Ron Lever v BSI Learning Institute Pty Ltd - [2025] FWCFB 166

[2025] FWCFB 166

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.604—Appeal of decision

Ron Lever

BSI Learning Institute Pty Ltd

(C2025/5264)

DEPUTY PRESIDENT ROBERTS
COMMISSIONER P RYAN
COMMISSIONER WALKADEN

SYDNEY, 5 AUGUST 2025

Appeal against decision [2025] FWC 1371 and order PR787403 of Deputy President Dean at Canberra on 16 May 2025 in matter number U2025/1073 – genuine redundancy - permission to appeal refused

Introduction

Mr Ron Lever (Appellant) has lodged an appeal pursuant to s 604 of the Fair Work Act 2009 (Cth) (Act) for which permission to appeal is required against a decision (Decision)[1] and order[2] of Deputy President Dean (Deputy President) issued on 16 May 2025.

In the Decision, the Deputy President found that the Appellant’s dismissal from his employment with BSI Learning Institute Pty Ltd (Respondent) was a case of genuine redundancy within the meaning of s 389 of the Act. Accordingly, the Appellant’s application for an unfair dismissal remedy under Part 3-2 of the Act was dismissed.

The matter was listed for permission to appeal only. Directions were issued for the filing of material by the Appellant. Although the Respondent was not required to do so, it filed an outline of submissions. The Respondent also filed a Form F53 seeking permission to be represented by a lawyer.

At the hearing on 8 July 2025, the Respondent was granted permission to be represented by a lawyer as we were satisfied that the precondition in s 596(2)(a) had been met. The Appellant was self-represented. The Respondent was represented by Ms S. Masters, solicitor.

For the reasons that follow, permission to appeal is refused.

Decision Under Appeal

The Respondent provides education services and is contracted by Corrective Services NSW to provide training at correctional centres throughout New South Wales. One of the correctional centres is the South Coast Correctional Centre (Centre). The Centre ‘assigns’ training hours in 10-week blocks. Since the commencement of the contract between the Centre and the Respondent, the Respondent has been assigned to provide 40 training hours per week.

In March 2019, the Appellant was employed by the Respondent as a trainer and was covered by the Educational Services (Post-Secondary Education) Award 2020 (Award). From December 2020 all of the Appellant’s work was performed at the Centre delivering training to inmates.

The Appellant was employed on a part-time basis working 34 hours per week comprising 24 teaching hours and the balance as paid preparation time. The balance of 16 training hours was delivered by another employee trainer.

In August 2023, there was a drop in the overall training hours assigned by the Centre from 40 hours to 28 hours per week. This resulted in the Appellant’s hours of work changing to 16 teaching hours per week, plus 8 hours per week as paid preparation time (24 hours in total). The other employee’s hours were reduced from 16 to 12 hours of teaching.

Despite the reduced number of hours…

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.

Continue reading Ron Lever v BSI Learning Institute Pty Ltd

Details

AGLC: Ron Lever v BSI Learning Institute Pty Ltd [2025] FWCFB 166
Case: [2025] FWCFB 166
Decision Date: 5 AUGUST 2025

CaseChat Overview and Summary

Ron Lever sought to appeal against a decision of the Fair Work Commission, which had dismissed his claim for unfair dismissal against BSI Learning Institute Pty Ltd. The claim was based on the contention that his dismissal was not a genuine redundancy, as required by section 384 of the Fair Work Act 2009. The Court was tasked with determining whether the appeal should be allowed and whether the applicant had demonstrated exceptional circumstances warranting permission to appeal.

The primary legal issue before the Court was whether the Fair Work Commission's decision to dismiss the applicant's claim for unfair dismissal was correct. This involved an examination of whether the employer had genuinely selected the applicant for redundancy and whether the employer had taken all reasonable steps to mitigate the impact of the redundancy. The Court also had to consider whether the applicant had presented exceptional circumstances that warranted the grant of permission to appeal.

In assessing the application, the Court considered the evidence presented by both parties and the findings of the Fair Work Commission. The Court found that the employer had provided substantial evidence to support its position that the applicant's position was genuinely redundant and that all reasonable steps were taken to mitigate the impact of the redundancy. The Court also noted that the applicant had not demonstrated exceptional circumstances that would warrant the grant of permission to appeal. Consequently, the Court dismissed the appeal and affirmed the earlier decision of the Fair Work Commission.

As a result of the Court's decision, the appeal was dismissed, and the order PR787403 of Deputy President Dean at Canberra on 16 May 2025 in matter number U2025/1073 was upheld. The applicant was not granted permission to appeal the earlier decision, and the determination that the dismissal was a genuine redundancy stood.

Orders