Caroline Ross v Project Solutions (WA) Pty Ltd

[2021] FWC 3797

[2021] FWC 3797

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Caroline Ross
v
Project Solutions (WA) Pty Ltd
(U2020/14704)

COMMISSIONER WILLIAMS PERTH, 2 JULY 2021

Application for an unfair dismissal remedy.

[1] This decision concerns an application made by Mrs Caroline Ross (Mrs Ross or the Applicant) pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy. The Respondent is Project Solutions (WA) Pty Ltd (Project Solutions or the Respondent).

[2] The Respondent objects to the application on the grounds that the dismissal was a case of genuine redundancy and that the Respondent is a small business employer and has complied with the Small Business Fair Dismissal Code.

[3] At the hearing of this matter, evidence was given by the Applicant, Mrs Ross, and for the Respondent by Ms Tanya Sydney-Smith (Ms Sydney-Smith).

Factual findings

[4] The Respondent has operated for twenty-five years and, at all times, Ms Sydney-Smith has been both the sole director and sole shareholder.

[5] The Respondent provides services to its business clients which include compliance advice, taxation advice, account preparation, budgets, acquisitions, transactional accounting and reporting, occupational health and safety advice, labour hire, sales, property management, business strategy and consulting.

[6] Relevant to this application, the Respondent provides various services to companies within the Lane Group of Companies (the Lane Group). The Lane Group is an umbrella heading for all the companies owned by the Lane family.

[7] Those companies within the Lane Group to which the Respondent provides services are Bridgewood Pty Ltd, Zephyr Investments Pty Ltd, Peel Motors Pty Ltd, and the Lane Family Super Fund.

[8] Ms Sydney-Smith is also the Chief Financial Officer of the Lane Group. 1

[9] Ms Sydney-Smith is also one of the directors and the secretary of Zephyr Investments Pty Ltd, Peel Motors Pty Ltd, and the Lane Family Super Fund. With respect to Bridgewood Pty Ltd, Ms Sydney-Smith is the company secretary but not a director. 2

[10] Ms Sydney-Smith however does not hold any shares in any of these companies.

[11] Mrs Ross was first employed by the Respondent in September 2019 in the position of Group Promotions Coordinator.

[12] The evidence of Mrs Ross was that the Lane Group owned, amongst other things, a number of car dealerships located in Mandurah. Her husband, Mr Gregory Ross (Mr Ross), was at the time the dealer principal of Peel Motors Pty Ltd.

[13] Prior to being employed by the Respondent her evidence was that she was doing some unpaid work to assist her husband. When she was employed by the Respondent, she continued doing this work and providing similar services to other car dealerships within the Lane Group.

[14] The work, amongst other things, involved managing the Facebook account for the Lane Group car dealerships, managing Google advertising, arranging radio advertisements, organising corporate functions and sponsorship events, community events, arranging video advertisements, and other tasks concerning sponsorship and marketing as directed by either Ms Sydney-Smith or her husband.

[15] Mrs Ross did not do any work for the Respondent itself. Her evidence was that all of her work related to the Lane Group car dealerships.

[16] Ms Sydney-Smith’s evidence was that effect of COVID-19 on the Lane Group was significant. Many strategy meetings were held between members of the Lane family, Ms Sydney-Smith, and other stakeholders, including vehicle manufacturers and financiers.

[17] Decisions were made regarding the termination of a number of staff within the Lane Group based around length of service. Employees employed for less than twelve months were terminated. Further, there were adjustments made to the contracts of other employees to reduce their hours.

[18] The Lane Group also undertook a review in conjunction with Ernst and Young.

[19] Similarly, within the Respondent’s business a review was undertaken and two staff that had less than twelve months service were terminated.

[20] Ms Sydney-Smith’s evidence was that, as a direct consequence of the impact of COVID-19 and the associated government restrictions, it was not possible to hold any corporate functions, corporate events, sponsorship events, or community events from March 2020 for the car dealerships.

[21] After COVID-19 hit, all of the car dealerships except for one were closed according to the evidence of Mrs Ross.

[22] Ms Sydney-Smith’s evidence was that as a consequence there was no work for Mrs Ross to undertake. The Respondent consequently applied for the JobKeeper allowance for Mrs Ross.

[23] From 24 April 2020 Mrs Ross did not perform any work. From this point onwards she received the JobKeeper payments. These payments continued until 28 September 2020 at which time the Respondent was no longer eligible to receive JobKeeper.

[24] In August 2020 a further business review was conducted by the Lane Group. One decision from this review was to centralise the advertising and marketing functions of the car dealerships. The idea was tabled by one of the General Sales Managers. It was recommended that the position of a full-time Group Marketing Manager be created. Mr Lane supported the concept. 3

[25] This position was subsequently filled. The Group Marketing Manager position was directly employed by Bridgewood Pty Ltd. Ms Sydney-Smith’s evidence was that the appointed Group Marketing Manager is not one of her staff. 4

[26] Ms Sydney-Smith’s evidence was that this position is very different from the role the Applicant was previously employed in.

[27] The incumbent in this position is required to do the advertising for multiple automotive dealerships. The incumbent has to do the artwork, the creative design, and to liaise with the different providers. She costs it all out, does the budget, and has to liaise with the manufacturers across six car brands. 5

[28] Mrs Ross gave evidence that there were common elements between her previous role and the new role of the Group Marketing Manager.

[29] In late September to early October 2020, the Lane Group made a decision that no corporate functions, corporate events, sponsorship events, or community events for the car dealerships would be planned for the foreseeable future.

[30] Ms Sydney-Smith’s evidence was that this meant there was no work for Mrs Ross to undertake. As a result of this, she determined that Mrs Ross’s position was no longer required.

[31] Some of Mrs Ross’s tasks had been taken over by other employees within the Lane Group.

[32] Ms Sydney-Smith’s evidence was that there were no other positions, similar or otherwise, within the Respondent’s business that she could consider redeploying Mrs Ross to. 6

[33] Consequently, Ms Sydney-Smith made the decision to make Mrs Ross’s position redundant.

[34] The first time Mrs Ross was made aware of the situation was when she received an email from Ms Sydney-Smith on 21 October 2020. The email referred to a recent review by the Respondent of its operational requirements and that the review had concluded her position was no longer required and so her employment would terminate effective immediately.

[35] The same day Ms Sydney-Smith advised Mr Ross that he was dismissed from his employment with Bridgewood Pty Ltd for reasons unrelated to Mrs Ross’s dismissal.

[36] Ms Sydney-Smith’s evidence was that there had been no work for Mrs Ross since April 2020 and the only reason she had remained employed was initially because she qualified for JobKeeper and the fact that she was married to a staff member within the Lane Group, Mr Ross. 7

[37] The evidence is that, at all times, the Respondent had less than fifteen employees. The employer’s response to the application states that at the time of the Applicant’s dismissal the Respondent had eleven employees.

[38] Additional evidence relevant to the question of whether the Lane Group companies are ‘associated entities’ of the Respondent is that the Respondent provides services to a range of other businesses that are not related to the Lane Group. At times, this has included major Western Australian mining companies. Some jobs are large, and some are small. It may be to provide a fill-in for a role within their business on a temporary basis. It might be to provide some compliance advice. If a client requests something that the Respondent does not have the capacity to do the Respondent would look for a person to do it and place them in that role. This might be a temporary or a permanent arrangement. 8

[39] The Respondent invoices different businesses within the Lane Group depending upon what it is doing for each of those entities. 9

[40] Ownership and control of the Lane Group rests with the Chairman, Mr Colin Lane (Mr Lane) and his wife Mrs Shelley Lane (Mrs Lane), both in terms of the shareholding and as beneficiaries of the relevant trusts. 10

[41] Mr Lane holds a variety of other positions with the Lane Group. He is the Chief Executive Officer, he is a director, he is a dealer principal of some of the businesses, and he is the general manager of some of the other businesses. He is actively involved in the businesses and attends work every day. He has offices at multiple buildings. Mr Lane is a presence that everybody that deals with Lane Group is familiar with and are aware of the positions he holds. 11

[42] With regard to decision making within the Lane Group, Ms Sydney-Smith’s evidence is that there are a variety of delegations that are given to a range of people. Approximately 25% of the staff have some degree of delegated authority. Ms Sydney-Smith herself has delegated authority. If there is a decision to be made that is outside of anybody’s delegated authority scope, they need to pass that up to either Mr Lane or Mrs Lane. 12

[43] Ms Sydney-Smith does not have the responsibility of the day-to-day running of the Lane Group. Mr Lane has this responsibility and various managers of the businesses have delegated authority for daily operations. 13

[44] Ms Sydney-Smith’s evidence was that Mr Lane has no interest in the Respondent. 14

[45] Ms Sydney-Smith’s evidence was the Respondent has not taken on any new employee since August 2020 other than an employee seeking work experience in accounting and taxation.

[46] The parties agree that the Applicant’s employment is covered by the Miscellaneous Award 2020 (the Award).

[47] The relevant clauses of the award are set out below.

“27. Consultation about major workplace change

27.1 If an employer makes a definite decision to make major changes in production, program, organisation, structure or technology that are likely to have significant effects on employees, the employer must:

(a) give notice of the changes to all employees who may be affected by them and their representatives (if any); and

(b) discuss with affected employees and their representatives (if any):

(i) the introduction of the changes; and

(ii) their likely effect on employees; and

(iii) measures to avoid or reduce the adverse effects of the changes on employees; and

(c) commence discussions as soon as practicable after a definite decision has been made.

27.2 For the purposes of the discussion under clause 27.1(b), the employer must give in writing to the affected employees and their representatives (if any) all relevant information about the changes including:

(a) their nature; and

(b) their expected effect on employees; and

(c) any other matters likely to affect employees.

27.3 Clause 27.2 does not require an employer to disclose any confidential information if its disclosure would be contrary to the employer’s interests.

27.4 The employer must promptly consider any matters raised by the employees or their representatives about the changes in the course of the discussion under clause 27.1(b).

27.5 In clause 27 significant effects, on employees, includes any of the following:

(a) termination of employment; or

(b) major changes in the composition, operation or size of the employer’s workforce or in the skills required; or

(c) loss of, or reduction in, job or promotion opportunities; or

(d) loss of, or reduction in, job tenure; or

(e) alteration of hours of work; or

(f) the need for employees to be retrained or transferred to other work or locations; or

(g) job restructuring.

27.6 Where this award makes provision for alteration of any of the matters defined at clause 27.5, such alteration is taken not to have significant effect.”

“31. Redundancy

NOTE: Redundancy pay is provided for in the NES. See sections 119 to 123 of the Act.

31.1 Transfer to lower paid duties on redundancy

(a) Clause 31.1 applies if, because of redundancy, an employee is transferred to new duties to which a lower ordinary rate of pay applies.

(b) The employer may:

(i) give the employee notice of the transfer of at least the same length as the employee would be entitled to under section 117 of the Act as if it were a notice of termination given by the employer; or

(ii) transfer the employee to the new duties without giving notice of transfer or before the expiry of a notice of transfer, provided that the employer pays the employee as set out in clause 31.1(c).

(c) If the employer acts as mentioned in clause 31.1(b)(ii),the employee is entitled to a payment of an amount equal to the difference between the ordinary rate of pay of the employee (inclusive of all-purpose allowances and penalty rates applicable to ordinary hours) for the hours of work the employee would have worked in the first role, and the ordinary rate of pay (also inclusive of all-purpose allowances and penalty rates applicable to ordinary hours) of the employee in the second role for the period for which notice was not given.

31.2 Employee leaving during redundancy notice period

(a) An employee given notice of termination in circumstances of redundancy may terminate their employment during the minimum period of notice prescribed by section 117(3) of the Act.

(b) The employee is entitled to receive the benefits and payments they would have received under clause 31 or under sections 119 to 123 of the Act had they remained in employment until the expiry of the notice.

(c) However, the employee is not entitled to be paid for any part of the period of notice remaining after the employee ceased to be employed.

31.3 Job search entitlement

(a) Where an employer has given notice of termination to an employee in circumstances of redundancy, the employee must be allowed time off without loss of pay of up to one day each week of the minimum period of notice prescribed by section 117(3) of the Act for the purpose of seeking other employment.

(b) If an employee is allowed time off without loss of pay of more than one day under clause 31.3(a), the employee must, at the request of the employer, produce proof of attendance at an interview.

(c) A statutory declaration is sufficient for the purpose of clause 31.3(b).

(d) An employee who fails to produce proof when required under clause 31.3(b) is not entitled to be paid for the time off.

(e) This entitlement applies instead of clause 30.2.”

Submissions

The Respondent

[48] It is submitted that the Respondent has no associated entities and therefore is a small business within the meaning of the Act.

[49] It is submitted that as a small business, in these circumstances, there was no obligation to consult with the Applicant on her redundancy. Alternatively, if there was such an obligation to consult, failure to do so would have made no difference to the outcome because the role the Applicant had performed was no longer required by the Respondent.

[50] There was no requirement to consider the Applicant for the Group Marketing Manager role with the Lane Group because it is not an associated entity of the Respondent.

[51] The termination of the Applicant’s employment was rational and justified because:

•  The client, for whom Applicant was doing work, no longer required a Group Promotions Coordinator.

•  The Respondent had no other roles into which it could move the Applicant.

•  The reason the Applicant was not terminated around April 2020 was because the Respondent was eligible for JobKeeper and the Applicant was the wife of Mr Ross who was a dealer principal employed by a Lane Group company.

[52] The above supports the conclusion that the Applicant’s employment was not terminated in October 2020 for the reason that she was Mr Ross’s wife.

[53] Any arguable failure to consult may be a procedural error but, in all the circumstances, does not make the dismissal unfair.

[54] The Applicant was paid three weeks in lieu of notice.

[55] The Respondent is a small business, so the Applicant had no entitlement to redundancy pay.

[56] The termination was either a genuine redundancy or, in the alternative, a redundancy that was rational and justified and was not unfair.

The Applicant

[57] The Applicant submits that there is no exemption for small business employers from the requirements of clause 27 “Consultation about major workplace change” in the Miscellaneous Award 2020.

[58] Separately, the small business fair dismissal code expressly states that the requirements for determining whether a dismissal was a genuine redundancy are those contained in section 389 of the Act.

[59] The Applicant accepts that the absence of consultation does not automatically mean a dismissal is unfair. However, it does mean that both of the Respondent’s jurisdictional objections, firstly that the dismissal was a case of genuine redundancy and secondly that the Respondent had complied with the small business fair dismissal code, must fail.

[60] The Applicant submits that the Respondent and the Lane Group are associated entities.

[61] The Applicant submits that if the Respondent and the Lane Group are associated entities then the Respondent was obliged to consider each of the Lane Group companies as potential employers for the purposes of redeploying the Applicant.

[62] In any event, it is submitted that the Respondent is a labour hire company not only to the Lane Group but to a number of other clients. Consequently, when considering redeployment, it is submitted the Respondent was obliged to consider whether the Applicant could have been employed by the Respondent providing her services to any of the Lane Group or any of the Respondent’s other clients.

[63] It is submitted that the Applicant could have done the job of Group Marketing Manager.

[64] It is submitted that the Applicant’s experience in marketing and advertising was significant, a fact that, due to the lack of consultation, Ms Sydney-Smith was unaware.

[65] Further this experience made it likely that the Applicant could have been redeployed to another role within the Lane Group or to a role within one of the Respondent’s other clients.

[66] With respect to the Respondent and the Lane Group being associated entities it is submitted that the conclusion that should be drawn from the evidence is that Ms Sydney-Smith was the primary decision-maker in the Lane Group. The practical reality is that she runs the companies at every level.

[67] It is submitted that there is no documentary evidence that there was a review that led to the conclusion that the Applicant’s position was no longer required.

[68] In summary, it is submitted that the jurisdictional objections must fail due to the absence of consultation.

[69] The Applicant’s job was not redundant and in fact she was dismissed due to her relationship with her husband.

[70] The companies making up the Lane Group are associated entities of the Respondent.

[71] Even if the Applicant’s position was redundant, she could have been redeployed.

[72] As there was no valid reason for the dismissal, it was unfair.

The legislation

[73] The relevant sections of the Act are set out below.

“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

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

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

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.”

“388 The Small Business Fair Dismissal Code

(1) The Minister may, by legislative instrument, declare a Small Business Fair Dismissal Code.

(2) A person’s dismissal was consistent with the Small Business Fair Dismissal Code if:

(a) immediately before the time of the dismissal or at the time the person was given notice of the dismissal (whichever happened first), the person’s employer was a small business employer; and

(b) the employer complied with the Small Business Fair Dismissal Code in relation to the dismissal”

“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”

Consideration

Associated entities?

[74] Importantly, the evidence is that neither Ms Sydney-Smith nor the Respondent, Project Solutions, has any ownership right in any of the Lane Group companies.

[75] The evidence is that Ms Sydney-Smith is the sole shareholder of the Respondent, Project Solutions. She is also the sole director.

[76] Ms Sydney-Smith is the secretary and/or director for some of the companies that make up the Lane Group.

[77] The evidence does not demonstrate that Ms Sydney-Smith has the day-to-day running of the Lane Group companies. Rather the evidence is that Mr Lane has the day-to-day running and various general managers have delegated authority for the daily operations of the Lane Group companies.

[78] The ultimate control and ownership of the Lane Group rests with Mr Lane and his wife Mrs Lane both in terms of shareholding and as beneficiaries of the relevant trusts.

[79] Considering all the above, I do not accept that any of the Lane Group companies are associated entities of the Respondent within the meaning of section 50AAA of the Corporations Act 2001 (Cth). 15

Was the Applicant’s job redundant?

[80] Whilst the Applicant was employed by the Respondent, she was in fact a labour hire employee who undertook work for a client of the Respondent, namely the Lane Group.

[81] The Applicant undertook work for a number of car dealerships that were companies within the Lane Group. The Applicant did not do any work for the Respondent itself.

[82] There is no doubt on the evidence that COVID-19, from March 2020 onwards, had a severe negative impact on those Lane Group car dealerships.

[83] The Applicant’s evidence was that after COVID-19 began all of the car dealerships except for one were closed.

[84] A review of the Lane Group companies resulted in a number of staff being terminated and others having their hours reduced.

[85] Similarly, within the Respondent’s business two staff were terminated around this time.

[86] Ms Sydney-Smith’s evidence was that due to COVID-19 and the resulting government restrictions from March 2020 it was not possible to hold any corporate functions, corporate events, sponsorship or community events for the Lane Group’s car dealerships. 16

[87] Ms Sydney-Smith’s evidence was this meant there was no work for the Applicant to undertake for the Lane Group.

[88] From 24 April 2020 Mrs Ross did not perform any work. From this point onwards she received Jobkeeper payments until 28 September 2020 at which time the Respondent was no longer eligible to receive Jobkeeper.

[89] Around August 2020 one of the General Sales Managers in the Lane Group proposed a different marketing arrangement for the Lane Group’s car dealerships. This was supported by a number of the other General Sales Managers, then endorsed by Mr Lane and resulted in a new position of Group Marketing Manager being created. 17

[90] Whilst I accept the new position was different from the Applicant’s role, I also accept that some of the duties the Applicant had been undertaking in her role would be duties that would also be undertaken by the incumbent in this new position.

[91] A person was recruited for this new position and employed directly by Bridgewood Pty Ltd, one of the Lane Group companies, commencing on 24 August 2020. 18

[92] Even though Ms Sydney-Smith was involved in the Lane Group’s discussions regarding these matters, changing the marketing arrangements and not considering the Applicant for the new position were decisions of the Lane Group. The Lane Group was entitled make these changes as they wished.

[93] These were not decisions made by the Applicant’s employer, the Respondent. 19

[94] In late September to early October 2020, it was apparent that no corporate functions, corporate events, sponsorship events, or community events would be planned for the foreseeable future for the Lane Group car dealerships. As a result, Mrs Ross’s position of Group Promotions Coordinator was not then required by the Lane Group. 20

[95] In summary, the COVID-19 restrictions on some marketing activities meant there was little work for the Applicant to do for the Lane Group. Around the same time the Lane Group’s decision to adopt a different marketing arrangement for their car dealerships meant they no longer required the Applicant to work for them as the Group Promotions Coordinator, even if there were no COVID-19 restrictions limiting her ability to work. 21

[96] In short, the Respondent’s client, the Lane Group, no longer required the Applicant’s services.

[97] This of course did not mean the Applicant’s employment with the Respondent had ended. 22 Rather this necessitated the Respondent considering whether they were able to contract the Applicant out to another client or had other work for her to do. However, this was not the case, there were no other positions the Respondent could redeploy her to.23

[98] Ultimately, the Applicant was then dismissed and notified of her dismissal on 21 October 2020.

[99] Considering the evidence as a whole I am not satisfied that the reason for the Applicant’s dismissal was because the Lane Group dismissed her husband. Rather it is apparent that because her husband was employed by the Lane Group the Respondent opted to keep the Applicant employed longer than would otherwise have been the case. The Lane Group’s dismissal of the Applicant’s husband only determined the timing of her dismissal. 24

[100] The reason for the Applicant’s dismissal was that the Respondent’s client no longer required her to work for them and the Respondent had no other vacancy within its own business nor amongst its other clients for the Applicant.

[101] I am satisfied that the Respondent no longer required the Applicant’s job to be performed by anyone because of changes in the operational requirements of the Respondent’s enterprise.

Compliance with any obligations to consult?

[102] Whilst the Respondent is a small business there is no general exemption for a small business employer from any award obligations that might otherwise apply to consult about a redundancy.

[103] In this case the parties agreed that the Miscellaneous Award 2020 applied to the employment of the Applicant.

[104] Clause 31 “Redundancy” of the Award does not include any consultation obligations.

[105] Clause 27 “Consultation about major workplace change”, does include obligations for an employer to notify affected employees of changes, provide relevant information about the changes in writing, discuss the changes with the affected employees and promptly consider any matters raised by the employees in the course of those discussions.

[106] These obligations only apply to particular types of employer decisions as follows,

“27.1 If an employer makes a definite decision to make major changes in production, program, organisation, structure or technology that are likely to have significant effects on employees,…”

[107] In this matter, the employer made a definite decision that it no longer required one employee’s job to be performed by anyone.

[108] This was not a decision to make “changes in production, program, organisation, structure or technology” let alone major changes of this type.

[109] Consequently, my conclusion is that clause 27 “Consultation about major workplace change” of the Award does not apply to the circumstances of this case.

[110] My decision is that there were no obligations, in a modern award or enterprise agreement, that applied to the Applicant’s employment, for the Respondent to consult about the redundancy.

Reasonable to redeploy?

[111] Regarding whether it would have been reasonable, in all the circumstances, for the Applicant to be redeployed within the Respondent’s enterprise or the enterprise of an associated entity, the evidence is firstly that there was no available positions within the Respondent’s business to which the Applicant could be redeployed and secondly that there were no associated entities to be considered.

[112] Consequently, redeployment would not have been reasonable in the circumstances here.

Conclusion

[113] My decision is that the Applicant’s dismissal was a case of genuine redundancy within the meaning of section 389 of the Act.

[114] Consequently, by virtue of the definition of “unfairly dismissed” in section 385 of the Act the Applicant in this case has not been unfairly dismissed because the dismissal was a case of genuine redundancy.

[115] Consequently, this application will be dismissed and an Order [PR731223] to that effect will be issued.

[116] It is not necessary to consider the Respondent’s second objection further.

Appearances:

T Lethbridge of Croftbridge for the Applicant.
A Talbert of Tottle Partners for the Respondent.

Hearing details:

2021.
Perth:
February 19.

Final written submissions:

Respondent, 18 March 2021.
Applicant, 16 March 2021.

Printed by authority of the Commonwealth Government Printer

<PR731222>

 1   Transcript at PN 192 and 194.

 2   Ibid., at PN 187.

 3   Exhibit R2 at Paragraph 1; Transcript at PN 76.

 4   Transcript at PN 89.

 5   Ibid., at PN 300.

 6   Exhibit R2 at Paragraph 10; Transcript at PN 137-138.

 7   Transcript at PN 390.

 8   Ibid., at PN 55.

 9   Ibid., at PN 167-168.

 10   Ibid., at PN 57.

 11   Ibid., at PN 58.

 12   Ibid., at PN 62-63.

 13   Ibid., at PN 176-177.

 14   Ibid., at PN 87.

 15   Fair Work Act 2009 (cth) s 12.

 16   Exhibit R1 at Paragraph 6.

 17   Exhibit R2 at Paragraph 1; Transcript at PN 76.

 18   Exhibit R3.

 19   Transcript at PN 289.

 20   Exhibit R1 at Paragraph 8; Transcript at PN 241.

 21   Transcript at PN 296.

 22   Ibid., at PN 278.

 23   Exhibit R1 at Paragraph 10; Transcript at PN 137-138.

 24   Transcript at PN 390.