Christabel Quiah v Vital Care Pty Ltd
[2022] FWC 2602
•28 SEPTEMBER 2022
| [2022] FWC 2602 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Christabel Quiah
v
Vital Care Pty Ltd
(U2022/6539)
| DEPUTY PRESIDENT COLMAN | MELBOURNE, 28 SEPTEMBER 2022 |
Unfair dismissal application – whether genuine redundancy – applicant’s supervisory role not needed – no reasonable redeployment options – application dismissed
Ms Christabel Quiah has applied for an unfair dismissal remedy under s 394 of the Fair Work Act 2009 (Act). From March 2019 until her dismissal on 13 June 2022 Ms Quiah was employed by Vital Care Pty Ltd (Vital) as a full-time shift supervisor. Her position was made redundant following an operational review. Ms Quiah contends that her dismissal was unfair because it was made for reasons related to her past performance and conduct that were never raised with her, and because she was not properly consulted about her redundancy. She further contends that Vital ought reasonably to have redeployed her. Vital objects to the application on the basis that the dismissal was a ‘genuine redundancy’ within the meaning of s 389 of the Act and submits that in any event the dismissal was not unfair because Ms Quiah’s supervisory role was not needed and there were no suitable alternative positions for her.
Whether Ms Quiah’s dismissal was a case of ‘genuine redundancy’ is one of the four preliminary matters that s 396 of the Act requires the Commission to decide before considering the merits of an unfair dismissal application. As I explain below, I consider that Ms Quiah’s dismissal was not a ‘genuine redundancy’ within the meaning of s 389 because a step in the consultation process was overlooked, but that the dismissal was nevertheless not unfair.
I will record here my conclusions on the other three preliminary matters. First, Ms Quiah’s application was made within the 21-day period required by s 394(2). Secondly, Ms Quiah was a person protected from unfair dismissal, as she earned less than the high-income threshold and had undertaken the minimum period of employment (s 382). Thirdly, the Small Business Fair Dismissal Code is not relevant in the present case.
Background and evidence
Vital operates a personal emergency response service called ‘Rosie’ which provides operator support for elderly clients who wear wireless alarm devices. The service runs continuously and is staffed by employees of Vital who are called Rosie operators. When customers need help, they press a button to connect to a Rosie operator who then follows a triage process and provides support. Operators work from home and are managed remotely.
The company’s general manager, Ms Masihpour, gave evidence that in February 2022 she commenced an operational review of the Rosie business. On 24 March 2022, Ms Masihpour met with Rosie operators online and told them that she was conducting a review of the business for the purpose of achieving greater efficiency and improved quality of service. Afterwards, Ms Masihpour sent operators a message in which she summarised what had been said at the meeting and stated that employees would be contacted if any changes might have an impact on them.
Ms Masihpour’s evidence was that one of the conclusions she drew from her review was that the company no longer needed a full-time shift supervisor. All operators were expected to be familiar with the company’s service. Most shifts were already working without a full-time supervisor. Further, Ms Masihpour and another manager were continuously available to answer any questions from operators, and such questions were rare.
Ms Masihpour gave evidence that on 23 May 2022, she spoke to Ms Quiah and told her that the full-time shift supervisor role was not needed and that she did not believe that Ms Quiah was suitable for the two roles then available at the company. One of these was a technical support role, the other was a customer sales role. Both were based in Sydney, whereas Ms Quiah lived in regional Victoria.
Ms Quiah’s evidence about this discussion was that there was no consultation about her redundancy and that Ms Masihpour made clear to her that there was no scope for her to be redeployed to any other roles. Ms Quiah said that, when Ms Masihpour told her that her shift supervisor role was not needed, she asked whether she would be converted to an operator role, to which Ms Masihpour replied ‘no’, and said that this was because of the fact that Ms Quiah home-schooled her child and could not undertake overnight shifts, and because she had certain limitations in the areas of administration and using technology.
Ms Masihpour denied this. Her evidence was that the only available positions at the company at this time were the technical support and customer sales roles in Sydney. Ms Masihpour said that she did discuss with Ms Quiah her concerns about the prospect of finding alternative positions at the company because of her limited availability, and issues related to her technological and administrative skills. But this was not a reason for not redeploying her to a Rosie operator role. There were no such roles. There had previously been some vacant operator roles, but these had been filled.
Following the discussion on 23 May 2022, Ms Masihpour sent an email to Ms Quiah confirming what had been said on the telephone. The letter stated that, as a result of the company review, some changes were necessary, and that one of these changes was that the role of full-time Rosie supervisor was not required, and that Ms Quiah’s employment would be terminated. The letter stated that Ms Masihpour would be happy to support Ms Quiah’s transition and to help her find new opportunities.
Later that day, Ms Quiah sent Ms Masihpour a reply, in which she stated that it had been wonderful to be part of the Rosie team, and thanked Ms Masihpour for offering to help her transition to her next job. Ms Quiah stated that she had noted Ms Masihpour’s suggestion about her CV and online profile, and that these were areas in need of her attention as she was a ‘massive Troglodyte’. (She appears to have meant ‘Luddite’, a person opposed to or who struggles with technology). Ms Quiah stated that it had been a pleasure working with Ms Masihpour as the head of a highly functioning professional team.
In an email message to all staff on 1 June 2022, Ms Masihpour announced that Ms Quiah’s role was no longer required. The message also noted that ‘the part-time and rotating roster structure of the Rosie Assistant role doesn’t fit (her) personal circumstances either’. Evidently, Ms Masihpour believed that operators might wonder why Ms Quiah was not being redeployed to an operator role. The actual reason was that there were no such roles available at the time. I note that Ms Quiah did not object to what was said in the message.
On 8 June 2022, Ms Quiah sent Ms Masihpour a message thanking her for her time and stating that she had seen the ‘new roster’. Ms Masihpour explained in her evidence that this was a reference to the revised roster that no longer contained the full-time shift supervisor, but instead identified a particular operator to be the designated person to perform a supervisory role for that particular shift. In her message, Ms Quiah stated that ‘what you did makes a lot of sense and I understand the decision’. When asked about this during the proceeding, Ms Quiah said that she could not remember what she was referring to in this message and suggested that it could have been taken out of context.
Ms Quiah’s notice period ended on 13 June 2022. Ms Masihpour said that Ms Quiah’s last shift ended happily with an exchange of warm messages. At some point thereafter, the relationship between Ms Quiah and the company deteriorated. Ms Quiah said that she sought advice from the Fair Work Ombudsman and considered that she had been badly treated. She believed that she had not been properly consulted about her redundancy and that her dismissal had been unfair.
Findings
I make the following findings. First, I accept Ms Masihpour’s evidence about the reasons for making the full-time shift supervisor role redundant. This evidence was entirely convincing. The role was clearly not needed. I find that Ms Quiah understood this. I reject Ms Quiah’s evidence that her message to Ms Masihpour on 8 June 2022, in which she stated that the new structure made a lot of sense, was taken out of context. She was unable to explain that alternative context. Her message had the meaning explained by Ms Masihpour. I find that Ms Quiah agreed with the decision to make her role redundant and considered that the new structure made a lot of sense.
As to what was said during the telephone call on 23 May 2022, I prefer the evidence of Ms Masihpour to that of Ms Quiah. In particular, I find that Ms Masihpour stated that the only two available roles were the Sydney-based roles referred to earlier, and that she did not say that the reason Ms Quiah could not transfer to an operator role was because of her various limitations. I accept Ms Masihpour’s evidence that there were no available operator roles. Ms Masihpour raised Ms Quiah’s limitations because, even if there had been such a role, she believed there would be difficulties with Ms Quiah performing it.
I find that Ms Quiah never raised any concerns about Ms Masihpour’s view that there were no roles to which she could be redeployed. I accept Ms Masihpour’s evidence that Ms Quiah did not express any interest in an alternative role. I find that during the conversation on 23 May 2022, Ms Quiah asked whether the company was going to redeploy her to an operator role; she did not say that she wanted to be redeployed to such a role or that she should be so redeployed.
Ms Quiah said that she believed her dismissal was related to concerns that the company held about her performance, including in relation to her technical and administrative skills. I find that this was not the case. Ms Quiah was dismissed because her role was redundant and there were no suitable redeployment options. It is not necessary for me to make a finding as to whether she would have been able to undertake a Rosie operator role in accordance with the requirements that the company now had of this role, which, it would appear, were somewhat higher than they used to be. The fact is that there were no operator vacancies at that time.
I find that Ms Quiah was not qualified for the technical support role in Sydney. As a self-professed ‘Troglodyte’ (or Luddite) she did not have expertise in technical support matters. Nor is there any evidence to suggest that she was qualified for the customer sales role. Moreover, she knew about these positions, but did not apply for them. I find that the reason she did not apply for them was because she was not suitable for those roles.
Ms Quiah said that there was another operator who worked part-time for the company who also had a full-time job elsewhere, and that this proved that it was not necessary for an operator to work across shifts. Again, this is irrelevant, because there were no available operator roles. Ms Quiah said that there had been two part-time operator roles available prior to her dismissal. But these were filled. There were no available operator roles at the time of her dismissal, and she never told the company that she wanted such a role.
Ms Quiah said that the company had assumed that she had limited availability but had never bothered to check with her whether this was the case. The fact that she had stated in 2019 that she could not work certain shifts did not mean that this restriction still applied. Had there been operator roles available at the time that Ms Quiah was informed of her redundancy and had Ms Quiah expressed any interest in such a role, one would reasonably have expected there to be a discussion about Ms Quiah’s current availability. But this was not the case.
Ms Quiah said that she believed her dismissal was related to an allegation of bullying that had allegedly been made against her two years earlier. Ms Masihpour denied this. I accept her evidence. This bullying incident is an entirely irrelevant matter. It is clear from internal correspondence from Ms Masihpour that she thought that the complainant had overstated the matter by referring to Ms Quiah’s conduct as ‘bullying’. Mr Duncan Ross, the company’s director, said in his evidence that he considered, based on his interactions with Ms Quiah about this matter, that she would not have been suitable for other supervisory roles. But there were no such roles. The dismissal had nothing to do with this matter. Nor, contrary to Ms Quiah’s conjecture, did the dismissal relate to her support for another colleague’s bullying complaint.
Ms Quiah said that she was not consulted about her redundancy and that the first she learnt about her position being considered for redundancy was when Ms Masihpour told her that it would be abolished. Ms Quiah said that if she had known earlier in the year that her position would be made redundant, she could have started looking for other work sooner, and saved money. But the decision to make her role redundant was not made until 23 May 2022.
Was the dismissal a ‘genuine redundancy’ (s 389)?
Vital contends that Ms Quiah’s dismissal was a case of ‘genuine redundancy’, and that therefore the Commission has no jurisdiction to consider the merits of her application. Under s 385 of the Act, a dismissal cannot be unfair if it was a case of ‘genuine redundancy’. This expression is defined in s 389 as follows:
“(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.”
I consider that Vital no longer required Ms Quiah’s job to be performed by anyone because of changes in the operational requirements of its enterprise. The company did not need or want a full-time shift supervisor. The change in the company’s operational requirements was the realisation that the full-time supervisor position was not needed. Whereas previously it had been thought necessary to have such a position, this was no longer the case. Senior management could do without it and field any occasional queries from operators themselves. The requirement in s 389(1)(a) is met.
The next question is whether, in accordance with s 389(1)(b), the company complied with any obligation in an applicable award or enterprise agreement to consult with Ms Quiah about the redundancy. In its F3 response document, the company acknowledged that the employment of Ms Quiah was covered by the Clerks – Private Sector Award 2020 (Award). Clause 38 of the Award provides:
“38.1 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.
38.2 For the purposes of the discussion under clause 38.1(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.
38.3 Clause 38.2 does not require an employer to disclose any confidential information if its disclosure would be contrary to the employer’s interests.
38.4 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 38.1(b).
38.5 In clause 38 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.
38.6 Where this award makes provision for alteration of any of the matters defined at clause 38.5, such alteration is taken not to have significant effect.”
The first point to note is that the company’s decision to conduct a review of the Rosie operations did not enliven the consultation clause, because at that time, no ‘definite decision’ had been made to make a major change, nor was it clear whether any change would have any impact on employees. It was not until 23 May 2022 that Ms Masihpour decided that Ms Quiah’s position was redundant. This decision triggered the application of clause 38. The same day, Ms Masihpour called Ms Quiah to give her notice of the change, as required by clause 38.1(a), and to discuss the change with her, as required by clause 38.1(b). She did so as soon as practicable after the decision was made, in accordance with clause 38.1(c). I accept Ms Masihpour’s evidence that she discussed with Ms Quiah the effect of the change, namely the end of her employment, and measures to avoid or reduce the adverse effects of the change. Those measures were that she would assist Ms Quiah to transition and find other employment. She also explained that she had considered redeployment and did not consider there to be any options in this regard because Ms Quiah was not suitable for the two available positions. Ms Quiah did not disagree with this or contend that there were other suitable redeployment options.
However, clause 38.2 of the Award required the company to provide information in writing to Ms Quiah about the nature and effect of the proposed change and any other matters likely to affect her. Even though the matter was discussed on the telephone, the company did not provide information to Ms Quiah in writing about the full effect of its decision; this effect was not just that her position was redundant, but that the company did not consider there to be any suitable redeployment options for her. This matter was omitted from Ms Masihpour’s letter to Ms Quiah of 23 May 2022. It was not addressed in writing elsewhere. In my view, clause 38.2 required this matter to be addressed in writing. Therefore, the company did not comply fully with its obligations under the Award to consult with Ms Quiah about her redundancy. The consequence of this conclusion is that the dismissal of Ms Quiah was not a ‘genuine redundancy’ within the meaning of s 389.
Was the dismissal unfair (s 387)?
A finding that a dismissal was not a case of ‘genuine redundancy’ does not necessarily lead to a conclusion that the dismissal was unfair. Rather, if the Commission rejects a contention that a dismissal was a case of genuine redundancy, as well as any other jurisdictional objections, it proceeds to consider the unfair dismissal application on its merits. Section 387 states that in considering whether a dismissal was harsh, unjust, or unreasonable, the Commission must take into account the matters in subsections 387(a) to (h).
The first consideration is whether there was a ‘valid reason for the dismissal related to the person’s capacity or conduct’ (s 387(a)). As is common in a redundancy situation, the company does not contend that there was any valid reason for dismissal related to Ms Quiah’s capacity or conduct. Rather, the employer’s reason for dismissal was that it no longer required the employee’s position. It is well-established that such a reason for dismissal is to be considered under s 387(h), ‘any other matters that the FWC considers relevant’ (see below).
The considerations in ss 387(b) and (c) are not relevant in the present case. They concern whether the employee was ‘notified of that reason’ (i.e. the valid reason in 387(a)), and whether the person was given an opportunity to respond to any reason related to capacity or conduct. Section 387(d) requires the Commission to consider whether there was any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to the dismissal. There was no such refusal by the company. The dismissal did not relate to unsatisfactory performance, therefore the consideration in s 387(e) is not relevant. Sections 387(f) and (g) require the Commission to consider the degree to which the size of the employer’s enterprise, and the degree to which the absence of dedicated human resources specialists or expertise in the enterprise, would be likely to impact on the procedures followed in effecting the dismissal. I consider these to be neutral considerations.
This brings me to s 387(h). My conclusions in relation to the ‘genuine redundancy’ jurisdictional objection are relevant to the question of whether the dismissal was unfair. Vital did not need Ms Quiah’s role to be undertaken by anyone. The company’s decision to make her position redundant was a legitimate reason to dismiss her. This is not a case where the employer had an ulterior motive for the dismissal. Although the dismissal was not a ‘genuine redundancy’ for the purposes of s 389, it was nevertheless a real and bona fide redundancy. Ms Quiah’s dismissal for redundancy in the present circumstances occurred for a good reason. I take this into account in my consideration of s 387(h). It is a consideration that tells against a conclusion that her dismissal was unfair.
Ms Quiah contended that it was unfair of the company not to consider her for an operator role. But there were no available operator roles at the time when her position was made redundant. Ms Quiah disputed this, but she produced no evidence to substantiate her belief. I accept Ms Masihpour’s clear evidence on this point. It would be unreasonable to expect Vital to have created a role for Ms Quiah. Vital was at pains to emphasise the various respects in which Ms Quiah lacked competencies or experience for other roles or types of work that might become available, but no such roles or work existed. There was no need for the company to explain why Ms Quiah might not be suitable for hypothetical roles.
I take into account that Ms Quiah was content with the decision to make her position redundant and grateful for Ms Masihpour’s assistance in helping her to look for another job. Ms Quiah did not contend at the time, as she does now, that she ought to have been redeployed. Her focus was on finding her next job outside the company.
Ms Quiah said that the company did not consult with her in any substantial way but simply told her that her position was redundant, and that this was unfair. But what consultation requires in a given case depends on the circumstances. Here, Ms Masihpour had made a decision that the position of supervisor was not needed. She had reflected on whether there were reasonable redeployment options and concluded that there were none. Had Ms Quiah disagreed with Ms Masihpour’s assessment and suggested an alternative approach, as she does now, this would have raised another matter likely to affect her (see clause 38.2(c)), namely a proposition that Ms Masihpour’s conclusion about redeployment was not correct. This would have required prompt consideration (clause 38.4) and a response from the company, although in my view the result would have been the same. But Ms Quiah did not raise any concerns or suggestions. At the time, she was content with the outcome.
It is relevant to consider the manner in which Ms Quiah’s employment was terminated. She was entitled, pursuant to the Award, to receive information in writing about the effects of the decision, which included not just the fact that her position was redundant but that there were no apparent redeployment options. This did not occur. The process leading to Ms Quiah’s dismissal was deficient in this respect. But what was lacking was a brief written note confirming what Ms Masihpour had already told Ms Quiah over the phone. I do not consider that the absence of such a note rendered the dismissal harsh, unjust, or unreasonable, particularly given that Ms Quiah did not express any interest in redeployment.
Even if I had concluded that the omission referred to above rendered the dismissal unfair, I would not have awarded a remedy. I would have concluded that reinstatement was inappropriate because the relationship between the parties has clearly deteriorated very badly indeed. It is not necessary to recount all of the details here. This fact is obvious from the correspondence that has passed between the parties in the course of this matter, and the fact that Ms Quiah stated in her submissions that if she were reinstated, there would be ‘great scope for ongoing bullying and discrimination’. As to compensation, I would have been required to consider the remuneration that Ms Quiah would have been likely to receive if she had not been dismissed (s 392(2)(c)). This requires an assessment of how long Ms Quiah would likely have remained employed had she not been dismissed when she was. In this counterfactual situation, one must have regard to the fact that Ms Quiah’s role was not needed, and that she was not suitable for available roles. In my view, if Ms Quiah had not been told of her dismissal on the telephone on 23 May 2022, she would have been dismissed very shortly afterwards. Had it complied strictly with its obligation under clause 38 of the Award, the company would likely have written to Ms Quiah later on 23 May 2022, confirming its view that there were no suitable redeployment options. The last day of Ms Quiah’s employment would have remained the same. I would have concluded that Ms Quiah suffered no compensable loss. I note that s 392(4) prohibits the Commission from including in a compensation order any component for shock, distress, humiliation, or other analogous hurt caused by the manner of the dismissal.
Ms Quiah said that she was given only three weeks’ notice of the termination of her employment and that this was unfair. But this is the notice period prescribed by law. It is not unfair. Ms Quiah said that she should have been given alternatives to redundancies. But the company did not consider that there were any reasonable alternatives. I find that it was correct in this assessment. It is regrettable that the company decided to identify all of the various things they could think of as to why Ms Quiah would not be suitable for hypothetical roles, in the mistaken belief that it was relevant to its defence of the application. As well as upsetting Ms Quiah, this created a distraction, because Ms Quiah sought to respond to all of these matters.
Ms Quiah said that she believed that she had been underpaid in respect of loadings and public holiday penalties. However, the Commission has no power to order payment for lost wages. Any claims for underpayment of wages must be brought in a court.
In conclusion, I am satisfied that there was a good business reason for Ms Quiah’s dismissal. Her position was not needed. She could not reasonably be redeployed. In all the circumstances, the dismissal was not harsh, unjust, or unreasonable and was therefore not unfair. The application is dismissed.
DEPUTY PRESIDENT
Appearances:
C. Quiah for herself
D. Ross for the respondent
Hearing details:
2022
Melbourne
21 September
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