Technical and Further Education Commission T/A TAFE NSW v Pykett

The Commission T/A TAFE NSW, the appellant, sought to appeal against the decision made by Commissioner McKenna in the Fair Work Commission and orders made on 12 August and 16 August 2013 in relation to matter number U2012/14988. The appeal was permitted due to the public interest and raised novel questions about the proper interpretation of section 389(2) of the Fair Work Act 2009. It also questioned whether a reinstatement order must specify the position to which the person is to be appointed. The central issue was the meaning of "genuine redundancy" and whether the Commission must find, on the balance of probabilities, that there was a job or a position or other work within the employer’s enterprise (or that of an associated entity) to which it would have been reasonable in all the circumstances to redeploy the dismissed employee.

The court had to determine whether the Commission's failure to make the requisite finding regarding the existence of a job or position or other work within the employer's enterprise or associated entity amounted to an error of law. The appeal also addressed whether section 389(2) requires a reinstatement order to specify the position to which the person is to be appointed. The court referred to the case of Anthony Smith & Associates Pty Ltd v Sinclair (1996) 67 IR 240 in its reasoning. The Commission had to decide if the appeal was upheld, leading to the quashing of the decision and orders, and whether the matter should be remitted.

The court found that the appeal was upheld and that the decision and orders were quashed. The matter was remitted for reconsideration in light of the court's findings. The court held that the Commission must find, on the balance of probabilities, that there was a job or a position or other work within the employer’s enterprise (or that of an associated entity) to which it would have been reasonable in all the circumstances to redeploy the dismissed employee. However, the court also found that there was no requirement for a reinstatement order to specify the position to which the person is to be appointed.

There were no further orders made by the court. The decision was based on the interpretation of section 389(2) of the Fair Work Act 2009 and the meaning of "genuine redundancy." The court's reasoning was influenced by the case of Anthony Smith & Associates Pty Ltd v Sinclair (1996) 67 IR 240. The matter was remitted to the Commission for reconsideration in light of the court's findings.