Mr Navdeep Singh v MSS Security Pty Ltd
[2016] FWCFB 3546
•31 MAY 2016
| [2016] FWCFB 3546 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
MSS Security Pty Ltd
(C2016/3445)
VICE PRESIDENT CATANZARITI | 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 confers an elective right of termination on the innocent party.
[41] There is a body of case law that deals with this situation. Deputy President Gooley in the matter of Terence Lollback v the University of Southern Queensland considered the circumstances where a demotion is not a termination of employment. This particular matter concerned a circumstance where an employee had been demoted which the employer argued was authorised by the terms of an enterprise agreement and so was not a termination of employment and so not a dismissal.
[42] After considering the line of authority Deputy President Gooley found that she was bound by the decision of the Full Bench of the Australian Industrial Relations Commission in Elizabeth Gorczyca v RMIT University which had concluded that:
“The respondent argues there has not been a termination because the certified agreement permits the demotion without regard to the income loss and provides in effect that it is not a termination. We think that the latter proposition is correct. There has not been a termination because the certified agreement operates to preclude there being one in the circumstances of this case. Put another way we think, at law there has been no termination and if there has been no termination we do not see, notwithstanding the provisions of s.170CD(1B) that there has been a termination for purposes of the Act.”
[43] Deputy President Gooley also considered another Full Bench decision of the Australian Industrial relations Commission in Charlton v Eastern Australian Airlines Pty Limited which turned its attention more broadly to when the termination of employment occurs and held as follows:
“[32] Consistent with the decision in Boo Hwa Chan, a termination of employment occurs when a contract of employment is terminated. This necessarily occurs when the employment relationship comes to an end. However, it can also occur even though the employment relationship continues. Where a contract of employment has been terminated, but the employment relationship continues, this will be because a new contract of employment has come into existence. Therefore, whether the appellant's demotion involved his employment being "terminated by the employer" within the meaning of s.170CE turns on whether his contract of employment was terminated notwithstanding the continuing employment relationship. This question is answered by reference to general law principles relating to the termination of contracts of employment, unconstrained by the Convention.
[33] The question of when a demotion constitutes a termination of employment within general law principles relating to termination of contracts of employment, unconstrained by the Convention, was given careful consideration by the Full Court of the Supreme Court of South Australia in Advertiser Newspapers Pty Ltd v IRC & Grivell. We respectfully adopt that analysis. Although the decision related to a different statutory context, that context required a consideration of general law principles that are equally applicable in the present case.
[34] Unless the contract of employment or an applicable award or certified/workplace agreement authorises an employer to demote an employee, a demotion, not agreed to by the employee, that involves a significant reduction in remuneration will amount to a repudiation of the contract of employment. If that repudiation is accepted, either expressly or by conduct, then the contract of employment is terminated. If, in such circumstances, the demoted employee then remains in employment with the employer, this occurs pursuant to a new contract of employment in respect of the demoted position. It may be noted that where the employment continues with the employee allegedly acquiescing in a reduction in salary or other terms of employment, difficult questions may arise as to whether the continued employment involves the continuation of the original contract of employment (but with the employer breaching that contract by paying the reduced salary), a consensual variation of the terms of the original contract or the termination of the original contract and a substitution of a new contract of employment.” (Underlining added)
[44] The Deputy President in that case accepted that the demotion authorised by the applicable enterprise agreement was not a termination.
[45] This principle, that a demotion arising from the application of a clause in an agreement is not a termination of employment at the initiative of the employer nor is it a repudiation of the contract of employment, was earlier accepted and applied by Senior Deputy President Drake in the case of Michelle Holland v Qantas Airways Limited.
[46] The broader statement of principle identified by the Full Bench above is that a demotion of an employee by an employer which involves a significant reduction in remuneration that is not agreed to by an employee will not amount to a repudiation of the employment contract if it is authorised by a contract of employment, an applicable award or a certified/workplace agreement.
[4] The Commissioner concluded:
“[49] After investigating the concerns raised by other employees the respondent was dissatisfied with Mr Singh’s performance as a Supervisor and no longer required him to fulfil the role of PTA’s Operations Supervisor and he was to then be returned to the role of Revenue Protection Officer. This action of the respondent, changing his remuneration and duties, was expressly authorised by his contract of employment and so did not constitute a dismissal under section 386(1) of the Act.
[50] Consequently I find Mr Singh has not been dismissed by the respondent. Consequently Mr Singh is not able to make an application under section 394 of the Act.”
[5] In “Attachment NS1” of his notice of appeal, Mr Singh identified that which he contended were a number of errors in the findings of the Commissioner. In particular, Mr Singh contended that the Commissioner relied on one term of the employment contract but erred in not considering the other facts and not giving consideration to the other more prevailing terms of the same contract. Furthermore, Mr Singh contended that the Commissioner did not give full consideration of all of the findings made in the decisions to which reference is made in the Decision. Mr Singh also contended that the Commissioner only looked at the demotion and ignored all the other facts of the case in considering whether there was a repudiation of the contract or not, and, that the Commissioner erred in finding that an employment relationship exists between the Appellant and the Respondent in the absence of an employment contract.
[6] In “Attachment NS2” of his notice of appeal, Mr Singh contended that there was public interest in granting permission to appeal. In particular, Mr Singh contended that the Commissioner ignored serious breaches of law and company policies, and, denied equal opportunity in the workplace. Mr Singh further contended that the Commissioner did not look into all of the merits of his unfair dismissal application and denied Mr Singh natural justice and procedural fairness.
[7] In oral submissions, Mr Singh referred to the judgment of Ross J in Whittaker v Unisys Australia Pty Ltd 5 in support of his contention that determining whether there was a repudiation of the contract requires that a comparison be made between the Appellant’s former position and the new position that was offered.6 Mr Singh contended that the Commissioner made no such comparison between Mr Singh’s previous position and the new position offered to him by the Respondent. Mr Singh further contended that his complaint of bullying, harassment and intimidation was not investigated7 and that the Respondent denied him access to work material that could have been used to defend the allegations made against him.8
Consideration
[8] An appeal under s.604 of the FW Act is an appeal by way of rehearing and the Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision maker. There is no right to appeal and an appeal may only be made with the permission of the Commission.
[9] This appeal is one to which s.400 of the FW Act applies. 9 Section 400 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.
(2) Despite subsection 604(1), an appeal from a decision made by the FWC in relation to a matter arising under this Part can only, to the extent that it is an appeal on a question of fact, be made on the ground that the decision involved a significant error of fact.
[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”. 10 The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment11. 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.” 12
[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 an appealable error. 13 However, the fact that the Member at first instance made an error is not necessarily a sufficient basis for permission to appeal to be granted.14
[12] The errors of fact asserted by Mr Singh largely involving a complaint that the Commissioner accepted the evidence and submissions relied on by the Respondent rather than accepting those on which Mr Singh relied without pointing to any matter of probative value which might point to the possibility of an erroneous factual finding. Moreover, generalised assertions such as:
- a failure to give “consideration to other more prevailing terms of the contract”; 15
- the Commissioner ignored “the fact that the Respondent had made several false statements”; 16
- the Commissioner did not give “consideration to all findings” 17 in decisions to which he referred; and
- the Commissioner “ignored all other facts of this case” 18
without pointing to the particular relevant terms of the contract said to have been ignored, the false statements said to have been made, the particular relevant facts in the decisions said to have been ignored or the other relevant facts said to have been ignored does not demonstrate an arguable case of appellable error.
[13] We are therefore not satisfied that Mr Singh demonstrated an arguable case of appellable error on the part of the Commissioner in determining that his unfair dismissal remedy application be dismissed. We are also not persuaded that the matters identified by the Appellant in NS2 going to public interest enliven the public interest.
[14] There is no basis for us to be satisfied that the grant of permission to appeal would be in the public interest, and therefore in accordance with s.400(1) of the FW Act, permission to appeal must be refused.
VICE PRESIDENT
Appearances:
Mr N Singh appeared in person.
Ms S Pedlow for the Respondent.
Hearing details:
2016.
Melbourne.
May 18.
Printed by authority of the Commonwealth Government Printer
<Price code C>
1 Navdeep Singh v MSS Security Pty Ltd [2016] FWC 1857
2 PR578316.
3 Form F2 lodged by Mr Singh, paragraph 1.3
4 Respondents submissions, paragraph 20.
5 [2010] VSC 9.
6 PN50 of the transcript.
7 PN57 of the transcript.
8 PN60 of the transcript.
9 See Australia Postal Corporation v Gorman [2011] FCA 975 at [37]
10 (2011) 192 FCR 78 at [43]
11 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]
12 [2010] FWAFB 5343 at [27], 197 IR 266
13 Wan v AIRC (2001) 116 FCR 481 at [30]
14 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]
15 Attachment NS1 to the Notice of Appeal.
16 Ibid.
17 Ibid.
18 Ibid.
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