Jan Bakker v Icecap Refrigeration
[2021] FWCFB 1158
•3 MARCH 2021
| [2021] FWCFB 1158 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Jan Bakker
v
Icecap Refrigeration
(C2020/9034)
VICE PRESIDENT CATANZARITI | SYDNEY, 3 MARCH 2021 |
Appeal against decision [2020] FWC 6344 of Deputy President Asbury at Brisbane on 27 November 2020 in matter number U2020/6468 – permission to appeal refused – appeal dismissed.
DECISION OF VICE PRESIDENT CATANZARITI AND DEPUTY PRESIDENT MILLHOUSE
[1] Mr Jan Bakker has lodged an appeal under s 604 of the Fair Work Act 2009 (Cth) (the Act) for which permission to appeal is required against a decision 1 (the Decision) and order2 of Deputy President Asbury issued on 27 November 2020. The Decision dealt with an application made by Mr Bakker under s 394 of the Act for an unfair dismissal remedy.
[2] Mr Bakker alleges that he was unfairly dismissed from his employment with IceCap Pty Ltd (the Respondent). In the Decision, the Deputy President found that Mr Bakker’s dismissal was not a case of genuine redundancy. 3 The Deputy President ultimately determined that the dismissal was harsh and unreasonable.4 An order for compensation in the amount of $1,656.00, plus superannuation and less appropriate taxation was made.5
[3] The matter on appeal was subject to a telephone hearing in respect of both permission to appeal and the merits of the appeal on 10 February 2021. The Respondent did not appear at the hearing and instead seeks to rely on its written submissions.
[4] For the reasons that follow, permission to appeal is refused.
Decision under appeal
[5] The factual matrix of the Decision under appeal, in broad summary, is as follows:
• Mr Bakker commenced employment with the Respondent on 26 March 2019. He was employed on a part-time basis working 24 hours per week as a workshop technician. 6
• Initially, Mr Bakker was employed to undertake repair work on refrigeration cassette units being supplied by one of the Respondent’s larger clients. 7 After several months, and on account of the client’s financial constraints, the client ceased using contractors to conduct cassette repair work.8 This affected the work the Respondent had tasked Mr Bakker to perform. Accordingly, Mr Bakker’s duties changed to general repairs and workshop maintenance.9
• Subsequently on account of the COVID-19 pandemic, the Respondent lost further clients including hotels, restaurants and motels which had closed. 10 This further affected the Respondent’s business activities. Following a meeting on 12 March 2020, Mr Bakker’s hours of work were reduced from 24 to 16 hours per week. Following a meeting on 19 March 2020, the working hours of other employees were also reduced.11 By 3 April 2020, the Respondent’s site technicians had commenced taking leave without pay.
• The Respondent relied upon its roster as evidence of the fact that employees’ working hours had begun to reduce from 1 April 2020. The employment of one technician was terminated effective 8 April 2020. 12
• The Respondent applied for the JobKeeper subsidy, which Mr Bakker was in receipt of.
• On 30 April 2020, Mr Bakker’s employment was terminated. The Respondent’s position is that there was no prospect of any future work for Mr Bakker and therefore his position was a genuine redundancy. 13
[6] The Deputy President summarised Mr Bakker’s position at [3] of the Decision, that he considered his dismissal was occasioned by a query regarding JobKeeper payments. While the Respondent accepted that Mr Bakker’s pay query “corresponded” with the time that the decision was made to terminate his employment, the Deputy President noted the Respondent’s contention that the employment ended by reason of redundancy. 14 Mr Bakker said that his position was not redundant because there was work for him to perform and there was no consultation by the Respondent.
[7] The Deputy President considered whether the dismissal was a case of genuine redundancy at [17] to [29] of the Decision. In respect of s 389(1)(a) of the Act, it was determined as follows:
“[22] In the present case I find that while some of the workshop duties performed by the Applicant remain they are being performed by Mr Smith and two apprentices. There have been no additional persons employed and the overall numbers of technicians has reduced. This situation has been brought about by operational changes as a result of the COVID-19 Pandemic and decisions made by the Respondent’s Director as to the types of employees to be retained in employment to position the Company to survive.
[23] Accordingly, the employer no longer required the Applicant’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise, notwithstanding that some or all of the duties remain to be done.”
[8] As to the question of compliance with any consultation obligations as required by s 389(1)(b) of the Act, the Deputy President found that Mr Bakker was covered by the Manufacturing and Associated Industries and Occupations Award 2010 and the Respondent failed to comply with its consultation terms. 15
[9] The Deputy President proceeded to consider whether it was reasonable in all of the circumstances for Mr Bakker to be redeployed within the meaning of s 389(2) of the Act. The Deputy President concluded that it was not reasonable in all the circumstances for Mr Bakker to have been redeployed in the Respondent’s enterprise. 16
[10] It was found by the Deputy President that Mr Bakker’s dismissal was not a genuine redundancy within the meaning of the Act. 17
[11] The Deputy President turned to the question of whether Mr Bakker’s dismissal was harsh, unjust or unreasonable by reference to the criteria in s 387 of the Act, and found as follows: 18
(a) Section 387(a) is not relevant to the question of whether Mr Bakker was unfairly dismissed, because the dismissal was not occasioned by reason of Mr Bakker’s capacity or conduct.
(b) Compliance with the requirement to notify Mr Bakker of the reason for the dismissal and the opportunity to respond to that reason as it relates to capacity or conduct (ss 387(b) and (c) of the Act) was also determined not to be relevant.
(c) Mr Bakker did not request a support person such that there was no unreasonable refusal by the Respondent within the meaning of s 387(d). The Deputy President determined that this factor was not relevant.
(d) As Mr Bakker’s dismissal did not relate to unsatisfactory performance, the question of whether Mr Bakker was warned for the purposes of s 387(e) was regarded to be irrelevant.
(e) The size of the Respondent’s business and the absence of dedicated human resource management specialists or expertise were considered to be matters that contributed to the Respondent’s failure to consult Mr Bakker about the redundancy (ss 387(f) and (g)).
[12] As to other relevant matters under s 387(h) of the Act, the Deputy President had regard to the uncontested fact that Mr Bakker was a hard worker. Further, the Deputy President considered the period of Mr Bakker’s 14 months’ employment, his age (63 years) and the prospects of securing future employment given Mr Bakker’s age. 19 The Deputy President also took into account that while the dismissal was not a genuine redundancy within the meaning of s 389 of the Act, Mr Bakker’s position was made redundant for bona fide reasons.20
[13] Having considered the statutory criteria, the Deputy President concluded that Mr Bakker’s dismissal was unfair. This conclusion was reached on the basis that Mr Bakker was not informed that his position was in jeopardy due to economic downturn, and was not given a reasonable opportunity to mitigate the loss of his employment because of the Respondent’s consultation failure. 21
[14] In determining the appropriate remedy, the Deputy President found that reinstatement was inappropriate because, notwithstanding the failure to consult, Mr Bakker’s position was redundant. 22 Having determined that an order for payment of compensation was appropriate, the Deputy President applied the approach set out in Sprigg v Paul Licensed Festival Supermarket23and took into account the matters identified in s 392(2) of the Act. It was found that proper consultation would not have changed the outcome of the decision to dismiss Mr Bakker and that his employment would have continued for a further two weeks if consultation had taken place.24
[15] In all the circumstances, the Deputy President determined that it was appropriate to make an order for the payment of $1,656.00 representing two weeks’ pay, in addition to superannuation, and less taxation as required by law. 25
Principles of appeal
[16] An appeal under s 604 of the 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. 26 There is no right to appeal and an appeal may only be made with the permission of the Commission.
[17] Section 400 of the Act applies to this appeal. 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.”
[18] 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 of the Act as “a stringent one.” 27 The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.28 The public interest is not satisfied simply by the identification of error, or a preference for a different result.29 In 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.” 30
[19] 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. 31 However, that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.
[20] 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. 32 However, it is necessary to engage with the appeal grounds to consider whether they raise an arguable case of appealable error.
Appeal grounds and submissions
[21] Mr Bakker has identified two grounds of appeal, which are set out in the following terms in his notice of appeal:
“1. I was sacked on the spot because of my enquiry about wrongly paid job keeper by Icecap to me. Icecap was entitled to and received job keeper payment from the Government for the duration of the initial scheme to pay their employees and to keep them employed, the name is saying it all.
2. Dep. Asbury erred in her decision that she did not consider the duration and continued expected period of employment on job keeper payment.”
[22] Mr Bakker submits that it is in the public interest to grant permission to appeal the Decision for the reasons summarised as follows:
(a) Mr Bakker “was not afforded a fair opportunity to respond to the reasons of Icecap to sack me because they did not follow directions from Fair Work.”
(b) Mr Bakker’s complaint about the Deputy President influenced the manner in which he was treated during the proceedings.
(c) There were inconsistencies in the Respondent’s evidence concerning the potential employment of new technicians.
(d) The Respondent did not indicate in its Form F3 response that the dismissal was a genuine redundancy and was provided guidance in respect of this matter by the Deputy President.
(e) The Decision amounts to “a little slap on the wrist” for the Respondent. Mr Bakker does not consider it to be fair or in the public interest.
Consideration
Appeal ground one
[23] By appeal ground one, Mr Bakker contends that he was “sacked on the spot” for making an enquiry about “wrongly paid” JobKeeper payments.
[24] In the proceedings before the Deputy President, the Respondent’s director Mr Smith gave evidence that within several months of Mr Bakker’s employment which commenced on 26 March 2019, the work that Mr Bakker was performing reduced. 33 Mr Smith was hopeful that the work would return and chose not to dismiss Mr Bakker in or about July 2019, however Mr Smith said he wasn’t expecting the business downturn “to go six, seven, eight months down the track.”34 Subsequently, there was a further reduction in available duties on account of the COVID-19 pandemic.35 This was caused by a decline in the services the Respondent provides to clubs, pubs and the like.36 The Respondent tendered a document which disclosed that in the roster week ending 1 April 2020, its employees’ working hours had reduced, including Mr Bakker’s hours.37 Further, Mr Smith’s evidence was that Mr Bakker had been tasked with alternative duties, some of which were brought into the workshop simply to occupy Mr Bakker’s time. This included Mr Bakker making and welding several items for the “owner’s house” for a period of two weeks.38
[25] In the roster week ending 8 April 2020, prior to Mr Bakker’s dismissal, one of the Respondent’s technicians was dismissed on account of there being insufficient work. 39 Mr Bakker’s employment was subsequently terminated on 30 April 2020. Mr Smith gave evidence that Mr Bakker’s dismissal was occasioned by the fact that the Respondent was “under a lot of pressure to reduce our costs,” and Mr Bakker was “not doing any income-producing work for the company,” and it could no longer afford to carry him.40 Further, Mr Smith said that the Respondent learned that it could not retain an employee on JobKeeper “if there is no real position available.”41 Mr Smith also gave evidence that Mr Bakker’s duties were absorbed by existing employees.42 It is accepted by the Respondent that Mr Bakker made enquiries regarding his pay advice in or about April 2020.43 Mr Smith’s evidence discloses that in consultation with its accountant, Mr Bakker’s pay query was resolved following his dismissal.44
[26] Subsequent to Mr Bakker’s termination, two technicians also ceased employment with the Respondent. 45 As to the four technicians that remained employed at the time of the proceedings, the Respondent said that there is insufficient work to increase their hours to a full-time equivalent.46
[27] Mr Bakker relies upon Mr Smith’s evidence that the Respondent rectified his pay anomaly as support for the contention that he was dismissed because of his pay enquiry. 47 However, Mr Bakker does not identify any error of significant fact or other appealable error in the Decision. To the extent that Mr Bakker’s contention of error is that the Deputy President ought to have found that he was dismissed because of the pay enquiry, this contention is rejected. The uncontested evidence before the Deputy President was that Mr Bakker was not performing repair work on refrigerator cassette units and he was instead tasked with other duties. These circumstances had prevailed since approximately April/May 2019, representing a period of approximately 12 months prior to Mr Bakker’s cessation of employment.48 The duties provided to Mr Bakker during this time were unrelated to his substantive position, including work on Mr Smith’s home. The Respondent’s position that the work performed by Mr Bakker was not generating any income for the business is borne out by this evidence. Further, there were other workforce changes occurring in the Respondent’s business in the period of the COVID-19 pandemic, including the reduction of working hours of its employees and the dismissal of three other technicians shortly prior to and following Mr Bakker’s termination. Aside from contending that a query was raised in respect of JobKeeper payments shortly prior to his dismissal, there is no probative material before the Commission which lends support to Mr Bakker’s contention that his dismissal was occasioned by that fact. The fact that Mr Bakker’s hours of work increased in the week prior to his dismissal does not bear upon this conclusion, noting that the Respondent held the view that a minimum number of hours were required to be performed in return for the JobKeeper subsidy.49
[28] That the Deputy President did not, in terms, dispose of Mr Bakker’s contention that he was dismissed because of his pay enquiry does not give rise to appealable error in the Decision. The Deputy President had regard to Mr Bakker’s contention, 50 however concluded that the dismissal was occasioned by operational requirements of the Respondent’s business. The weight of the evidence before the Commission supported the conclusion reached by the Deputy President that the Respondent no longer required Mr Bakker’s job to be performed by anyone because of changes to the operational requirements of its enterprise.
[29] No appealable error is disclosed by appeal ground one. It is therefore rejected.
Appeal ground two
[30] The second ground of appeal asserts that the Deputy President erred in not considering the duration and continued expected period of Mr Bakker’s employment on JobKeeper payments. 51 Although it is not articulated in the notice of appeal or submissions, it appears that Mr Bakker is contending that the Deputy President erred in the consideration of remedy under s 392(2)(c) of the Act.
[31] Mr Bakker submits that the Respondent was bound to continue his employment until the end of the JobKeeper scheme. This argument was raised by Mr Bakker in the proceedings below, and was considered by the Deputy President as follows:
“[21] The JobKeeper subsidy is not a mechanism by which employers are required to keep employees in employment until the COVID-19 Pandemic subsides and/or the JobKeeper scheme ceases, in circumstances where their jobs are, or become redundant. The circumstances during the COVID-19 Pandemic are evolving rapidly as employers position their enterprises to survive. While JobKeeper payments may significantly subsidise wages they do not cover all costs of maintaining an employee in employment. An employer is entitled to make a decision that a job is not sustainable and will not be sustainable when the Pandemic subsides and to make that position redundant, regardless of the eligibility of the employer or the employee in the job, to receive JobKeeper payments. The mere fact that an employer has claimed JobKeeper payments for an employee at some point does not entitle that employee to remain employed in circumstances where the employee’s job is or becomes redundant.” 52
[32] The Deputy President appreciated that Mr Bakker was enrolled in the JobKeeper scheme. The Deputy President found that Mr Bakker would have been dismissed despite the JobKeeper subsidy because his position was no longer required by the Respondent because of changes to its operational requirements. While the Deputy President found that the Respondent had failed to meet its consultation obligations, it was considered that this process would not have altered the Respondent’s decision to dismiss Mr Bakker, and consultation would have taken two weeks to complete. 53
[33] The Deputy President addressed with the parties the manner in which the Commission approaches the calculation of compensation as a remedy in circumstances where there has been an alleged failure to consult. 54 We discern no error in the accuracy of the Deputy President’s explanation of these matters, or in the application of these principles in the Decision. We endorse, as the Deputy President did,55 the principle that JobKeeper does not create an obligation upon employers to continue the employment of an employee whose job is no longer required to be performed because of changes in the operational requirements of the employer’s enterprise. The Deputy President correctly dismissed Mr Bakker’s position that the JobKeeper scheme had a bearing upon his anticipated period of employment. It follows that no error exists in the Deputy President’s assessment of remedy. In essence, this ground of appeal is an attempt by Mr Bakker to rerun the same contention that was unsuccessful in the proceedings below.
[34] No arguable case of error is made out in relation to appeal ground two.
Public interest
[35] We earlier set out Mr Bakker’s position concerning why it is in the public interest to grant permission to appeal the Decision. In summary, Mr Bakker submits:
1. He was not afforded a fair opportunity to respond to the reasons given by the Respondent for his dismissal because the Respondent did not file an outline of submissions in accordance with directions issued by the Commission.
2. The Deputy President treated Mr Bakker “as a little boy” and laughed at him in the hearing.
3. There was evidence of the Respondent seeking to employ new technicians, and this is inconsistent with Mr Smith’s evidence in the proceedings.
4. The Deputy President did not act impartially because advice was provided to the Respondent regarding whether Mr Bakker’s dismissal amounts to a genuine redundancy.
5. The Decision amounts to “a little slap on the wrist” for the Respondent.
[36] While these matters are not advanced by Mr Bakker as appeal grounds, we address them below for completeness.
[37] The first issue is whether Mr Bakker was provided with a fair opportunity to address the Respondent’s position regarding the unfair dismissal application. Mr Bakker raises this concern in light of the fact that the Respondent did not file an outline of submissions in accordance with directions of the Commission. We accept that an outline of submissions was not filed on 14 July 2020 at the time that the Respondent filed its witness statements. However this does not, of itself, give rise to appealable error in the Decision. In any case, the Respondent’s position was set out in its Form F3 Employer response and the witness statements of Mr Smith and two employees. Together, this material provided a sufficient basis upon which Mr Bakker could discern the Respondent’s position.
[38] The second issue concerns Mr Bakker’s characterisation of the manner in which he was treated by the Deputy President during the proceedings. A review of the audio recording of the hearing and the transcript does not disclose that Mr Bakker was treated “as a little boy” or laughed at by the Deputy President. We therefore reject the contention made by Mr Bakker.
[39] The third issue relates to the alleged inconsistencies in the Respondent’s evidence concerning the potential employment of new technicians. In support of his position, Mr Bakker relies upon job advertisements placed by the Respondent on the Seek website on or about 22 October and 7 December 2020. The advertising of these refrigeration and air-conditioning technician roles is said to be inconsistent with Mr Smith’s evidence that he did not expect to employ new technicians until “next year sometime 2021.” 56 In his reply submissions, Mr Smith submits that the job advertisements relied upon by Mr Bakker were posted in order to fill the position of a field technician who was injured and needed to be “off work for an undetermined time”.57 Mr Smith further submits that Mr Bakker was employed as a workshop technician and thus, is not suitable to fulfil the role of field technician.58 We do not accept that an inconsistency arises, as contended. To the extent that Mr Bakker asserts that redeployment was reasonable because he could have filled one of the advertised positions, we reject this contention. Whether redeployment of an employee is considered reasonable will depend on the circumstances that exist at the time of the dismissal.59 An alternative job, position, or work must be identified.60 Mr Bakker did not identify an available position that existed within the Respondent’s enterprise at the time of his dismissal in or about April 2020. Nor has Mr Bakker raised an error in respect of the finding in the Decision that it was not reasonable in all of the circumstances for Mr Bakker to be redeployed in the Respondent’s enterprise.61 In the absence of appealable error in the Decision, Mr Bakker’s contentions cannot succeed.
[40] In relation to the fourth issue, we do not accept that the Deputy President advised the Respondent how to frame its case in response to Mr Bakker’s unfair dismissal claim. In the Decision, the Deputy President correctly identified that the question of whether the dismissal was a “genuine redundancy” within the meaning of s 389 of the Act must be addressed as an initial matter. 62 Accordingly, the Deputy President’s case management approach included making enquiries of the parties so as to ascertain their respective positions as to this issue. This included posing questions of the Respondent to understand the basis for the dismissal, including if it was occasioned by reason of redundancy. This approach is unremarkable in circumstances where both parties are unrepresented, and does not result in appealable error in the Deputy President’s Decision.
[41] As to the fifth issue, it appears that Mr Bakker is dissatisfied with the Decision and regards it as “a little slap on the wrist” for the Respondent. This position appears to be informed by Mr Bakker’s contention that he was dismissed for making enquiries about his JobKeeper payments. The matter has been dealt with earlier in this appeal, and no error in respect of the Decision of the Deputy President has been made out. Further, Mr Bakker appears to rely upon other matters which post-date the determination of his unfair dismissal application to contend that Mr Smith is “dishonest.” Relevantly, Mr Bakker refers to the Respondent’s communication to Q-leave, being a portable long service leave scheme. However, Mr Bakker has not identified error in the Decision in respect of this matter, which post-dated his dismissal and the Decision by approximately seven months. Finally, Mr Bakker appears to take issue with the quantum of compensation ordered by the Deputy President. However, this submission is confined to a statement to the effect that the remedy ordered is inadequate and this is an insufficient basis upon which permission to appeal should be granted.
[42] Having regard to the above matters and in light of the conclusions reached, we are not satisfied that any error has been identified in the Deputy President’s Decision. It is apparent that the Deputy President applied an orthodox approach to the determination of Mr Bakker’s unfair dismissal application.
[43] Further, we are not satisfied for the purposes of s 400(1) that this appeal attracts the public interest. In particular, we do not consider that:
• There is a diversity of decisions at first instance so that guidance from an appellate body is required of this kind;
• The appeal raises issues of importance and/or general application;
• The Decision at first instance manifests an injustice, or the result is counter intuitive; or
• The legal principles applied by the Deputy President were disharmonious when compared with other decisions dealing with similar matters.
Conclusion
[44] For the reasons set out above, we are not satisfied that it would be in the public interest to grant permission to appeal pursuant to s 400(1) of the Act.
[45] Permission to appeal is refused.
[46] The appeal is dismissed.
DECISION OF COMMISSIONER MCKINNON
[47] I have read the decision of Vice President Catanzariti and Deputy President Millhouse in this matter. Respectfully, I disagree with the majority in dismissing the appeal.
[48] I would grant permission to appeal, uphold the appeal and quash the Decision. I would do so on the basis that the Deputy President failed to take into account material considerations that, had they been considered, may have led to a different result. The material considerations were at the heart of Mr Bakker’s case. In essence, they were about whether he was unlawfully dismissed.
[49] These are my reasons.
Relevant history
[50] Jan Bakker was employed by IceCap Pty Ltd as a workshop technician, performing work on refrigeration cassette units in the hospitality industry as well as general repairs and maintenance. The background to his application for an unfair dismissal remedy is summarised by the majority at paragraph [5]. I generally agree with the factual matrix in that paragraph, but would add the following matters of significance:
1. Minutes of a toolbox meeting on 19 March 2020, approximately 6 weeks before the dismissal, record a discussion between IceCap and its employees about the COVID-19 pandemic and its likely effect on the business. The minutes state that employees may be asked to reduce hours to “keep everyone onboard” with the stated “goal … to keep everyone here”.
2. In the week that he was dismissed, Mr Bakker’s hours of work (which had previously been reduced in response to the pandemic) had reverted to his usual working hours of 24 hours per week. This followed his enrolment in the JobKeeper scheme.
3. Mr Bakker’s “lack of productive work” had been tolerated by the business since at least July 2019. The only established change in circumstances at the time of dismissal was his eligibility for the JobKeeper scheme and his inquiry about being paid his entitlements.
4. Mr Bakker was dismissed on 30 April 2020 by the Director of IceCap, Laurie Smith. The dismissal occurred during a heated discussion about Mr Bakker’s conduct in querying his pay under the JobKeeper scheme. At the time, Mr Bakker was not being paid correctly under the JobKeeper scheme.
5. There was no consultation about the dismissal before it occurred. Mr Bakker was not paid redundancy pay on termination of employment.
6. While one other employee had been dismissed earlier that month on 8 April 2020, there was an unresolved factual dispute about the reason for dismissal in that case and whether it was for performance reasons or redundancy.
Grounds of appeal
[51] Mr Bakker’s grounds of appeal are intermingled with the public interest grounds relied upon to seek permission to appeal. I discern six grounds of appeal from the Notice of Appeal:
1. The decision is affected by significant errors of fact because the reason for dismissal was Mr Bakker’s enquiry about “wrongly paid” JobKeeper payments (Ground 1).
2. The Deputy President erred in failing to consider the duration and continued expected period of employment on JobKeeper (Ground 2).
3. Mr Bakker was not afforded a fair opportunity to respond to the reasons given by IceCap for his dismissal, because IceCap did not comply with directions issued by the Commission about the filing of an outline of argument, and that his argument was not adequately dealt with by the Deputy President when raised at the hearing of his case (Ground 3).
4. The Deputy President did not act impartially toward him in the conduct of the hearing because of a complaint he had earlier made to the President. The Deputy President was treating him “as a little boy during the hearing, laughing at me and making me small in a way you don’t expect from a neutral person during a trial.” In suggesting to IceCap that the dismissal was a redundancy, the Deputy President gave advice to IceCap about how to run its case to his detriment (Ground 4).
5. Mr Smith misled the Deputy President when asked about his plans to employ further technicians, having regard to job advertisements discovered four weeks after the hearing on 14 September 2020 (Ground 5).
6. The level of compensation ordered in Mr Bakker’s favour was a “little slap on the wrist” for IceCap, and not fair or in the public interest because IceCap did the wrong thing, both in relation to his wages and entitlements and his dismissal (Ground 6).
[52] Grounds 2 and 6 are related to Ground 1 of the appeal. Grounds 3 and 4 are about procedural fairness while Ground 5 arises from events that occurred almost five months after the dismissal.
Consideration
Ground 1 – the reason for dismissal
[53] Mr Bakker was dismissed during a conversation about his conduct in querying his pay (paragraph [14] of the Decision). The Deputy President summarised Mr Bakker’s submission to the effect that he was dismissed for querying his pay at paragraph [12] of the Decision. Mr Bakker was being paid incorrectly at the time and the Deputy President appears to have accepted as much in her related finding at paragraph [13] that Mr Bakker’s entitlements on termination were “also” not correctly paid.
[54] However, on the reason for dismissal, the Deputy President found:
1. at paragraph [22]: that IceCap no longer required Mr Bakker’s job to be performed by anyone because of changes in its operational requirements; and
2. at paragraph [31]: having regard to section 387(a) of the Act, Mr Bakker was not dismissed for any reason related to his capacity or conduct and that there was no evidence of any issues relating to his conduct or capacity; and
3. at paragraphs [33] and [34]: having regard to section 387(h), other relevant matters were Mr Bakker’s age, that he was a hard worker, his length of service and related difficulty finding other work and the bona fide nature of his redundancy.
[55] The principles relevant to identifying appealable error were stated by the High Court in House v The King 63 as follows:
“The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.”
[56] In the discretionary decision of a primary decision maker, a failure to give sufficient weight to a relevant factor will not give rise to appealable error. 64 However, giving a matter “little or no weight” is akin to failing to take the matter into account. 65 If the matter is material to the case, this failure may give rise to appealable error.
[57] I do not agree that the weight of evidence before the Deputy President supported the conclusion that the reason for dismissal was redundancy. Much was made of a reduction in staffing on and after April 2020, occurring as it did in the context of a pandemic. However, not every reduction in staff numbers is the result of redundancy. The reason for an employee’s dismissal is a question of fact. It is not to the point that an employee could have been made redundant because of the prevailing circumstances at the time, if that is not actually what occurred.
[58] In this case, there was evidence before the Deputy President that the pandemic had begun to take a toll on the business by the time Mr Bakker was dismissed on 30 April 2020. A summary roster showed reductions in hours of work across the group of employees. This was consistent with IceCap’s stated goal of preserving employee jobs, announced as the pandemic began to unfold in the toolbox meeting on 19 March 2020. There was also evidence of a statement made by Mr Smith to Mr Bakker at the time of dismissal, to the effect that he could “no longer carry him”, although there was a dispute about what he meant.
[59] IceCap relied heavily on the loss of a client contract in either March or July 2019 to explain why ultimately, Mr Bakker was dismissed. However, at the time of his dismissal, Mr Bakker had been performing general repairs and workshop maintenance for approximately 9 months and his hours of work had just increased. In that context, the evidentiary link between the work Mr Bakker had originally been engaged to perform (repairing refrigeration cassette units), the loss of a client contract for that work 9 months earlier, and the decision to dismiss Mr Bakker, was not strong. In any event, and at best, the evidence about when the decision was made that Mr Bakker’s role was redundant is that it was not until the heat of the moment during the discussion in which Mr Bakker was dismissed.
[60] That discussion was prompted by Mr Smith approaching Mr Bakker about his repeated requests to be paid correctly. It ended when Mr Smith said, in words to the effect, “If you are not happy with it, I will have to let you go”, and then “that’s it, you’re sacked, I will pay you out your entitlements”. This evidence points to Mr Bakker having been dismissed because he was not happy about his pay and had made inquiries to that effect.
[61] At the time he made those inquiries, Mr Bakker was being underpaid. The situation continued even after termination of employment, when Mr Bakker was not paid his due entitlements. If IceCap was not a small business employer (as the Deputy President found at paragraph [6(c)] of the Decision), it is also relevant that Mr Bakker was not paid redundancy pay on termination of employment.
[62] None of the circumstances that linked Mr Bakker’s dismissal to his pay queries were given any weight in the Deputy President’s assessment of whether the dismissal was unfair. As a result, the Deputy President did not take into account material considerations in her overall assessment of the case under section 387. The failure to do so was appealable error of the kind referred to in House v King.
[63] Not every error warrants the grant of permission to appeal in an unfair dismissal case. I must also consider that it is in the public interest to grant permission. There is public interest in granting permission in this case because of the relationship between the error I have identified and the possibility that Mr Bakker’s dismissal was not only unfair, but unlawful.
[64] I would grant permission to appeal, uphold Ground 1 of the appeal and quash the Decision.
Appeal grounds 2 to 6
[65] Given my findings in relation to Ground 1, it is not necessary to deal with the remaining grounds of appeal.
Jurisdictional error?
[66] There is one other matter that bears comment. The Deputy President found, at paragraph [6(c)] of the Decision, that IceCap was not a small business employer. At paragraph [32] of the Decision, the Deputy President found that IceCap was a small business. It is not clear on the face of the record which was correct. If IceCap was a small business employer for the purposes of the Act, it was necessary as a matter of jurisdiction for the Deputy President to deal with whether the dismissal was consistent with the Small Business Fair Dismissal Code. This was not done, presumably because the effect of the Deputy President’s finding at paragraph [6(c)] was that it was irrelevant. The matter would need to be resolved on any remittal of the matter for rehearing.
Order
[67] The order of the Full Bench, by majority, is that permission to appeal is refused and the appeal is dismissed.
VICE PRESIDENT
Appearances:
Mr Jan Bakker, on his own behalf
Hearing details:
2021.
Telephone Hearing
10 February
Printed by authority of the Commonwealth Government Printer
<PR727470>
1 Jan Bakker v ICE CAP PTY LTD [2020] FWC 6344.
2 PR724691.
3 Decision [29].
4 Ibid [35].
5 PR724691.
6 Appeal book pp.148 and 152.
7 Appeal book p.148.
8 Ibid.
9 Ibid.
10 Ibid.
11 Ibid.
12 Appeal book p.154-155.
13 Appeal book p.148-149.
14 Appeal book p.5 and 6 at [14].
15 Decision [27].
16 Ibid [28].
17 Ibid [29].
18 Ibid [31] and [32].
19 Ibid [33].
20 Ibid [33] and [34].
21 Ibid [34].
22 Ibid [35].
23 (1998) 88 IR 21.
24 Ibid [41].
25 Ibid [56].
26 Coal and Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 [17] per Gleeson CJ, Gaudron and Hayne JJ (Coal and Allied Operations Pty Ltd).
27 (2011) 192 FCR 78; (2011) 207 IR 177 [43].
28 O’Sullivan v Farrer and another (1989) 168 CLR 210 [216] – [217] per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch (2011) 243 CLR 506 [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78; (2011) 207 IR 177 [44]-[46].
29 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].
30 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343 [27]; (2010) 197 IR 266.
31 Wan v AIRC (2001) 116 FCR 481 at [30].
32 Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82].
33 Appeal book p.23 at [71]-[75].
34 Ibid p.24 at [83]-[84].
35 Ibid p.24 at [79]-[82].
36 Ibid pp. 24 and 25 at [86]
37 Ibid p.154 and 155.
38 Ibid p.36 at [227]-[232], p. 116.
39 Ibid p.26 at [105]-[108], p.34 at [202], p.154.
40 Ibid p.30 at [155] and [156].
41 Ibid p.27 at [116] and [117].
42 Ibid p.30 at [160].
43 Ibid p. 29 at [140]-[143], p.113, 114.
44 Ibid p.119.
45 Ibid p.26 at [110]-[113], p. 155.
46 Ibid p.31 at [169].
47 Appellant’s submissions on appeal filed 20 January 2021 at [1].
48 Appeal book pp.23 and 24 at [71]-[76].
49 Ibid p.27 at [120].
50 See Decision at [12].
51 Appellant’s submissions on appeal filed 20 January 2021 at [2].
52 Decision at [21].
53 Ibid p.11 at [41].
54 Ibid pp.40-42 at [263]-[279].
55 Ibid p.7 at [21].
56 Appeal book p.153; see further p.51 at [378].
57 Respondent’s submissions on appeal filed 28 January 2021.
58 Ibid.
59 Ulan Coal Mines Limited v Honeysett (2010) 199 IR 363 at [28].
60 Technical and Further Education Commission T/A TAFE NSW v Pykett (2014) 240 IR 130 at [36].
61 Decision at [28].
62 Decision at [7].
63 (1936) 55 CLR 499 at 504-5 per Dixon, Evatt and McTiernan JJ
64 Queensland Electricity Commission, Re; Ex parte Electrical Trades Union (1987) 72 ALR 1 at 7
65 Milillo v Konnecke [2009] NSWCA 109 at [94]-[95]
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