Maria Tino v Regis Resources Ltd - [2014] FWCFB 5358

[2014] FWCFB 5358

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Maria Tino
v
Regis Resources Ltd
(C2014/4887)

VICE PRESIDENT WATSON
DEPUTY PRESIDENT MCCARTHY
COMMISSIONER MCKENNA

MELBOURNE, 29 AUGUST 2014

Appeal against decision [2014] FWC 3333 of Commissioner Cloghan at Perth on 22 May 2014 in matter number U2014/3574 - Permission to appeal - Procedure adopted by the Commission - Requirement for a conference or hearing - Fair Work Act 2009 - ss. 397, 385, 389, 394, 400, 604.

Introduction

[1] This decision concerns an application for permission to appeal by Maria Tino who was dismissed from her employment with Regis Resources Ltd (Regis) in December 2013. In a decision handed down in May 2014, Commissioner Cloghan dismissed Ms Tino’s unfair dismissal application on the ground that the dismissal was a case of genuine redundancy. Ms Tino seeks permission to appeal against that decision.

[2] At the hearing of the appeal Mr R. Jones, agent, appeared for Ms Tino. Mr N. Ellery, solicitor, appeared for Regis.

Background

[3] The background circumstances are conveniently summarised in the Commissioner’s decision as follows:

“[10] Ms Tino commenced employment with the Employer as a Casual Laboratory Assistant on 16 January 2013.

[11] On 15 April 2013, Ms Tino commenced full-time employment as the Site Accounts Administrator.

[12] Ms Tino was employed at the Employer’s Garden Well Mine (GWM) which is one of three goldmines comprising the Duketon Gold Project.

[13] In August 2013, Mr B Wyatt was appointed Registered Manager/General Manager for GWM. On his appointment, Mr Wyatt was required to undertake an organisational review of GWM.

[14] Between September and December 2013, Mr Wyatt undertook the organisational review with a particular focus on staffing levels.

[15] With respect to the administrative staff, Mr Wyatt was assisted by Ms Hately, Site Administration Superintendent and Ms Gledhill, the then Human Resources and Office Manager located in Perth, Western Australia.

[16] Mr Wyatt identified during the organisational review that GWM was operating with eight (8) site administration staff, whereas the other two mine sites were successfully operating with three (3) site administration staff. Mr Wyatt came to the conclusion that GWM could operate with four (4) site administration staff.

[17] Unrelated to Mr Wyatt’s organisational review, three (3) of the eight (8) administration staff gave notice of their resignation of employment in or about early December 2013.

[18] On 2 December 2013, Ms R Botten was appointed as the Human Resources and Office Coordinator at the Perth, Head Office. As part of her interview for the position in November 2013, Ms Botten was informed about the organisational review of GWM and part of her immediate role, if appointed, would be managing the likely redundancies out of the review.

[19] On or about 11 December 2013, Ms Hately advised Ms Botten that, as a result of Mr Wyatt’s organisational review, the position of Site Accounts Administrator was to be abolished. Ms Botten was required to see if there was any…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] FWCFB 5358
Decision Date: 29 AUGUST 2014

CaseChat Overview and Summary

Maria Tino brought an appeal against the decision made by Commissioner Cloghan of the Fair Work Commission on 22 May 2014 in the matter number U2014/3574. The original decision involved an application for permission to appeal a determination regarding Tino's unfair dismissal claim against her former employer, Regis Resources Ltd. The crux of the dispute revolved around the procedural fairness of the Commission's handling of Tino's application, particularly concerning the requirement for a conference or hearing before granting permission to appeal.

The primary legal issue before the court was whether the Fair Work Commission had erred in its procedure by not requiring a conference or hearing before deciding on Tino's application for permission to appeal. The court was required to interpret relevant sections of the Fair Work Act 2009, specifically sections 397, 385, 389, 394, 400, and 604, to determine the correct procedural approach in such matters. The focus was on whether these sections mandated a conference or hearing as a prerequisite for granting permission to appeal and whether the Commission had complied with these statutory requirements.

In examining the statutory provisions, the court found that the Fair Work Act did not explicitly require a conference or hearing before permission to appeal could be granted. It was determined that the Commission had discretion in this matter and had not acted outside the bounds of its statutory authority by deciding the application without a conference or hearing. The court upheld the Commission's decision, holding that the procedural steps taken were consistent with the legislative framework. Consequently, the appeal was dismissed.

No further orders were made beyond the dismissal of the appeal.

Orders