Mark Howlett v Burst Group Pty Ltd
[2025] FWCFB 18
•11 FEBRUARY 2025
| [2025] FWCFB 18 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Mark Howlett
v
Burst Group Pty Ltd
(C2024/9261)
| DEPUTY PRESIDENT MILLHOUSE DEPUTY PRESIDENT O’NEILL | MELBOURNE, 11 FEBRUARY 2025 |
Appeal against order PR781976 of Deputy President Bell at Melbourne on 3 December 2024 in matter number U2024/10994 – permission to appeal refused.
Mr Mark Howlett has lodged an appeal under s 604 of the Fair Work Act 2009 (Cth) (Act) against a decision Deputy President Bell delivered ex tempore on 3 December 2024, for which permission to appeal is required. In the decision, the Deputy President determined that Mr Howlett was not unfairly dismissed from his employment with the respondent, Burst Group Pty Ltd and ordered[1] that Mr Howlett’s application under s 394 of the Act for an unfair dismissal remedy be dismissed.
The Deputy President published written reasons for his decision on 24 December 2024 which noted that reasons had been given more fulsomely on transcript, a copy of which had been circulated to the parties.[2]
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 are satisfied, having regard to s 607(1)(a), that the question of permission to appeal can be adequately determined without the need for oral submissions. For the reasons that follow, permission to appeal is refused.
Decision under appeal
In his decision, the Deputy President relevantly determined as follows:[3]
(a)Mr Howlett was dismissed from his employment with the respondent on 10 September 2024. The Deputy President accepted the evidence of the business owner, Mr Coates, that Mr Howlett was dismissed because his job was no longer required to be performed because of operational requirements of the respondent. It was not reasonable in the circumstances for Mr Howlett to have been redeployed.
(b)Nevertheless, the dismissal was not a “genuine redundancy” because the requirements for written consultation under the applicable modern award were not met.
(c)In the assessment of the dismissal against the requirements of s 387 of the Act, the Deputy President was satisfied the dismissal was the result of a factual or bona fide redundancy and Mr Howlett was told about the reasons for dismissal (albeit, not in writing but taking into account the respondent’s status as a small business). The Deputy President was satisfied that the evidence made it clear that no different outcome would have followed had different procedures been adopted. The Deputy President concluded that in all the circumstances, the dismissal was not harsh, unjust or unreasonable.
Permission to appeal – principles
There is no right to appeal, and an appeal may only be made with the permission of the Commission. Section 400 of the Act applies to this appeal, as it is from a decision made under Part 3-2 of the Act. By 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.”[4]
The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[5] The public interest is not satisfied simply by the identification of error or a preference for a different result.[6] 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.[7] 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.[8] However, it is necessary to engage with the grounds to consider whether they raise an arguable case of appealable error.
Grounds of appeal
In the attachment to his Form F7 Notice of Appeal, Mr Howlett advances six grounds of appeal which we summarise as follows:
The consultation process undertaken by the respondent was deficient and the discussion at any meetings held by the respondent was vague.
The Deputy President accepted the evidence of the respondent’s financial position with no verification or questioning and the Deputy President did not consider how the significant staff turnover contributed to the respondent’s position.
The respondent’s evidence is blatantly incorrect and Mr Howlett’s job is being performed by another employee.
Mr Howlett’s contentions of wage theft and altering of pay without consultation were not considered by the Deputy President.
The respondent’s evidence that there was a 35-day consultation period is incorrect.
The respondent refused to attend a conciliation conference in the application and was disrespectful of the Commission’s processes.
Mr Howlett elaborates on these matters in his outline of submissions. Mr Howlett submits that it is in the public interest to grant permission to appeal including because the decision has “green-lit” the respondent’s conduct. Mr Howlett contends that the approach to eliciting evidence was unprofessional, and mistakes were made. Mr Howlett further submits that the conclusions reached regarding the lack of consultation may be precedent setting and the outcome relevant to considerations of job security, the taking of parental leave and an employer’s ethical practices.
Consideration
For the following reasons, we do not consider that Mr Howlett has an arguable case that the Deputy President erred in the manner contended, or at all.
First, the Deputy President accepted the evidence of Mr Coates, including in relation to the financial position of the business, finding it to be “sincere and credible.”[9] This evidence appears to provide an evidentiary foundation for the finding that Mr Howlett’s role was no longer required. The contention that the Deputy President did not take into account the impact of staff turnover in reaching this conclusion discloses no arguable error having regard to the Deputy President’s overall assessment of the evidence before him, which includes his finding that a “significant amount” of the evidence “objectively indicates” that staff redundancies were on the cards.
Second, as Mr Howlett acknowledges in his written submissions, the Deputy President accepted Mr Howlett’s contention that that there were deficiencies in the consultation process. For this reason, the Deputy President concluded that the dismissal was not a genuine redundancy. Appeal grounds (1) and (5) appear to re-state arguments made by Mr Howlett in the proceedings at first instance; they do not allege any error in the decision.
Third, it was not in dispute that Mr Howlett’s duties had been distributed to other employees of the respondent upon his redundancy. The Deputy President addressed this issue in his decision.[10] The contention advanced by appeal ground (3) is that the respondent lied about this issue. However, there is no material before us to support an arguable conclusion that the Deputy President was led into error about this matter. The fact that the duties of a particular job or position which has been abolished have been reallocated to another position or positions as part of an employer’s restructure, does not, of itself, alter the fact that the employer no longer requires that job to be performed by anyone.[11]
The balance of Mr Howlett’s contentions raise no arguable case of appealable error. Mr Howlett has not explained how his contentions regarding wage theft (ground (4)) may have had a material bearing upon the Deputy President’s findings, nor do we consider it to be arguable that they might have affected the outcome. The contention advanced by Mr Howlett’s submissions that the Deputy President did not consider s 387(h) of the Act is mistaken, as the decision demonstrates.[12] Nor is there any arguable basis to conclude that Mr Howlett was not afforded the opportunity for a fair hearing, having regard to the transcript of proceedings.
We are not 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
Appearances:
Matter determined on the papers.
[1] PR781976
[2] [2024] FWC 3478 at [3]
[3] Transcript of proceedings dated 3 December 2024 (Transcript) at PN229-PN278
[4] Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54; 192 FCR 78; 207 IR 177 at [34] and [43]
[5] 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]
[6] 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]
[7] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343, 197 IR 266 at [24]-[27]
[8] Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]
[9] Transcript at PN241, PN250
[10] Transcript at PN252-PN253, PN274
[11] Jones v Department of Energy and Minerals (1995) 60 IR 304 at 308; Ulan Coal Mines Ltd v Howarth and Ors[2010] FWAFB 3488 at [17]
[12] Transcript at PN267, PN275
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