[2015] FWC 6421 [Note: An appeal pursuant to s.604 (C2015/6946) was lodged against this decision - refer to Full Bench decision dated 9 December 2015 [[2015] FWCFB 8260] for result of appeal.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s 394 - Application for unfair dismissal remedy

Anesha Mohanan
v
China Southern Airlines Limited
(U2014/9637)

DEPUTY PRESIDENT SAMS

SYDNEY, 17 SEPTEMBER 2015

Termination of employment – Marketing Manager – unfair dismissal application – jurisdictional objections – whether time for filing of the application should be extended due to ‘exceptional circumstances’ – whether applicant’s dismissal a case of ‘genuine redundancy’ – serious illness of applicant – applicant under extraordinary stress - ‘exceptional circumstances’ established – time for filing application extended – employer no longer required the applicant’s job to be performed by anyone – failure to properly consult over redundancy and redeployment – dismissal determined before consultation – dismissal not a case of ‘genuine redundancy’ – Commission not precluded from considering merits – further proceedings as to merit and remedy (if necessary).

BACKGROUND
[1] This decision will determine two jurisdictional objections pressed by China Southern Airlines Limited (the ‘respondent’) in respect to an unfair dismissal application, filed by Ms Anesha Mohanan (the ‘applicant’) pursuant to s 394 of the Fair Work Act 2009 (the ‘Act’). The applicant commenced employment on 11 June 2011 in the role of Marketing and Sales Communication Manager, under the terms of the Airlines Operations–Ground Staff Award 2010 [MA000048] (the ‘Award’) and she was dismissed from her employment on 1 August 2014.

[2] The respondent’s jurisdictional objections are that:

1. The applicant’s unfair dismissal application was lodged on 9 October 2014. It follows that the application was therefore lodged 48 days outside the statutory time limit set out in s 394(2)(a) of the Act.

2. The applicant’s dismissal was a case of ‘genuine redundancy’ (s 389(1)) and she therefore cannot have been unfairly dismissed (s 385(d)).

[3] At the outset, it is necessary to give a brief outline of the factual chronology. On 28 August 2013, the applicant commenced an extended period of sick leave arising from her being diagnosed with, and treated for ovarian cancer. The applicant was in Singapore between 25 June and 24 August 2014 visiting family to assist with her recuperation and recovery. On 9 July 2014, following a request by the applicant for a flexible work arrangement for part time work, Mr Brian Tang, HR Executive Manager, advised that the respondent’s business requirements could not be met by her working part time. The applicant responded as follows:

‘Hi Brian,
Thank you for your letter and email.
When I requested to work on part time basis, it was only meant to be temporary arrangement.
Perhaps for one or two months (part time) and progressively move on to full time. The request for part time was never intended to be permanent.
It will also be beneficial for the company to have my assistance on part time basis, and eventually progressing to full time. I am very confident that I will be able to manage the role with ease.
Please let me know if I can start part time basis for at least 1 month (e.g. September 0 which will not clash with events, especially Sydney Festival which is the major event in January.
Look forward to your reply.
Regards,
Anesha’

[4] While she was in Singapore, the applicant was advised that the respondent planned to restructure its Marketing Department and indicated it wished to discuss the restructure with her. As she was overseas and could not attend a face to face meeting, she proposed that the meeting be postponed until after her return to Australia (on 17 August 2014) or, in the alternative, a meeting could be held by telephone conference. No meeting took place.

[5] On 25 July 2014, the applicant was advised that her role had been made redundant and invited her to provide comment. Specifically, the letter said, inter alia:

‘Given that you said you are overseas and do not expect to return to Sydney until 17 August 2014, this letter is now provided to you for the purpose of advising you of the Company’s definite decision to restructure the Regional Marketing department (Regional Marketing). This decision would have been discussed with you and any support person during the Restructure Meeting.

The decision to restructure the Regional Marketing department has been made for the purpose of better aligning the Company’s requirements with the broader commercial restructure of the Company.

The changes included the following:

1. The position of Regional Marketing Manager will be created, and will be report to the Regional Commercial Manager Australia & New Zealand. Enclosed is a Job Description for the new position, showing that the new position will require:

(a) a minimum of eight (8) years’ marketing and sales experience, particularly in the airlines industry; and

(b) tertiary qualifications in business management (preferably with a specialisation in marketing) and a Masters of Business Administration,

2. The position will have three direct reports; and

3. The current role of Marketing and Communications Manager, Australia is not required under the revised structure. Other positions within the revised structure may perform some of the duties that have previously been performed by the Marketing and Communications Manager, Australia.

This means that your position of Marketing and Communications Manager, Australia will be made redundant [my emphasis].’

[6] The deadline for her to provide comment was extended until 30 July 2014. On that day, the applicant responded:

‘I would like to clarify my previous email.

From my understanding of the letter, it clearly states the decision has already been made about my role being redundant.

Do forward the confirmation with the necessary, final terms, etc.’

[7] The next day, after setting out the recent email exchanges between the applicant and the respondent, Mr Tang advised her as follows:

‘Regretfully, I now confirm my advice to you that your position with the Company is to be made redundant. This decision is in no way a reflection on you or your work performance. The Company has considered other alternatives to redundancy and regrets that this decision is necessary.

Accordingly, I give you notice that your employment will terminate by way of redundancy. The redundancy will be with immediate effect.

You will accordingly be entitled to receive:

1. a notice period of three (3) weeks (however an amount of three (3) weeks’ salary will be paid to you in lieu of notice); and

2. a redundancy payment equal to seven (7) weeks’ salary (subject to taxation for a bona fide redundancy).’

Statutory and Award considerations

[8] Under the Commission’s unfair dismissal jurisdiction, s 385 of the Act defines an unfair dismissal as follows:

385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(d) the dismissal was not a case of genuine redundancy.

[9] Section 396 of the Act sets out a number of matters that the Commission must determine prior to considering the merits of an application for a remedy for unfair dismissal. As will be evident, ss 396(c) and (d) sit in harmony with ss 385(c) and (d) of the Act. Section 396 is as expressed as follows:

396 Initial matters to be considered before merits

The FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:

(a) whether the application was made within the period required in subsection 394(2);

(b) whether the person was protected from unfair dismissal;

(d) whether the dismissal was a case of genuine redundancy.

[10] The following findings do not appear to be in dispute between the parties:

(a) The applicant was dismissed at the initiative of the employer (s 385(a))
(b) The respondent is not a Small Business Employer. Therefore, s 385(c) is not relevant.
(c) The applicant was a national system employee and the respondent was a national system employer, as defined (ss 13, 14); and
(d) The applicant was a person protected from unfair dismissal (s 382) in that:

(i) the applicant had completed the minimum employment period of 6 months (s 383);
(ii) the applicant was covered by the Award (s 382(b)(i)).

[11] Consideration of whether the applicant’s dismissal was ‘harsh, unjust or unreasonable’ (s 385(b) may be agitated if both of sub-sections (c) and (d) of s 385 are determined in the applicant’s favour.

[12] As I will discuss in detail later, one of the issues to be determined in this case is whether the applicant’s dismissal was consistent with the definition of a ‘genuine redundancy’, as set out in s 389 of the Act. The definition is set out as follows:

389 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.

[13] Pursuant to s 389(1)(b), the relevant provisions of the Award dealing with consultation are found at cl 9 and are expressed as follows:

9.1 Consultation regarding major workplace change

(a) Employer to notify

(i) Where an employer has made a definite decision to introduce major changes in production, program, organisation, structure or technology that are likely to have significant effects on employees, the employer must notify the employees who may be affected by the proposed changes and their representatives, if any.

(ii) Significant effects include termination of employment; major changes in the composition, operation or size of the employer’s workforce or in the skills required; the elimination or diminution of job opportunities, promotion opportunities or job tenure; the alteration of hours of work; the need for retraining or transfer of employees to other work or locations; and the restructuring of jobs. Provided that where this award makes provision for alteration of any of these matters an alteration is deemed not to have significant effect.

(b) Employer to discuss change

(i) The employer must discuss with the employees affected and their representatives, if any, the introduction of the changes referred to in clause 9.1(a), the effects the changes are likely to have on employees and measures to avert or mitigate the adverse effects of such changes on employees and must give prompt consideration to matters raised by the employees and/or their representatives in relation to the changes.

(ii) The discussions must commence as early as practicable after a definite decision has been made by the employer to make the changes referred to in clause 9.1(a).

(iii) For the purposes of such discussion, the employer must provide in writing to the employees concerned and their representatives, if any, all relevant information about the changes including the nature of the changes proposed, the expected effects of the changes on employees and any other matters likely to affect employees provided that no employer is required to disclose confidential information the disclosure of which would be contrary to the employer’s interests.

[14] Consequent upon the filing of this application, attempts were made to conciliate a settlement of the matter. Ultimately, it was agreed that the parties would file and serve their evidence on both jurisdictional matters and this was the basis on which a hearing proceeded over 6 and 23 July 2015. Both parties were represented by legal practitioners who were granted permission to appear, pursuant to s 596 of the Act. Mr G Davies (Sparke Helmore Lawyers) appeared for the applicant and Ms P Thew of Counsel, instructed by Ms A Teggins of HWL Ebsworth, appeared for the respondent.

[15] I propose to deal first with the evidence and submissions of the parties as to whether ‘exceptional circumstances’ exist such as to justify the Commission’s exercise of its discretion to allow the application to be lodged out of time. Obviously, if the applicant fails at that first hurdle, it will be unnecessary to consider whether the dismissal of the applicant was a case of ‘genuine redundancy’.

The ‘out of time’ issue

Submissions for the applicant

[16] As earlier mentioned, from August 2013 and throughout 2014, the applicant had been suffering from a very serious, life-threatening illness, which required both surgery and chemotherapy. The applicant provided a detailed witness statement setting out the circumstances of her illness and recuperation. She annexed various medical reports in relation to her illness and psychological condition. Given that the respondent did not seek to cross examine the applicant on her recent medical history and that the respondent did not query the severity of the applicant’s condition and its consequences (appropriately in my view), I need not refer, in any great detail to the contents of the applicant’s statement and annexures.

[17] The applicant’s submissions divided the periods for the delay in filing her unfair dismissal application into three distinct periods:

(a) 1 August 2014 – 24 August 2014;

(b) 25 August 2014 – 18 September 2014; and

[18] It was submitted by the applicant that she was not in a position to file her unfair dismissal application within time, due to a combination of the following factors:

(a) The side effects of her cancer illness;

(b) The cancer treatment;

(d) Time spent with her family in Singapore, recuperating from her cancer illness, cancer treatment and adjustment disorder.

[19] In respect to the period 19 September – 9 October, the applicant submitted that the delay was due to the time taken to obtain pro bono legal assistance, meet urgently with her lawyers to prepare the application and file it. This was all done within 21 days.

[20] In oral submissions, Mr Davies relied particularly on the report of the applicant’s clinical psychologist, Ms Rebecca von Lloy. Mr Davies quoted from her report as follows:

‘Ms Mohanan’s mood and anxiety symptoms fluctuated over the period of her treatment. It was my clinical opinion that Ms Mohanan’s pattern of symptoms was consistent with the Diagnostic and Statistical Manual of Manual of Mental Disorders (5th ed) (2013) diagnosis of Adjustment Disorder with mixed anxiety and depressed mood (309.28) Chronic/persistent, due to the disturbance being greater than 6 months (prolonged stressor). Ms Mohanan’s clinical symptoms were in response to an identifiable trigger, that being her cancer diagnosis. Ms Mohanan’s symptoms and behaviours were clinically significant and impacted social and occupational functioning. Ms Mohanan denied past psychological issues or having past psychiatric treatments.’

Submissions for the respondent

[21] The respondent opposed an extension of time for the filing of this application being granted by the Commission. While not disputing the seriousness of the applicant’s illness, the respondent rejected the submission that the applicant’s psychological condition was a factor in the delay in filing the application. It certainly did not explain the entirety of the 48 days delay. In this respect, the respondent relied on an extensive email exchange between its officers and the applicant between 16 April and 1 August 2014, including when she was overseas. It pointed to the subject matter of these exchanges, being a return to work of the applicant to her pre-illness duties, the restructure of the respondent’s business and its consequences, namely, the applicant’s redundancy. The respondent said that as the applicant had replied to the respondent’s emails promptly, this did not demonstrate any impediment to her being able to lodge her unfair dismissal application within time. Moreover, the applicant had access to the internet overseas and had, in fact, contacted the Commission on 16 July 2014 with an inquiry.

[22] In referring to the Van Lloy report, the respondent suggested that it was not a psychological report, but a summary of clinical care. Moreover, the applicant did not consult with Ms van Lloy until 18 September 2014; 25 days after her return from overseas and 48 days after the termination of her employment. The respondent put that there was no medical evidence that the applicant had experienced increased stress, anxiety and depression at the time of the termination of her employment and in the days which followed. The respondent added that if the applicant had the capacity to arrange her overseas travel, she ought reasonably to have had the capacity to lodge her unfair dismissal application, within time.

[23] As to the other criteria in s 394(3) of the Act, the respondent noted that the applicant was aware of her dismissal on 1 August 2014 (s 394(3)(b)). The respondent conceded that the applicant took steps to dispute her proposed redundancy and that she found it difficult and stressful, given her medical condition (s 394(3)(c)). However, the respondent noted that the applicant took no steps to dispute her dismissal until the psychologist suggested she do so, on 18 September 2014.

[24] While the applicant submitted that there was no prejudice to the respondent in the Commission accepting the application out of time, the respondent claimed it would suffer prejudice, because it had reorganised its business as a result of the restructure (s 394(3)(d)).

[25] As to the merits of the application (s 394(3)(e), it was accepted that the applicant strongly contests that her redundancy was genuine. In addition, she believed she had not been properly consulted in accordance with cl 9 of the Award. Unsurprisingly, the respondent maintained that the merits of the application point to a prima facie finding that her termination of employment was a case of ‘genuine redundancy’. Accordingly, her application would have no prospects of success.

[26] The applicant was the only person made redundant at the time of her dismissal. In any event, given the life-threatening illness of the applicant, no other employee could have been in comparable circumstances (s 394(3)(f)).

CONSIDERATION

Statutory framework and principles

[27] The relevant statutory framework, governing the exercise of the Commission’s discretion in relation to out of time applications is set out as follows:

‘394 Application for unfair dismissal remedy

...

(2) The application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3).

(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) whether the person first became aware of the dismissal after it had taken effect; and

(d) prejudice to the employer (including prejudice caused by the delay); and

(e) the merits of the application; and

(f) fairness as between the person and other persons in a similar position.’

[28] The meaning of ‘exceptional circumstances’ was considered by the Full Bench in Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 (‘Nulty’). While Nulty was decided under the General Protections provisions of the Act, the definition of ‘exceptional circumstances’ has been held to have the same meaning where it appears in other sections of the Act, most notably in s 394(3). In Nulty, the Full Bench of Fair Work Australia (FWA, as the Commission was then titled) said:

‘[10] It is convenient to deal first with the meaning of the expression “exceptional circumstances” in s.366(2). In Cheval Properties Pty Ltd v Smithers a Full Bench of FWA considered the meaning of the expression “exceptional circumstances” in s.394(3) and held:

“[5] The word “exceptional” is relevantly defined in The Macquarie Dictionary as “forming an exception or unusual instance; unusual; extraordinary.” We can apprehend no reason for giving the word a meaning other than its ordinary meaning for the purposes of s.394(3) of the FW Act.”

[11] Given that s.366(2) is in relevantly identical terms to s.394(3), this statement of principle is equally applicable to s.366(2).

[12] The ordinary meaning of the expression “exceptional circumstances” was considered by Rares J in Ho v Professional Services Review Committee No 295 a case involving in s.106KA of the Health Insurance Act 1973 (Cth). His Honour observed:

“23. I am of opinion that the expression ‘exceptional circumstances’ requires consideration of all the circumstances. In Griffiths v The Queen (1989) 167 CLR 372 at 379 Brennan and Dawson JJ considered a statutory provision which entitled either a parole board or a court to specify a shorter non-parole period than that required under another section only if it determined that the circumstances justified that course. They said of the appellant’s circumstances:

‘Although no one of these factors was exceptional, in combination they may reasonably be regarded as amounting to exceptional circumstances.’

24. Brennan and Dawson JJ held that the failure in that case to evaluate the relevant circumstances in combination was a failure to consider matters which were relevant to the exercise of the discretion under the section (167 CLR at 379). Deane J, (with whom Gaudron and McHugh JJ expressed their concurrence on this point, albeit that they were dissenting) explained that the power under consideration allowed departure from the norm only in the exceptional or special case where the circumstances justified it (167 CLR at 383, 397).

25. And, in Baker v The Queen (2004) 223 CLR 513 at 573 [173] Callinan J referred with approval to what Lord Bingham of Cornhill CJ had said in R v Kelly (Edward) [2000] QB 198 at 208, namely:

‘We must construe "exceptional" as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.’

26. Exceptional circumstances within the meaning of s 106KA(2) can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. Thus, the sun and moon appear in the sky everyday and there is nothing exceptional about seeing them both simultaneously during day time. But an eclipse, whether lunar or solar, is exceptional, even though it can be predicted, because it is outside the usual course of events.

27. It is not correct to construe ‘exceptional circumstances’ as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural ‘circumstances’ as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of ‘exceptional circumstances’ in s 106KA(2) includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon. And, the section is directed to the circumstances of the actual practitioner, not a hypothetical being, when he or she initiates or renders the services.”

[13] In summary, the expression “exceptional circumstances” has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.

[14] Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance. Indeed, unfortunately, it would seem to be all too common for dismissed employees to be unaware of the time limits imposed in relation to making an application for an unfair dismissal remedy or a general protections FWA application. The parliament has chosen to condition the discretion to extend time for making such applications on the existence of “exceptional circumstances”. In doing so the parliament must be presumed to have proceeded on the basis that an employee who is aggrieved at being dismissed ordinarily ought be expected to seek out information on any remedy they may have in a timely fashion such that delay on account of ignorance of the statutory time limit is not, of itself, an exceptional circumstance.

[15] A finding that there are “exceptional circumstances”, taking into account the matters specified in paragraphs 366(2)(a) to (e), is necessary before the discretion to extend time is enlivened. That is, even when “exceptional circumstances” are established, there remains a discretion to grant or refuse an extension of time. That discretion should be exercised having regard to all the circumstances including, in particular, the matters specified in paragraphs 366(2)(a) to (e) and will come down to a consideration of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended [Endnotes omitted].’

[29] It is plain from the above extract in Nulty that all of the factors outlined in s 394(3) must be considered by the Commission when deciding whether or not ‘exceptional circumstances’ have been established in a particular case. Even if ‘exceptional circumstances’ are established, this is merely the jurisdictional gateway for the exercise of the Commission’s discretion to extend the time for filing an unfair dismissal application, which is otherwise out of time. Put another way, ‘exceptional circumstances’ may be found to have existed, but the Commission may still refuse to exercise its discretion to accept the application out of time; See: Nulty at para [15]. A Full Bench of the Commission in Lombardo v Commonwealth of Australia[2014] FWCFB 2288 succinctly described the Commission’s decision making process under 394(3) of the Act as: ‘The test for granting an extension of time involves both a broad discretion and a high hurdle of ‘exceptional circumstances.’ I now turn to discuss each of the criteria under s 394(3) of the Act as they apply to the facts and circumstances of this case.

Reasons for the delay (s 394(3)(a))

[30] While I accept that it is incumbent on an applicant to provide an acceptable reason/s for the whole period of the delay in filing an unfair dismissal application; See: Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 and Cheval Properties Pty Ltd t/as Penrith Hotel Motel v Smithers (2010) 197 IR 403), it seems to me that in this case, a combination of factors, including the applicant’s serious and life-threatening medical condition, her consequential psychological state and a desire to recuperate with family and friends, must on any objective analysis, constitute ‘exceptional circumstances’.

[31] In my opinion, notwithstanding the respondent’s characterisation of Ms van Lloy’s report, her assessment of the psychological impact of the applicant’s condition was not impugned or seriously doubted by the respondent. In particular, I refer to her observations quoted at para [20] earlier in this decision. This is not, as contended for by the respondent, merely a summary of clinical care. It is a ‘diagnosis of adjustment disorder with mixed anxiety and depressed mood.’

[32] Even without such an expert opinion, one simply cannot imagine the severity of the stress and the overwhelming preoccupation with recuperation that any person would experience in such terrible circumstances. On the other hand, the Commission has had on numerous occasions, rejected the notion that heightened stress or anxiety levels following an employee’s dismissal, constitute an ‘exceptional circumstance’. Indeed, such a heightened level of stress or anxiety is invariably experienced by dismissed employees; making such a circumstance unexceptional, rather than ‘exceptional’: See: Shaw v Australia and New Zealand Banking Group Limited [2015] FWCFB 287 at para [15].

[33] This case, however, is in an entirely different category. I know of no other case which involved such serious and life changing medical circumstances affecting a dismissed employee. Coupled with the ordinary levels of stress just referred to and when an employee contests the reasons for their dismissal, the levels of the applicant’s stress, anxiety and worry must have been extraordinary, particularly when she was trying from overseas, to understand her likely termination of employment. I am fortified in this view by Ms van Lloy’s opinion that the applicant’s symptoms were consistent with a diagnosis of adjustment disorder.

[34] That said, I acknowledge the apparent logic of the respondent’s submission that if the applicant could communicate with the respondent and could arrange her overseas travel, why could she not file her application within time? However, making arrangements to recuperate with family and communicating with the respondent by short emails, in the context of what the applicant had recently experienced, is not a reasonable basis for concluding that the applicant was able to function normally and conduct normal day to day activities.

When the applicant first became aware of the dismissal (s 394(3)(b)) and any action taken by her to dispute it (s 394(3)(c))

[35] I am satisfied that the applicant first became aware of her dismissal on 1 August 2014 and that she took no direct action to dispute her dismissal until it was suggested by Ms van Lloy on 18 September 2014. Ordinarily, these factors would work against the grant of an extension of time. However, given my findings above, I consider these to be neutral factors.

Prejudice to the employer (s 394(3)(d))

[36] I am not satisfied that there is any prejudice to the respondent, other than the usual concerns as to the costs and time associated with defending an unfair dismissal application. This is a neutral factor.

The merits of the application (s 394(3)(e))

[37] As to the merits of the application, I have had the unusual benefit of hearing the evidence and submissions concerning whether the applicant’s dismissal was a case of ‘genuine redundancy’. Given my later findings as to the lack of consultation afforded to the applicant, I am able to determine, without hesitation, that the application is substantially meritorious. In my opinion, it would constitute an injustice if the applicant was denied an opportunity to pursue her case, based on whether her dismissal was ‘harsh, unreasonable or unjust’, within the meaning of s 387 of the Act. The substantial merits of the applicant’s case weigh in favour of the grant of an extension of time being granted.

Fairness between persons in a similar situation (s 394(f))

[38] I do not consider any other person to have been in a similar position to that of the applicant. This is a neutral factor.

[39] In summary, given the reasons for the delay in filing her application and the merits of her claim, I am satisfied that the applicant has established ‘exceptional circumstances’, such as to justify the exercise of the Commission’s discretion to extend the time for filing of this application to 9 October 2014. I propose to exercise this discretion and order accordingly. I turn now to the second jurisdictional objection.

Was the applicant’s dismissal a case of ‘genuine redundancy’?

Meaning of redundancy

[40] Section 389 of the Act expressly defines ‘genuine redundancy’ as follows:

389 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.’

[41] The Explanatory Memorandum to the Fair Work Bill 2008 developed the meaning of ‘genuine redundancy’ in the context of the Act as follows:

‘Clause 389 – Meaning of genuine redundancy

1546. This clause sets out what will and will not constitute a genuine redundancy. If a dismissal is a genuine redundancy it will not be an unfair dismissal.

1547. Paragraph 389(1)(a) provides that a person’s dismissal will be a case of genuine redundancy if his or her job was no longer required to be performed by anyone because of changes in the operational requirements of the employer’s enterprise. Enterprise is defined in clause 12 to mean a business, activity, project or undertaking.

1548. The following are possible examples of a change in the operational requirements of an enterprise:

a machine is now available to do the job performed by the employee;

the employer’s business is experiencing a downturn and therefore the employer only needs three people to do a particular task or duty instead of five; or

the employer is restructuring their business to improve efficiency and the tasks done by a particular employee are distributed between several other employees and therefore the person’s job no longer exists.

1549. It is intended that a dismissal will be a case of genuine redundancy even if the changes in the employer’s operational requirements relate only to a part of the employer’s enterprise, as this will still constitute a change to the employer’s enterprise.

1550. Paragraph 389(1)(b) provides that it will not be case of genuine redundancy if an employer does not comply with any relevant obligation in a modern award or enterprise agreement to consult about the redundancy. This does not impose an absolute obligation on an employer to consult about the redundancy but requires the employer to fulfil obligations under an award or agreement if the dismissal is to be considered a genuine redundancy.

1551. Subclause 389(2) provides that a dismissal is not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within the employer’s enterprise, or within the enterprise of an associated entity of the employer (as defined in clause 12).

1552. There may be many reasons why it would not be reasonable for a person to be redeployed. For instance, the employer could be a small business employer where there is no opportunity for redeployment or there may be no positions available for which the employee has suitable qualifications or experience.

1553. Whether a dismissal is a genuine redundancy does not go to the process for selecting individual employees for redundancy. However, if the reason a person is selected for redundancy is one of the prohibited reasons covered by the general protections in Part 3-1 then the person will be able to bring an action under that Part in relation to the dismissal.’

[42] In Foster’s Group Ltd v Wing (2005) 148 IR 224 (‘Foster’s v Wing’), Habersberger AJA referred to a number of the higher court authorities on the subject of redundancy. At pages, 230-233, His Honour said:

‘The Meaning of Redundancy

33. A clear guide to the meaning of redundancy is to be found in the judgment of the Full Court of the Supreme Court of South Australia in R v Industrial Commission (SA); Ex parte Adelaide Milk Supply Co-operative Ltd. In that case Bray CJ said that:

“ … the concept of redundancy in the context we are discussing seems to be simply this, that a job becomes redundant when the employer no longer desires to have it performed by anyone. A dismissal for redundancy seems to be a dismissal, not on account of any personal act or default of the employee dismissed or any consideration peculiar to him but because the employer no longer wishes the job the employee has been doing to be done by anyone. ”

Bright J expressed a similar view:

“The word ‘redundant’ does not occur in the Act. In its industrial sense it is not defined in the Oxford Dictionary. The application which I have already set out attempts a definition for the purpose of the proposed award. A consideration of the cases leads me to think that the question of the redundancy of an employee is linked to the question of the continued utility of the job which he is performing. In other words it does not relate to the personal competence of the employee in the job which he is performing. If I am right in this, then in its widest form the concept of redundancy connotes that an employee becomes redundant whenever (and for whatever reason) his employer no longer desires to have performed the job which that employee was doing. ”
34. The meaning of redundancy was recently considered by the Full Court of the Federal Court of Australia in Dibb v Commissioner of Taxation (Cth).That case arose out of a private ruling by the Commissioner concerning the tax liability of Mr Dibb in respect of a lump sum settlement received by him following the termination of his employment as a district manager with a finance company. One of the issues was whether Mr Dibb's dismissal was by reason of his bona fide redundancy within the meaning of s 27F of the Income Tax Assessment Act 1936 (Cth). In a joint judgment, Spender, Dowsett and Allsop JJ referred to Adelaide Milk and continued:

“34 We note also the observations of Ryan J in Jones v Department of Energy and Minerals (1995) 60 IR 304 at 308 as follows:

‘However, it is within the employer's prerogative to rearrange the organisational structure by breaking up the collection of functions, duties and responsibilities attached to single position and distributing them among the holders of other positions, including newly-created positions. It is inappropriate now to attempt an exhaustive description of the methods by which a reorganisation of that kind may be achieved. One illustration of it occurs where the duties of a single, full-time, employee are redistributed to several part-time employees. What is critical for the purpose of identifying a redundancy is whether the holder of the former position has, after the re-organisation, any duties left to discharge. If there is no longer any function or duty to be performed by that person, his or her position becomes redundant in the sense in which the word was used in the Adelaide Milk Co-operative case.

“35 Similarly in Quality Bakers of Australia Ltd v Goulding (1995) 60 IR 327 at 332-333 Beazley J said:

‘There was no dispute that the “operational requirements” of a business may include redundancy. A redundancy will arise where an employer has labour in excess of the requirements of the business; where the employer no longer wishes to have a particular job performed.; or where the employer wishes to amalgamate jobs. … As was said in Bunnetts' case (Bunnett v Henderson's Federal Spring Works Pty Ltd (1989) 31 AILR 354:

“Organisational restructuring may result in a position being abolished and the functions or some of them being given to another or split amongst others.

“36The Macquarie Dictionary (3rd ed, 1997) now relevantly defines ‘redundant’ as meaning:

‘ … denoting or relating to an employee who is or becomes superfluous to the needs of the employer …

“37In the Oxford English Dictionary (2nd ed, 1991) the word is defined relevantly as:

‘The condition of having more staff in an organisation than is necessary. Hence, the state or fact of losing a job because there is no further work to be done; a case of unemployment due to reorganisation, mechanization, loss of orders, etc.

35. Their Honours contrasted the position adopted by the Commissioner and the primary Judge with the approach espoused by the South Australian Full Court in Adelaide Milk, which necessitated “identification of the ‘jobs’ in question”. Their Honours continued:

“41In Jones Ryan J observed that a job involves ‘a collection of functions, duties and responsibilities entrusted, as part of the scheme of the employer's organisation, to a particular employee’. We accept that view. Ryan J then observed that where such duties are reassigned, the question is whether any function or duty remains to be performed by the employee. We do not understand his Honour to have meant that if any aspect of the employee's duties is still to be performed by somebody, he or she cannot be redundant. His Honour's meaning appears clearly from the following paragraphs at 308-309:

‘In this case, the respondent led evidence that of the major changes which were made to the Department between September 1993 and late 1994. According to Mr Downie, the applicant's former position as Director, Mining Inspectorate, was abolished and the duties attached to it were combined with those of the previous Director, Environmental Management. In addition to a number of other, newly-created functions, those pre-existing duties were to be performed by a newly created General Manager, Mineral Operations. Thus it is clear that although some of the tasks previously assigned to Mr Jones still had to be carried out, the employer's rearrangement of its operational structure had the consequence that they be combined with other functions and performed by the holder of a new, more generally-oriented position.

On this basis, it appears that Mr Jones' former position was rendered “generally redundant”. When it became apparent that he could not be redeployed, Mr Jones was found to be surplus to the respondent's personnel needs. This amounted to a reason for dismissal which was clearly based on his employer's operational requirements.

“42 As Beazley J observed in Quality Bakers:

‘A redundancy will arise where an employer has labour in excess of the requirements of the business; where the employer no longer wishes to have a particular job performed; or where the employer wishes to amalgamate jobs …

“43 The difficulty in this case has been caused by the aphorism which appears in both paras 12 and 42 of TD 94/12 to the effect that the job, not the employee, becomes redundant. However s 27F speaks of the ‘bona fide redundancy of the taxpayer’. We consider that it is more accurate to say that an employee becomes redundant when his or her job (described by reference to the duties attached to it) is no longer to be performed by any employee of the employer, though this may not be the only circumstance where it could be said that the employee becomes redundant. Reallocation of duties within an organisation will often lead the employer to consider whether an employee, previously employed to perform specific functions assigned to a particular ‘job’, will be able to perform any available ‘job’ existing after such reallocation. Even if the employee's job, defined by reference to its duties, has disappeared, he or she may be able to perform some other available job to the satisfaction of the employer. In that case, no question of redundancy arises. It is only if the employer considers that there is no available job for which the employee is suited, and that he or she must therefore be dismissed, that the question of redundancy arises. If, in good faith, the employer:

has reallocated duties;

considers that the employee is not suitable to perform any available job, defined by reference to those reallocated duties, existing after the re-allocation; and

for that reason, dismisses the employee.

then, for the purposes of s 27F, the employee is dismissed by reason of his or her bona fide redundancy. In the above discussion we have used the word ‘available’ as meaning ‘vacant’, and the word ‘suitable’ as meaning ‘within the employee's capacity’. ”

36. It seems to me that the approach followed in Adelaide Milk has been reflected in the wording of Foster's policy. The critical question is whether through no fault of the employee his or her role no longer exists or the duties have so changed that for all practical purposes the original role no longer exists [footnotes omitted].’

[43] It will be evident from Foster’s v Wing that the meaning of the term ‘redundancy’ may vary depending on the particular industrial context and/or the text of an applicable industrial instrument. In Amcor Limited v Construction, Forestry, Mining and Energy Union [2005] HCA 10, Gleeson CJ and McHugh J held at [12] that:

‘In the industrial context, redundancy of position is not a concept of clearly defined and inflexible meaning.’

[44] More recently, a Full Bench of this Commission in Construction, Forestry, Mining and Energy Union and others v Spotless Facility Services Pty Ltd[2015] FWCFB 1162 said at para [66]:

‘[66] The meaning of the word ‘redundancy’ is not fixed and the term will take colour from its context. However, in any relevant context it is the abolition of a position which leads to that position being redundant. The cause of the abolition of the position – whether business restructure, technological advance, loss of contract/ordinary turnover or otherwise – is a separate matter, albeit one which may determine the entitlements of the redundant employee [footnote omitted].’

[45] In Hodgson v Amcor Ltd (2012) 264 FLR 1, Vickery J, after summarising the various authorities, arrived at the following conclusions:

‘In essence, subject to any qualification or re-statement found in the relevant contract of employment or any applicable statute, the common law concept of “redundancy” comes down to the following propositions:

(a) A job becomes redundant when the job of the employee ceases to exist because the employer, for whatever reason, whether by reason of reorganisation, mechanization, change in demand or other reason, no longer desires to have it performed by anyone;

(b) This can occur either when the role no longer exists or the duties have so changed that for all practical purposes the original role no longer exists;

(c) However, redundancy is not limited to the circumstance where the employer, no longer desires to have the work previously performed by the terminated employee done by anyone;

(d) A redundancy may also arise upon the redistribution of job functions, where the duties performed by an employee are redistributed among other employees.In this case the employer still requires the duties to be performed, but the re-organisation may give rise to a redundancy. In this event, although the duties remain to be performed, “for all practical purposes the original role no longer exists” because the duties are divided and assigned amongst others. In such a case the question is whether any function or duty remains to be performed by the employee. A redundancy will occur if, after the reorganisation, the employee in question is left with no duties to discharge;and

(e) Redundancy will not arise where the termination of employment is carried out solely because of any personal act or default of the employee terminated or for any consideration peculiar to that employee [footnotes omitted].’

[46] In Ulan Coal Mines Limited v John Howarth and others[2010] FWAFB 3488 (‘Ulan v Howarth’), a Full Bench of Fair Work Australia (FWA, as the Commission was then known) held at paras [19]-[20] that:

‘[19] In the present case, the Commissioner appears not to have drawn an appropriate distinction in his reasoning between the “jobs” of the mineworkers who were retrenched and the functions performed by those mineworkers or take proper account of the nature of the restructure at the mine which led to an overall reduction in the size of the non-trades mineworker workforce. The Company restructured its operations in various ways including by outsourcing certain specialised, ancillary and other work and increasing the proportion of trade-qualified mineworkers in underground development and outbye crews. As a result, it was identified that there were 14 non-trades mineworker positions which were surplus to the Company’s requirements. The mineworkers whose employment was to be terminated were determined according to the seniority principle as provided in the Agreement. This did not mean that the functions or duties previously performed by the retrenched mineworkers were no longer required to be performed. It also did not mean that the positions of some of these mineworkers (e.g. in underground crews) did not continue, although those positions might after the restructure be filled by more senior non-trades mineworkers transferred from other parts of the operations or by trade-qualified mineworkers. However fewer non-trades mineworker jobs were required overall at the mine as a result of the operational changes introduced and, for this reason, the jobs of the 14 mineworkers selected for retrenchment could be said to no longer exist.

[20] These circumstances readily fit within the ordinary meaning and customary usage of the expression in s.389(1)(a) of the Act where a job is no longer required to be performed by anyone because of changes in the operational requirements of the employer’s enterprise.’

[47] It will be seen that a consistent theme emerging from the above authorities is on the employer’s prerogative to rearrange the structure of its business by breaking up the functions, duties and responsibilities of a single position and distributing them among the holders of other positions, including newly created ones. In these examples, the work required to be performed does not change, but the means by which the work is organised does change. This is, in part, what happened in this case.

[48] I turn now to the witness evidence adduced of Mr John Edward, Regional Commercial Director, Australia and New Zealand and that of the applicant, who was not required for cross examination.

THE EVIDENCE

[49] The following outline represents a chronology of events in respect to the applicant’s later employment with the respondent:

13 August 2013	The applicant commenced a period of extended authorised leave arising from the diagnosis and treatment of her cancer illness.
28 October 2013	The applicant remained on leave without pay.
16 April 2014	The respondent wrote to the applicant seeking an approximate date as to when she could return to work. Attached was a job description which she was requested to discuss with her doctor.
29 April 2014	As no response was forthcoming to the 16 April letter, the respondent requested a response from the applicant.
30 April 2014	The applicant replied as follows:

Thank you for your email and letter, received today.

I saw my treating doctor for final check up yesterday and got an updated medical certificate, refer attached.

Considering my recent treatment and health condition, I would like to get back to work, starting on a part time basis, for example, 2-3 days per week, and progressively move to full time.

I would like to start work on Tuesday, 1 July and will be able to fulfill my duties as outlined in my JD.

Happy to meet with you in June to discuss arrangements moving forward.

14 May 2014	The respondent requested the applicant’s doctor advise of the applicant’s current and future capacity to return to her pre-illness position.
18 June 2014	The applicant responded as follows, attaching a second medical assessment:

As requested, please refer to the attached letter signed.

Just incase [sic] you are unfamiliar, as stated by the doctor in the letter:

P/T = part time
? August 2014 = any date in August 2014

Moving forward, I would like to finalise my return to work date on 26 August 2014 (or later), starting 2 days a week, Tuesday and Thursday.

9 July 2014

Mr Tang, HR Executive Manager, responded to what he understood from the above to be the applicant’s request for a flexible work arrangement. He said:

The Assessment indicates that you are likely to be fit to carry out your pre-illness duties from August 2014, on a part-time basis. We understand it is your preference to return to work two days per week; being Tuesdays and Thursdays.

As you are aware, there are a number of duties associated with the Position (as set out in the enclosed copy of the Position Description), which include, but are not limited to:

attending Sales and Marketing meetings;

participating in regional sales and marketing meetings;

acting as Event Manager on behalf of the Company at marketing events, trade exhibitions etc, outside of ordinary hours; and

interstate and international travel, particularly outside of ordinary hours.

The nature of the Position requires the duties associated with the Position to be discharged on a full-time basis in order that the Company’s business requirements are adequately met. Further, we note that working part-time is insufficient to properly discharge the inherent requirements associated with the Position as outlined above, especially given the travelling and other marketing activities typically occur outside of ordinary business hours.

On this basis, the Company must unfortunately reject your Request on business grounds.

Should you have any questions arising out of this letter, please do not hesitate to contact me.

10 July 2014

The applicant responded as follows:

Thank you for your letter and email.
When I requested to return to work on part time basis, it was only meant to be temporary arrangement.
Perhaps for one or two months (part time) and progressively move on to full time. The request for part time was never intended to be permanent.
It will also be beneficial for the company to have my assistance on part-time basis, and eventually progressing to full time. I am very confident that I will be able to manage the role with ease.
Please let me know if I can start part time basis for at least 1 month (e.g. September) which will not clash with events, especially Sydney Festival, which is the major event in January.
Look forward to your reply.

14 July 2014

The respondent replied as follows:

We refer to your two emails sent on 10 July 2014 and thank you for the additional information you have provided.

We note that you have now indicated that you wish to return to work two days per week on a part-time basis in September 2014 for at least one month, moving to four days per week and progressively returning to full-time work.

The Company has considered the further information you have provided to us in the two emails, but note that such information is not supported by medical evidence. Notwithstanding this, the Company requires the duties associated with the Position to be carried out on a full time basis, for the reasons set out in its letter to you dated 9 July 2014.

Unfortunately, the Company must maintain its rejection of your Request for the reasons set out in the 9 July2014 letter.

We ask that you continue to keep the Company informed as to your medical condition.

Should you have any questions arising out of this letter, please do not hesitate to contact me.

22 July 2014	The respondent requested that the applicant attend a meeting on 25 July 2014 to discuss a restructure of China Southern Airlines and ‘consequential changes to your employment’.
23 July 2014	The applicant responded as follows:

Thank you for your email.

Due to urgent personal reasons I had to make a trip overseas.

As I did not get a confirmation on a final return to work date, I booked and confirmed my flight back to Sydney on 17 August 2014.

Under the circumstances, would it be possible to reschedule the meeting with yourself and John, on Friday 22 August 2014.

Alternatively, if it is required to discuss prior to my return, we can organise a phone conversation at a suitable date and time.

25 July 2014	The applicant was advised her position ‘will be made redundant’ (see para [5]).
29 July 2014	As the respondent had received no reply to its letter of 25 July, it extended the deadline for her response until 30 July 2014.
30 July 2014	The applicant replied as follows:

I would like to clarify my previous email.

From my understanding of the letter, it clearly states the decision has already been made about my role being redundant.

Do forward the confirmation with the necessary, final terms, etc.

31 July 2014

The respondent confirmed the applicant’s redundancy and gave details of termination payments.

Mr Edward’s evidence

[50] After outlining the chronology of events in his first statement, Mr Edward provided a second statement in which he agreed the applicant’s terms and conditions of employment were governed by the Award. He believed that the respondent had complied with its obligations to consult with the applicant, under cl 9 of the Award, in respect to the respondent’s restructure of the business. He relied on various letters and emails referred to in the above chronology.

[51] Mr Edward said that the respondent currently employs only two full time direct reports to the Regional Marketing Manager, being the Marketing Manager and Creative Designer. Neither of these two positions were considered reasonable redeployment opportunities for the applicant. The first was a significantly lower level position to that which the applicant had enjoyed and the applicant did not have the requisite design skills for the second position.

[52] Mr Edward said it was the respondent’s business imperative to implement a restructure of its business by re-evaluating the Sales and Marketing Department and having the Australian and New Zealand marketing operation headed by one person, a Regional Marketing Head, responsible for:

(a) Regional Pricing and Distribution Department;

(b) National Accounts Department;

(d) Regional Ticketing & Reservations Department; and

(e) NSW Sales Department.

[53] It was Mr Edward’s evidence that during the applicant’s absence, her duties were assumed, partly by himself and partly by the Marketing Coordinator. The Regional Marketing Manager now performs the remainder of the applicant’s duties. This meant the respondent no longer required the applicant’s position to be performed by anyone. From August 2014, the new structure was put in place. However, the restructure is ongoing and is yet to be completed. Mr Edward attached the business’s organisational charts before and after the restructure.

[54] In further evidence in chief, Mr Edward described his role as Regional Commercial Director. He said that China Southern Airlines has commercial aviation operations in Australia and New Zealand with aircraft flying in and out of five specific locations – Sydney, Melbourne, Perth, Brisbane and Auckland. The recent changes have arisen due to increased capacity and aircraft size. This required a re-examination of all aspects of marketing, sales, distribution, reservations, ticketing and contracts in order to increase market share in Australia and New Zealand. There was also a need to centralise decision making. The proposed changes and associated restructuring commenced in April 2014 and were ongoing. Discussion first began in relation to reservation and ticketing in or around May 2014 and the marketing area was discussed with senior management. However, all employees would have been aware that a blanket restructure was being considered as a result of his engagement as Executive Manager, Projects.

[55] Mr Edward conceded that there had been no meetings with staff to convey information about the restructure process. However, he asserted that employees would have known about it, because certain people were missing from key roles. Mr Edward further explained that official confirmation was not conveyed to employees because the respondent did not want the staff to panic or become anxious.

[56] As a result of the restructure of the Marketing Department, Ms Amalaya Rattanathasaniya became Regional Marketing Head for Australia and New Zealand. Mr Edward firmly believed her role was very different to that of the applicant, although he acknowledged that he had not worked with the applicant or observed her work.

[57] Mr Edward’s evidence detailed the reasons for the creation of the new role in the following exchange:

Mr Edward:	In my opinion, in my expertise and the role that I am currently in now it was my opinion that we needed to take the role to a whole new dimension. And that dimension, as mentioned before, encompassed not only branding, sponsorships, being able to utilise and leverage the sponsorships that we currently had being Melbourne Festival, Sydney Festival, Melbourne Football Club AFL – in my opinion, my observations, my due diligence going through the whole aspect of the restructuring was the role was not being taken to those levels. It was not being leveraged.
Ms Thew:	Why did you need to leverage that?
Mr Edward:	To maintain our market share, to increase our market share, and most importantly to hit our targets. See, you know, I have – most of my department heads were direct reports, have very long and complex KPI’s. Coming into this role there was no key business indicators in place. Not only that there were no performance management systems. I brought all those on board. So then I can confidently measure what these individuals’ input and output is. Prior to that that was never brought on. Now, the role of Rattanathasaniya was also a key component to bring on these performance management systems and KPI’s as well. So her input, what she was bringing to the table as far as the new regional marketing head for Australia and New Zealand role was a critical component, to not only advise me, but also prompt me that these are the areas that we needed. Now, that was clearly a deficiency that wasn’t there before.

[58] Mr Edward elaborated on the absorption of the applicant’s duties during her absence. These duties were shared between Mr Michael Davies, Mr Derek Morris, Mr Bill Bryan and Mr Henry He. When he was appointed in April 2014, Mr Edward also assumed some of the applicant’s duties. Ms Lily Amar had also undertaken the applicant’s administrative duties and continues to perform these duties.

[59] In oral evidence, Mr Edward described the differences in the two roles as follows:

Ms Thew:	What differences, if any, were there – sorry, I think my question was – could you please describe to the Commission the key differences between the two roles?
Mr Edward:	Sure. I believe one role was a role that was fulfilling or undertaking the deployment of the duties that were required as far as the role of marketing, branding, sponsorship as such. The other role was Rattanathasaniya’s role.
Ms Thew:	Sorry, which other role? Could we be clear? The new role?
Mr Edward:	That I’m speaking about now.
Ms Thew:	Yes.
Mr Edward:	The previous role.
Ms Thew:	Well, the new role – Ms Rattanathasaniya’s role?
Mr Edward:	Yes. Well, the previous statement I made was for the – Anesha’s role – and the new role, as far as Rattanathasaniya is concerned was a more strategic role, a planning role, an analytical role, and understanding of what further marketing duties, branding, sponsorships, a return on investment that needed to be undertaken to take us to a level of not only increasing market sharing and hitting our specific targets as far as revenue targets are concerned, but having the ability to look at the new world that we live in today, and that is a digital world and that is a social and corporate media world and I simply wasn’t seeing that on what I had observed and what I had been briefed on prior to Rattanathasaniya being appointed.
Ms Thew:	Was there a geographical or territorial difference between?
Mr Edward:	Yes, of course. One was Australia and the role was - - -
Ms Thew:	Who’s the one who was Australia?
Mr Edward:	Pardon? Anesha. Her role was for Marketing Communications Manager, Australia.
Ms Thew:	And what was Ms Rattanathasaniya’s role?
Mr Edward:	Regional Marketing Head, Australia and New Zealand.
Ms Thew:	So she was responsible for the entirety of the ANZ operations – the new role?
Mr Edward:	Correct. The region.

[60] Mr Edward said that having examined other options for redeploying the applicant to another position, he had determined that none were available. He emphasised that the new role was full time. It required the person to attend functions and meetings outside of business hours and demanded a significant amount of domestic and international travel, which was expected to be undertaken on weekends. Mr Edward confirmed that the salaries of the two roles were the same.

[61] In cross examination, Mr Edward said that despite her opinion that she could progressively return to full time work in one or two months, the timing of the applicant’s return to full time work was not clear. The respondent had no medical evidence supporting her opinion at this time.

[62] Mr Edward was asked what had changed over the six day period between the first discussion about a return to work and the discussion about restructure and redundancy. He stressed his view that the role was full time, not part time.

[63] Mr Edward conceded that there had been no meeting with the applicant, either face to face, or over the phone (as she had suggested). This was because she was overseas and he understood that Mr Tang had made several unsuccessful attempts to call her. In re-examination, Mr Edward said the respondent had not known exactly where she was; either Singapore or Malaysia. However, he believed there had been email communications between the applicant and Mr Tang.

[64] Mr Edward agreed that the applicant was made redundant on 1 August 2014 and Ms Rattanathasaniya applied for the new role on 6 August 2014. Mr Edward said he had previously worked with Ms Rattanathasaniya at Qantas Airways and Malaysian Airlines and that he had ‘head-hunted’ Ms Rattanathasaniya. However, he could not recall when he had called her before she submitted her application for the new role. When pressed, he said it was not in July 2014 and must have been between 1 and 6 August 2014. When shown Ms Rattanathasaniya’s resume, Mr Edward agreed her direct marketing experience dated from July 2007.

[65] As to the applicant’s former duties, Mr Edward acknowledged that he had never observed the applicant at work. However, he knew what her duties were, because he had been briefed by other staff and he had, in fact, performed some of her duties himself.

[66] In answering questions about the business organisational charts, Mr Edward said that the pre-restructure chart disclosed very blurred responsibilities. He denied that the only change in the restructure was to the marketing role –all four regional heads’ roles were modified. In respect to reservations and ticketing, the respondent has only one current employee out of a head count of four.

The applicant

[67] The applicant has eleven years’ experience in sales and marketing and eleven years’ experience in the travel industry. She holds a Masters of Education majoring in Management and Human Resource Development and a Bachelor of Arts, majoring in Linguistics and Education. She attached her resume and job description to her statement.

[68] The applicant’s former role involved the planning and budgeting for marketing. She described herself as ‘Head’ of the Marketing Department. She said that she regularly liaised with relevant stakeholders in New Zealand and had one direct report – the Marketing Project Coordinator. The applicant said she had worked closely with Mr Michael Davies, a graphic designer who was contracted to the respondent. As she allocated him work, reviewed his work and determined the scope of his work, she believed he reported to her in a practical sense.

[69] The applicant believed that the new role proposed by the respondent was the same as the one she had previously performed, only with a different title. She sought to demonstrate this by comparing the tasks she had performed against the job description for the new Regional Marketing Manager’s role. The applicant believed her role was the only one made redundant by the respondent and that Mr Edward’s reliance on the organisational charts pre and post the restructure, were inaccurate and misleading.

[70] The applicant said that she would have accepted a lesser role of Marketing Coordinator if it had been offered, because she had been seeking a graduated return to work after a long medical absence. As it was less senior and had less responsibility, it would have had the benefit of causing her less stress and allowed her more time to focus on her recovery.

[71] The applicant referred to the chronology of events (see para [49]) by reference to the period she was in Singapore to be with her family for emotional support. She believed that her position was made redundant by 25 July 2014. There had been no consultation with her about her redundancy. She had hoped that the respondent would wait until her return from overseas, to hold a discussion with her as envisaged in its email of 22 July 2014.

[72] The applicant had consistently told the respondent that she had hoped to return to full time work over a graduated period. On 12 June 2014, her doctor had confirmed her fitness to return to work.

Mr Michael Davies

[73] Mr Michael Davies is a graphic designer. He owns his own business, Design Strategy Pty Ltd, which contracted to the respondent. Mr Davies provided a statement to the proceeding, but was not required for cross examination.

[74] It was Mr Davies’ evidence that he worked around 30 hours per week and was located in the respondent’s office at a desk adjacent to the applicant’s desk. Mr Davies described his relationship with the applicant as a ‘close working relationship’ in that he prepared and provided design briefs to her in her role as Marketing and Sales Communication Manager. He believed her role was to:

a) liaise with other departments and individuals within the respondent’s organisation (such as Sales, Pricing and the General Manager) and with the regional airport sites;
b) oversee the design of marketing strategies and campaigns;
c) oversee the preparation of marketing materials;
d) oversee the implementation of marketing strategies and campaigns; and
e) manage the respondent’s marketing budget and its allocation to particular campaigns.

[75] While Mr Davies reported directly to Mr Henry He, he was allocated design tasks by the applicant. Mr Davies recalled Mr Edward’s arrival as the Commercial Director and a meeting with staff in or around September 2014, during which Mr Edward announced that the applicant would not be coming back as a ‘new girl’ had been found to ‘take over’ (Ms Rattanathasaniya).

[76] Mr Davies stated that he had been unaware of any restructure of the Marketing Department (which he worked in). He had not noticed any new roles or jobs created or roles or jobs which were no longer needed. He experienced no change in his own role as a graphic designer.

[77] Mr Davies had worked closely with Ms Rattanathasaniya, until his contract with the respondent ended. From his own observations, he believed that Ms Rattanathasaniya’s role and functions were the same as the applicant’s.

Mr Derek Morris

[78] Mr Morris provided a statement in the proceeding, but was not required for cross examination. Mr Morris was engaged in a consultant role as a Senior Advisor Business Development from February 2012 to January 2015. He was the applicant’s Manager until 30 June 2014, although she had been on extended sick leave from late August 2013.

[79] Mr Morris observed the applicant perform the following tasks and duties:

a) managing human resources in the Marketing Department;
b) managing the marketing budget;
c) determining marketing strategies, objectives and priorities and developing a marketing plan;
d) liaising with internal departments and external suppliers and distributors to facilitate the preparation and implementation of marketing strategies; and
e) analysing the outcomes of marketing campaigns.

[80] It was Mr Morris’ evidence that for approximately ten months, the applicant’s tasks and duties were absorbed by himself, Mr Davies and Ms Ma and then later by Mr Edward when he took on the management of the marketing and sales team in July 2014. Around this time, Mr Morris relinquished responsibility for sales and marketing, but otherwise could not recall any significant restructuring of the business.

[81] Mr Morris recalled that, at a regional sales and marketing meeting in July 2014, Mr Edward gave a powerpoint presentation and showed an organisational chart. At the time, Mr Edward had said: ‘We look forward to welcoming Anesha back to work’.

[82] Mr Morris was unaware of the applicant’s termination of employment or that she had been made redundant until he was told by colleagues that she would not be coming back. He had not been surprised, because the tasks the applicant had been performing had been undertaken by others. About 4-6 weeks later, Mr Morris became aware of Ms Rattanathasaniya’s appointment. Mr Morris no longer was the Manager of the position as Ms Rattanathasaniya reported to Mr Edward. However, he continued to work closely with Ms Rattanathasaniya and attended weekly meetings with her in which she provided updates on the work she had undertaken.

SUBMISSIONS

For the applicant

[83] In written submissions, Mr Davies put that the respondent still required the applicant’s job to be performed by someone and the supposedly new role of Regional Marketing Manager simply replaced her role. Even if it was a redundancy, the respondent had failed to comply with its consultation obligations in relation to the redundancy of the applicant’s role and any possible redeployment. In fact, the respondent had not properly considered whether it would have been reasonable to redeploy the applicant within its business. Mr Davies refuted the respondent’s claim that the restructure had taken place for a genuine business need. For these reasons, the dismissal of the applicant was not a ‘genuine redundancy’, within the meaning of s 389 of the Act.

[84] Mr Davies noted that the respondent bore the onus of proving, on the balance of probabilities, that the dismissal of the applicant was a ‘genuine redundancy’; See: Kekeris v A Hartdrodt Australia Pty Ltd t/as a.hartrodt[2010] FWA 674.

[85] Mr Davies said that where a new employee, even a senior one, with skills not possessed by any other employee, performed the same job as the applicant, it was clear that the respondent required the job to be done by someone; See: Rosenfeld v United Petroleum Ltd T/A United Petroleum[2012] FWA 2445 (‘Rosenfeld v United Petroleum’). An allegation that the new role requires higher qualifications will not support a finding of ‘genuine redundancy’ where the duties to be performed are the same; See: McIllwraith v Toowong Mitsubishi Pty Ltd[2012] FWA 9662 (‘McIllwraith v Toowong’).

[86] Mr Davies put that the evidence of the applicant, Mr Davies and Mr Morris all supported a finding that the applicant had performed the same ‘job dimensions’ of the Regional Marketing Manager, on a day to day basis. In any event, there was no substantive analysis of the difference between the two roles and the reality was that the differences between the roles were, at best, superficial. The respondent had not provided any evidence corroborating Mr Edward’s bare evidence in relation to the restructure. Mr Davies pointed out that the applicant had been regularly involved in work for the New Zealand market. While the new role had an extra report (the Creative Designer), this work had previously been carried out by an independent contractor who was managed on a practical day-to-day basis by the applicant. While the new role required that the successful candidate hold a Bachelors Degree in Business Management and a Masters Degree in Business Administration, the applicant held a Bachelors Degree in Arts and Masters of Education, specialising in Management and Human Resource Development and had 11 years of marketing experience. Her qualifications were commensurate with the formal requirements of the new role.

[87] Mr Davies submitted that the Commission should consider the respondent’s reasons for dismissal in determining whether the termination of employment arose from ‘genuine operational reasons’. The witness credibility of the decision maker was relevant to this determination; See: Boeing Australia Ltd [2007] AIRCFB 730. It was relevant that the applicant was the only employee who was dismissed during the restructure, that the Marketing Department was the only department restructured up to August 2014 and that the applicant had made attempts to return to work after a serious illness. Mr Edward’s previous work experience with Ms Rattanathasaniya and the fact that she had applied for the role within one week of the applicant being made redundant, were also relevant factors. These circumstances, and the respondent’s failure to comply with the its obligations to consider redeployment and consult with the applicant, should lead to the Commission forming a view, on the balance of probabilities, that the real reason for the applicant’s termination was her cancer illness, which had caused her to take a significant period of leave and was at risk of recurrence.

[88] Mr Davies referred to Piper v Pacific Coast Contractors Pty Ltd T/A Hope Estate Wine Group[2014] FWC 2891, in which the Commission had examined the consultation provisions of the Commercial Sales Award 2010 [MA000083], which are in the same terms as those under the relevant Award in this case. It was not sufficient for an employer to simply inform an employee of its decision; there must be a genuine discussion directly with the employee, with particular reference to the nature of the changes, its expected effects and how any adverse impacts on an employee, could be mitigated.

[89] Mr Davies referred to the correspondence from the respondent to the applicant of 25 July 2014 (see para [5]), which simultaneously advised of a definite decision that the applicant’s role was redundant, and to the respondent not having made a final decision as to the implementation of the restructure. On receiving this email, the applicant was entitled to form the view that the respondent had already made the decision to make her redundant. It could not be said that this correspondence constituted a genuine discussion of the matters, as required by cl 9(b)(i) of the Award. The respondent should have considered the applicant’s request for a meeting in person after she returned from overseas, or by telephone at a mutually convenient time. The respondent had given the applicant insufficient information about the new role and its reporting lines. She was only invited to provide suggestions on the implementation of the timetable of the decision to make her role redundant.

[90] While the applicant did not accept that the new role was different to the old role, Mr Davies made alternative submissions on the question of whether it would have been reasonable for the applicant to have been redeployed. He said that the question of whether redeployment was suitable would depend on the comparative skill sets and remuneration, amongst other things, of the two roles. It does not require that every open position be identified; See: McAlister v Bradken Limited[2010] FWA 203. However, it does not follow that the employer should form its own view as to how an employee will respond to a particular redeployment offer; See: Margolina v Jenny Craig Weight Loss Centres Pty. Ltd.[2011] FWA 5215. He noted that the applicant had given evidence that she would have considered lower paid or part time roles and the respondent was required to consult with her as to the appropriateness of redeployment to any such roles. It failed to do so.

[30] In relation to its appeal, and leaving aside the issues of construction we have already dealt with, Ulan submitted that the Commissioner’s decision was wrong because he did not identify the particular positions in a particular enterprise to which each of the six applicants could have been redeployed. He also erred in not taking into account the failure of the employees to pursue job opportunities with the related entities after Ulan had publicised those vacancies. The Commissioner was influenced in this regard by the fact that the employees would have been competing for positions rather than being given some kind of preference. Further, it was submitted that the evidence indicated that the evidence given by four of the applicants did not indicate that at the relevant time they were interested in and ready and willing to take employment away from Mudgee.

[31] The Commissioner found that entities associated with Ulan had vacancies for jobs which were potentially suitable for the dismissed employees and there was no evidence that redeployment from Ulan to the mines operated by these associated enterprises would have any impact on operational efficiency. While the Commissioner decided that some of the employees dismissed by Ulan were encouraged to apply for vacancies at mines operated by associated entities, he also found that neither Xstrata nor its associated entities had a policy of employing persons who might be redundant in other enterprises in the group. In Xstrata’s case, this is despite the fact that it had overall managerial control in relation to the mining operations of the associated entities. These findings were open to him. The Commissioner also found no evidence that any of the relevant employees would have been unwilling to be redeployed to one of the other mines. It must be said that all of the evidence was not one way on this issue and, as Ulan’s submissions indicate, some of the employees in particular did not display a great deal of energy in following up on vacancies which Ulan brought to their attention. Nevertheless we think it was open to the Commissioner to find that if offered redeployment they would have accepted it.

…

[34] It may be appropriate to make some concluding remarks about the operation of s.389(2). It is an essential part of the concept of redeployment under s.389(2)(a) that a redundant employee be placed in another job in the employer’s enterprise as an alternative to termination of employment. Of course the job must be suitable, in the sense that the employee should have the skills and competence required to perform it to the required standard either immediately or with a reasonable period of retraining. Other considerations may be relevant such as the location of the job and the remuneration attaching to it. Where an employer decides that, rather than fill a vacancy by redeploying an employee into a suitable job in its own enterprise, it will advertise the vacancy and require the employee to compete with other applicants, it might subsequently be found that the resulting dismissal is not a case of genuine redundancy. This is because it would have been reasonable to redeploy the employee into the vacancy. In such a case the exception in s.385(d) would not apply and the dismissed employee would have the opportunity to have their application for a remedy heard. The outcome of that application would depend upon a number of other considerations.

[35] Where an employer is part of a group of associated entities which are all subject to overall managerial control by one member of the group, similar considerations are relevant. This seems to us to be a necessary implication arising from the terms of s.389(2)(b). While each case will depend on what would have been reasonable in the circumstances, subjecting a redundant employee to a competitive process for an advertised vacancy in an associated entity may lead to the conclusion that the employee was not genuinely redundant.’

[124] In Technical and Further Education Commission T/A TAFE NSW v Pykett[2014] FWCFB 714, a Full Bench of the Commission held:

‘[36] We have earlier set out the submissions of the appellant and the respondent as to the proper construction of s.389(2) (see paragraphs [15] to [18] above). We accept the respondent’s submissions. For the purposes of s.389(2) the Commission must find, on the balance of probabilities, that there was a job or a position or other work within the employer’s enterprise (or that of an associated entity) to which it would have been reasonable in all the circumstances to redeploy the dismissed employee. There must also be an appropriate evidentiary basis for such a finding. Such an interpretation is consistent with the ordinary and natural meaning of the words in the subsection; the Explanatory Memorandum and Full Bench authority. We acknowledge that the facts relevant to such a finding will usually be peculiarly within the knowledge of the employer respondent, not the dismissed employee. If an employer wishes to rely on the ‘genuine redundancy’ exclusion then it would ordinarily be expected to adduce evidence as to the following matters:

(i) that the employer no longer required the dismissed employee’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise;

(ii) whether there was any obligation in an applicable modern award or enterprise agreement to consult about the redundancy and whether the employer complied with that obligation; and

(iii) whether there was a job or a position or other work within the employer’s enterprise (or that of an associated entity) to which it would have been reasonable in all the circumstances to redeploy the dismissed employer.’

[125] The meaning of the word ‘consult’ was considered by the Full Bench in Consultation Clause in Modern Awards [2013] FWCFB 10165. At paras [30]-[33], the Full Bench said:

‘[30] The word ‘consult’ means more than the mere exchange of information. As Young J said in Dixon v Roy :

“The word ‘consult’ means more than one party telling another party what it is that he or she is going to do. The word involves at the very least the giving of information by one party, the response to that information by the other party, and the consideration by the first party of that response.” [citations omitted]

[31] The right to be consulted is a substantive right, it is not to be treated perfunctorily or as a mere formality. Inherent in the obligation to consult is the requirement to provide a genuine opportunity for the affected party to express a view about a proposed change in order to seek to persuade the decision maker to adopt a different course of action. As Logan J observed in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v QR Limited (QR):

“... A key element of that content [of an obligation to consult] is that the party to be consulted be given notice of the subject upon which that party’s views are being sought before any final decision is made or course of action embarked upon. Another is that while the word always carries with it a consequential requirement for the affording of a meaningful opportunity to that party to present those views. What will constitute such an opportunity will vary according the nature and circumstances of the case. In other words, what will amount to “consultation” has about it an inherent flexibility. Finally, a right to be consulted, though a valuable right, is not a right of veto.

To elaborate further on the ordinary meaning and import of a requirement to “consult” may be to create an impression that it admits of difficulties of interpretation and understanding. It does not. Everything that it carries with it might be summed up in this way. There is a difference between saying to someone who may be affected by a proposed decision or course of action, even, perhaps, with detailed elaboration, “this is what is going to be done” and saying to that person “I’m thinking of doing this; what have you got to say about that ?”. Only in the latter case is there “consultation. ...”

[32] We respectfully adopt his Honour’s observations. Similar to the obligation to accord a person procedural fairness, the precise content of an obligation to consult will depend on the context. The extent and significance of a proposed change, in terms of its impact on the affected employees, will have a bearing on the extent of the opportunity to be provided. Hence a change of limited duration to meet unexpected circumstances may mean that the opportunity for affected employees to express their views may be more limited than would be the case in circumstances where the proposed change is significant and permanent. It is also relevant to note that while the right to be consulted is a substantive right, it does not confer a power of veto. Consultation does not amount to joint decision making.

[33] Some of the ordinary incidents of a requirement to consult are reflected in s.145A(2), that is:

● to provide information about the change; and

● to provide an opportunity for affected employees to give their views about the impact of the change; and

to consider any views about the impact of the change that are given by the employees [footnotes omitted].’

[126] Given my exchanges with Ms Thew during her submissions on 23 July 2015, it should come as no surprise to her, or the respondent, that I find, without any hesitation, that the respondent had failed to properly consult with the applicant as to the rationale for the restructure of the business and seek her views as to its likely impact on her future employment. These Award obligations are found at cl 9 of the Award (See para [13]) and are common provisions in all Modern Awards.

[127] There are two components to the notification and consultation requirements under cl 9, which regrettably were not appropriately understood and applied by the respondent. Firstly, there is an obligation to notify employees when a ‘definite decision’ has been made to ‘introduce major changes… likely to have a significant effect on employees…’

[128] Secondly, there is an obligation to consult with employees (and their representatives) as to the impact of the changes on their future employment and to consider measures to avert or mitigate any adverse effects of such changes on employees. In both cases, the respondent simply failed miserably.

[129] However, that said, Mr Edward did not seek to ‘gild the lily’ or obfuscate about the failures in the notification and consultation in the process, as the following exchanges in his oral evidence will demonstrate:

Ms Thew:	So you told the employees of the respondent’s regional marketing operations, you started telling them in about May 2014, about the restructure. Is that right?
Mr Edward:	No. What we had discussions with senior management on the possibilities of restructuring certain departments. One particular department that came to mind was the Regional Marketing Department and that’s when we realised that we needed to take this to a completely different level as far as a strategic and planning approach because of the new budgets that had been coming through.
Ms Thew:	So which month, in 2014, roughly, did you tell employees of the Regional Marketing Operations about the restructure?
Mr Edward:	Okay, the restructuring was – it was a blanket approach to all departments that there was a restructuring going on and as and when these would be fully detailed would be appropriately known at the specific time. As far as – are you referring to marketing or are you referring to any specific department?
Ms Thew:	When did you tell the employees of the Regional Marketing group or department about the impending restructure? When did that conveyance or the communication of information – when did it roughly start?
Mr Edward:	To an average staff member? Is that what you’re saying?
Ms Thew:	Yes. Well, you can start with management. When you started telling management?
Mr Edward:	Yes.
Ms Thew:	And then started telling to staff?
Mr Edward:	Okay. For management – senior management – the restructuring discussions started in May.
Ms Thew:	Yes?
Mr Edward:	And if you’d like a specific date, I think it was around the 23 May, and then as far as staff were concerned it was a blanket approach and it started to come out, from memory, around about the October period of 2014.
Ms Thew:	All right. So did you – when you said there was a blanket approach what did you mean by that?
Mr Edward:	Okay. What I meant by that statement was that everyone was aware that there was a restructuring.
…
Ms Thew:	All right. And were there any meetings that you recall conveying information to staff, generally, about the restructure?
Mr Edward:	No.
Ms Thew:	Were there any seminars at which the restructure was discussed?
Mr Edward:	No, there was not.
Ms Thew:	All right. So it was conveyed more in a general sense?
Mr Edward:	Correct.
Ms Thew:	And can you explain how it was conveyed in a more general sense?
Mr Edward:	On my behalf or the company’s behalf?
Ms Thew:	The company’s behalf?
Mr Edward:	Well, look it was apparent that people were missing in certain roles – key roles.
Ms Thew:	Or how it was conveyed. The information that there was a restructure, how was that conveyed?
Mr Edward:	It wasn’t officially conveyed by us to the employees until such period as October, as mentioned. The reason why we didn’t want to set in panic with the employees or staff. You know? It’s not our job to create anxiety within the company. It’s our role to look at increasing efficiencies and how we can increase our market share.

[130] It was, at best, naïve to assume that employees were aware of the restructure because it was common knowledge that key people were no longer around and everyone knew Mr Edward was brought in to effect and implement changes. The respondent’s assumptions do not meet the notification test required by cl 9(a) of the Award. Similarly, to suggest that the notification requirements were satisfied because senior management (only) were aware of the restructure, falls well short of the spirit and intent of the Award’s requirements. Mr Edward also said that official confirmation was not initially conveyed to staff so as to avoid panic and anxiety. Such an explanation is simply nonsense. Surely if employees were aware something was happening, their anxiety and concerns would have been heightened in an environment of rumour and uncertainty. It was incumbent on the respondent to be frank, open and transparent with the employees and not hide behind a silly argument that not telling them of the restructure was somehow to their emotional benefit.

[131] However, the most serious flaw in the process, which must render the applicant’s dismissal procedurally unfair and inconsistent with s 389 of the Act, was the respondent’s email of 25 July 2014, in which it was made pellucidly clear that the decision had been made to make the applicant’s position redundant, without any consultation with her. The offending sentence (‘This means that your position of Marketing and Communications Manager, Australia will be made redundant’) could not be more straightforward or unequivocal. The use of the verb ‘will’ could leave no-one, particularly the applicant, in any doubt, that the decision had already been made.

[132] The fact that the email went on to invite her to comment and provide input is entirely irrelevant and internally inconsistent with the express wording of the offending sentence. It is little wonder that the applicant’s response on 30 July 2014 was:

‘I would like to clarify my previous email.

From my understanding of the letter, it clearly states the decision has already been made about my role being redundant.

Do forward the confirmation with the necessary, final terms, etc.’

[133] The very next day, Mr Tang confirmed the respondent’s decision to make her redundant and pointedly makes no comment or rebuttal of her belief that the words in the 25 July 2014 email confirmed the decision had already been made. It seems to me that if this was not the case, the respondent could have easily said so. The fact that it did not, fortifies my view that the applicant’s understanding of the effect of the 25 July 2014 email was absolutely correct.

[134] Further to the lack of consultation with the applicant, I do not consider that the respondent can hide behind a defence that the applicant was overseas and could not be contacted. There obviously could not be a ‘face to face’ meeting. However, the respondent made plain that there was email communication between Mr Tang and the applicant, apparently without difficulty, subject to some relatively minor delays. The applicant offered to meet on her return (17 August 2014) or have a meeting by phone. Neither option was taken up by the respondent. In my opinion, both options were reasonable and achievable. After all, the new employee did not commence until October 2014 and presumably meetings could have been organised when the applicant returned from overseas between August and October.

[135] Moreover, I consider it disingenuous for the respondent to submit that it would have been difficult for the parties to organise a phone meeting. It would appear that the respondent simply was not interested. This fortifies my view that its lack of a will to ‘meet’ the applicant was really indicative of its view that the decision had already been made. It was not even intending to pay ‘lip service’ to consultation.

Redeployment options

[136] It was Mr Edward’s evidence that he had considered two options for redeployment of the applicant, but neither were considered suitable or available. One was the lesser position of Marketing Manager and the other was Graphic Designer.

[137] The suitability or otherwise of these positions is not the point. The fact was she was not invited to put her views as to their suitability at all. While I accept that the applicant’s skills were unlikely to be suitable for the graphic design position, Mr Edward merely assumed that because the Marketing Manager’s role was a less senior and lower paid position, it was not suitable (presumably on the basis that she would not accept it). This seems a curious assumption when the applicant had been actually seeking a less demanding role, while recuperating from her illness.

[138] But in any event, that is not the test for considering alternative options for redeployment. As Mr Edward did not even discuss any options with the applicant, he was in no position to assume anything about the applicant’s interests or otherwise. It was not open to Mr Edward to presume she would not accept a lower position, particularly given that her evidence is that she would have.

[139] In this respect, I refer to what Ryan C said in Margolina v Jenny Craig Weight Loss Centres Pty. Ltd. [2011] FWA 5215 at para [36]:

‘[36] What each of the three cases and the present matter show is that employers should not arrogate to themselves the role of concluding how the redundant employee will respond to an offer of redeployment to a lower paid position. In each of the three cases relied on the conclusion that the redeployment offer was not reasonable in all the circumstances was not arrived at simply because the employer presumed that to be the case but was only arrived at by the Tribunal considering all of the evidence and material before it and then making a decision.’

[140] I note that a Full Bench in an appeal against the Commissioner’s decision in Jenny Craig Weight Loss Centres Pty Ltd v Margolina [2011] FWAFB 9137 said at paras [27]-[29]:

‘[27] In Ulan Coal Mines Limited v. Honeysett and others a Full Bench of the Tribunal considered s.389(2) and said:

“[28] The question remains whether redeployment within the employer’s enterprise or the enterprise of an associated entity would have been reasonable at the time of dismissal. In answering that question a number of matters are capable of being relevant. They include the nature of any available position, the qualifications required to perform the job, the employee’s skills, qualifications and experience, the location of the job in relation to the employee’s residence and the remuneration which is offered.”

[28] In this case it is clear that there was a centre leader position available. The respondent had the necessary skills, qualifications and experience and she had no objection based on location. While the income was much lower and the responsibility much less than for a regional manager, she gave evidence that she would have accepted a centre leader role for reasons which we have referred to above. There is no reason to disbelieve the respondent’s evidence, even though she has now taken a leadership role, which appears to be similar to her former role with the appellant.

[29] We agree with the Commissioner’s conclusion that it would have been reasonable in all the circumstances for the respondent to have been redeployed. It follows that the dismissal was not a case of genuine redundancy.’

[141] For the aforementioned reasons, I find that the applicant’s dismissal on 1 August 2014 was not a case of ‘genuine redundancy’, within the meaning of s 389(1)(b) of the Act, in that the respondent had not properly notified or consulted the applicant in accordance with its obligations under cl 9 of the Award. Axiomatically, as the applicant was a person protected from unfair dismissal (s 385), the Commission is not precluded from determining whether the dismissal of the applicant was ‘harsh, unreasonable or unjust’, within the meaning of s 387 of the Act.

[142] This application will be relisted for further mention and directions at 9:30am, Friday 2 October 2015 in respect to further proceedings to determine whether the applicant’s dismissal was ‘harsh, unreasonable or unjust’ within the meaning of s 387 of the Act and, if so, what remedy, if any, should be ordered by the Commission. Given my reasons in this decision, I recommend the parties engage in further negotiations in an endeavour to reach a settlement of the applicant’s claims in this matter.

DEPUTY PRESIDENT

Appearances:

Mr G Davies, Solicitor and Ms C McNair, Solicitor for the applicant.

Ms P Thew of Counsel instructed by Ms A Teggins, Solicitor for the respondent.

Hearing details:

2015

Sydney:

6, 23 July.

Printed by authority of the Commonwealth Government Printer

Anesha Mohanan v China Southern Airlines Limited

[2015] FWC 6421

17 SEPTEMBER 2015