Thomas Mackey & Sandra Carle v New Horizons Enterprises Limited
[2021] FWCFB 5069
•1 SEPTEMBER 2021
| [2021] FWCFB 5069 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
Thomas Mackey & Sandra Carle
v
New Horizons Enterprises Limited
(C2021/3423; C2021/3477)
VICE PRESIDENT HATCHER | SYDNEY, 1 SEPTEMBER 2021 |
Appeal against ex tempore decision and order PR730272 of Deputy President Boyce at Sydney on 28 May 2021 in matter C2021/2105.
Background
[1] Mr Thomas Mackey and Ms Sandra Carle (the appellants) have both filed appeals against a decision given in transcript (decision) at the end of a determinative conference held by telephone on 28 May 2021, and a subsequent order of Deputy President Boyce made on the same day. 1 Permission is required for the appeal.
[2] The decision of the Deputy President was made under s 739 of the Fair Work Act 2009 (FW Act) which provides (subject to certain limitations) that the Commission may arbitrate a dispute in accordance with the terms of an enterprise agreement.
[3] The appellants were both covered by the New Horizons Enterprise Agreement 2018 2(the Agreement), and the employer covered by the Agreement is New Horizons Enterprises Limited (New Horizons).
[4] Clause 10 - Dispute Resolution of the Agreement provides a process for resolving disputes relating to a matter arising under the Agreement which includes where the dispute cannot be resolved for the dispute to be arbitrated by the Commission. The dispute resolution procedure also provides that the parties to a dispute “agree to be bound by a decision made by the Fair Work Commission”. 3
[5] On 15 April 2021, New Horizons filed a s 739 application seeking that the Commission deal with a dispute concerning whether the alternative employment offered to five named employees whose positions had become redundant as part of a restructure was “acceptable employment”. Three of the employees had also filed their own s 739 dispute applications. 4
[6] The employer application sought a finding that the alternative employment offered to the five employees was acceptable employment and that a recommendation be made by the Commission that the employees accept the employment offered to them.
[7] On 26 April 2021, New Horizons wrote to the Commission stating that it had reached a consent position with all employees who were then represented by the Australian Services Union (ASU) that the dispute applications should all be dealt with together at a determinative conference, following which the Commission would provide the parties with a recommendation delivered at the end of the conference or shortly thereafter. The consent position included that all parties agreed to be bound by the Commission’s recommendation, which would be to the effect that either the positions offered were considered acceptable employment, in which case the employees could accept the positions or resign, or the employment was not considered acceptable, in which case they were to be paid their redundancy entitlements. The consent agreement of the parties to be bound by the Commission’s determination is consistent with subclause 10.2(f) of the Dispute Resolution procedure in the Agreement.
[8] The applications were subsequently heard by way of a determinative conference on 28 May 2021. At the commencement of the determinative conference, the parties’ representatives advised the Deputy President that there would be no cross-examination. 5 At the conclusion of the conference, the Deputy President provided his reasons on transcript, made a recommendation that the positions offered to the employees by New Horizons were acceptable employment, and issued an order dismissing all the applications.6
[9] Two of the employees, Ms Carle and Mr Mackey, now seek to appeal the decision of the Deputy President.
Decision under appeal
[10] In arriving at his conclusion, the Deputy President noted that the roles offered to the appellants would be at the same work location, the appellants would not receive a reduction in remuneration and all accrued entitlements of the appellants would be maintained. The Deputy President further found that the appellants were both qualified to work in the new roles offered by New Horizons. 7
[11] In respect of Ms Carle, who had previously been employed as a Customer Engagement Officer, she had been offered re-deployment into the role of a Support Coordinator and would remain based in Newcastle although she would be required to travel to Gosford and Wyong, with her rate of pay being “grandfathered”. In respect of the additional travelling required in the new role offered to Ms Carle, the Deputy President noted that the travel would occur during Ms Carle’s ordinary working hours and that when given a choice of roles she chose the Customer Engagement role as she was of the view this was a better fit and that the role aligned with her career objectives. In dealing with Ms Carle’s concern about having to meet her KPIs with the additional travel involved, the Deputy President noted that the employer had stated that travel time was taken into account when measuring an employee’s KPIs.
[12] Mr Mackey, who had also previously been employed as a Customer Engagement Officer, was offered a role of a Support Coordinator and would remain based in Newcastle with his rate of pay being grandfathered. Mr Mackey raised concerns that he believed he would be unsuitable for the role due to his past unsatisfactory performance in the same role. The Deputy President did not consider this a factor which indicated that the role was not acceptable on the basis that New Horizons had expressed its confidence in Mr Mackey’s ability to perform the role of Support Coordinator.
[13] Ms Carle has, since the decision, resigned from her employment and, at the time of the appeal hearing, Mr Mackey was on extended leave.
Appeal grounds
[14] The appeal grounds of both appellants are the same, although it is not obvious that the stated grounds apply equally to both appellants as their circumstances and the roles offered to them differ. The appeal grounds are as stated below:
1. Redeployed role differs significantly to previous/now redundant role. Sales role vs intense case management role. KPI and core function conflict with each other
2. Redeployed role has significantly less flexibility compared to previous role. Work from home 2 days compared to 5 days.
3. Redeployed role involves significantly more travel. 3 days not working from home is filled with multiple customer facing appointments. Customers live across 100km+ radius. Previous role has minimal face to face meeting requirements.
4. I purposely did not choose the redeployed role in a previous restructure. Now being forced into the role doesn’t make sense to me
[15] Neither appellant identified any public interest or discretionary grounds as to why the Commission should grant permission for the appeal to proceed.
[16] As can be seen from the appeal grounds, they do not specify where the Deputy President erred in his decision. The appellants’ written submissions (filed as one submission) set out a number of “concerns” which in essence attempt to re-run the argument initially put before the Deputy President.
[17] The appellants stated that they felt they were poorly represented by the ASU at the determinative conference and that they were unaware of the agreement that there would be no cross-examination. The appellants submitted that the grandfathering of their wages had not been explained to them properly at the original restructure.
[18] The appellants’ written submission concludes by stating that they believe the positions offered are not suitable or acceptable employment and that they believe they “will be set up to fail” and “[p]ersonal factors have an implication due to excessive travel”.
[19] New Horizons submitted that the appeal raises no public interest grounds and was an attempt by the appellants to re-argue their case at first instance. Further, the appellants were attempting to introduce new evidence and raise new matters not put before the Deputy President. It was submitted that the matters raised by the appellants were considered by the Deputy President whose decision weighed up the competing factors and made an objective decision that was reasonably open to him to make.
Permission to appeal
[20] While not argued before this Full Bench, it is not beyond doubt that the Agreement provides a right of appeal to the appellants having regard to subclause 10.2(f) of clause 10 - Dispute Resolution which is expressed in the following terms:
“f) The parties to the dispute agree to be bound by a decision made by the Fair Work Commission in accordance with this term.”
[21] In lieu of any argument to the contrary, we will deal with the appeal on the basis that the Agreement does not exclude the availability of the appeal facility in s 604 of the FW Act, and that permission to appeal is required as set out at s 604(2).
[22] Permission to appeal may be granted if there is sufficient doubt to warrant reconsideration of a decision or an injustice may result if permission is not granted. If the Commission considers that it is in the public interest to grant permission to appeal, it is required to grant permission.
[23] As the decision under appeal is of a discretionary nature, ordinarily such a decision can only be successfully challenged if it is shown that the discretion by the decision maker was not exercised correctly. 8 It is not open for this appeal bench to substitute its view on the matters that fell for determination before the 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:9
“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.”
[24] As stated above, the appellants have not attempted to identify any error in the Deputy President’s reasons for his decision other than submitting that their individual circumstances warranted a different outcome. In doing so, some additional material and arguments were relied upon by the appellants, however their admissibility does not need to be determined as they do not advance the appellants’ arguments in any material way.
[25] In submitting that their case was not properly advanced in the first instance, that is that the ASU left out some information, the appellants were provided with the opportunity to put a more fulsome submission to this Full Bench. In doing so, it was not demonstrated by the appellants that there were relevant matters that the Deputy President did not consider or that there were matters of significance that may have given rise to the Deputy President reaching a conclusion in their favour.
[26] Ms Carle submitted that despite having previously performed the functions of Support Coordinator for two years, she did not have the skill set to undertake the role in an effective manner. In his decision the Deputy President considered this factor and referred to the evidence of the employer that training will be provided to ensure Ms Carle was up to date in relation to the new system in operation so that she did not fail in the new role should she accept it. 10
[27] Mr Mackey elaborated on why he believed that should he accept the role offered to him: it would not work out as he had never performed the role of Support Coordinator well previously. Again, this issue was addressed by the Deputy President when he referred to the employer having confidence in Mr Mackey’s ability to do the job. 11
[28] Mr Mackey stated during the appeal that he would consider accepting a lower paid role; however, following discussions following the appeal hearing with New Horizons, the Full Bench was advised that this did not eventuate.
[29] Regarding the absence of cross-examination, other than asserting in their written submissions that they would have “welcomed cross examination”, the appellants did not develop this submission any further. We note that the matter for determination by the Deputy President did not turn on the credibility of any one witness over another and that the submissions made by the appellants in this appeal did not identify any matters of significance that required clarification by way of cross-examination.
[30] We are not satisfied that there was any error of principle, any material mistake of fact, any failure to have regard to a relevant consideration, or any reliance on an irrelevant consideration. Nor do we consider that the decision outcome involves a substantial wrong.
[31] The appellants essentially seek to resubmit and recast their individual circumstances in an effort to establish that a different result should have been reached. In doing so, the appellants have not established any appealable error in the exercise of the discretion vested in the Deputy President.
[32] For these reasons we decline to grant permission to appeal.
VICE PRESIDENT
Appearances:
Mr T Mackey & Ms S Carle on their own behalf.
Mr J Mattson on behalf of the respondent.
Hearing details:
2021.
Sydney (via video-link):
20 July.
Printed by authority of the Commonwealth Government Printer
<PR732887>
1 PR730272
2 AE500577
3 Subclause 10.2(f)
4 C2021/2083,C2021/2103, and C2021/2108
5 Transcript, 28 May 2021 at PN38-40
6 PR730272
7 Transcript, 28 May 2021 at PN159, 162-163
8 House v The King [1936] HCA 40, 55 CLR 499 at 504-505 per Dixon, Evatt and McTiernan JJ.
9 Ibid
10 Transcript, 28 May 2021 at PN178
11 Ibid at PN169
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