Fair Work Act 2009

s.604 - Appeal of decision

Appeal against decision [2025] FWC 1000 and order PR785976 of Commissioner Simpson at Brisbane on 9 April 2025 in matter number U2024/15293 - permission to appeal refused.

[1] Ms Tatiana Lepina-Lavrinovich has lodged an appeal under s 604 of the Fair Work Act 2009 (Cth) (Act) against a decision[1] and order[2] of Commissioner Simpson issued on 9 April 2025. In the decision, the Commissioner dismissed Ms Lepina-Lavrinovich's application for an unfair dismissal remedy as he was satisfied that Ms Lepina-Lavrinovich's dismissal was a case of genuine redundancy.

[2] The matter was listed for permission to appeal only. For the reasons that follow, permission to appeal is refused.

[3] The decision records that Ms Lepina-Lavrinovich was employed by the respondent, Corporate Travel Management Limited, as a .NET Software Developer covered by the Professional Employees Award 2020 (Award). In November 2023, the respondent identified an opportunity to reduce costs and improve efficiencies by outsourcing aspects of its internal support services to a third-party provider in India. The proposal was discussed at a group meeting led by the ANZ chief executive officer on 18 September 2024.

[4] At a meeting on 25 November 2024 with human resources and her direct manager, Ms Lepina-Lavrinovich was informed that her work would be outsourced and consequently, her role was at risk of redundancy. Ms Lepina-Lavrinovich was invited to provide feedback prior to 26 November 2024.

[5] Ms Lepina-Lavrinovich provided feedback to the respondent on 26 November 2024 (a point which she contests), but it did not cause the respondent to change its mind about Ms Lepina-Lavrinovich's proposed redundancy. On 5 December 2024 Ms Lepina-Lavrinovich was informed that her employment was terminated by way of redundancy.

[6] The Commissioner found that the respondent no longer required Ms Lepina-Lavrinovich's job to be performed by anyone because of changes in the operational requirements of its enterprise (s 389(1)(a) of the Act). The Commissioner did not accept Ms Lepina-Lavrinovich's contention that her job is still being performed in circumstances where some of the duties have been redistributed to other employees.[3] The Commissioner also found that that the respondent had complied with its consultation obligations under the Award, having regard to discussions that occurred at meetings on 18 September and 25 November 2024 and the feedback that Ms Lepina-Lavrinovich provided in response to the proposal

(s 389(1)(b) of the Act). The Commissioner did not accept Ms Lepina-Lavrinovich's submission that the consultation was merely perfunctory.[4]

[7] The Commissioner determined that it was not reasonable for Ms Lepina-Lavrinovich to be redeployed within the company or any of its associated entities (s 389(2) of the Act).[5] The Commissioner accepted that Ms Lepina-Lavrinovich was not suitable for a "Vacant Role" of Senior Backend .NET Engineer that was available in the respondent's business at the time her role was made redundant. The Commissioner concluded that Ms Lepina-Lavrinovich's dismissal was a case of genuine redundancy.[6]

[8] In her notice of appeal, Ms Lepina-Lavrinovich relies upon seven appeal grounds, which are elaborated on in her outline of submissions.[7] They are summarised as follows:

• (1) Denial of procedural fairness: Ms Lepina-Lavrinovich contends that the decision to conduct the proceeding as a determinative conference and not a hearing left her confused and without a meaningful opportunity to reply to the respondent's late-filed submissions.

• (2) Significant error of fact - False and changed redundancy reason: The respondent's Form F3 response stated that Ms Lepina-Lavrinovich's role was outsourced. Ms Lepina-Lavrinovich contends that the respondent's position changed when it filed its written submissions stating that her work would be "partially absorbed" by the provider. Ms Lepina-Lavrinovich says that this inconsistency was not resolved by the Commissioner, and it affected the outcome and denied a fair assessment of her application.

• (3) Significant error of fact - Incorrect consultation timeline and improper use of unrelated emails as feedback: Ms Lepina-Lavrinovich contends that the Commissioner erroneously found that she was informed of the redundancy on 22 November 2024, when the formal notification of potential redundancy occurred on 25 November 2024. Further, it is said that the respondent provided Ms Lepina-Lavrinovich with a limited opportunity to provide feedback by close of business 26 November 2024 and despite Ms Lepina-Lavrinovich being on sick leave on 26 November 2024, no extension of time was offered. It is contended that the respondent relied upon past emails regarding Ms Lepina-Lavrinovich's request to be reclassified in her role as redundancy consultation responses. It is contended that these matters reflect a significant error of fact and a denial of procedural fairness to Ms Lepina-Lavrinovich.

• (4) Significant error of fact - Misrepresentation of role as "front end only": Ms Lepina-Lavrinovich contends that the Commissioner accepted the evidence of the Global Chief Information Officer, Mr David MacNiven, that Ms Lepina-Lavrinovich's role was "purely from a front end perspective and was never a Full Stack," which Ms Lepina-Lavrinovich contends is factually incorrect. This is said to be relevant to the vacant position of Senior Backend .NET Engineer which Ms Lepina-Lavrinovich says was not properly considered as a suitable redeployment opportunity. It is said that the Commissioner's reliance upon the inaccurate claim that Ms Lepina-Lavrinovich performed only front-end tasks led to a flawed assessment of whether her role was truly redundant and whether redeployment to the Senior Backend .Net Engineer role was appropriate.

• (5) Significant error of fact - Redeployment assessment based on incorrect or non-existent documents: Ms Lepina-Lavrinovich contends that the Commissioner accepted that the respondent had properly consulted Ms Lepina-Lavrinovich's resume and reclassification emails when assessing redeployment opportunities. However, Ms Lepina-Lavrinovich incorrectly referred to her June and August 2024 reclassification emails as an "updated resume" where no updated resume was ever submitted to the respondent. The Commissioner's acceptance of this process as valid constitutes a significant error of fact.

• (6) Significant error of fact - Respondent was aware of University studies but failed to consider them in redeployment: In the respondent's outline of submissions, it is contended that Ms Lepina-Lavrinovich's "CV" was reviewed in relation to a potential Python Machine Learning Engineer role, which the respondent concluded was unsuitable for redeployment. Ms Lepina-Lavrinovich contends that the respondent was aware that she was studying in a field directly related to this advertised role but made no effort to obtain an updated resume or discuss how Ms Lepina-Lavrinovich's ongoing academic qualifications might support redeployment into this position. The Commissioner did not consider this omission in the decision.

• (7) Significant error of fact - Misuse of salary comparison to deny redeployment: It is contended that the Commissioner relied upon the salary gap between Ms Lepina-Lavrinovich's role and the advertised salary of the vacant position of Senior Backend .NET Engineer to conclude that the position was at a higher level and therefore unsuitable for redeployment. This fails to analyse Ms Lepina-Lavrinovich's actual responsibilities, qualifications or experience and fails to take into account that her salary was approximately 25-30 per cent lower than her male colleagues despite holding comparable or more complex responsibilities. It is contended that the Commissioner's reliance upon salary alone as a proxy for skill and seniority, without addressing the broader context and unchallenged evidence, constitutes a significant error of fact.

[9] Ms Lepina-Lavrinovich submits that it is in the public interest that permission to appeal be granted including because the case raises important questions about procedural fairness for self-represented, non-native English speakers before the Commission. As Ms Lepina-Lavrinovich's role involved critical government-related responsibilities, it is contended that transferring such systems offshore may raise legal, privacy and national security concerns amongst other things. Further, it is submitted that the case raises wider questions that may have implications for women in technical roles and the matters to be taken into consideration in redeployment assessments.

[10] There is no right to appeal, and an appeal may only be made with the permission of the Commission. This appeal is from a decision made under Part 3-2 of the Act. Therefore, s 400 of the Act applies. By s 400(1), the Commission must not grant permission to appeal unless it is in the public interest to do so. Section 400(2) provides that an appeal on a question of fact can only be on the ground that the decision involved a significant error of fact. The test under s 400 is "a stringent one."[8]

[11] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[9] The public interest is not satisfied simply by the identification of error or a preference for a different result.[10] Considerations that may attract the public interest include that the matter raises issues of importance and general application, that the decision manifests an injustice or that the result is counterintuitive.[11]

[12] It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. However, that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.

[13] An application for permission to appeal is not a preliminary hearing of the appeal. In determining whether to grant permission to appeal, it is unnecessary and inappropriate to conduct a detailed examination of the appeal grounds.[12] However, it is necessary to engage with the grounds to consider whether they raise an arguable case of appealable error.

[14] We do not consider that the grant of permission to appeal would be in the public interest for the following reasons. First, we do not consider it to be arguable that Ms Lepina-Lavrinovich was denied procedural fairness, as contended by ground (1). As Ms Lepina-Lavrinovich accepted at the hearing before us, the Commission may make decisions as to how a matter is to be dealt with (see s 589 of the Act). Further, in unfair dismissal matters involving contested facts, s 397 requires that the Commission must conduct a conference or hold a hearing. The Commissioner's decision to proceed by determinative conference was consistent with the Act. We do not consider it to be arguable that this decision denied Ms Lepina-Lavrinovich the opportunity to address the respondent's further reply material. The first instance transcript discloses that Ms Lepina-Lavrinovich was given the opportunity to make oral submissions (supplementing her detailed written submissions), give evidence and cross-examine the respondent's witnesses. We have not been taken to any occasions in which Ms Lepina-Lavrinovich was "prevented" from presenting her case, as contended. Rather, it appears that she was provided with multiple opportunities to address the Commission. Further, the transcript demonstrates the Commissioner's understanding of the relevant facts and legal principles to be applied. The contention that Ms Lepina-Lavrinovich's submissions were not adequately recorded in the transcript (having regard to multiple references to "indistinct") is not reflective of the Commissioner's comprehension of the case before him. Ground (1) cannot be sustained.

[15] Second, we are not persuaded that any of the alleged errors raised by appeal grounds (2) to (7) demonstrate arguable errors of fact in the decision, let alone significant errors such as to satisfy the stringent requirement in s 400(2) of the Act. Our reasons for this conclusion may be briefly stated:

• (a) The contention in ground (2) that the respondent changed its position is not an error attributable to the Commissioner. In any event, the Commissioner considered at paragraph [27] of the decision that the respondent initially said that Ms Lepina-Lavrinovich's entire role was to be outsourced and subsequently said that only some of the role had been. The Commissioner concluded it was sufficiently clear (that is, on either basis) that the respondent no longer required Ms Lepina-Lavrinovich's job to be performed by anyone. There was an evidentiary basis for this conclusion, having regard to paragraph [8] of Mr MacNiven's witness statement.

• (b) The contention in ground (3) that the Commissioner erred at paragraph [9] of the decision is unarguable. The Commissioner did not make a finding that Ms Lepina-Lavrinovich was informed of the redundancy on 22 November 2024; rather, the Commissioner summarised that the "Applicant submitted that on 22 November 2024, she was informed that her role as a .NET Software Developer was no longer required..." This is consistent with Ms Lepina-Lavrinovich's position in her Form F2 application. It did not otherwise appear to be contested in the decision that the decision was in fact communicated to Ms Lepina-Lavrinovich on 25 November 2024.

(c) Further, the contention that the respondent did not extend the consultation period does not disclose an arguable error in the decision. In any event, the material demonstrates that Ms Lepina-Lavrinovich did provide feedback by close of business on 26 November 2024. The position now advanced - that it was not open to the respondent, and therefore the Commissioner, to regard this as consultation feedback - is not arguable. The email addresses matters relevant to a "smooth transition" as Ms Lepina-Lavrinovich prepared to "leave the company" and concludes by stating that, "I would be happy to assist as a contractor in the future if my expertise is required to address these challenges or for ongoing support."[13] No arguable error arises from the Commissioner's conclusion that Ms Lepina-Lavrinovich provided consultation feedback by the requested date.

(d) The challenge advanced by ground (4) is that the Commissioner accepted Mr MacNiven's evidence, rather than the evidence of Ms Lepina-Lavrinovich about whether her role was front-end only. It is contended that the Commissioner should have reached a different conclusion. There is no arguable basis for concluding that the Commissioner's findings were not reasonably open, improbable or contrary to incontrovertible facts (as would be necessary for the Full Bench to conclude that the fact finding was erroneous).[14] Ms Lepina-Lavrinovich simply seeks a different result. The Commissioner's finding appears to have been open to him, having regard to the evidence of Mr MacNiven on this point at the hearing.[15] We discern no arguable error in this conclusion having regard to the evidence before the Commission.

(e) No arguable error is disclosed by ground (5). The June and August 2024 reclassification emails were said to have been mistakenly marked by Ms Lepina-Lavrinovich as "updated resume." These emails summarised the appellant's position in advocating for a role reclassification. It is not in dispute that these emails were not a resume. Rather, they summarised Ms Lepina-Lavrinovich's updated skills and experience. Whether Ms Lepina-Lavrinovich labelled the emails incorrectly or not, it was open to the Commissioner to reach a state of satisfaction that the respondent considered this material in its redeployment assessment, which he did at paragraph [52] of the decision. Relatedly, the contention in ground (6) that the respondent did not make efforts to obtain an updated resume from Ms Lepina-Lavrinovich does not appear to be connected to any arguable error (including an error by omission) of the Commissioner.

(f) The contention in ground (7) does not disclose a significant error of fact. The Commissioner's reference to the difference in salary between Ms Lepina-Lavrinovich's role and the vacant position of Senior Backend .NET Engineer cannot fairly be read as constituting the only aspect of the evidence that the Commissioner took into account when he concluded that the "Vacant Role" was at a higher level of skill and responsibility. In any event, there was an evidentiary foundation supporting the finding.

[16] For the reasons given, we do not consider that an arguable case has been advanced that the decision was attended by appealable error. Nor are we satisfied, for the purposes of s 400(1) of the Act, that the appeal attracts the public interest. The appeal does not raise any genuine issue of law, principle or wider application. It follows that we must refuse permission to appeal.

T. Lepina-Lavrinovich, on her own behalf (with interpreter).

[1] [2025] FWC 1000

[2] PR785976

[8] Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54; 192 FCR 78; 207 IR 177 at [34] and [43]

[9] O'Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210 at 216-217 per Mason CJ, Brennan, Dawson and Gaudron JJ: applied in Hogan v Hinch (2011) 243 CLR 506 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [44]-[46]

[10] GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343; 197 IR 266 at [24]- [27]; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/ Warkworth [2010] FWAFB 10089 at [28], affirmed on judicial review; Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 178; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663; 241 IR 177 at [28]

[11] GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, 197 IR 266 at [24]- [27]

[12] Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]

[14] Edwards v Noble [1971] HCA 54, 125 CLR 296; Fox v Percy [2003] HCA 22, 214 CLR 118 at [28]- [29]

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