print S4216). His Honour said at paras [5] and [6]:

‘[5] In determining whether to grant a stay application the Commission must be satisfied that there is an arguable case, with some reasonable prospect of success, in respect of both the question of leave to appeal and the substantive merits of the appeal. In addition, the balance of convenience must weigh in favour of the order subject to appeal being stayed. Each of the two elements referred to must be established before a stay order will be granted.

[6] The Commission approaches applications for stay orders on the basis that, unless otherwise established, the order subject to appeal was regularly made.’

Background

[6] There is some history to this matter which requires explanation at the outset. The respondent was dismissed on 22 January 2013. He filed an unfair dismissal application, pursuant to s 394 of the Act on 18 February 2013. Following unsuccessful conciliation, the application proceeded to arbitration before Her Honour, Booth DP on 9 July 2013. In an ex tempore decision that day, Her Honour determined that the respondent was terminated on account of genuine redundancy (ss 385(d) and 389) and consequently, his substantive application was dismissed on jurisdictional grounds.

[7] The respondent appealed Her Honour’s decision and order and the appeal was heard by the Full Bench of the Commission on 29 October 2013. The Full Bench’s decision (Joseph v Amandon Pty Ltd T/A World Business Travel[2013] FWCFB 8539) of 11 November 2013 upheld the respondent’s appeal and quashed Her Honour’s decision and order. Relevantly, the Full Bench said at paras [30]-[34]:

‘Did the requisite consultation occur?

[30] In considering this question we have had regard to the evidence before the Deputy President and the supplementary evidence given by Mr Joseph in the appeal. On the basis of that evidence we are not satisfied that Mr Amaral consulted with Mr Joseph about his decision to make Mr Joseph redundant. It is clear to us that Mr Amaral did not raise the matter with Mr Joseph at the meeting on 22 January. His evidence was that he intended to raise it but the meeting ended before he had the opportunity. Raising the revised job description may have been a precursor to consultation of the more fundamental decision, but he simply did not get to that point. If, as he suggested, he intended to raise the matter but because the discussions about revised job descriptions led to an acrimonious and abrupt end to the meeting, he still had the obligation to engage in the necessary consultation in an appropriate manner and had every opportunity to do that in a subsequent meeting with Mr Joseph. On the basis of the totality of the evidence we are satisfied that no further efforts at consultation occurred until the letter of termination was given to Mr Joseph on his return to work on 24 January.

[31] It follows from this conclusion that the second element of the definition of genuine redundancy in s.389 of the Act is not satisfied and the conclusion of the Deputy President in this regard cannot stand. We add that we have no reason to doubt the conclusions of the Deputy President in relation to a consideration of alternative positions in the exception to the definition of genuine redundancy.

Disposition of the Appeal

[32] As detailed above we grant permission to appeal because the procedure adopted by the Deputy President denied Mr Joseph an important opportunity to respond to evidence given from the bar table against his case. Further, contrary to the Deputy President’s conclusions, we find that Amandon had an obligation to consult with Mr Joseph about an impending decision to terminate his employment arising from changes to the size of its workforce and it failed to do so.

[33] The conclusion we have reached is confined to the issue of whether the termination of Mr Joseph was a case of genuine redundancy. Pursuant to s.396 of the Act this matter was required to be decided before considering the merits of the matter. As the Deputy President noted, this does not mean that the termination was unfair. That is a separate question which should be determined with the benefit of the conclusions we have reached on the preliminary issue and after giving the parties an opportunity to make any further submissions.

[34] We allow the appeal, quash the decision of Deputy President Booth and refer the matter to Commissioner Roberts to determine the outstanding issue of whether the termination of Mr Joseph’s employment was nevertheless harsh, unjust or unreasonable.’

[8] Commissioner Roberts then proceeded to deal with the outstanding issue of whether the respondent’s termination was ‘harsh, unjust or unreasonable’, within the meaning of s 387 of the Act. The arbitration of that specific issue was conducted on 22 December 2014. The Commissioner issued an ex tempore decision that day and published his decision on 29 January 2014.

[9] In short, the Commissioner found as follows:

‘[7] Paying regard to the above reasoning by the Full Bench, I am satisfied, on balance, that there was a valid reason for the termination of Mr Joseph’s employment based on operational reasons. The termination would almost certainly still have occurred had the Company correctly carried out its obligation to consult with Mr Joseph, thereby effecting a termination on the basis of a genuine redundancy.

...

[14] All in all, I find that the termination of Mr Joseph’s employment was for a valid reason but was in all the circumstances harsh, largely based on the failure to properly consult with him about any proposed redundancy.’

[10] After considering and finding that reinstatement would be impractical (s 390(3)), the Commissioner then dealt with the specific matters he was required to take into account in awarding compensation under s 392(2), including him being satisfied that each party had been afforded ‘a fair go all round’ (s 381(2)).

[11] It is relevant to note that in all the proceedings, both parties were unrepresented.

Grounds of appeal

[12] The appellant’s grounds for appeal are set out as follows:

‘1. The full bench, who Commissioner Roberts was a part of, did not consider the fact that VP Booth had taken into consideration that even if consultation did not occur the dismissal was not harsh.

.During the appeal process this was brought to Commissioner notice and he responded to the effect that this was the first time seen this when I pointed this out.

2. The appeal was based on a technicality that VP Booth [sic] did not give David an opportunity to question the Company. In this hearing he still did not question the company. Yet Commissioner Roberts came to a different conclusion.

3. No new relevant evidence was produced and VP Booth [sic] in her original decision cited the reason she found this decision not to be harsh as the outcome would not have been any different.

4. Comissioner Roberts has exercised a significant level of discretion which is not substantiated by precedents or evidence in handing out his decision.

5. Considering a person age and inability to get a job is no reason that a company should be penalized since he employed less than 2 years by the company.

6. Commissioner Roberts took irrelevant consideration into account when making the decision in particular the quantum of compensation.

7. Commissioner Roberts did not take into account the authorities regarding the issue of consultation when making the decision in particular the decision in Maswan v. Escada Textilvertribe but trading as Escada [2011] Fair Work Act 4239 [sic],

8. The Commissioner failed to explain how the Company had failed to handle the termination of the employment properly considering the fact the David walked away from the meeting and did not turn up for the next 2 Days.

9. The Commissioner failed to appreciate that the David would not be employed even if there had been no consultation. The outcome would still be the same.

10. The Commissioner was wrong in making a finding that there was no misconduct on David’s part. The company had provided substantial evidence of the misconduct that came to light after his redundancy.

The Commissioner’s finding is unsupported by any evidence.

11. The Commissioner did not take into account the fact that Davis stormed out of the meeting which limited the ability of the Company to consult. The lack of consultation was brought about by David.’

[13] In seeking permission to appear, the appellant contended as follows:

‘1. With no new relevant evidence how can a Vice president and a commissioner when presented with the same facts come to a totally different decision. David did not cross examine the director of the company.

2. Commissioner Roberts was part of the full bench who allowed this appeal based on a procedural error. He was also part of the Full bench who found that consultancy did not occur but failed to consider that VP Booth [sic] had already considered that in her original decision and gave a very accurate and lucid reasoning based on precedent for her decision.

3. This could lead to certain impression of bias and perhaps a person involved in the full bench should not be given the responsibility to adjudicate in this case.

4. Penalizing a company heavily due to the inability of the person to find a Job due to his advance age will act as a deterrent to all business who are considering employing staff who are past 45 years . Especially since this employee has only worked here for less than 2 years.

5. Commissioner Roberts took irrelevant consideration into account when making the decision in particular the quantum of compensation..

6. Commissioner Roberts did not take into account the authorities regarding the issue of consultation when making the decision.

7. The Commissioner failed to explain how the Company had failed to handle the termination of the employment properly.

8. The Commissioner failed to appreciate that the David would not be employed even if there had been no consultation. The outcome would still be the same.

9. The Commissioner did not apply and follow the decision of Maswan v. Escada Textilvertribe but trading as Escada [2011] Fair Work Act 4239 [sic],

10. The Company has been prejudiced by the error of law and facts.’

CONSIDERATION

[14] It is plainly apparent from the appellant’s grounds of appeal, that he misunderstands firstly what Commissioner Roberts was required to determine on remittance from the Full Bench and, secondly, what he will need to establish in his substantive appeal; namely, that the appeal attracts the public interest and that he must demonstrate significant error/s of fact in the Commissioner’s decision. Perhaps this is understandable, given that he has been unrepresented throughout all of the proceedings and continues to be so.

[15] At a hearing of the stay application on 14 February 2014, Mr Amaral, the appellant’s Managing Director, continued to focus on an argument that the Commissioner’s decision was inconsistent with Deputy President Booth’s decision and the Full Bench’s decision in that the respondent’s redundancy would have occurred in any event, even if there had been no consultation. In short, Mr Amaral’s appeal grounds are largely an attempt to reagitate matters which have already been determined by the Full Bench. It is impermissible to do so. Moreover, it is irrelevant that the Full Bench agreed with the Deputy President on this point as the Full Bench went on to find that what was missing was a proper consultation opportunity which rendered the termination of employment not a genuine redundancy (see ss 385(d) and 389). Having so determined, the only matters left for the Commissioner to consider was whether the dismissal was ‘harsh, unjust or unreasonable’ and, if so, what remedy, if any, should be awarded by the Commission.

[16] It is apparent from the transcript of proceedings before Commissioner Roberts that the Commissioner had some difficulty in directing the parties, in particular Mr Amaral, to properly focus on issues he was required to consider on remittance from the Full Bench. I also had the same difficulty in the stay application hearing.

[17] The appellant also submitted that the Commissioner’s decision was inconsistent with the decision of Watson VP in Maswan v Escada Textilvertrieb T/A ESCADA [2011] FWA 4239 (‘Maswan’), in that the Vice President had dismissed an application based on genuine redundancy, where consultation would not have altered the outcome. There is no doubt that Commissioner Roberts was ‘alive’ to the decision of the Vice President as Mr Amaral relied on it in his written and oral submissions. In any event, Watson VP made clear in that case that a failure to consult was not a trivial matter and that a dismissal may still be unfair if there was a serious error in procedure or the rationale for the redundancy was seriously undermined.

[18] In this case, even though the Full Bench and the Commissioner accepted that there was a valid reason for the dismissal, it was still found to be that the appellant had an obligation to engage in the necessary consultation, in an appropriate manner, and that by failing to do so, the dismissal might nevertheless be found to be ‘harsh, unjust or unreasonable’. I repeat, that is precisely what the Commissioner was charged by the Full Bench to determine.

[19] Unsurprisingly, the respondent opposed the grant of a stay of the Commissioner’s orders and submitted that this matter had been going on for so long and his dismissal had seriously impacted on both his personal and financial circumstances, that he just ‘wanted it over’. I note the respondent disclosed to Commissioner Roberts’ on 22 January 2014 that he had recently filed a Debtors Petition (Application to become bankrupt) under s 55 of the Bankruptcy Act 1966 (Cth).

[20] In light of these observations, I am not satisfied that the appellant has established an arguable case with reasonable prospects of success. It is patently clear that having found there was a valid reason for dismissal, the Commissioner very properly and thoroughly made findings on each of the matters to be considered under s ss 387 and 392(2) of the Act. It is difficult to see how his discretion in these respects, in any way, miscarried; See: House v The King (1936) 55 CLR 499.

[21] I note the appellant criticised the Commissioner for taking into account the respondent’s age, inability to obtain alternative employment and personal circumstances. It was said that this amounted to the Commissioner taking into account irrelevant considerations. Such a ground of appeal is simply wrong. The Commissioner was entirely correct in taking into account such matters. Indeed, he was obliged to do so, as all the relevant authorities make clear; See: Byrne v Australian Airlines Ltd [1995] HCA 24.

[22] As to the public interest, I can see little in the materials and submissions before me to attract the public interest; See: GlaxoSmithKline Australia Pty Ltd v Makin (2010) 197 IR 266. I cannot discern from the Commissioner’s decision that it:

● disclosed a manifest injustice;
● is counter-intuitive;
● is disharmonious to other decisions involving similar matters;
● went to any important, new or novel matters relevant to the unfair dismissal jurisdiction of the Commission; or
● attracted issues which went beyond the interests of the direct parties.

[23] Finally, there is nothing in the materials or the submissions which lends support to a proposition that the Commissioner was biased. It was said that in part, this was because he was a member of the earlier Full Bench. The fact that the Commissioner was a member of the appeal bench ensured that he was very well placed to know and appreciate all of the issues in the case, but more importantly, to be very cognisant of what the Full Bench decided. The record of the proceedings before him clearly demonstrates this to be the case. I would add that it is not unusual at all, in determining appeal proceedings, that a member of the appeal Bench be delegated to hear and determine any matter arising from the Full Bench’s conclusions.

[24] Given that I am not persuaded the appellant has an arguable case with some reasonable prospects of success, on both the questions of leave to appeal and the merits of the appeal proper, it is unnecessary to consider the balance of convenience. However, I would add this rider: had I found to the contrary, the balance of convenience, in circumstances where the respondent is a declared bankrupt (although this is not entirely clear in this case) would have likely fallen on the appellant’s side. For the aforementioned reasons, I refuse the appellant’s application for an order to stay Commissioner Roberts’ order of 22 January 2014 [PR547081]. The appeal is listed for hearing before the Full Bench on 22 April 2014.

DEPUTY PRESIDENT

Appearances:

Mr R Amaral for the Appellant.

Respondent in person.

Hearing details:

2014,

Sydney:

14 February

Printed by authority of the Commonwealth Government Printer

<Price code C, PR547933>