Dominic Fitzjohn v Southern Cross Protection Pty Ltd
[2015] FWCFB 4029
•21 JULY 2015
| [2015] FWCFB 4029 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
Southern Cross Protection Pty Ltd
(C2015/3808)
VICE PRESIDENT HATCHER | SYDNEY, 21 JULY 2015 |
Permission to appeal sought against decision [[2015] FWC 2601] of Deputy President Sams at Sydney on 15 April 2015 in matter number U2014/12178.
[1] On 4 May 2015 Mr Dominic Fitzjohn (Appellant) filed a notice of appeal with the Fair Work Commission (the Commission) against a decision 1 (Decision) on 15 April 2015 by Deputy President Sams in which he determined that Mr Fitzjohn’s dismissal by Southern Cross Pty Ltd (Southern Cross – the Respondent) on 25 August 2014 was a case of ‘genuine redundancy’ and that Mr Fitzjohn was not unfairly dismissed. The Deputy President dismissed Mr Fitzjohn’s unfair dismissal application and issued an Order2 to that effect conjointly with the Decision.
[2] By way of background, Mr Fitzjohn was employed by Southern Cross as a mobile Security Patrol Officer, based in the northern suburbs of Brisbane. Mr Fitzjohn worked weekend day shifts for Southern Cross and had done so for several years. In mid-2014 Southern Cross sought to reduce its costs following the loss of a number of business contracts. As a result, Southern Cross determined that nationally seven part-time weekend runs operated at a loss, including the one worked by Mr Fitzjohn. These runs were restructured with Mr Fitzjohn’s run to be undertaken by a contractor to Southern Cross. As a result, Mr Fitzjohn’s position ceased to exist. Mr Fitzjohn had been offered redeployment to several alternative positions which involved different hours of work but declined all of them on the basis that he did not consider them to be commensurate with his existing position. Nationally, a number of other employees who faced the prospect of being made redundant were successfully redeployed to other positions with Southern Cross. Mr Fitzjohn was the only person made redundant as a result of the national restructure.
[3] The issue of whether permission to appeal should be granted was heard by the Commission on 18 June 2015. At the hearing Mr Fitzjohn appeared on his own behalf, while Mr Serge Gorval appeared with permission on behalf of Southern Cross.
The Statutory Framework
[4] The relevant provisions of the Fair Work Act 2009 (the Act) are ss.385 and 389 which provide as follows:
385 What is an unfair dismissal
A person has been unfairly dismissed if FWC is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.
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.
The Appellant’s Case
[5] Mr Fitzjohn in his Notice of Appeal cited seventeen grounds for appeal. Those grounds can be summarised as the Deputy President:
- erred in a number of respects;
- failed to give adequate weight to Mr Fitzjohn’s submissions or, alternatively, gave undue weight to the submissions of Southern Cross;
- failed to provide adequate reasons; and
- took into account irrelevant considerations and/or incorrect principles.
Mr Fitzjohn also submitted, inter alia, that the Decision was in disharmony with other decisions dealing with similar matters.
[6] As to the public interest considerations involved in the matter, Mr Fitzjohn pointed to what he considered to be a number of such considerations. These included that the Decision raises issues of general controversy and broad significance concerning the proper interpretation and application of the legislative test in s.389(1)(a) of the Act, e.g. whether a finding of genuine redundancy is consistent with an admitted operational requirement that is a prohibited reason under Part 3-1 of the Act, and the proper approach to the application of s.389(2) of the Act, e.g. is a contractor filled position an available position for the purposes of redeployment?
[7] In his written submissions Mr Fitzjohn contended, among other things, that there were approximately one hundred errors of fact throughout the Decision. One of the key errors cited by Mr Fitzjohn at the hearing was the description at paragraph [139](f) of the Decision of one of the redeployment options put to him by Southern Cross. In the Decision that option was described as a full-time weekly day shift position whereas in fact it was a full-time weekly night shift position. Mr Fitzjohn contended that this was a significant error of fact. We discuss this particular issue in detail below.
[8] Other key aspects of Mr Fitzjohn’s submissions at the hearing were:
- he did not accept the redeployment options put to him as he did not consider them commensurate with his former position;
- the redeployment options that he put to the Respondent were in his view reasonable but were rejected by the Respondent;
- the Decision does not resolve his claim that his former job still exists and is not being performed any differently to how he performed it;
- the Deputy President failed to evaluate the totality of the relationship between Southern Cross and the contractor that took on Mr Fitzjohn’s former run, a relationship which Mr Fitzjohn characterised as a labour hire arrangement as opposed to outsourcing; and
- the decision by Southern Cross to outsource work in an effort to save costs was inconsistent with the general protections provisions of the Act.
The Respondent’s Case
[9] At the hearing the Full Bench indicated that it only wished to hear from the Respondent on Mr Fitzjohn’s submission that the Deputy President had erred in describing one of the redeployment options offered to Mr Fitzjohn as a full-time weekly day shift position as opposed to a full-time night shift position. On this issue the Respondent indicated that it had offered Mr Fitzjohn a number of different redeployment options which included a full-time night shift role. However, the Respondent submitted that the error was not a significant error and did not warrant the Full Bench interfering with the Decision.
Consideration
[10] This appeal is one to which s.400(1) of the Act applies. Section 400(1) 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.
[11] 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”. 3 The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment4. In GlaxoSmithKline Australia Pty Ltd v Makin (GlaxoSmithKline) 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.” 5
[12] 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. 6 However, the fact that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.7
Errors in the Decision
[13] As previously mentioned, one of the errors identified by Mr Fitzjohn related to the Deputy President’s description of one of the redeployment options put to him. At the hearing Mr Fitzjohn acknowledged that he rejected the redeployment option put to him by Southern Cross on the basis that he did not consider it commensurate with his existing role. Further, Mr Fitzjohn contended that he considered the redeployment options he proposed to be reasonable. As the Bench noted at the hearing, Mr Fitzjohn’s rejection of the redeployment option supports a finding that, drawing on the language of s.389(2)(a), it would not have been reasonable in all the circumstances for Mr Fitzjohn to be redeployed within Southern Cross. Also at the hearing Mr Fitzjohn acknowledged that his view as to the reasonableness of the redeployment options he proposed has nothing to do with the error he attributes to the Deputy President. On this issue we also observe that while at paragraphs [15] and [134](f) of the Decision the Deputy President refers to the redeployment option as involving a weekday day shift, at paragraphs [28], [76] and [116] of the Decision the Deputy President correctly refers to the redeployment option as involving a weekday night shift. This suggests that, if anything, the error was inadvertent.
[14] As noted in GlaxoSmithKline the fact that a Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal. While we concede that the reference at paragraph [134](f) is an error, in circumstances where Mr Fitzjohn rejected the option in question we do not consider the error to be a significant error such that it taints the integrity of the Decision. While the option did not involve Mr Fitzjohn’s preference for weekend day work, it was nevertheless a reasonable option in the circumstances.
[15] Taking into account all of the factors set out above, the error does not support a finding that it would be in the public interest to grant permission to appeal on the basis of this error.
[16] With regard to the remaining alleged errors referred to by Mr Fitzjohn and without forensically canvassing each of those alleged errors in our decision, we are similarly not satisfied that any of them are significant errors which manifest an injustice or result in the Decision being counter intuitive. Accordingly, they do not in our view satisfy the public interest test warranting the granting of permission to appeal.
The Weight Given to the Parties’ Respective Submissions
[17] As to Mr Fitzjohn’s contention that the Deputy President failed to give adequate weight to his submissions or, alternatively, gave undue weight to the submissions of Southern Cross, one example relied upon by Mr Fitzjohn in his written submissions concerns his assertion that there “was no credible evidence beyond mere assertions” referring in particular to paragraph [125] of the Decision. Paragraph [125] reads as follows:
“[125] In addition, the applicant made silly sweeping allegations challenging the respondent's evidence. For example, he claimed that there was no evidence:
a) that redeployment had been offered to other redundant employees; or
b) that the respondent would make any cost savings by the restructure.
The fact is that there was evidence of Mr Medhurst and Mr Thomson of both of these matters. The applicant brought no evidence to challenge or contradict Mr Medhurst's or Mr Thomson's evidence. I accept their evidence. The applicant misunderstands the nature of sworn evidence, if he believes that simply saying the respondent's witness evidence should not be accepted is the end of the matter.”
[18] However a closer examination of the evidence and submissions before the Deputy President on the issue of cost savings does not support Mr Fitzjohn’s contention in this regard. In the proceedings below, Mr David Medhurst, the Chief Executive Officer of Southern Cross, deposed that the restructuring of the work performed by Mr Fitzjohn resulted in savings to Southern Cross of $1,099 per month, adding that if this saving was applied over each of the part-time permanent weekend positions which were eliminated as a result of the restructure Southern Cross would save approximately $100,000 per annum. 8 That evidence was not challenged through cross-examination as can be seen from the following extract from the transcript where Mr Fitzjohn cross-examined Mr Medhurst on this issue:
“MR FITZJOHN: Mr Medhurst, you claim that the run was operating at a loss, is the run still operating at a loss subsequent to the restructure?---The run is operating more effectively with the reduced labour costs from a costs perspective.
But still running at a loss?---Our weekend runs typically run at a loss and we’re reducing the loss they make.” 9
[19] Further, in his written closing submissions Mr Fitzjohn does not directly address or challenge Mr Medhurst’s evidence on this issue. Specifically, Mr Fitzjohn simply states “The Respondent relies on ‘business losses’ but there has been no financial evidence of company ‘business losses’ and no evidence that the Run I was working was operating at a ‘substantial loss’.” 10
[20] What is clear from the above is that the observation made by the Deputy President at paragraph [125] on the issue of cost savings was not only open to him but in fact was the only conclusion that could be drawn from the evidence and submissions before him. This supports a finding that it would not be in the public interest to grant permission to appeal on this ground.
[21] With regard to the remaining instances referred to by Mr Fitzjohn in respect of this ground of appeal, we are similarly not satisfied that any of them involve conclusions which were not reasonably open to the Deputy President or manifest an injustice or result in the Decision being counter intuitive. Accordingly, they do not in our view satisfy the public interest test warranting the granting of permission to appeal.
[22] Finally on this issue we observe that in contested matters before the Commission it is invariably the case that the Member needs to make a decision as to the weight to be given to particular submissions and/or evidence and whether the evidence of one party is to be preferred over another party. There is nothing untoward about this as it is an inherent component of the decision maker’s role.
The Failure to Give Adequate Reasons in the Decision
[23] With regard to the Deputy President’s alleged failure to give adequate reasons in the Decision, one of the examples cited by Mr Fitzjohn in his written submission is that the Deputy President’s definition of the term “by anyone” in s.389(1)(a) of the Act was not supported by reference to authorities. While paragraph [120] of the Decision sees the Deputy President express his view on the term, we note that at paragraph [130] of the Decision the Deputy President sets out an extract from the decision in Foster’s Group Ltd v Wing 11 which refers to an observation made by Justice Beazley in Quality Bakers Australia Ltd v Goulding (Quality Bakers)12which states “We consider that it is more accurate to say that an employee becomes redundant when his or her job (described by reference to the duties attached to it) is no longer to be performed by any employee of the employer…” (underlining added). The Deputy President’s view is entirely consistent with the decision in Quality Bakers.
[24] Again, with regard to the other instances referred to in Mr Fitzjohn’s written submissions we do not detect any error on the part of the Deputy President. This does not support a finding that it would be in the public interest to grant permission to appeal on this ground.
The Decision Took into Account Irrelevant Considerations and/or Incorrect Principles
[25] As to the contention that the Deputy President took into account irrelevant considerations and/or incorrect principles, in his written submissions Mr Fitzjohn cited a number of examples, including that other employees were redeployed and the redeployment offers made to Mr Fitzjohn by Southern Cross after his termination. Dealing with the first of those examples, at paragraph [144] of the Decision the Deputy President refers to the fact that all other redundant employees nationwide had accepted redeployment as indicative of the Respondent’s bona fides in terms of minimising the impact of the restructuring on employees. We consider this observation as reasonably open to the Deputy President as it directly relates to the requirements set out in s.389 of the Act. As to the second instance referred to above, an examination of that section of the Decision headed “Consultation with the employee and redeployment” does not evidence any specific mention of the redeployment options which were canvassed with Mr Fitzjohn following his dismissal. Again, we see no substance to Mr Fitzjohn’s contentions on this issue. This in turn does not support a finding that it would be in the public interest to grant permission to appeal on this basis.
Disharmony with Other Decisions Dealing with Similar Matters
[26] As to the alleged disharmony with other decisions dealing with similar matters, in his written submissions Mr Fitzjohn cited a number of authorities but did not elaborate as to how the Decision was inconsistent with those authorities. Nor did Mr Fitzjohn provide any such elaboration at the hearing. Suffice to say, the Deputy President correctly applied the tests in s.389 of the Act. Further, the findings which underpin the Decision were reasonably open to the Deputy President based on the material before him.
[27] While we acknowledge that Mr Fitzjohn is understandably aggrieved by his redundancy and the Decision, we would point out that in the absence of a significant error of fact which attracts the public interest, merely preferring a different outcome is not sufficient justification for the Full Bench to grant permission to appeal.
Conclusion
[28] In summary, we are not persuaded that the grounds of appeal raised any matters which warranted a finding that it was in the public interest to grant permission to appeal. We are also not persuaded the grounds establish that the Decision is attended with sufficient doubt to warrant its reconsideration nor that substantial injustice may result if permission is refused.
[29] While we have not directly addressed each of the grounds for appeal and public interest considerations relied upon by Mr Fitzjohn in this decision, for the avoidance of any doubt we point out that we have considered each of those grounds and considerations together with Mr Fitzjohn’s written and oral submissions in coming to our decision to refuse permission to appeal.
[30] For all of the above reasons, we are not satisfied that it would be in the public interest to grant permission to appeal. Therefore, in accordance with s.400(1), we must refuse permission to appeal.
VICE PRESIDENT
Appearances:
D. Fitzjohn on his own behalf.
S. Gorval representative for Southern Cross Protection Pty Ltd.
Hearing details:
2015.
Sydney:
18 June.
1 [2015] FWC 2601
2 PR563119
3 (2011) 192 FCR 78 at [43]
4 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]
5 [2010] FWAFB 5343 at [27], 197 IR 266
6 Wan v AIRC (2001) 116 FCR 481 at [30]
7 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]
8 Appeal Book – Part 2, p.24 at paragraphs 23-26
9 Transcript of U2014/12178 at PNs 483-484
10 Appeal Book – Part 1, p.125 at paragraph [41]
11 (2005) 148 IR 224
12 (1995) 60 IR 327
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