Alisha Smilovitz v The Royal Society for the Prevention of Cruelty to Animals (Victoria)

[2024] FWC 1361

[2024] FWC 1361

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Alisha Smilovitz
v

The Royal Society For The Prevention Of Cruelty To Animals (Victoria)

(U2024/2919)

COMMISSIONER TRAN MELBOURNE, 23 MAY 2024

Application for an unfair dismissal remedy; orders to attend under s 590; orders granted.

1. On 14 March 2024, Ms Alisha Smilovitz applied for an unfair dismissal remedy under s 394 of the Fair Work Act2009 (Cth) (the Act) in relation to the termination of her employment with the Royal Society for the Prevention of Cruelty to Animals (Victoria) (RSPCA/the Employer). The RSPCA raised a jurisdictional objection to the application, being that the termination of employment was a genuine redundancy within the meaning of s 389 of the Act. Ms Smilovitz was employed as a Rescue Co-ordinator on a full-time basis.

1. Section 389 of the Act provides:

“Meaning of genuine redundancy

(1)   A person's dismissal was a case of genuine redundancy if:

(a)   the person's employer no longer required the person's job to be performed by anyone because of changes in the operational requirements of the employer's enterprise; and

(b)   the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.

(2)   A person's dismissal was not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within:

(a)    the employer's enterprise; or

(b)    the enterprise of an associated entity of the employer.”

1. A key issue for determination in this matter is whether it would have been reasonable in all the circumstances for Ms Smilovitz to have been redeployed under s 389(2). The Employer’s case is that it offered redeployment opportunities to Ms Smilovitz, which she refused. Those redeployment opportunities included Ms Smilovitz’s role as Rescue Co-ordinator on a part-time basis, and other vacant positions within the Employer’s organisation. Ms Smilovitz’s case is that she had discussions about the redeployment opportunities, including discussion about how to structure the part time role, and had those discussions been fruitful, it would have been reasonable for her to be redeployed.

1. On 17 May 2024, Ms Smilovitz made applications under s 590 for me to order the following persons to attend:

-Ms Nicola Carcano

-Ms Stacey Gallimore

1. Ms Smilovitz filed a Form F51 for each application and provided submissions in support of the application within that form.

1. I conducted a case management conference on 23 May 2024. Ms Smilovitz was represented by Mr Vertes of JPM Law; the RSPCA was represented by Mr Lawrence of HWL Ebsworth.

1. At that case management conference, I granted permission for both parties to be represented at all future conferences and hearings conducted by me. Both parties had provided written submissions and did not make any further oral submissions in relation to permission to be represented. I granted permission under s 596(2)(c) to ensure fairness between the parties, and also under s 596(2)(a) as the matter involved a degree of legal and factual complexity regarding the issue of whether redeployment was reasonable in all the circumstances.

1. In relation to the applications for an order that persons attend under s 590, Ms Smilovitz’s representative made further oral and reply submissions. I provided the RSPCA the opportunity to also make submissions but declined written submissions. I declined written submissions on the grounds that it would incur further costs for the parties and delay this interim, procedural decision. I wished to deliver a decision as soon as possible to ensure that if I did order a party to attend, they would have sufficient notice.

The Applicant’s submissions regarding orders to attend

1. Ms Smilovitz also submits that under s 389(2), a question arises in this matter about whether it would have been reasonable in all the circumstances for Ms Smilovitz to be redeployed.

Evidence of Ms Carcano

1. Ms Smilovitz said that Ms Carcano would assist me as she would provide evidence of discussions around the redeployment option of the part-time role including about whether what Ms Smilovitz sought was reasonable and the reasonableness of the employer’s conduct relating to redeployment. Ms Smilovitz also made submissions that as Ms Carcano was still employed an order compelling her attendance would be necessary to protect her in that employment.

Evidence of Ms Gallimore

1. Ms Smilovitz said that Ms Gallimore is the new part-time Rescue Co-ordinator and that her evidence would assist me in relation to issues relating to redeployment of Ms Smilovitz and a specific email over which Ms Smilovitz wished to cross-examine Ms Gallimore going to the terms (days and hours of work) of the part-time role that Ms Smilovitz could have been redeployed to.

The Employer’s submissions about both applications

1. The Employer submits that neither witness will provide evidence that is relevant to the principal point of contention. The Employer says that it offered Ms Smilovitz redeployment, and the offers were clearly and unequivocally rejected. The Employer says that Ms Smilovitz’s arguments relating to her negotiations about the terms of the redeployment position is not relevant as redeployment is a matter for the employer to determine.

Consideration

1. There are three questions to be considered when determining whether there was a genuine redundancy under s 389. First, whether the employer no longer required the person’s job to be performed by anyone because of changes in operational requirements of the employer’s enterprise. Second, whether the employer complied with any obligation to consult about the redundancy. Last, whether it would have been reasonable in all the circumstances for the person to be redeployed within the employer’s enterprise or an associated entity of the employer.

1. Neither of the first two questions appear to be in dispute in this matter. The key area of contention is the last question – redeployment. The test is whether redeployment was reasonable in all the circumstances.  I am persuaded by Ms Smilovitz’s submissions that both Ms Carcano and Ms Gallimore would provide evidence in relation to whether redeployment was reasonable in all the circumstances having regard to the conversations that occurred around the time of the termination of her employment and what the terms and conditions of the offered position ultimately looked like.

1. Section 590 of the Act provides me with broad discretion about how I may inform myself in relation to any matter before me and as I consider appropriate. Section 590(2) then provides examples of specific ways in which I may inform myself. None of those examples limit how I may inform myself. I have considered what the issues in this matter are and the materials that have been filed to date, which include a witness statement of Ms Smilovitz’s on her own behalf, and two witness statements on behalf of the Employer, neither of which are Ms Carcano nor Ms Gallimore. The Employer did not indicate that it intended to call either witness such that they would attend voluntarily to give evidence. I consider it appropriate to order them to attend to provide evidence that is relevant to the question of whether it was reasonable in all the circumstances for Ms Smilovitz to have been redeployed to the part-time Rescue Co-ordinator role.

1. I therefore grant the applications for the orders to attend, which will be issued separately to this decision.

1. I indicated to the parties at the case management conference that I am amenable to a request for a witness in this matter to attend and provide their evidence via video, provided that a request is made to my Chambers with reasons prior to the listed determinative conference on Tuesday, 11 June 2023.

1. I make note that this is an interim, procedural decision under Part 5-1 of the Act and the Commission is not required to provide its decision in writing for such a decision in accordance with s 601(1)(a). However, I have provided this decision in writing to assist the parties, as the Employer indicated during the case management conference that it wished to consider its rights to appeal the decision granting the application for orders to attend.

COMMISSIONER

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