Legal Research
Cases
NSW Trains v Mr Todd James

NSW Trains v Mr Todd James

Link copied

Case Copied 8 April 2022 73 min read

Contents

On this page

[2022] FWCFB 55

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.604—Appeal of decision

NSW Trains
v
Mr Todd James

(C2021/4959)

JUSTICE ROSS, PRESIDENT
VICE PRESIDENT CATANZARITI
DEPUTY PRESIDENT ASBURY
DEPUTY PRESIDENT EASTON
COMMISSIONER P RYAN

MELBOURNE, 8 APRIL 2022

Appeal against decision [2021] FWC 4733 of Deputy President Saunders at Newcastle on 3 August 2021 in matter number U2021/3757 – jurisdictional objection – whether applicant dismissed – demotion – permission to appeal granted – appeal allowed – jurisdictional objection upheld.

DECISION OF JUSTICE ROSS, PRESIDENT, VICE PRESIDENT CATANZARITI, DEPUTY PRESIDENT ASBURY AND COMMISSIONER RYAN

Introduction

This Full Bench has been constituted to determine the appeal from a decision of Deputy President Saunders[1] (the Decision) issued on 3 August 2021.

In the Decision, the Deputy President determined that Mr James had been demoted in his employment within the meaning of s.386(2)(c) of the Fair Work Act 2009 (Cth) (the FW Act). The Deputy President determined that the demotion involved a significant reduction in Mr James’ remuneration, and therefore, Mr James had been dismissed within the meaning of s.386 of the FW Act. Accordingly, the Deputy President dismissed the Appellant’s jurisdictional objection to Mr James’ unfair dismissal application.

The Decision at First Instance

At [2] - [8], [10]-[11], [39], and [42] - [43] of the Decision, the Deputy President summarised the factual background and his key findings and conclusions as follows:

[2]Following an investigation into allegations of misconduct, NSW Trains took disciplinary action against Mr James, a Shift Manager who has been employed by NSW Trains and its predecessors for over 30 years, by reducing his grade from Rail Classification (RC) 6 Level E to RC6 Level A and his gross pay from $141,442 to $127,569. NSW Trains thereby demoted Mr James.

[3]Although Mr James does not agree with the unilateral decision by NSW Trains to reduce his grade and pay, he remains employed by NSW Trains in the position of Shift Manager. Neither his duties nor his location of work has changed. The employment relationship is ongoing.

[4]The decrease in Mr James’s gross remuneration by $13,873 per annum involved a “significant reduction in his remuneration” within the meaning of s 386(2)(c)(i) of the Act.

[5]Because Mr James has been demoted in employment and his demotion has involved a significant reduction in his remuneration, he has been dismissed within the meaning of s 386 of the Act, notwithstanding that his employment relationship with NSW Trains is ongoing and has not been terminated and replaced by a new employment relationship. My reasoning and conclusion in this regard is consistent with, and supported by, the following appellate court authorities:

(a) First, the decision of the High Court in Visscher v The Honourable President Justice Giudice (Visscher), where the majority (Heydon, Crennan, Kiefel and Bell JJ) held that “Section 170CD(1B), by implication, treated a demotion as a termination of employment where it involved a significant reduction in remuneration or duties…

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.

Keep reading for free

Create a free CaseChat account to read NSW Trains v Mr Todd James and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2022] FWCFB 55
Decision Date: 8 APRIL 2022

CaseChat Overview and Summary

This appeal concerns the interpretation and application of s.386 of the Fair Work Act 2009 (Cth) (FW Act) by the Deputy President in a decision issued on 3 August 2021. The appellant, NSW Trains, sought to appeal the Deputy President’s decision that Mr Todd James had been dismissed within the meaning of s.386 of the FW Act. The decision was made in response to Mr James’ application for unfair dismissal. The Full Bench was tasked with determining whether the appeal should be permitted and, if so, whether the appeal should be upheld. The central legal issue was the interpretation and application of s.386 of the FW Act, particularly the definition of "dismissal" and the threshold for a significant reduction in remuneration that constitutes a dismissal. The Full Bench considered whether the Deputy President correctly identified that Mr James' demotion constituted a dismissal under the FW Act.

The Full Bench examined the statutory language and relevant case law to ascertain the proper interpretation of "dismissal" under s.386. The Court considered whether a significant reduction in remuneration alone, without any other changes to the terms of employment, could constitute a dismissal. The Full Bench found that the Deputy President's interpretation of "dismissal" was consistent with the statutory language and precedent, particularly as it pertained to the significant reduction in remuneration. The Court noted that the Deputy President's findings on the factual background and the significant reduction in remuneration were supported by the evidence and did not involve a significant error of fact. Consequently, the Full Bench concluded that the appeal should not be permitted as it did not meet the threshold for a significant error of fact under s.400(2) of the FW Act.

In light of the above, the Full Bench dismissed the appeal on the basis that it did not satisfy the public interest test outlined in s.400(1) of the FW Act. The Full Bench found no grounds to interfere with the Deputy President's decision, affirming that Mr James had been dismissed within the meaning of s.386 of the FW Act. The Court's decision upheld the jurisdiction of the Deputy President and affirmed the interpretation of "dismissal" as applied to the facts of this case.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

This Full Bench has been constituted to determine the appeal from a decision of Deputy President Saunders[1] (the Decision) issued on 3 August 2021. In the Decision, the Deputy President determined that Mr James had been demoted in his employment within the meaning of s.386(2)(c) of the Fair Work Act 2009 (Cth) (the FW Act). The Deputy President determined that the demotion involved a significant reduction in Mr James’ remuneration, and therefore, Mr James had been dismissed within the meaning of s.386 of the FW Act. Accordingly, the Deputy President dismissed the Appellant’s jurisdictional objection to Mr James’ unfair dismissal application. At [2] - [8], [10]-[11], [39], and [42] - [43] of the Decision, the Deputy President summarised the factual background and his key findings and conclusions as follows: On 23 August 2021, NSW Trains filed a notice of appeal in which it seeks permission to appeal and appeals the Decision. The relevant facts are uncontentious, save in respect of the proper characterisation of 2 issues in relation to Appeal grounds 5 and 6 (discussed at [149] – [173] below). On 12 October 2021, we issued a Statement[2] posing 8 questions concerning the proper construction and correct application of s.386 of the FW Act. An addendum to the Statement was issued on 19 October 2021.[3] In addition to filing submissions concerning permission to appeal and the merits of the appeal, the parties were directed to respond to the questions in their written submissions. The Minister for Industrial Relations and interested parties were invited to make submissions in the matter and on 17 November 2021, the Australian Council of Trade Unions (ACTU) advised that it wished to intervene in the proceedings. The following submissions were received: This matter was listed for hearing on 14 December 2021 in respect of both permission to appeal and the merits of the appeal. Permission to appeal The Appellant submits that it is in the public interest for the Fair Work Commission (Commission) to grant permission for the appeal, because: The Respondent agrees that the public interest is enlivened in this appeal.[5] The Decision subject to appeal was made under Part 3-2 - Unfair Dismissal - of the FW Act. Section 400(1) of the FW Act provides that permission to appeal must not be granted from a decision made under Part 3-2 unless the Commission considers that it is in the public interest to do so. Further, in unfair dismissal matters, appeals on a question of fact can only be made on the ground that the decision involved a ‘significant error of fact’ (s.400(2)). Section 400 of the FW Act manifests an intention that the threshold for a grant of permission to appeal is higher in respect of unfair dismissal appeals than the threshold pertaining to appeals generally. The public interest test in s.400(1) is not satisfied simply by the identification of error or a preference for a different result. In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of the Tribunal identified some of the considerations that may attract the public interest:

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.