Mr Navdeep Singh v MSS Security Pty Ltd - [2016] FWCFB 3546

[2016] FWCFB 3546

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Mr Navdeep Singh
v
MSS Security Pty Ltd
(C2016/3445)

VICE PRESIDENT CATANZARITI
DEPUTY PRESIDENT GOSTENCNIK
COMMISSIONER CIRKOVIC

SYDNEY, 31 MAY 2016

Appeal against decision [2016] FWC 1857 of Commissioner Williams at Perth on 30 March 2016 in matter number U2015/8926; no arguable case of appellable error made out; public interest not enlivened; permission to appeal refused.

[1] Mr Navdeep Singh has applied for permission to appeal and appealed a decision 1 issued by Commissioner Williams on 30 March 2016 (Decision). In that Decision the Commissioner determined to dismiss an unfair dismissal remedy application lodged by Mr Singh pursuant to s.394 of the Fair Work Act 2009 (FW Act) and issued an order to that effect,2 on the basis that Mr Singh had not been dismissed and consequently the unfair dismissal jurisdiction was not enlivened.

[2] On 9 June 2015, Mr Singh received a “Letter of Warning/Demotion” in which MSS Security Pty Ltd (Respondent) informed Mr Singh that he would be returned to the role of Revenue Protection Officer in light of the Respondent determining that Mr Singh was no longer suitable for Supervisory positions. In his application 3 Mr Singh contended that the “Letter of Warning/Demotion” had the effect of terminating his employment relationship with the Respondent. The Respondent submitted4 that the “Letter of Warning/Demotion” had the effect of demoting Mr Singh without terminating the employment relationship and, that as a consequence, Mr Singh had not been terminated within the meaning of s.386(1) of the FW Act.

[3] In determining whether Mr Singh’s employment relationship with the Respondent had been terminated, the Commissioner considered whether Mr Singh had been dismissed within the meaning of s.386 of the FW Act. In considering whether there was a termination of the employment relationship the Commissioner found:

“[38] It is clear from the evidence that the respondent employer did not express any intention to terminate Mr Singh’s employment. Nothing was put in writing to him that he was dismissed or that his employment was terminated. Mr Singh concedes in his evidence that he was never told he was dismissed or that he was terminated. The respondent’s actions throughout have been consistent with not intending to terminate or dismiss Mr Singh. Nothing the respondent has done amounts to an express termination of his employment.

[39] Mr Singh has not resigned from his employment. Mr Singh simply has not returned to do any work for the respondent since the meeting on 9 June 2015. He has not advised his employer verbally or in writing that he is resigning from his employment. This then is not a case of constructive dismissal under section 386(1) (b) of the Act.

[40] What Mr Singh argues is that the respondent has repudiated his employment contract. Whether there has been a repudiation is a question of fact. Not every breach of contract is a repudiation. A repudiatory breach does not automatically terminate the contract but…

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: [2016] FWCFB 3546
Decision Date: 31 MAY 2016

CaseChat Overview and Summary

In the Federal Court of Australia, the matter of Mr Navdeep Singh versus MSS Security Pty Ltd was presented. Mr Singh, the applicant, appealed a decision made by Commissioner Williams of the Fair Work Commission on 30 March 2016, in the matter numbered U2015/8926. The crux of the dispute centred around the termination of Mr Singh’s employment and the subsequent unfair dismissal claim he lodged. The Commissioner had dismissed Mr Singh’s claim, leading to the present appeal.

The court was tasked with determining whether there was an arguable case of appellable error in the Commissioner's decision, and whether the public interest required the appeal to proceed. The legal issues thus encompassed the sufficiency of the grounds of appeal, the correctness of the Commissioner’s findings, and the existence of any public interest that warranted further judicial scrutiny.

The Court examined the appeal application and found that Mr Singh had not established an arguable case of appellable error. The Commissioner's reasons for dismissing the claim were well-founded, and no evident legal errors or misapplications of the law were identified. Furthermore, the court concluded that the public interest did not require the appeal to be heard. Therefore, the appeal was dismissed, and permission to appeal was refused.

Orders