Mr Mark Bromley v Southport Yacht Club Inc
[2015] FWCFB 8632
•23 DECEMBER 2015
| [2015] FWCFB 8632 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
Southport Yacht Club Inc
(C2015/7142)
VICE PRESIDENT CATANZARITI | SYDNEY, 23 DECEMBER 2015 |
Appeal against decision in transcript of Commissioner Simpson at Brisbane on 13 October 2015 in matter number U2015/8234.
[1] Mr Mark Bromley (Appellant) has applied for permission to appeal a decision of Commissioner Simpson issued on transcript on 13 October 2015 (Decision). The Decision concerned an unfair dismissal application made by the Appellant under s.394 of the Fair Work Act 2009 (the Act) in relation to the termination of his employment by Southport Yacht Club Inc (Respondent).
[2] At the hearing of the appeal matter on 18 December 2015, the Appellant appeared on his own behalf and the Respondent did not attend the hearing.
Background
[3] The Appellant was employed as a food and beverage manager by the Respondent. His employment was terminated in May 2015 on the basis of redundancy brought about as a result of restructuring which led to the re-distribution of the food and beverage manager’s tasks. The Appellant argued at first instance that no restructuring had taken place, and that the name of the position he was made redundant from was actually being changed by the Respondent to give the appearance of change.
[4] At first instance the Respondent made a jurisdictional objection and applied for dismissal of the application on the grounds that the termination of the Appellant had been a case of genuine redundancy (as defined in s.389 of the Fair Work Act 2009 (FW Act)) and therefore that the prerequisite for an unfair dismissal in s.385(d) of the FW Act could not be satisfied.
[5] Section 389 of the FW Act provides:
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.
…
[6] The Commissioner upheld the Respondent’s jurisdictional objection and dismissed the application, making the following findings:
“PN28 - I am satisfied, on the evidence, that the applicant's role was proposed to be made redundant because of operational requirements of the club on the basis of a restructure and redistribution of authority to improve efficiencies in its food and beverage division.
PN29 - The applicant has asserted that a reason the applicant was dismissed was in connection with the general manager retaining his job following the completion of non-related projects. The manager sought to get, and the manager sought to regain, some food and beverage responsibilities in connection with that. I am not inclined to accept that that was in fact the real reason for the restructure or, in fact, whether there is any truth in that or not it's squarely relevant to the fact that a genuine restructure was occurring.
PN30 - The applicant also argued that what is really an effective extension of his argument or his view that he never really in truth assumed the role of a food and beverage manager back on 26 May 2014, and had in truth always been a senior duty manager. Therefore his position was not redundant, because it was the same position that others were acting in, and continued to act in, and to perform that role as at the relevant times in the middle of 2015. On the basis that I have already rejected the underlying premise of that proposition as the argument occurred in May 2014, I also reject it for the purposes of the factual circumstances at the time of redundancy.
[7] Having being satisfied of the two elements of s. 389(1) of the Act, the Commissioner turned his mind to s. 389(2) and made the following findings:
“PN38 - I have considered all of the evidence on this issue; the statements that were admitted, the oral evidence of the relevant witnesses, particularly Mr James' evidence, who is probably in the best position to give evidence about this, given that he was overseeing the structure. It's always difficult for an applicant to give clear evidence, given they're out of the organisation, but in any event, it seems pretty clear, from the evidence, and I am satisfied that the respondent did consider redeployment options and there were no suitable positions available at the relevant time.
PN 39 - I've dealt with each of the tests under 389 and I have concluded that having considered all of the evidence I am satisfied this is a case of genuine redundancy, and on that basis the application be dismissed....”
Grounds of Appeal
[8] The Appellant filed lengthy written submissions ostensibly directed to the issues of appellable error and public interest. We have read and considered the entirety of the Appellant’s submissions. In summary, the Appellant’s key contention is that he was denied procedural fairness on the basis that the Commissioner refused to allow him to compel the attendance of his witnesses. The Appellant further submitted that he was denied procedural fairness due to the manner in which an order for documents was addressed which did not allow him adequate time to review certain documents provided by the Respondent.
Consideration
[9] This appeal is one to which s.400(1) of the FW 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.
[10] 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”. 1 The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment2. In GlaxoSmithKline Australia Pty Ltd v Makin 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.” 3
[11] 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. 4 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.5
[12] We have considered the circumstances of this matter, all relevant material and the grounds of appeal advanced by the Appellant. In our view, the Appellant has not demonstrated any error in the decision of the Commissioner or any basis on which it might be concluded that it is in the public interest to grant permission to appeal. All relevant circumstances were considered at first instance, findings of fact were made based on the evidence led before the Commission and a finding that there was a genuine redundancy was correctly made by the Commissioner having proper regard to s.389(1) and (2) of the Act.
[13] In relation to the Appellant’s contention that he was not afforded procedural fairness in relation to not being granted his request to call witnesses, this issue was squarely addressed by the Commissioner at first instance at PN25 as follows:
“Now, the applicant has sought an order, and this was raised in the course of proceedings, that Ms Erin McMaster, amongst others, be ordered to attend to give evidence and then specifically at least in connection with the advertisement. Ultimately I declined to issue the order as I formed the view that there was sufficient evidence about that matter for me to be satisfied that an advertisement was posted on Seek and that the ordering of Ms McMaster to come and give evidence about that, or in relation to her email of 23 May, would have caused unnecessary time and cost without adding to the matters I require to assist me in dealing with the issues. In any event, on the basis of the evidence, it seemed reasonably clear to me that the role that was fulfilled by the applicant from 26 May did extend to those additional roles which went beyond the role of senior duty manager.”
[14] It is clear that the Commissioner formed the view, as he was entitled to do, that there was sufficient evidence before him to make the finding of a genuine redundancy and that any additional witnesses being called would not assist him further. Likewise in relation to the Appellant’s contention that he was given insufficient time to review documents filed by the Respondent in response to orders made by the Commissioner, we do not find that additional time would have had any impact upon the outcome of the decision in circumstances where there was a finding of genuine redundancy. It will often be the case that a party believes a different result should have been reached at first instance or that certain aspects of the circumstances are not expressed in accordance with the views of that party. However that is an insufficient basis for a successful appeal.
Conclusion
[15] For the above reasons the application for permission to appeal is dismissed.
VICE PRESIDENT
Appearances:
Appellant in person.
Hearing details:
18 December
2015
Melbourne via video-link to Sydney and Brisbane.
1 (2011) 192 FCR 78 at [43]
2 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]
3 [2010] FWAFB 5343 at [27], 197 IR 266
4 Wan v AIRC (2001) 116 FCR 481 at [30]
5 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]
Printed by authority of the Commonwealth Government Printer
<Price code C, PR575031>
0
5
0