Christine Miniawy v RichmondPRA Limited T/A Flourish Australia Services
[2022] FWC 2772
•18 OCTOBER 2022
| [2022] FWC 2772 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Christine Miniawy
v
RichmondPRA Limited T/A Flourish Australia Services
(U2022/3555)
| DEPUTY PRESIDENT BOYCE | SYDNEY, 18 OCTOBER 2022 |
Application for an unfair dismissal remedy - whether dismissal was a case of genuine redundancy - job no longer required to be performed by anyone - redundancy a result of changes in operational requirements - compliance with enterprise agreement consultation provisions - redeployment not reasonable in all the circumstances - objection regarding genuine redundancy upheld - Applicant illegally and/or improperly removed Respondent’s confidential, private, and/or commercially sensitive information from workplace whilst still employed - unnecessary to consider impact of same upon fairness of dismissal - application dismissed.
Introduction
Ms Christine Miniawy (Applicant) has filed a Form F2 with the Fair Work Commission (Commission), being an application for an unfair dismissal remedy (Application). By way of that Application, the Applicant asserts that her dismissal by RichmondPRA Limited t/as Flourish Australia (Respondent) on 4 March 2022 was “unfair” within the meaning of Part 3-2 of the Fair Work Act 2009 (Act).
The Respondent says that the Applicant’s dismissal was a case of “genuine redundancy” within the meaning of s.389 of the Act, and otherwise denies that the dismissal was unfair.
Following the receipt of submissions and evidence in accordance with directions made, I held hearings across three separate days to resolve the Respondent’s genuine redundancy objection. Written closing submissions from both parties were thereafter received (the last on 20 September 2022).
At the hearing, Mr Nabil Miniawy, the Applicant’s brother, neither a lawyer nor a paid agent, appeared for the Applicant. Ms Ariane McGing, Legal Counsel, Leana Street Consulting Pty Ltd, appeared with permission for the Respondent.[1]
Having regard to the evidence tendered, and the submissions of the parties, I have determined that the Applicant’s dismissal was a case of “genuine redundancy” within the meaning of s.389 of the Act. My reasons for this decision follow.
Evidence
The Respondent relied upon the following witness evidence:
(a) Witness Statement of Mr Andrew O’Brien, General Manager – Services, 20 May 2022;[2]
(b) Witness Statement of Mr Tim Fong, General Manager – People & Culture, 20 May 2022;[3]
(c) Witness Statement of Peter Nielsen, Chief Development Officer, undated;[4]
(d) Witness Statement in Reply of Mr O’Brien, undated;[5] and
(e) Witness Statement in Reply of Mr Fong, undated.[6]
The Applicant relied upon her Witness Statement dated 6 June 2022,[7] which included responses to the witness statements of Mr O’Brien and Mr Fong, and 11 attached documents.
Relevant law
Section 385 of the Act qualifies a claim for unfair dismissal:
“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
(d) 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.”
Before the Commission can consider issues of harshness, etc, sub-section 396(d) of the Act requires that the Commission decide whether the dismissal was a case of genuine redundancy:
“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;
(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;
(d) whether the dismissal was a case of genuine redundancy.”
Section 389 provides the statutory definition as to what qualifies as a genuine redundancy:
“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”.
In view of s.389 of the Act, there are three questions that need to be answered:
(a) Was the Applicant’s job no longer required to be performed by anyone because of changes in the operational requirements of the Respondent’s enterprise?
(b) Did the Respondent comply with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy?
(c) Would it have been reasonable in all the circumstances for the Applicant to have been redeployed within the Respondent’s enterprise, or an associated entity of the Respondent?
Was the Applicant’s job no longer required to be performed by anyone because of changes in the operational requirements of the Respondent’s enterprise? (s.389(1)(a))
Sub-section 389(1)(a) of the Act provides that a person’s dismissal was a case of genuine redundancy if 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. These words have long been used and applied in industrial tribunals and courts as a practical definition of redundancy.[8]
The Explanatory Memorandum to the Fair Work Bill 2008 provides examples as to when a dismissal will be a case of genuine redundancy:
“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”.
The basis upon which “operational requirements” can be said to give rise to change is extremely broad. A change in operational requirements does not only arise where a business has excess labour, is running over budget, unprofitable, losing customers, or down on revenue/s. As Lee J stated in Nettlefold v Kym Smoker Pty Ltd[9], the phrase “operational requirements” encompasses change arising from both internal and external factors, including via the consideration of matters (over short, medium and/or the longer term) such as “the past and present performance of the [business], the state of the market in which [the business] operates, steps that may be taken to improve the efficiency of the [business] by installing new processes, equipment or skills, or by arranging for labour to be used more productively, and the application of good management to the undertaking”.[10] Indeed, changes to operational requirements might arise because an efficient and/or profitable business proposes or desires to become even more efficient and/or profitable.
It equally follows that modifications to a business that might be said to be required or necessary, because of changes to operational requirements, are extremely varied and broad. In other words, the nature and extent of any modifications to a business flowing from changes in its operational requirements are essentially matters of managerial discretion. Such discretion might be exercised to make changes that are, in the opinion of the relevant decision-maker, required or necessary. The fact that others, for example, an employee, customer, shareholder, or stakeholder affected by a decision, or an unaffected member of the public, might consider a particular decision to be bad, or wrong, or consider that another alternative and better (or more appropriate) decision ought to have been made, is not to the point. Persons in managerial roles (in the for-profit, or not-for-profit, sectors) are tasked with the responsibility to make decisions in respect of how a business is run to achieve stability and/or growth over the short, medium and/or longer terms. It is certainly not the role of the Commission to stymie or interfere with operational decisions made on a bona fide basis within the extremely broad bounds of managerial discretion. As was stated by Vice President Hatcher in Low v Menzies Group of Companies[11]:
“It is not the function of the Commission, in determining whether a dismissal is a case of genuine redundancy, to form a view about the merits of the decision to make a position redundant. Whether it was objectively fair or justifiable to decide to abolish a position is beside the point, as long as the employer acted as it did because of changes in its operational requirements.”[12]
It has been held 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”. Relevantly, the test is not whether the person’s duties or responsibilities (or some of them) survive or remain. Rather, the test is whether the whole of the job previously performed by an employee (unmodified) still exists.[13] Focus is to be placed upon the job, not the duties involved in that job, or the individual performing that job (or a new/modified job). As the Respondent in this matter correctly states, citing Dibb v Commissioner of Taxation[14], an employee may still be genuinely made redundant when there are aspects of the employee’s duties still being performed by another employee, or other employees.[15]
The Respondent is a not-for-profit organisation providing disability services in the mental health sector. In or about April 2020, as a result of the Respondent’s growth, the Respondent determined that it was appropriate to undertake an organisational review so as to understand whether it was best meeting the needs of the people it serves, as well as providing appropriate support and supervision to staff (especially front-line staff). The review took place over the months that followed, and was finalised in or about October 2020.[16] There is no issue between the parties that the reasons for the review were other than bona fides.
As part of its overall undertaking, the Respondent manages the Resolve Program, being an outcomes-based program jointly funded by the New South Wales Ministry of Health, and investors (the Respondent being one of the investors). Mr O’Brien gave the following unchallenged evidence in respect of the Resolve Program:
“The premise of Resolve was to reduce hospital usage for patients with severe and persistent mental health conditions. If targets were met, this reduced hospital usage, accounting for a saving to the health system. Furthermore, if targets were met, consequential savings would be put into trust by the Ministry in order to then deliver the program fully funded (as it was not fully funded when it commenced).”[17]
The Respondent manages and controls the day-to-day operations (service delivery) of the Resolve Program.[18] All staff engaged in or allocated to the Resolve Program are employed by the Respondent, and ultimately report to the management of the Respondent. Whilst the funding of the Resolve Program is determined in consultation with a Joint Working Group (JWG),[19] the JWG has no control or influence over the employment and staffing of the Resolve Program (i.e. these matters are the sole prerogative of the Respondent).[20] No staff engaged in or allocated to the Resolve Program report to the JWG from an employment perspective.
The Resolve Program was under review at the same time as the Respondent’s overall enterprise. Mr Fong gives the following evidence about the Resolve Program review:
“10. Concurrently, the Resolve Program, which was managed by the Applicant, had been reviewed by the Joint Task Group, including the Ministry of Health, the Respondent and Social Ventures Australia, a group representing private investors in the program.
11. The review found that the program had difficulties reaching its criteria, and was required to reduce expenditure to remain viable, by 5% in the first year and 10% in the second year.
12. If those cuts in the Resolve Program's expenditure were not met, the program would likely be discontinued and the 20 staff involved be made redundant, in addition to clients losing a valuable resource which is intended to reduce the pressure on the public health system to manage persistent mental health crises.
13. The review of the Resolve Program found that the Applicant's role was paid as a relatively senior manager, but had only two direct reports, significantly less than other managers paid at her level.
14. It was additionally found that the Regional Manager - Western NSW role, based in Bathurst, had capacity in addition to her own duties to take on the leadership duties of the Resolve Program, as well as being well placed geographically to support Resolve's sites which are based in Cranebrook and Orange.
15. It was therefore proposed that the Applicant's role would be made redundant, and the duties redistributed to the existing management role of Regional Manager- Western NSW and their direct reports.
16. The Applicant's role was not the only management position made redundant in this restructure. Approximately 22 roles of level 5 management and up were made redundant at that time.”[21]
Mr O’Brien gives the following evidence about the Resolve Program review:
“15. When the Respondent established Resolve, there was a fully costed financial model which included the Applicant as Manager. However, at the time of development of the program, there were elements which were unknown including the higher level of data analysis and reporting requirements. For this reason, the management position for Resolve was pitched at a level equivalent to cluster managers.
16. It was incumbent upon the program to do all things required of it in order to meet the results and achieve the outcome payments. The results were as follows:
a. In the first year of Resolve, the targets were met.
b. In the second year of Resolve, the targets were poor with a 4% outcome achieved
rather than the target of 25%.
17. The Resolve contract conditioned that if the Resolve program did not meet its targets at a certain level, this would trigger conversations between the Ministry and its investor partners about whether the program would wind up after 3 years instead of the intended 7.5 years’ duration.
…
19. In order to remain viable, and considering risk sharing between the partners, the Respondent was asked to review program expenditure. It was agreed that Resolve needed a saving of 10% in its first year and 5% in the next year to remain viable.
20. A circulating Resolution was sent to investors in August 2020 outlining the changes to the program including the need to reduce expenses. The resolution was passed by the investors and changes were made to the necessary contracts. The Resolution and email confirming the acceptance of the Resolution is annexed and marked “AOB-1”.
21. The Applicant was paid at a level of Cluster Manager, but with only two direct reports, one based in Orange and one based in Cranebrook. For any other program than Resolve, this type of position would have been recruited with a significantly lower salary than that of a Cluster Manager.
22. The organisation made a purely business decision to identify target savings in order to meet these expenditure savings as detailed in the circulating resolution to investors.
…
26. In or about August 2020, I met with Susan McCarthy and Tim Fong to discuss Resolve and its structure and viability resulting from the changes needed because of Resolve's poor performance. We discussed the importance of the span of control being consistent in line with the 6 principles formulated during the organisational review across all frontline staff and the how the supervision of Resolve did not meet the design principles.
27. As a group we decided that, based on the performance of Resolve and the findings of the Joint Working Group, a strong potential option to ensure the program would operate and twenty jobs would not be lost, was to move the management aspects of Resolve to the Cluster Manager - Western and Far Western NSW, who was under capacity.
28. The incumbent Cluster Manager- Western and Far Western NSW was based in Bathurst and it made sense that the west/far west region would take on Resolve to ensure efficiencies in resourcing and synergies given the locations of Orange and Cranebrook (in outer western Sydney). In contrast, the Applicant was based at Sydney Olympic Park.”[22]
The Applicant commenced employment with the Respondent on 21 April 2016 in the role of Manager, Workplace Peer Support Projects. The Respondent, at the time of the establishment of the Resolve Program in or about August 2017,[23] offered the Applicant the role of Resolve Program Manager, which she accepted. At all relevant times prior to her dismissal, the Applicant was an employee of the Respondent.
Having regard to the evidence in these proceedings, it is apparent that the funding arrangements in respect of the Resolve Program are devised, at least in part, on the basis of the funding of full time equivalent (FTE) roles. However, the funding of FTE roles should not be confused with a requirement upon the Respondent to staff the Resolve Program in any specific manner.[24] The specifics of how the Respondent may or may not utilise FTE roles (or FTE hours) is not determined by funding arrangements or contractual arrangements. Rather, it is at the discretion of the Respondent as to how it determines the Resolve Program is most appropriately staffed (and managed).
In asserting that her dismissal is not a genuine redundancy because the Respondent is unable to satisfy s.389(1)(a) of the Act, the Applicant refers to the cases of R v Industrial Commission of South Australia; Ex parte Adelaide Milk Supply Co-Op Ltd[25] and Quality Bakers of Australia Ltd v Goulding[26] (Quality Bakers). But neither of these cases alter the propositions of law set out in paragraph [16] of this decision, rather they are wholly consistent with them.[27] Further, the determination in Quality Bakers centres around questions of consultation during a redundancy process, not the propositions being advanced by the Applicant as they concern s.389(1)(a) of the Act. For completeness, neither of the cases relied upon by the Applicant in relation to s.389(1)(a) of the Act stand for the propositions (advanced by the Applicant) that:
a) positions must be reduced in number before a redundancy occurs;[28]
b) a role must be altered such that its functions, duties or responsibilities no longer exist for a redundancy to occur;[29]
c) a position (and/or its functions, duties or responsibilities) should be distributed to multiple staff before a redundancy occurs;[30]
d) instead of being made redundant in the full-time position as Resolve Program Manager, the Applicant should have been offered a partial redundancy and the role of Resolve Program Manager on a part-time basis;[31] and/or
e) an employer is required to lead evidence of costs savings flowing from a restructure, reorganisation or redundancy. Otherwise, the redundancy will not be genuine.[32]
In her closing written submissions, the Applicant essentially submits that her dismissal was not a genuine redundancy (within the meaning of s.389(1)(a) of the Act) because:
a) her job was still being performed by another employee;
b) it was still being funded by Social Ventures Australia (SVA); and
c) the Respondent was not meeting its “strict and specific” contractual obligations in relation to the Resolve Program.
In regard to the foregoing matters, the Applicant submits (footnotes omitted):
“13. In October 2020, the Applicant was informed that the Position would be made redundant via a videocall (the First Meeting). She was also informed in that videocall, that the Position would be performed by [name omitted] and a handover of the Position is required. In the First Meeting, the Applicant immediately considered that the Position has not been made redundant because it would still be performed by [name omitted].
14. The Respondent has also conceded that its contractual agreement with external stakeholders, ‘the Joint Working Group’ imposed a contractual obligation on the Respondent to maintain the Position because it received funding from Social Ventures Australia to maintain the Position (not just the duties performed within the position).
15. The Applicant submits that there has been:
(a) No reduction in the responsibility or tasks allocated to the Position;
(b) There was a strong incentive for the Respondent to maintain the Position to comply with its contractual obligations to Social Ventures Australia and the Joint Working Group; and
(c) The Position has not been abolished because [name omitted] was performing the Position, although under a different position title and the position continues to be performed by the Regional Manager, Far West.
…
27. Furthermore, the Respondent is required to comply with the strict and specific contractual obligations set by the Resolve Program in relation to staffing levels and the number of staff employment. The funding for the Resolve Program was to be used strictly for the Resolve Program and not to be used at the discretion of the Respondent in other area of its business. The Respondent continued to receive full funding for the Resolve Program Manager Position for a period of approximately six month after the position was allegedly abolished. Furthermore, the Respondent continue to employ Level 5 positions as managers and there are no Team Coordinator Positions in the Resolve Program. There are also no NDIS frontline workers and therefore the restructure within other parts of the business of the Respondent did not impact on the Resolve Program. The only significant change was that the Applicant was removed from her position. The Respondent has failed to lead any evidence that the alleged redundancy created cost savings within the Respondent.”[33]
There are three significant difficulties with the contentions made by the Applicant,[34] and the Applicant’s submissions[35]:
a) firstly, there was no concession by the Respondent in these proceedings that its contractual agreement with external stakeholders (involving the JWG, SVA, the Ministry, or others), or the funding arrangements underpinning the Resolve Program, imposed an obligation (contractual or otherwise) upon the Respondent to maintain the Applicant’s position (as opposed to the functions, duties or responsibilities of a managerial role with oversight of the Resolve Program). The transcript extract relied upon by the Applicant in this regard is selective in that it does not represent the evidence as a whole (let alone the whole of the transcript exchange that occurred at the point that the transcript extract has been derived). More significantly, concessions made, or opinions given, by a witness as to the terms of a contract, or the effect of those terms, do not assist (as a matter of law) in the interpretation of a contract. The Applicant has not identified any contractual term in respect of the Resolve Program that expressly requires (or required) the Respondent to maintain the Applicant’s position, pursuant to funding arrangements or otherwise. It follows that the Applicant’s submissions as to compliance (or non-compliance) by the Respondent with its purportedly “strict and specific” contractual obligations in respect of the Resolve Program, or the Respondent’s asserted “strong incentive” (pursuant to such contractual obligations) to maintain the Applicant’s position in the Resolve Program, are absent foundation and wholly unsustainable;
b) secondly, the assertion that the Resolve Program Manager position was not abolished in October 2020, was still being performed (under a different position title by another person absent any change in responsibility, tasks or duties), and was fully funded,[36] can only be made via complete ignorance of the evidence. In this regard, the unchallenged evidence is that from October 2020:
i)the Resolve Manager position, as a standalone role, ceased to exist, and has never been replaced;
ii)the funding for the Resolve Manager position halved from 1.0 FTE role to half (or 0.5) of an FTE role. In these circumstances, the Resolve Manager position either becomes a part-time role, or it is amalgamated into another role (the latter occurred in this case);
iii)the functions, duties or responsibilities of the Resolve Manager position were reallocated to another staff member, or otherwise wholly subsumed into that staff member’s existing role, and reporting lines were changed. Again, the test is not whether a person’s duties or responsibilities (or some of them) survive or remain. The test is whether the whole of the job previously performed by an employee (in an unmodified form) still exists, focusing upon the job, not the duties involved in that job, or the individual performing that job (or a new/modified job). In this case, the unmodified (full time and stand-alone) Resolve Program Manager role ceased to exist; and
iv)consistent with (i) to (iii) above, Mr Fong gave the following evidence:
“5. In relation to paragraphs 21 to 22 of the Applicant’s Statement, I note the following:
(a) The reallocation of the Resolve Program duties to the Regional Manager – Western NSW role was done because it made good geographical sense – the Resolve Program being based in Orange and Cranebrook (near Penrith) and the Regional Manager - Western NSW role being based in Bathurst;
(b) [name omitted]’s original position as Senior Cluster Manager was in fact targeted for redundancy during the restructure, and [name omitted] accepted redeployment in a lower role of Cluster Manager (later Regional Manager – Western NSW); and
(c) Decisions in relation to redeployment and redundancy are not made by Mr O’Brien, but by the executive team. It is therefore denied that Mr O’Brien made any decision to “save” another staff member or “target” the Applicant as she has claimed.
6. In relation to paragraphs 23 and 24 of the Applicant’s Statement, the continuation of the Resolve Program had no bearing on the Applicant’s role being made redundant. The Resolve Program on review did not require a full-time manager working solely on the Resolve Program. The management duties that continued under the Resolve Program were able to be reallocated to an existing management position, in this case the Regional Manager – Western NSW role (in addition to the duties of that position), with overflow duties allocated to their direct reports.”[37]
c) thirdly, the Applicant has identified no evidentiary basis upon which a finding can be made that it would have been reasonable or appropriate for the Respondent to have provided her with a partial redundancy and offered her the Resolve Program Manager role on a part-time basis. Indeed, such an approach would have been contrary to the evidence of Mr Fong, who sets out genuine reasons as to why the functions, duties and responsibilities of the Resolve Program Manager role were amalgamated into the Regional Manager – Western NSW role.[38]
I equally concur with the Respondent’s submissions as to these matters, which read:
“4. The Applicant and her representative had at Hearing and continue to have apparent difficulty in conceptually separating the “job” of Resolve Program Manager, which ceased to exist after the restructure, with the “duties” carried out by the Resolve Program Manager, namely the remaining management functions of the Resolve Program which continued and were allocated primarily to the Cluster Manager/Regional Manager Western NSW, crucially, in addition to that position’s existing duties.
5. Had the Respondent placed [name omitted] into the role of Resolve Program Manager, then the Applicant would have a viable argument that the role of Resolve Program Manager was not redundant, because another employee had been placed into that role and the “job” was clearly still required to be carried out. Similarly, if the Respondent had employed a new person carry out the management functions of the Resolve Program, but for example, called it something different, this would also be indicative that job was still required to be carried out by the Respondent. However, neither of these scenarios were the situation in this case.
6. [name omitted] after the restructure was the Regional Manager - Western NSW and in addition to her existing duties, carried out the duties remaining in relation to the management function of the Resolve Program. This is a scenario well traversed in cases relating to genuine redundancy and our previous submissions.
7. In relation to paragraphs 14 or 27 of the Applicant submissions in reply, it is denied that there was a contractual obligation to “maintain the Position” as alleged by the Applicant.
8. The relevant section of the Transcript notes Mr O’Brien saying:
Mr Miniawy: “I'm talking about a particular position. So, are there set positions that are funded, particular, so you know, I suppose set positions. I think what I'm trying to get to is, was the applicant's position a position that had to exist pursuant to the funding agreement, or not?”
Mr O’Brien: “There was a funding agreement which said yes, there was a Resolve Program Manager. Yes, so that was written in the contract, that there was a funded - as there were positions for all other staff which required the numbers, yes.”
9. With respect, it is not in dispute that the funding of the Resolve Program staffing related to the various “levels” of staff. But there was no evidence led that any contract between the Respondent and any other party imposed or obliged the Respondent to maintain the Resolve Program Manager role as a separate and distinct role.
…
19. The Respondent’s evidence was ample and clear - management duties of the Resolve Program remained. The vast majority of these remaining duties were allocated to the Regional Manager- Western NSW in addition to their existing duties. The propriety of this and the case law supporting this as an appropriate and genuine redundancy has been well traversed in the Respondent’s previous submissions.
…
25. [The Applicant] has given substantial evidence in an attempt to establish that the redundancy was not genuine and that she was unfairly dismissed. The Respondent submits that much of this evidence is irrelevant to the matters the Deputy President is obliged to consider in determining the jurisdiction of the Fair Work Commission to determine this matter, in particular:
a. The Applicant’s pregnancy was clearly irrelevant to the decision to make the Applicant’s role redundant (as this redundancy occurred some 16 months prior to the termination of the Applicant’s employment).
b. The funding of the Resolve Program is irrelevant to the decision of the Respondent to make the Applicant’s role redundant as the Respondent was the employer of the Applicant.
c. The Respondent has large discretion to restructure its organisation to improve efficiency, and gave evidence as to the reasons for the restructure and how and why that included the Applicant’s role being made redundant.”[39]
All in all, I find that the Respondent had genuine operational reasons to make changes to its business (including to the Resolve Program), and that such changes (as determined by the Respondent) resulted in the Applicant’s job (as a 1.0 FTE Resolve Program Manager) no longer being required to be performed by anyone. Further, the fact that another employee thereafter performed the Resolve Program Manager role (or its functions, duties or responsibilities) as part of (or amalgamated into) their own broader role (on a 0.5 FTE basis) does not, and cannot as a matter of logic, give rise to the Applicant’s role (as a 1.0 FTE Resolve Program Manager) continuing to exist.
Did the Respondent comply with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy? (s.389(1)(b))
The statutory requirement under s.389(1)(b) requires a finding of fact, whereby the section “is not made out unless the various requirements of the relevant consultation clause are demonstrably discharged by the employer”.[40]
The parties accept that the Flourish Australia Enterprise Agreement 2018 (Agreement) relevantly applied to the Applicant. I make the same finding.
Clause 6 of the Agreement relevantly requires consultation after an employer “has made a definite decision to introduce a major change to production, program, organisation, structure or technology in relation to its enterprise that is likely to have a significant effect on the employees”. The phrase “significant effects” is relevantly defined to include “the termination of the employment of employees”.
The Respondent submits that it complied with clause 6 of the Agreement in making the Applicant’s role as Resolve Program Manager redundant (in October 2020), including (at or prior to that time) providing relevant information in writing to the Applicant, meeting and holding discussions with the Applicant, giving genuine consideration to any issues raised by the Applicant, and responding to requests for additional information requested by the Applicant.[41]
The Applicant did not relevantly take issue, in any substantive sense, with the Respondent’s submissions as to consultation. Rather, the Applicant, in her submissions, sought to intermingle (or mix together) issues going to s.389(1)(b) of the Act, with issues under s.389(2) of the Act. I have previously pointed out the difficulty with such an approach:
“… an inadequate consultation process does not automatically lead to a finding or conclusion that s.389(2) of the Act cannot be satisfied. Sections 389(1)(b) and 389(2) are separate and individual limbs. Different issues arise in respect of relevant findings to be made as to compliance or non-compliance with each limb. Whilst non-compliance with one limb gives rise to a redundancy not being genuine under s.389 of the Act, it will not always (or even usually) be the case that a failure to consult will mean that redeployment would have been reasonable. Indeed, in many cases, no matter how much consultation could or should have occurred, there was never a reasonable basis for redeployment.”[42]
Having regard to the evidence and the events that have happened,[43] I find that the consultation that occurred with the Applicant in relation to the decision to make the Applicant’s position (as Resolve Program Manager) redundant was genuine, meaningful,[44] and more than sufficient for the Respondent to have complied with the requirements of clause 6 of the Agreement in relation to consultation. I therefore conclude that in the facts and circumstances of this case, the Respondent did comply with its consultation requirements as required by s.389(1)(b) of the Act.
Would it have been reasonable in all the circumstances for the Applicant to have been redeployed within the Respondent’s enterprise? (s.389(2))
Sub-section 389(2) of the Act provides that a person's dismissal cannot be a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to have been redeployed within the employer's enterprise, or an associated entity of the employer. The Respondent in this matter does not have any associated entities.
The highest binding interpretation of s.389(2) remains that stated in Ulan Coal Mines Limited v A. Honeysett & Ors[45] (Honeysett):
“[26] [Subsection 389(2)] must be seen in its full context. It only applies when there has been a dismissal. An employee seeking a remedy for unfair dismissal cannot succeed if the dismissal was a genuine redundancy. In other words, if the dismissal is a case of genuine redundancy the employer has a complete defence to the application. Section 389(2) places a limitation on the employer’s capacity to mount such a defence. The defence is not available if it would have been reasonable to redeploy the employee. The exclusion poses a hypothetical question which must be answered by reference to all of the relevant circumstances.
…
[28] … [T]he question posed by s.389(2), whether redeployment would have been reasonable, is to be applied at the time of the dismissal. If an employee dismissed for redundancy obtains employment within an associated entity of the employer some time after the termination, that fact may be relevant in deciding whether redeployment would have been reasonable. But it is not determinative. 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”.
(emphasis added)
It can been seen from the foregoing extract from Honeysett, that the reasonableness of redeployment for the purposes of s 389(2) of the Act is to be assessed as at the time of the relevant dismissal.[46] Further, in assessing the reasonableness of redeployment, it is necessary to identify the position or other work to which the employee could have been redeployed,[47] and determine whether that position or other work is, for want of a better term ‘the right fit’ (or reasonable) for both the employer and the employee. This is especially so when considering redeployment in relation to a managerial role that holds important responsibilities in relation to staff, clients (including vulnerable clients), service delivery and business reputation. Relevantly, s.389(2) of the Act does not:
a) interfere with the right or ability of an employer (such as the Respondent in this case) to require that the selection criteria (as to skills, qualifications or experience) for a relevant vacant position be met by an employee seeking to be redeployed;
b) require an employer to fit a square peg into a round hole. In other words, simply because a vacant position exists at the time of an employee’s dismissal (redundancy), does not mean that an employer is required to bend, twist, ignore, delete, water down or otherwise amend selection criteria so as to enable the redeployment (of such redundant employee) to occur; or
c) create an obligation upon an employer to redeploy an employee into a role that the employer does not accept is suitable (i.e. because the employee does not hold the requisite skills, qualifications and/or experience that the employer requires). Indeed, such an obligation could hardly be said to be reasonable.
The conclusion of the Full Bench in Teterin v Resource Pacific Pty Ltd t/a Ravensworth Underground Mine[48], as to the interaction between s.389(2) and s.385(d) of the Act, are also worth drawing attention to, as follows:
“The manner in which the Deputy President expressed his conclusions may be justified by reference to s.385(d), which requires that for a person to have been unfairly dismissed, the Commission must be satisfied that the dismissal was not a case of genuine redundancy. It must follow that the applicant in an unfair dismissal case bears the risk of failure if the state of satisfaction required by s.385(d) cannot be reached. If the Deputy President considered the evidence insufficient to allow him to determine whether redeployment was reasonable under s.389(2), then (there being no issue with respect to the s.389(1) matters) he could not be satisfied that the dismissals were not genuine redundancies, meaning that the applications before him had to be dismissed.”[49]
Similarly, in Jain v Infosys Ltd[50], the Full Bench said:
“… in the context of the question whether a dismissal was an unfair dismissal in which there is also agitated whether the dismissal was a case of genuine redundancy, to the extent that there is a legal onus of proof or something analogous thereto, it rests with the applicant in the sense that the applicant bears the risk of failure if the satisfaction required by s.385 including paragraph (d) is not reached.”[51]
Mr Fong gave the following unchallenged evidence in relation to the Applicant’s redeployment (including in the period leading up to her dismissal taking effect on 4 March 2022):
“22. Initially, no suitable roles for redeployment were able to be identified by the Respondent.
23. On or about 24 November 2020 I drafted a letter confirming the redundancy to the Applicant (signed by Mark Orr, CEO of the Respondent), with the effective date of redundancy to be 11 December 2020. The correspondence is annexed and marked “TF-3”.
24. On or about 24 November 2020, I sent TF-3 to the Applicant via email, noting in my covering comments:
“We are strongly committed to working with you to redeploy and will gladly assist in any way possible during the remaining notice period. This includes exploring redeployment to any other position you would be interested in redeploying to within the organisation, including any frontline positions that we have available. We also have some positions in head office that may be of interest to you.”
25. The Applicant indicated that she was interested in redeployment, however, there were no equivalent roles (in terms of pay and seniority) open at that time. I notified the Applicant:
'We don't have any positions at your current pay rate. We do have [name omitted]’s position available at the moment whilst she is on parental leave. The position is at a lower classification though (L5). Is this something you would be interested in? It will also give us time to find something more permanent for you."
26. The Applicant responded:
“Thanks for the info. I would however not be interested in that position.”
27. On or about 8 December 2020 I sent the Applicant an email identifying a potential temporary redeployment option.
28. This email chain containing the extracts outlined in paragraphs 24-27 is annexed and marked “TF-4”.
29. On or about 10 December 2020 I granted the request of the Applicant to extend her substantive contract to 15 December 2020 to allow her time to consider the redeployment option. This email chain is annexed and marked “TF-5”.
30. On or about 11 December 2020 the Applicant accepted redeployment to a closed-period parental leave coverage position, which was due to expire on 30 September 2021. This email is annexed and marked “TF-6”.
31. On or about 15 December 2020, I issued the Applicant a redeployment letter, noting the redeployment was on a fixed term basis, and agreeing that the Applicant's salary would be maintained, notwithstanding the lower level role she was being redeployed into. This letter is annexed and marked “TF-7”
32. On or about 27 October 2021, I issued a letter confirming the extension of the closed-term contract due to the incumbent employee extending their parental leave. This letter is annexed and marked “TF-8” and contained the following wording (emphasis added):
"It is noted that there is no guarantee of work after 16 January 2022. For the period of this contract extension, we will continue to work with you to explore suitable redeployment opportunities. Please note that if we are unsuccessful in finding a suitable redeployment option with you, your redundancy will crystalize on 16 January 2022.
33. The temporary role concluded on 22 February 2022 due to the incumbent’s return from parental leave. On or about 22 February 2022, I drafted a termination letter, which was issued by the CEO, Mark Orr. This letter is annexed and marked “TF-9”.
34. The Applicant did not apply for or request any other internal roles during the term of her closed term contract.
35. The Applicant was invited to participate in a further redeployment process in or about late February 2022. In the covering email sent to the Applicant by me on 22 February 2022, annexed and marked “TF-10”, I noted:
“The position that you have been redeployed to and currently occupy is no longer available (as you are aware [name omitted] has returned from maternity leave). However, as discussed and noted in the attached letter, we are committed to working with you to find another redeployment opportunity, or with supporting you with outplacement if this is your preference. Our current vacancies can be found on Chirp - https:[website omitted].”
36. Unfortunately, no suitable roles were open for reasonable redeployment at the conclusion of the temporary contract.
37. On or about 2 March 2022, the Applicant requested redeployment into the role of Regional Manager - Western NSW. This role was not vacant at the time the Applicant was seeking redeployment. Interviews for the role had been undertaken in February 2022 and negotiations underway with another highly experienced applicant. This email chain is annexed and marked “TF-11”.”[52]
In asserting that redeployment was reasonable in all the circumstances, the Applicant gave the following evidence, and made the following contentions:
a) Despite the Resolve Program only being funded for a Level 6 Agreement classification, the Applicant was actually classified and paid as a Level 8 under the Agreement, and was performing higher duties (these higher duties and rate of pay flowed into the period of the Applicant’s temporary relief as “Development Projects Manager” (Temporary DPM Position), which included reporting in respect of the majority of her duties to Mr Neilson).[53]
b) Mr Neilson communicated to the Applicant that she was the only senior manager that could satisfy all of the three key selection criteria for the new role of Program Manager – Workplace Training and Consulting (PMWTC Position) for the Respondent’s (yet to be approved) Mental Health Training and Consulting business (MHTC). The MHTC, and the PMWTC Position, were ‘proposed’ to commence in the first quarter of 2022.
c) When the Applicant informed Mr Neilson that she was pregnant, Mr Neilson advised the Applicant that her pregnancy would make no difference to the approval or launch of MHTC.
d) According to the Applicant, because the Respondent had made a significant investment (in money, time and resources) towards the MHTC, there could be no genuine reason as to why its go ahead would not be approved.
e) In mid-January 2022, Mr Neilson informed the Applicant that he had informed Mr Mark Orr, the Respondent’s Chief Executive Officer, that the Applicant was pregnant.
f) In late January or early February 2022, Mr Neilson advised the Applicant that Mr Orr had mentioned to him that “it might not be a good time to launch a new business [i.e. the MHTC]”. According to the Applicant, Mr Neilson advised her that his interpretation of Mr Orr’s comments was that “this probably just means a 6 month delay to the launch [of the MHTC]”. To which the Applicant responded, “but that will be exactly the same time that my baby will be due and I will be on maternity leave”. And Mr Neilson stated “Don’t worry, I’m sure Mark [Mr Orr] will take care of you, they know you are pregnant. It will look really bad for them if the [sic] change their mind now”.
g) On 22 February 2022, the date that the Applicant was advised that she was to be made redundant effective 4 March 2022, the Applicant advised Mr Fong that she was not aware that she should have been seeking redeployment whilst she was reporting to Mr Neilson (in the Temporary DPM Position) as she had been told that there would be a specific role offered to her (i.e. the PMWTC Position).[54]
h) On 2 March 2022, the Applicant requested that she be redeployed to the Regional Manager – Western NSW position (RMW Position), which was vacant, because the RMW position was “suitable to [the Applicant’s] skills, qualification, level and experience”. When Mr Fong advised the Applicant that she had missed out on interviews for the RMW position, and that there was already a preferred candidate, the Applicant states in her evidence “the role was still vacant and should have been offered to me, it was not”.[55]
i) On 3 March 2022, the day prior to the Applicant’s dismissal, the role of “Acting Regional Manager” (ARM Position) was advertised on the Respondent’s staff intranet. The Applicant says that this role was again suitable to her skills, qualification, level and experience, and should have been offered to her, but was not.[56]
In her closing submissions, the Applicant made the following assertions:
a) Whilst the Temporary DPM Position was technically a Level 5 role (under the Agreement), the Applicant performed higher duties. These higher duties were customised to suit the Applicant’s skillset and qualifications.[57]
b) The Applicant was constantly reassured by the Respondent’s management that the MHTC would be approved (launched) and that she would be taking up the PMWTC Position. The reason that the MHTC was not approved (or launched) was because the Respondent’s management found out that the Applicant was pregnant.[58]
c) The RMW Position was commensurate with the Applicant’s skillset and qualifications, and she should have been redeployed into that role instead of being made redundant. The Applicant was never told that she was unsuitable for the RMW Position.[59]
d) The ARM Position was commensurate with the Applicant’s skillset and qualifications, and she should have been redeployed into that role instead of being made redundant.[60]
e) In view of (a) to (d) above, it was reasonable for the Respondent, instead of making the Applicant redundant, to have redeployed the Applicant into the PMWTC Position, the RMW Position, or the ARM Position.[61]
Having regard to the evidence, and the submissions of the parties, I make the following findings:
a) The Temporary DPM position was always a closed-period temporary parental leave relief position on a fixed term basis. The Applicant accepted this at the time (mid-December 2020) that she agreed to redeploy into same. She was also advised in writing on 27 October 2021 “please note that if we are unsuccessful in finding a suitable redeployment option for you, your redundancy will crystalize on 16 January 2022”. Ultimately, the Temporary DPM position ended on 22 February 2022 as the incumbent in the permanent DPM position returned (or was returning) from maternity leave.[62]
b) The MHTC, no matter what stage it was at, and no matter what time, money and resources had been invested into its business case, was always subject to ultimate approval by the Respondent’s CEO and board. This is accepted by the Applicant.[63]
c) The final MHTC business case (and financial modelling) was submitted to Mr Orr for consideration on 22 December 2021.[64] Mr Orr determined that the MHTC would not go to the Respondent’s board for approval (i.e. it was not moving beyond the business case stage), and that work on the MHTC business case was to cease (or be placed on hold going forward). To date, the MHTC has not been approved, albeit some research in respect of its business case is ongoing.[65]
d) Mr Neilson advised the Applicant in late January or early February 2022 that Mr Orr had said to him that “it might not be a good time to launch a new business [i.e. the MHTC]”.[66] In other words, prior to any final decision being made as to the MHTC, it was already on shaky ground.
e) On 16 February 2022, at 9.14am, Mr Orr sent Mr Neilson and Mr Fong an email advising that he had determined not to extend the Applicant’s Temporary DPM role, and to effect the Applicant’s redundancy.
f) Mr Neilson was advised by the Applicant that she was pregnant in November 2021.[67] He unsuccessfully attempted to inform Mr Orr of the Applicant’s pregnancy on 18 January 2022 via email. By mistake or oversight, Mr Neilson sent the email (intended for Mr Orr) to the wrong email address. There is no evidence that Mr Neilson received a bounce back error email. On the uncontradicted evidence before me, Mr Orr did not become aware of Mr Neilson’s email, or the Applicant’s pregnancy, until 16 February 2022, at 1.02pm (i.e. around four hours after he had already advised Mr Fong and Mr Neilson to give the Applicant notice of her dismissal (redundancy)).[68] It follows that the Applicant’s pregnancy could not have been an issue, let alone an operative reason (or part of an operative reason), for Mr Orr (as decision-maker) determining to end the Applicant’s tenure in the Temporary DPM role. Indeed, the unchallenged evidence is that Mr Orr was not aware (at all) of the Applicant’s pregnancy until after Mr Orr had already made his decision to effect the Applicant’s redundancy.
g) There were various cogent reasons as to why the MHTC was not approved, including the time of year, the impact of COVID-19 (and the on-going uncertainty it was creating), staff shortages, the financial and organisational position of the Respondent at the time, further research being required, and the that fact that the business case for the MHTC identified that it would be making a loss in its first year (and whether, at that time or going forward, the Respondent was willing to bear that loss given competing priorities with other projects that the Respondent was involved in). The MHTC business case also identified that another provider was already providing similar services to those proposed by the MHTC for free.[69] Whether the foregoing reasons are considered separately, or together, the determination by Mr Orr (based upon such reasons) not to proceed with the MHTC, or not to refer it to the Respondent’s board for consideration and approval, cannot be said to be anything short of wholly and soundly within his purview, judgement and discretion.
h) Both the RMW Position and the ARM position are Regional Manager roles with the Respondent. The position summary for the Regional Manager position provides that the role has “responsibility for the leadership and management of a group of sites and/or programs within a defined service grouping of significant size, scope and budget”.[70] An essential requirement of the selection criteria for a Regional Manager role is “at least 5-years’ experience in a relevant management role”.[71]
i) I accept the following evidence of Mr Fong as to why the Respondent did not consider it reasonable in all of the circumstances to redeploy the Applicant into the RMW Position or the ARM position:
“9. In relation to Applicant’s request to be redeployed into the Regional Manager - Western NSW role, this was not considered suitable for reasonable redeployment because:
(a) the Applicant did not have at least 5-years’ experience in a relevant management role, being a role of similar scope, size and responsibility;
(b) the Applicant did not have demonstrated engagement, collaboration and negotiation skills, with the capability to build and maintain positive working relationships across multiple sectors with a range of organisations; and
(c) it was highly desirable that position holder has existing local partnerships and a permanent local presence in Western NSW, which the Applicant did not have.
10. In relation to the temporary position of Acting Regional Manager – Hunter, this role was not considered suitable for the Applicant as:
(a) the position was for holiday temporary relief; and
(b) for similar reasons to paragraph 9 in relation to the skills, qualification and experience.”[72]
In making the foregoing findings, it is also appropriate that I dispel some of the Applicant’s assertions that she relies upon in support of her contentions that she should have been redeployed into the RMW Position or the ARM position. In this regard:
a) the Resolve Program Manager role, whether or not it be classified or paid under the Agreement as a Level 8, was not a Cluster Manager role, in form or in substance.[73] The roles of Regional Manager (formerly Cluster Manager) and Resolve Program Manager (now redundant) may have been graded at the same level, and/or paid at the same rate of pay, but that does not mean that they were the same in terms of their functions, duties and responsibilities.[74]
b) working in the Resolve Program Manager role did not provide the Applicant with the requisite experience to fall within the position summary of a Regional Manager. The functions, duties and responsibilities of the Resolve Program Manager concerned one program, involved one stakeholder (the JWG), and two direct reports. The role of a Regional Manager (Cluster Manager) involves the management of multiple programs and multiple individual stakeholders, and has more than two direct reports; [75]
c) the Applicant does not possess one of the essential criteria of a Regional Manager role. It is a matter of fact that the Applicant does not have at least at least 5-years’ experience in a ‘relevant’ management role.[76] Whilst the Applicant asserts that her experience prior to working at the Respondent (i.e. prior to 2017) provides her with the requisite 5-years’ management experience, there is no evidence of such experience, let alone any specifics about same. The Applicant has not provided a resume, position description or a statement of service in relation to any former roles that she has purportedly worked in prior to working at the Respondent, nor did she (in her evidence) go into any detail about same. In the absence of such evidence, the Applicant’s assertions as to her management experience simply cannot be verified; and
d) it follows that (on the evidence before me) the Applicant does not possess the requisite experience for the RMW Position, or the ARM Position, even if it might be arguable that she holds a skillset or qualifications commensurate with these roles.
In view of my findings and conclusions, as set out in paragraphs [36] to [45] of this decision, I find that it would not have been reasonable in all of the circumstances for the Applicant to have been redeployed within the Respondent’s enterprise at the time of her dismissal.
Applicant’s reliance upon illegally and/or improperly obtained evidence
An unusual aspect of these proceedings has been the Applicant’s reliance upon commercially sensitive, private and/or confidential documentary evidence[77] that she secretly removed from the Respondent’s workplace, absent any prior knowledge of the Respondent, and contrary to her contractual and/or equitable obligations of confidence to the Respondent. In other words, the Applicant accepts that she has sought to rely in these proceedings upon illegally and/or improperly obtained evidence.[78] I note that some of this evidence concerns confidential or commercially sensitive evidence of entities or persons who:
a) are not a party to these proceedings; and
b) have not been ordered to produce or otherwise disclose documents or other information to the Commission (which would provide them with the opportunity to object to such an order, or seek to have parts of documents that are produced redacted or masked).
Further to the foregoing paragraph, during the hearing, it was disclosed that during her employment with the Respondent, the Applicant had been emailing herself (to her private Hotmail email address), absent the knowledge or approval of the Respondent, commercially sensitive, private and/or confidential documents of the Respondent. This occurred, not because the Applicant herself made a disclosure, but because I became concerned that private and/or confidential details of the Respondent’s staff, business associates, and clients might well make their way onto the public record if confidentiality orders were not made. It ultimately necessitated the making of confidentiality orders.[79]
The Respondent submits that even if its genuine redundancy objection is unsuccessful, the conduct of the Applicant, in illegally and/or improperly removing commercially sensitive, private and/or confidential documents from the Respondent’s workplace (without the knowledge or permission of the Respondent), would either render her dismissal not unfair, or otherwise give rise to any discretion to award her a remedy (reinstatement or compensation) not being exercised. As was held in Australia Meat Holdings Pty Ltd v McLauchlan[80]:
a)facts in existence prior to a dismissal, but which only come to light subsequently, may make a termination not unfair in circumstances where it might have otherwise been; and
b)the situation is more likely to arise in circumstances where an employee has attempted to hide their conduct.[81]
Mr Miniawy submitted that the Applicant has not sought to breach confidentiality rules, and if any breach has occurred, it has occurred unintentionally. The gravamen of this submission appears to be that the Applicant removed commercially sensitive, private and/or confidential documentary evidence from the Respondent’s workplace (without the Respondent’s knowledge or approval) so as to use same in these proceedings in furtherance of her unfair dismissal case. The submission may explain the Applicant’s conduct, but it does not excuse it. Ironically, the Applicant has been at pains in these proceedings to allege that the Respondent has not complied with or breached its purported strict and specific contractual and funding obligations in respect of the Resolve Program, but has sought to disregard or cast aside her own contractual and equitable obligations to the Respondent in respect of not removing confidential, private and/or commercially sensitive documentation from the Respondent’s workplace without its knowledge or consent.
Given my ultimate finding that the Respondent’s jurisdictional objection in these proceedings is to be upheld, it is unnecessary that I consider the impact of the Applicant’s illegal and/or improper conduct upon the fairness or otherwise of her dismissal.
Credibility of witnesses
The Applicant in her evidence was prone to giving speeches outlining her beliefs and arguments, rather than answering the questions put to her in cross-examination. The evidence that she gave in her witness statement and in cross-examination was pervaded by an attitude of entitlement to have remained in employment with the Respondent, no matter what the circumstances. That attitude prevented her from engaging meaningfully with many of the questions asked of her during cross-examination, with much of her evidence consisting of little more than bare assertions, accompanied by argument, even in relation to matters about which she had little or no direct knowledge.[82] My findings in this decision have therefore reflected a preference for the evidence of the Respondent’s witness where there has been an evidentiary contest.
I note that the Applicant has requested that I make specific credibility findings in respect of the Respondent’s witnesses.[83] It is not clear to me why this is so. I do not consider that any of the Respondent’s witnesses were other than honest, frank and forthright in their evidence before this Commission. I therefore do not accept that the disposition of these proceedings necessitates any of the findings as to witness credibility that have been urged upon me by the Applicant in respect of the Respondent’s witnesses.
Summary of findings
Having regard to the evidence and submissions of the parties, I have made the following findings:
(a) As at the time (October 2020) that the Respondent made the decision to make the Applicant’s job (as full time Resolve Program Manager) redundant, this job was genuinely no longer required to be performed by anyone because of changes in the operational requirements of the Respondent’s enterprise (s.389(1)(a) of the Act).
(b) The Respondent complied with its consultation obligations under the Agreement at the time (October 2020) that it made the Applicant’s position as Resolve Program Manager redundant (s.389(1)(b) of the Act).
(c) There were no available or suitable positions at the Respondent that the Applicant could have reasonably (in all the circumstances) been redeployed into at or about the time of her dismissal (February/March 2022) (s.389(2) of the Act).
Conclusion
The Respondent has made good its case as to genuine redundancy. Accordingly, the Applicant’s dismissal is not one which the Commission has the power to interfere with under the Act. Her Application is therefore dismissed. An order to this effect will follow the publication of this decision.
DEPUTY PRESIDENT
Appearances:
Mr Nabil Miniawy appeared for the Applicant.
Ms Ariane McGing, Legal Counsel, Leana Street Consulting Pty Ltd, appeared with permission for the Respondent.
[1] The Respondent sought permission to be represented by a lawyer in this matter. The Applicant did not oppose the Respondent being legally represented. Pursuant to s.596(1)(a) of the Act, on the basis of the voluminous evidence and its factual complexity, I granted permission for the Respondent to be legally represented on the basis that it would enable the matter to be conducted more efficiently before me. See Transcript, PN11 to PN13.
[2] Exhibit R1.
[3] Exhibit R2.
[4] Exhibit R3.
[5] Exhibit R5.
[6] Exhibit R4.
[7] Exhibit A1.
[8] Ulan Coal Mines Limited v Henry Jon Howarth & Ors[2010] FWAFB 3488, at [15] (Boulton J, Drake SDP, and McKenna C), citing R v Industrial Commission of South Australia; Ex parte Adelaide Milk Supply Cooperative Limited (1977) 16 SASR 6; Termination, Change and Redundancy Cases (1984) 8 IR 34 and (1984) 9 IR 115; Short v F.W. Hercus Pty Limited (1993) 40 FCR 511.
[9] (1996) 69 IR 370.
[10] Ibid, at 373.
[11] [2014] FWC 7829.
[12] Ibid, at [16]. Cited with approval in Adams v Blamey Community Group[2016] FWCFB 7202, at [14].
[13] Kekeris v A. Hartrodt Australia Pty Ltd[2010] FWA 674, at [27].
[14] [2004] FCAFC; (2004) 136 FCR 388.
[15] Ibid, at [43]-[44].
[16] O’Brien Statement, 20 May 2022, at [6]-[10].
[17] Ibid, at [13].
[18] Transcript, PN140-PN143, PN182.
[19] Ibid.
[20] Transcript, PN224-PN231.
[21] Fong Statement, 20 May 2022, at [10]-[16] and [20]-[21]. I note that the Applicant accepts that a structural alignment occurred at the Respondent: Transcript, PN889-PN900, PN906.
[22] O’Brien Statement, 20 May 2022, at [15]-[17], [19]-[22], [26]-[28].
[23] Ibid, at [5].
[24] For example, “Planned Program Staff: Level 3 (Centre based)” might be funded for 4.7 FTE roles, “Planned Program Staff: Level 3 (non-centre based or other)” might be funded for 5.7 FTE roles, and “Planned Program Staff: Level 5” might be funded for 2.0 FTE roles. These FTE roles might then be reorganised by the Respondent in terms of the way it chooses to utilise such funding to staff the Resolve Program. For example, the funding of 2.0 “Planned Program Staff: Level 5” FTE roles might be broken down into four (0.5 FTE) part-time “Planned Program Staff: Level 5” roles (ultimately adding up to 2.0 FTE hours). Alternatively, the Respondent might decide that the 2.0 “Planned Program Staff: Level 5” FTE roles should be just that, i.e. two full time Level 5 roles.
[25] (1977) 16 SASR 6; (1977) 44 SAIR 1202.
[26] (1995) 60 IR 327.
[27] See, for example, CMP Manufacturing v Barbieri (2018) 275 IR 465.
[28] Applicant’s Closing Submissions In Reply, 1 September 2022, at [16].
[29] Ibid.
[30] Ibid.
[31] Applicant’s Statement, 6 June 2022, Attachment 7, email from Applicant to Mr Fong, 28 February 2022, 5.22pm.
[32] Applicant’s Closing Submissions In Reply, 1 September 2022, at [27].
[33] Ibid, at [13]-[15], and [27]. See also, Applicant’s Statement, 6 June 2022, at [26], regarding the content of the Applicant’s purported statements to Mr Neilson.
[34] At paragraph [24] of this decision.
[35] At paragraph [25] of this decision.
[36] Transcript, PN1476.
[37] Fong Reply Statement, undated, at [5]-[6].
[38] Ibid, and at [20].
[39] Respondent’s Closing Submissions In Reply, 20 September 2022, at [4]-[9], [19] and [25].
[40] Maxwell v Bardrill Corporation Ltd[2015] FWC 4019, at [40]-[41].
[41] Respondent’s Closing Submissions [40]-[44], citing Exhibit R2, at pp. 5 to 6, and Exhibit R1, at Annexure AOB-3.
[42] Peter Davison v DHL Supply Chain (Australia) Pty Ltd[2021] FWC 4573, at [48].
[43] O’Brien Statement, 20 May 2022, at [20]-[23], [30]-[36], and Annexures AOB-2, AOB-3, AOB-4 and AOB-7; Fong Statement, 20 May 2022, at [20-[32], and Annexures TF-1, TF-3, TF-4 and TF-5; Fong Reply Statement, undated, at [7]-[8], and [18]; Transcript, PN938.
[44] See Gourdeas v Heyday 5 Pty Limited[2020] FWC 6132 at [28]; Maswan v Escada[2011] FWA 4239 at [19]-[20]; TCR Case (1984) 8 IR 34; (1984) 9 IR 115.
[45] [2010] FWAFB 3488; (2010) 199 IR 363.
[46] See also Technical and Further Education Commission v Pykett[2014] FWCFB 714 (2014) 240 IR 130, at [35].
[47] Ibid, at [34], [36], [38]–[40].
[48] [2014] FWCFB 4125; (2014) 244 IR 252.
[49] Ibid, at [31(2)]. See also at [26].
[50] [2014] FWCFB 5595.
[51] Ibid, at [35].
[52] Fong Statement, 20 May 2022, at [22]-[37]. See also See also, Applicant’s Statement, 6 June 2022, at [31], and Fong Reply Statement, undated, at [22].
[53] This was a Level 5 position under the Agreement, however, the Applicant was paid at a higher grade: Transcript, PN1197-PN1200.
[54] Applicant’s Statement, 6 June 2022, at [44].
[55] Ibid, at [47].
[56] Ibid, at [48].
[57] Applicant’s Submissions, 1 September 2022, at [21]-[22].
[58] Ibid, at [23]-[24].
[59] Ibid, at [25].
[60] Ibid, at [26].
[61] Ibid, at [28].
[62] Fong Statement, 20 May 2022, at [30]-[33]. Neilson Statement, Annexure “PN-2”.
[63] Applicant’s Statement, 6 June 2022, at [38].
[64] Ibid, Attachment 6, email from Mr Neilson to Mr Orr, 22 December 2021, 4.41pm.
[65] Neilson Statement, at [21].
[66] Applicant’s Statement, 6 June 2022, at [42]. See also Neilson Statement, at [25].
[67] Transcript, PN719.
[68] Ibid, PN723-PN728. Neilson Statement, at [24] and Annexure “PN-1”.
[69] Transcript, PN729-PN738.
[70] Applicant’s Statement, 6 June 2022, Attachment 8.
[71] Ibid.
[72] Fong Reply Statement, undated, at [9]-[10].
[73] Transcript, PN1398-PN1399, and PN1403.
[74] Ibid, see also O’Brien Reply Statement, undated, at [1]-[2]. Compare, Transcript, PN1472.
[75] O’Brien Reply Statement, undated, at [5] and [7]. See also, Transcript at PN1379-PN1384, and PN1403-PN1404.
[76] Ibid.
[77] Including, for example, internal email communications (forwarded by the Applicant to her personal Hotmail email), business case proposals, PowerPoint presentations, staff names and classifications, costing schedules, and review reports.
[78] Transcript, PN837-PN842, PN1054, PN1171-PN1172, PN1191-PN1194, PN1248, PN1260, PN1293, PN1315 and PN1351.
[79] PR743283, 1 July 2022.
[80] (1988) 84 IR 1.
[81] See also Department of Social Security v Uink (1997) 77 IR 244; Budziosz v Centrelink, Print Q2978 (Hoffman C, 6 July 1998); Gilbert v Taranto’s Ice Cream Pty Ltd, Print R2275 (Watson SDP, 17 February 1999); Spiteri v O’Brien Glass Industries Ltd (2001) 109 IR 402.
[82] See, for example, Transcript, PN901, PN921, PN947, PN956, PN964, PN970-PN976, PN1011, PN1017-PN1026, PN1086, PN1094-PN1108, PN1118-PN1128, PN1134-PN1137, PN1168, PN1176, PN1181, PN1184-PN1189, PN1203, PN1243, PN1271-PN1280, PN1290, PN1320, PN1325-PN1328, PN1332, PN1337-PN1338, PN1368, PN1385, and PN1387.
[83] Applicant’s Submissions, 1 September 2022, at [29]. Compare Respondent’s Submissions, 20 September 2022, at [16]-[25].
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