s.604 - Appeal of decision

Appeal against decision [2025] FWC 2805 of Deputy President Easton at Sydney on 19 September 2025 in matter C2025/5720 - permission to appeal refused

[1] Alexander Jones has lodged an appeal under s 604 of the Fair Work Act 2009 (Act) against a decision of Deputy President Easton on 19 September 2025 ( [2025] FWC 2805) in which the Deputy President reduced the amount of Mr Jones's redundancy pay to nil pursuant to s 120 of the Act. The matter was listed before us for permission to appeal only.

[2] Section 120 of the Act states that the section applies 'if an employee is entitled to an amount of redundancy pay by the employer because of s 119', and the employer 'obtains other acceptable employment for the employee'. Section 120(2) provides that, on application by the employer, the Commission 'may determine that the amount of redundancy pay is reduced to a specified amount (which may be nil) that the FWC considers appropriate.'

[3] In his decision, the Deputy President found that Utility Mapping (Aust) Pty Ltd (respondent) had obtained acceptable alternative employment for Mr Jones in a role that involved no reduction in his remuneration, that the Commission's power to make an order under s 120 was engaged, and that there were very few countervailing considerations telling against the exercise of the discretion. He found that Mr Jones could have continued to work in the business in an acceptable role and chose instead to force his departure without any further discussion. The Deputy President considered that it would not be reasonable for the respondent to have to make a redundancy payment in those circumstances.

[4] An appeal from the Deputy President's decision may only be brought with the permission of the Commission under s 604(1). Section 604(2) provides that the Commission must grant permission to appeal if it is satisfied that it is in the public interest to do so. Consideration of the public interest involves a broad value judgment (Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [44]). Matters that may engage the public interest include issues of importance and general application, a diversity of decisions at first instance, or where the decision manifests an injustice (GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343; (2010) 197 IR 266 (Makin) at [27]). Where the public interest is not engaged, the Commission may grant permission to appeal on general discretionary grounds. In deciding whether to grant permission to appeal, it is unnecessary and inappropriate to conduct a detailed examination of the appeal grounds (Trustee for the MTGI Trust v Johnston [2016] FCAFC 140 at [82]). However, it is necessary to engage with the appeal grounds to consider whether they raise an arguable case of appealable error. An appellant must ordinarily demonstrate that there is such a case in order to be granted permission to appeal, as an appeal cannot succeed in the absence of error (Coal & Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 at 204). However, the fact that a member may have made an error is not necessarily a sufficient basis to grant permission to appeal.

[5] In his notice of appeal, Mr Jones advanced ten grounds upon which he elaborated in his written and oral submissions. First, he submitted that the Deputy President erred in finding that the alternative role was 'other acceptable employment' because it was inchoate or incomplete, as it had no final position description, KPI structure, bonus arrangements or confirmed travel requirements. But the Deputy President found that the salary, allowances and other conditions of the new role were identical to the old one; that a position description was provided on 3 June 2025; and that there was no evidence that showed the at-risk component of the remuneration package was any less secure under the proposed arrangements than it had been in the previous role. The first appeal ground contests the Deputy President's factual findings, but it is well established that the factual findings of a member at first instance should generally stand, unless they can be shown to be wrong by incontrovertible facts or are glaringly improbable (see AEU v Bendigo Kangan Institute of TAFE [2021] FWCFB 3649 at [37]- [39]). In our view it is not arguable that this is the case here. The Deputy President's findings appear to us to have been comfortably open on the evidence.

[6] The second appeal ground submitted that the Deputy President erred in criticising Mr Jones for acting hastily to exit the business and not allowing the respondent to clarify the terms of the alternative role because this reversed the onus of proof by requiring him to demonstrate that the new role was not acceptable. This does not make sense to us. There was no 'reversal of onus', and it is doubtful whether it is meaningful to speak of an onus in respect of matters under s 120. The third appeal ground contends that the consideration of Mr Jones's 'hastiness' was an irrelevant one, but we do not consider this to be arguable; this matter was considered in the context of the finalisation of the bonus arrangements and hence the comparability of the positions (see above). We see no arguable error here.

[7] The fourth ground of appeal submitted that, even if the Deputy President was correct in concluding that acceptable alternative employment existed, it was disproportionate and unjust to reduce Mr Jones's redundancy payment to nil because the detriments associated with the alternative position identified by the Deputy President warranted at most a partial reduction. We do not find there to be any basis to contend that the Deputy President's discretion miscarried in circumstances where he determined that the remuneration for the new position was substantially the same and that there were very few countervailing considerations, determinations which appear to us to have been comfortably open on the evidence.

[8] Ground 5 alleges that the Deputy President's reasons were inadequate in respect of his treatment of the question of seniority and the bonus arrangements, and his conclusion that a reduction to nil was appropriate. But each of these matters is addressed in the decision and in our view it is simply not arguable that the Deputy President's reasons were inadequate. Contrary to the sixth ground of appeal, we see no arguable error in the Deputy President's suggestion that Mr Jones could have trialled the alternative position and resigned later; this did not imply that Mr Jones was obliged to take this course. Ground 7 said that the Deputy President erred by referring to a redundancy payment in Mr Jones's circumstances as a windfall, but this expression is not found in the decision, and given the Deputy President's findings about the alternative role, it is not a characterisation that was unavailable or reflective of error.

[9] The eighth appeal ground asserted that the Deputy President's conclusion that the alternative position was objectively acceptable was not reasonably open to him on the evidence. But this recapitulates the first ground of appeal which we have addressed above. Appeal ground nine submitted that the Deputy President did not consider relevant matters, including Mr Jones's personal circumstances, but it appears to us that he did so and in any event there was nothing that required him to consider these particular matters or assign them any particular weight. As the Deputy President said, s 120 gives the Commission considerable latitude in the relief that it can provide, once the section is engaged. The tenth appeal ground asserted that the Deputy President failed to consider unchallenged evidence about certain aspects of the 'termination meeting' on 6 June 2025, but Mr Jones fails to offer any explanation of the relevance of these matters to the question of whether there was 'other acceptable employment'.

[10] Mr Jones made various submissions as to why his appeal engaged the public interest, but none of them have merit. There is no arguable case of error. The matter concerns the particular circumstances of a single person in a s 120 application. We perceive no issues of broader significance or that otherwise enliven the public interest, whether in the ways referred to in Makin or otherwise.

[11] A further matter that tells against the application for permission is that there appears to be a real question as to whether Mr Jones's employment was terminated by the respondent. There is no finding to this effect in the decision, and during the hearing Mr Jones's counsel stated that the employment ended by agreement. An entitlement to redundancy pay under s 119 arises only if an employee's 'employment is terminated at the employer's initiative because the employer no longer requires the job done by the employee to be done by anyone' (see s 119(1)(a)). If this did not occur, there is no utility in the appeal. But irrespective of this matter, we see no basis to grant permission to appeal.

[12] The appeal grounds do not disclose an arguable case of appealable error. It is not in the public interest to grant permission to appeal, nor do we consider that permission to appeal should be granted on general discretionary grounds. Permission to appeal is refused.

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