TERMINATION OF EMPLOYMENT – termination at initiative of employer – demotion – ss.394, 400, 604 Fair Work Act 2009 – appeal – Full Bench – appeal against decision to dismiss unfair dismissal application – appellant employed as security guard – appellant alleged he was transferred to a new site and demoted, and that demotion constituted dismissal – at first instance the Commission dismissed application on basis that neither the reduction in appellant’s remuneration or duties was significant, and appellant was still employed by respondent – on appeal, appellant submitted that the Commission erred in requiring that there be a significant reduction in appellant’s remuneration and duties, and that appellant no longer be employed by the respondent – appellant submitted that employer bore the responsibility of demonstrating there had been no significant reduction in remuneration or duties, and that appellant remained employed – Full Bench agreed with appellant that the Commission erred in applying legislative provisions – appellant cannot be required to negative both limbs of exception under s.286(2)(c) of FW Act as it would lead to the perverse result that a demotion could never amount to a dismissal, as an applicant would be required to demonstrate that they were no longer in the respondent’s employ – approach taken by Commission involved appealable error of law – Full Bench satisfied that allowing permission to appeal in the public interest – permission to appeal granted – notwithstanding error in approach taken by Commission, Full Bench not satisfied that any repudiation of appellant’s contract of employment occurred – contract of employment required appellant to work in a security guard role at any site for which the respondent held the contract, and stated he would be paid for the role and required duties in accordance with the relevant industrial instruments – the transfer to a new location and adjustment in duties and remuneration were consistent with employment contract – no repudiation of employment contract – appeal dismissed. Appeal by Moyle against decision of O’Callaghan SDP of 8 December 2015 [[2015] FWC 8330] Re: MSS Security P/L
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