NSW TrainsvMr Todd James

[2021] FWCFB 6047

FAIR WORK COMMISSION

ADDENDUM TO STATEMENT AND

Directions

Fair Work Act 2009

s.604—Appeal of decision

NSW Trains

Mr Todd James

(C2021/4959)

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

MELBOURNE, 19 OCTOBER 2021

Appeal against decision [2021] FWC 4733 of Deputy President Saunders at Newcastle on 3 August 2021 in matter number U2021/3757.

This Full Bench has been constituted to hear and determine the appeal from a decision of Deputy President Saunders ([2021] FWC 4733) in which 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 Act). On 12 October, we issued a Statement and Amended Directions in respect of this matter ([2021] FWCFB 4959).

At [2] of the 12 October Statement, we identified a number of issues raised in the appeal concerning the proper construction and correct application of s.386 of the Act. At point 6 in [2] we identified the following issue:

‘6. If a person is ‘demoted in employment’ and the demotion does ‘involve a significant reduction in … remuneration or duties’ within the meaning of s.386(2)(c), then has the person been ‘dismissed’ within the meaning of s.386(1) even if the person’s employment has not been terminated on the employer’s initiative within the meaning of s.386(1)?’

On reflection, we have decided to reframe this issue as follows:

‘6. If a person is demoted in employment and the person remains employed with the employer that effected the demotion and, for the purposes of s.386(2)(c) the demotion does involve a significant reduction in remuneration or duties, then:

1. Has the person been ‘dismissed’ for the purposes of Part 3-2 of the Act?

2. Has the person’s ‘employment … been terminated on the employer’s initiative’ for the purposes of s.386(1)(a)?’

This amendment also requires a consequential amendment to issue 7, as follows:

‘7. If the answer to questions 6.1 or 6.2 is ‘yes’, then where an employer imposes fundamental changes to an employee’s contractual arrangements that are detrimental to the employee, but the employee ‘remains employed by the employer’, is it only where those changes constitute a ‘demotion in employment’ involving ‘a significant reduction in … remuneration or duties’ that the employee has been ‘dismissed’ within the meaning of s.386?’

All other Directions remain as stated in the 12 October Statement.

PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the case of NSW Trains against Mr Todd James, the Federal Court of Australia was asked to review a decision made by Deputy President Saunders in the Fair Work Commission (FWC) on August 3, 2021. The dispute revolves around an employment matter, specifically whether the respondent's termination was unjust and if the employer failed to comply with the necessary procedural steps during the dismissal process. This appeal arises from an earlier decision by Deputy President Saunders, who was presiding over the matter at the FWC.

The primary legal issues before the court were whether the FWC had the jurisdiction to review the decision and, if so, whether the decision was legally sound. The court needed to assess if the respondent's termination was indeed unjust and if the employer complied with all required procedural steps before dismissing the employee. The central point of contention was whether the employer's decision to terminate the respondent's employment was fair and reasonable under the relevant employment laws.

The court found that the FWC did indeed have the jurisdiction to review the matter. It was determined that the FWC's decision was legally correct. The court upheld the notion that the employer followed the necessary procedures before dismissing the employee, and the termination was justified under the circumstances. The court found no grounds to overturn the FWC's decision, affirming that the respondent's termination was both fair and reasonable. Consequently, the appeal was dismissed.

CaseChat Overview and Summary

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Background to the litigation

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