Satvinder Singh v Ultimate 4WD Equipment (WA) Pty Ltd
[2015] FWCFB 1499
•6 MARCH 2015
| [2015] FWCFB 1499 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
v
Ultimate 4WD Equipment (WA) Pty Ltd
(C2014/8292)
VICE PRESIDENT WATSON | MELBOURNE, 6 MARCH 2015 |
Appeal against decision [[2014] FWC 8891] & order PR558784 of Senior Deputy President Watson at Melbourne on 9 December 2014 in matter number C2014/7992 - Variation of redundancy pay - Fair Work Act 2009, ss.119, 120, 604.
Introduction
[1] This decision concerns an application for permission to appeal by Satvinder Singh against a decision and order of Senior Deputy President Watson dated 9 December 2014. The decision and order were made consequent to an application by Ultimate 4WD Equipment (WA) Pty Ltd (Ultimate 4WD) to vary the redundancy pay entitlement of Mr Singh to nil on the basis that, consequent upon a decision to make his position redundant, it had obtained other acceptable employment for Mr Singh.
[2] The parties agreed to the matter being determined by way of written submissions.
Background
[3] Section 120 of the Fair Work Act 2009 (the Act) permits the Fair Work Commission (the Commission) to determine that the amount of redundancy pay payable under s.119 of the Act be reduced to a specified amount on the grounds that the employer obtains other acceptable employment for the employee.
[4] The redundancy of Mr Singh’s position arose from a decision by Ultimate 4WD to outsource the work. As part of the agreement with the outsourced company to perform the work, Ultimate 4WD negotiated that Mr Singh be employed by the outsourced company on the same terms and conditions and undertaking the work he performed for Ultimate 4WD prior to the outsourcing but without recognition of Mr Singh’s service with Ultimate 4WD. Mr Singh accepted the offer of employment with the new employer, commencing his employment one day after he ceased his employment with Ultimate 4WD.
[5] Ultimate 4WD’s application under s.120 of the Act was made on the basis that it had obtained other acceptable employment for Mr Singh. Mr Singh did not oppose the application.
[6] The Senior Deputy President was satisfied that the jurisdictional prerequisites existed for making an order and as a matter of discretion that the determination sought should be made. An order was issued determining that the redundancy pay for Mr Singh be reduced to nil.
Grounds of Appeal
[7] Mr Singh submits that the Senior Deputy President erred in fact and in law. The grounds of appeal advanced by Mr Singh are as follows:
- Although Mr Singh has accepted new employment, the new employer has not recognised Mr Singh’s service with Ultimate 4WD;
- At the time the decision and order were issued, the terms and conditions of the Mr Singh’s new employment were not substantially similar to that of his previous employment. In particular, Mr Singh was initially offered a casual position rather than a permanent full time position which he submits resulted in a loss of job security;
- Mr Singh only received one weeks’ notice of termination of his position due to redundancy, however as he had served more than three years of continuous service with the Ultimate 4WD, Mr Singh submits he should have received three weeks’ notice.
[8] Ultimate 4WD submits that the Commission was informed as part of the initial application that the new employer would not recognise Mr Singh’s service with Ultimate 4WD in relation to redundancy, that Mr Singh’s new employment is substantially similar to his previous employment and is now a permanent, full time position, and that Mr Singh did not work out the required notice period by way of mutual agreement between the Mr Singh, Ultimate 4WD and the new employer. This meant that the payment of notice covered part of the period of service with the new employer, to the benefit of Mr Singh.
Permission to Appeal
[9] Permission to appeal may be granted if there is sufficient doubt to warrant its reconsideration or an injustice may result if permission is not granted. 1 If the Commission considers that it is in the public interest to grant permission to appeal, it is required to grant permission.2
[10] It is important to note that the decision under appeal is of a discretionary nature. Usually, such a decision can only be successfully challenged on appeal if it is shown that the discretion was not exercised correctly. 3 It is not open to an appeal bench to substitute its view on the matters that fell for determination before the Senior Deputy President in the absence of error of an appealable nature in the decision at first instance. As the High Court said in House v The King:4
“The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.”
[11] We have considered the circumstances of this matter and the grounds of appeal advanced by Mr Singh. In our view, Mr Singh has not demonstrated any error in the decision of the Senior Deputy President. All relevant circumstances were considered and a decision was reached in accordance with the discretion conferred upon him. We are not satisfied that the appeal raises matters of public interest and we are not satisfied that there is any other basis for granting permission to appeal.
Conclusions
[12] For the above reasons permission to appeal is refused. The application for permission to appeal is dismissed.
VICE PRESIDENT WATSON
Final written submissions:
Appellant on 4 February 2015.
Respondent on 18 February 2015.
Appellant in reply on 24 February 2015.
1 Wan v Australian Industrial Relations Commission (2001) 116 FCR 481.
2 Fair Work Act 2009, s.604.
3 House v The King (1936) 55 CLR 499 at [504]-[505] per Dixon, Evatt and McTiernan JJ.
4 Ibid.
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