John Cletus Dlima v Receivables People Solutions Pty Ltd
[2024] FWCFB 341
•15 AUGUST 2024
| [2024] FWCFB 341 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
John Cletus Dlima
v
Receivables People Solutions Pty Ltd
(C2024/4471)
| DEPUTY PRESIDENT MILLHOUSE | MELBOURNE, 15 AUGUST 2024 |
Appeal against decision [2024] FWC 1520 of Deputy President Colman at Melbourne on 12 June 2024 in matter number U2024/2705 – permission to appeal refused.
Mr John Cletus Dlima has lodged an appeal under s 604 of the Fair Work Act 2009 (Cth) (Act) against a decision[1] of Deputy President Colman issued on 12 June 2024. In the decision, the Deputy President dismissed Mr Dlima’s application for an unfair dismissal remedy as he was satisfied that Mr Dlima’s dismissal was a case of genuine redundancy.
The matter was listed for permission to appeal only. The parties consented to the application being determined without holding a hearing pursuant to s 607(1)(b) of the Act. We were satisfied, having regard to s 607(1)(a), that the question of permission to appeal could be adequately determined without the need for oral submissions.
For the reasons that follow, permission to appeal is refused.
Decision under appeal
The decision records that Mr Dlima was employed as a customer relationship officer (CRO) in the PayPal team and covered by the Banking, Finance and Insurance Award 2020 (Award). On 20 February 2024, the General Manager sent an email to the workforce advising that a consultation process would commence following a decision by the respondent about “rightsizing,” which would lead to some positions being made redundant. The consultation process remained open until 28 February 2024.
At a meeting on 21 February 2024, Mr Dlima was informed that only two CRO roles were required in his team, that his position was redundant and that he would likely be terminated on redundancy grounds. Mr Dlima was informed of an available team leader position in Brisbane and applied for that role, without success.
During the consultation period, the General Manager received information from Mr Dlima but it did not cause him to change his mind about Mr Dlima’s proposed redundancy. On 1 March 2024 Mr Dlima was informed that his employment was terminated by way of redundancy, being one of 78 employees ultimately made redundant across the broader group.
The Deputy President found that the respondent no longer required Mr Dlima’s job to be performed by anyone because of changes in the operational requirements of its enterprise
(s 389(1)(a) of the Act). The Deputy President rejected Mr Dlima’s contention that his job is still needed and is being performed, and declined to accept that there were other reasons for the dismissal.[2] The Deputy President also found that that the respondent had complied with its consultation obligations under the Award, having regard to discussions that occurred on 21 and 23 February 2024, and which otherwise took place by correspondence (s 389(1)(b) of the Act). The Deputy President did not agree with Mr Dlima’s submission that not all relevant information was provided about these changes.[3]
The Deputy President determined that it was not reasonable for Mr Dlima to be redeployed within the company or any of its associated entities (s 389(2) of the Act).[4] The Deputy President accepted that Mr Dlima was not suitable for the Brisbane role, finding that he did not have the required qualifications and experience and that reasonable retraining could not have rendered him suitable for it. The Deputy President concluded that Mr Dlima’s dismissal was a case of genuine redundancy and observed that he could not identify any unfairness in the dismissal in any event.[5]
Grounds of appeal
Mr Dlima’s appeal grounds are set out in a 12-page document attached to the Notice of Appeal. This document contains various allegations of professional impropriety on the part of the Deputy President in addition to contentions of alleged error. The grounds of appeal may be summarised as follows.
The Deputy President erred in concluding that the evidence supported a finding that the respondent no longer required Mr Dlima’s job to be performed because of changes in the operational requirements of its enterprise. Mr Dlima contends that the Deputy President made a legal error and did not consider key factual evidence.
The Deputy President erred in concluding that the respondent complied with its Award consultation obligations. Mr Dlima says that the Deputy President overlooked the respondent’s non-compliance with Award clauses 28.1(b) and 28.4.
The Deputy President erred in concluding that it would not have been reasonable for him to be redeployed. Mr Dlima says that the Deputy President engaged in an “intentional wrong,” and the conclusion is contrary to case precedent.
The Deputy President denied Mr Dlima a fair hearing including by accepting submissions and material from the respondent filed 6 hours and 36 minutes after the compliance deadline lapsed.
Mr Dlima submits that it is in the public interest that permission to appeal be granted including because such egregious conduct should not go unchecked, and the Commission’s work needs to be thorough and devoid of error.
Permission to appeal – principles
There is no right to appeal, and an appeal may only be made with the permission of the Commission. This appeal is from a decision made under Part 3-2 of the Act. Therefore, s 400 of the Act applies. By s 400(1), the Commission must not grant permission to appeal unless it is in the public interest to do so. Section 400(2) provides that an appeal on a question of fact can only be on the ground that the decision involved a significant error of fact. The test under s 400 is “a stringent one.”[6]
The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[7] The public interest is not satisfied simply by the identification of error or a preference for a different result.[8] Considerations that may attract the public interest include that the matter raises issues of importance and general application, that the decision manifests an injustice or that the result is counterintuitive.[9]
It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. However, that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.
An application for permission to appeal is not a preliminary hearing of the appeal. In determining whether to grant permission to appeal, it is unnecessary and inappropriate to conduct a detailed examination of the appeal grounds.[10] However, it is necessary to engage with the grounds to consider whether they raise an arguable case of appealable error.
Consideration
We do not consider that the grounds of appeal demonstrate an arguable case of appealable error. As to ground (1), the evidence given by the respondent’s Chief Financial Officer, including regarding the financial position of the group (which the Deputy President found to be “entirely convincing”), appears to support the finding that Mr Dlima’s role was no longer required. The argument before us about whether two or four CRO roles were required was raised by Mr Dlima at first instance and it was considered in the decision. The respondent concluded that only two CRO roles were required based on the work requirements that existed at that time (not at some future time, as Mr Dlima apprehends). The Deputy President found the respondent’s position to be valid, and this conclusion appears to be supported by the evidence of the General Manager and Chief Financial Officer. The fact that the Deputy President did not agree with Mr Dlima’s position does not constitute an arguable error. Nor can it be said that the Deputy President failed to consider this evidence. The Deputy President simply arrived at a conclusion that Mr Dlima does not agree with.
By ground (2), Mr Dlima contends that a definite decision was made in November 2023 in relation to his team and accordingly, the respondent did not consult with him as soon as practical afterwards. The Deputy President’s finding otherwise appears to be open, having regard to the evidence of the General Manager on this point, as well as the evidence of the Chief Financial Officer who explained that the restructuring was undertaken in a staged manner across the broader corporate group. The Deputy President also considered and rejected Mr Dlima’s contention that he was not provided with relevant information in writing. We discern no arguable error in these conclusions having regard to the evidence before the Commission.
We also do not consider it to be arguable that the Deputy President erred in the manner contended by ground (3). The Deputy President concluded that the only evidence before him of any available role that Mr Dlima might have conceivably done was the Brisbane based team leader position. The Deputy President accepted the evidence of the Head of Compliance and Customer Advocacy (finding it to be “sensible and compelling”) that Mr Dlima lacked the required skill and experience for this role. The contention that the Deputy President erred by referring to Mr Dlima’s “qualifications” in lieu of his “skill” does not constitute an arguable appealable error. Further, we note that the cases relied upon by Mr Dlima turn on their own facts and do not, of themselves, provide an arguable basis for the contention that the Deputy President erred.
As to appeal ground (4), there is no basis to conclude that Mr Dlima was deprived of the opportunity for a fair hearing. Mr Dlima filed submissions addressing his concerns about the late lodgement of the respondent’s material by approximately six hours. The matters that Mr Dlima says were “ignored” or which “contradict evidence” concerning his ranking were addressed in the decision and there is an evidentiary foundation for them. Mr Dlima’s submissions otherwise concern a diverse range of allegations about how the Deputy President dealt with the case. We reject those submissions. There is no basis to support any inference that the Deputy President misconducted himself in the manner contended, or at all. The Deputy President’s conduct of the case was entirely conventional. We consider it unnecessary to set out the content of these allegations further.
For the reasons given, we do not consider that an arguable case has been advanced that the decision was attended by appealable error. Nor are we satisfied, for the purposes of s 400(1) of the Act, that the appeal attracts the public interest. The appeal does not raise any genuine issue of law, principle or wider application. It follows that we must refuse permission to appeal.
Order and disposition
Permission to appeal is refused.
DEPUTY PRESIDENT
[1] [2024] FWC 1520
[2] Ibid at [17]-[20]
[3] Ibid at [21]-[22]
[4] Ibid at [23]
[5] Ibid at [24]-[25]
[6] Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54; 192 FCR 78; 207 IR 177 at [34] and [43]
[7] O’Sullivan v Farrer (1989) 168 CLR 210 at 216-217 per Mason CJ, Brennan, Dawson and Gaudron JJ: applied in Hogan v Hinch (2011) 243 CLR 506 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]
[8] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343; 197 IR 266 at [24]-[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]
[9] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343, 197 IR 266 at [24]-[27]
[10] Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]
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