Churui Hu v Acy Capital Pty Ltd

[2019] FWC 1635

[2019] FWC 1635

FAIR WORK COMMISSION

DECISION

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

Churui Hu
v
ACY Capital Pty Ltd
(U2018/10316)

COMMISSIONER CAMBRIDGE SYDNEY, 19 MARCH 2019

Application for relief from unfair dismissal - jurisdictional objection - ss. 385 and 396 of the Fair Work Act 2009 - whether dismissal was a case of genuine redundancy - s. 389 meaning of genuine redundancy - elements which constitute genuine redundancy - genuine redundancy not established - dismissal harsh, unjust and unreasonable - compensation Ordered.

[1] This matter involves an application for unfair dismissal remedy made pursuant to section 394 of the Fair Work Act 2009 (the Act). The application was made by Churui Hu (the applicant). The respondent employer is the ACY Capital Pty Ltd ABN: 49 167 260 504(ACY or the employer).

[2] The application was lodged at Sydney on 5 October 2018. The application indicated that the date that the applicant’s dismissal took effect was 26 September 2018. Consequently, the application was made within the 21 day time limit prescribed by subsection 394 (2) of the Act.

[3] The employer filed a response dated 20 October 2018, which raised a jurisdictional objection to the application on the basis that the dismissal of the applicant was a case of genuine redundancy. The matter was listed for conciliation on 31 October 2018. However, a communication dated 22 October 2018, was sent to the employer on behalf of the Fair Work Commission (the Commission) which, inter alia, stated “…can you confirm that you are still willing to participate in the conciliation conference which has been scheduled? Alternatively, if you would prefer to have the matter proceed directly to a formal hearing, please advise accordingly.”

[4] Later that same day, 22 October 2018, lawyers acting on behalf of the employer responded to this communication and indicated, inter alia, “My client would prefer to progress straight to a formal hearing.” Consequently, the conciliation proceedings were cancelled, and the matter proceeded to arbitration which dealt with the determination of the jurisdictional objection raised by the employer, which involved the question of whether the dismissal of the applicant was a case of genuine redundancy, together with the substantive merits of the claim.

[5] At a Pre-Hearing Conference held on 9 November 2018, the employer sought permission to be represented by lawyers or paid agents, and the applicant indicated that she intended to be represented by lawyers or paid agents. The applicant was Directed to clarify her position regarding representation by lawyers or paid agents by no later than 23 November 2018, and, in the event that she opposed the employer being granted permission to be represented by lawyers or paid agents, she was Directed to file and serve submissions in support of such opposition by no later than that date, 23 November 2018. The applicant failed to comply with this Direction, and subsequently the Commission granted permission pursuant to s. 596 of the Act, for the Parties to be represented by lawyers or paid agents.

[6] The Hearing was conducted at Sydney on 7 January 2019. At the Hearing, the applicant represented herself, and she gave evidence as the only witness who was called in support of the unfair dismissal claim. The employer was represented by Ms G Block, a lawyer from Block Legal & Compliance, who introduced evidence from one witness on behalf of the employer.

[7] The application was the subject of a jurisdictional challenge made by the employer upon the assertion that the applicant’s dismissal was a case of genuine redundancy. Consequently, subsection 396 (d) of the Act requires that the Commission must decide whether the dismissal was a case of genuine redundancy before any consideration is made of the merits of the application.

Background

[8] The applicant commenced employment with ACY on 4 September 2017. The applicant was engaged in a position described as Accounts Officer, and she worked at the employer’s business offices located at Help Street, in the Sydney suburb of Chatswood. The work of the applicant broadly involved administrative, accounting, and clerical duties associated with responsibilities for compliance, accounts opening, and client verification. The applicant’s employment was covered by the Banking, Finance and Insurance Award 2010 (MA 000019), (the Award).

[9] The employer is a financial services business operating as an Australian regulated derivative trading issuer and provider. The financial services offered by the employer include client access to trading platforms for Forex, Indices, Commodities, and Precious Metals markets. Shortly before the dismissal of the applicant, the employer had acquired another financial services business, Synergy Financial Markets Pty Ltd (Synergy), and as a result of this acquisition the number of employees of the employer grew from 17 to 24.

[10] The work performance and conduct of the applicant was without recorded complaint. On 30 August 2018, the applicant commenced a period of approved leave involving in part, paid accumulated annual leave together with a period of unpaid leave. This period of approved leave provided for the applicant’s return to work on 26 September 2018.

[11] During the period of the applicant’s leave she became aware that the employer had acquired the Synergy business, the acquisition having occurred on 5 September 2018. On the day before her return from leave, 25 September 2018, the applicant sent a message to the employer’s Director, Mr Winson Cao, congratulating him on the purchase of the Synergy Company, and advising that she would be returning to work on the following day 26 September. Mr Cao acknowledged the applicant’s communication, and advised that he would see her at work on the following day.

[12] The applicant returned to work on the next day, 26 September 2018, and she went to the desk at which she had ordinarily worked. However that desk location was occupied by another employee, and her personal belongings and work-related items had been removed and placed elsewhere in the office. The applicant made inquiries of other staff as to where she should be seated and she was unable to obtain any clear response. At around 10 am Mr Cao entered the office, and he verbally advised the applicant that as a result of the acquisition of the Synergy Company, employees from Synergy had transferred into the office which was now full, so he would pay the applicant one month’s wage and she could find a new job from today.

[13] The applicant was surprised at receiving advice that her position had been taken by another employee who had been engaged as a result of the acquisition of the Synergy Company. The applicant asked if there were other positions available, and Mr Cao said there was not. Mr Cao then told the applicant that she could pack up her belongings and he thanked her for her contribution over the past year. The applicant left the office a short time later.

[14] At the time of her dismissal on 26 September 2018, the applicant was not provided with any written documentation regarding the termination of her employment. On 29 September 2018, the applicant received a pay slip that included a redundancy payment equivalent to four weeks remuneration. On 5 October 2018, the applicant received a further two weeks redundancy payment and she was provided with a letter dated October 5, 2018, headed “REDUNDANCY NOTICE”. The “REDUNDANCY NOTICE” of 5 October 2018, informed the applicant that her role “has been redundant effective 26^th September 2018.” Further, the “REDUNDANCY NOTICE” stated that the applicant’s role had been made redundant due to the recent takeover and merger of ACY and Synergy, “… where additional employees from Synergy has [sic] been added to your department, which created excessive [sic] of employment.” 1

[15] On 7 October 2018, the applicant provided a positive result for a home pregnancy test, and on 29 October 2018, the applicant underwent an ultrasound which confirmed her pregnancy. The applicant has unsuccessfully applied for approximately 10 alternative positions in a period of approximately 3 ½ months since her dismissal. The applicant has also undertaken a planned overseas trip from 8 January to 12 February 2019.

The Jurisdictional Objection

[16] Ms Block,who appeared for the employer, made oral submissions in support of written material that had been filed on behalf of the employer. In summary, Ms Blocksubmitted that the dismissal of the applicant was a case of genuine redundancy and therefore her application for unfair dismissal remedy should be dismissed. Ms Block made an alternative submission that asserted that in the event that the applicant was entitled to any remedy for unfair dismissal she had already been paid a generous redundancy payment and there was no basis to award her additional compensation.

[17] Ms Block said that the particular circumstances of the dismissal of the applicant did not fit cleanly into the prescribed definitions of genuine redundancy and unfair dismissal. Ms Block said that the employer was a small company that acquired another small company and it occupied a small office and therefore it had to quickly downsize in order to accommodate all of the employees that had been acquired. Further, Ms Block submitted that the acquisition of the Synergy Company was highly confidential and commercially sensitive, and this meant that there was no advanced warning, and that consultation was not possible.

[18] Ms Block further submitted that there was no opportunity for any redeployment of the applicant, and she noted that the applicant was not seeking reinstatement as remedy for her alleged unfair dismissal. Ms Block also submitted that the applicant’s pregnancy was not a matter that was relevant to the proceedings, and her pregnancy should not impact upon her claim for compensation. Ms Block submitted that the applicant’s extensive travelling and her lack of employment applications operated to limit any amount that she could be entitled to as compensation.

[19] Ms Block further submitted that the applicant was engaged in a position that was of a junior status and she had only been employed for 12.5 months. Ms Block submitted that the applicant was only legally entitled to 4 weeks redundancy payment, and her employment contract provided for 6 weeks which had been paid to her as a generous termination payment.

[20] The submissions made by Ms Block referred to the consultation requirements of the Award, and she noted that these provisions established that the employer was not required to disclose confidential information which would be contrary to the employer’s interests. It was submitted that the acquisition of another financial services business was highly confidential and the decisions regarding integration had to be made quietly and effected immediately.

[21] Ms Block also made submissions which asserted that there were simply no opportunities for redeployment within the business, given the size and nature of the business, and excessive accounting staff at that time. The submissions made by Ms Block stated that there was simply no time for consultation and no opportunity for redeployment.

[22] Consequently, Ms Block submitted that the applicant’s dismissal was a case of genuine redundancy. Ms Block urged the Commission to find that the dismissal of the applicant was a case of genuine redundancy, and therefore subsection 385 (d) of the Act operated as a jurisdictional bar to the applicant’s claim for unfair dismissal remedy.

[23] Ms Block also made submissions which addressed the prospect that the employer’s jurisdictional objection may be rejected by the Commission. These alternative or secondary submissions examined the factors contained in s. 387 of the Act, and developed a proposition that even if the dismissal of the applicant did not satisfy the definition of genuine redundancy, it was nevertheless not a dismissal which was unfair.

[24] The submissions made by Ms Block stated that there was valid reason for the dismissal of the applicant based on the additional staff that had been moved into the employer’s offices as a result of the acquisition of the Synergy Company. The submissions made by Ms Block indicated that the employer had, as a result of the acquisition of the Synergy Company, four staff for only two positions.

[25] Ms Block further submitted that the applicant was on leave at the time that the acquisition of the Synergy Company went through and she could not be contacted or consulted prior to her return to work. Ms Block submitted that upon her return to work, the applicant was told that there were insufficient available positions in the accounts department and that she was being made redundant immediately. The submissions made by Ms Block did acknowledge that the applicant had not been notified of the reason for her dismissal prior to the dismissal but unfortunately the matter could not be discussed prior to 26 September given the confidentiality involving the acquisition.

[26] The submissions made by Ms Block regarding any opportunity for the applicant to respond to the reasons for her dismissal stated that; “This was a redundancy so there was nothing to discuss or respond to.” Further, according to the submissions made by Ms Block, there was no support person requested by the applicant but this was not a dismissal requiring discussion but instead it was a redundancy.

[27] Ms Block also submitted that although the employer just exceeded the number of employees established in the definition of a small business, it was nonetheless a small business in practical terms. Further, the employer did not have human resources management specialists or expertise and given the size of the business, it was not possible to redeploy the redundant staff, including the applicant.

[28] Ms Block also made submissions which dealt with the prospect for any remedy that the applicant might obtain if her claim was successful. Ms Block noted that the applicant had been paid a 6 week redundancy payment and the additional claim that she was making would total 22 weeks salary. Submissions made by Ms Block criticised the absence of evidence of the applicant trying to get a new job, and that she had engaged in travel which would have limited her prospects for obtaining alternative employment. Ms Block also stressed that the employer had no knowledge that the applicant was pregnant and it should not be required to compensate the applicant for circumstances that were entirely out of its control.

[29] In summary,Ms Block submitted that the applicant’s dismissal was a case of genuine redundancy and therefore the application for relief from unfair dismissal should be dismissed. As an alternative submission, Ms Block contended that if the applicant was entitled to relief from unfair dismissal she had already been paid a generous redundancy payment and there was no justification to compensate her more than she has already received.

The Case Against the Jurisdictional Objection

[30] The applicant submitted that her dismissal did not involve a case of genuine redundancy. The applicant provided documentary material which included a combination of assertions of fact and submissions. This material was introduced as evidence from the applicant as a witness, and respectively marked as Exhibits 1 and 2. Further, the applicant provided an outline of submissions document dated 30 November 2018.

[31] The applicant and her partner Mr Feng, made submissions during the Hearing. The submissions made on behalf of the applicant asserted that her dismissal was not a genuine redundancy because the employer required the applicant’s role to be performed by another employee, and the employer had not complied with the Award obligations in terms of notifications and consultation for redundancy.

[32] The applicant also made submissions which asserted that she had been actively searching for new jobs and she had been attending interviews but had not secured a paid position at the time of the Hearing. It was further submitted that the applicant’s overseas travel did not prevent her from searching or securing a new job.

[33] In further submissions, the applicant stated that her dismissal was harsh, unjust and/or unreasonable because; (a) there was no consultation or communication before dismissal, (b) there was no written redundancy letter provided on the day of dismissal, (c) there was a non-payment of the correct entitlements on the day of the dismissal or shortly thereafter, and (d) there was no opportunity provided for the applicant to give an explanation regarding her personal circumstances.

[34] The applicant also submitted that ACY had not consulted with her at all about changes to the job or the redundancy, and there had been no discussion about any other position that the applicant may be able to have been engaged in.

[35] The applicant also made submissions regarding any potential remedy for her alleged unfair dismissal. In this regard, the submissions made by the applicant were that she should be provided with 12 weeks compensation and an additional 4 weeks for a notice period that was not provided.

[36] Consequently,the applicantsubmitted that her dismissal was not a case of genuine redundancy, and that as her dismissal was unfair, she should be provided with the compensation that she was seeking.

Consideration

[37] This Decision has firstly involved the determination of a jurisdictional objection which was advanced by the employer.

[38] Relevantly, s. 396 of the Act requires that the Commission must decide a number of specified matters before any consideration is undertaken of the merits of any application made under s. 394. In this instance the jurisdictional objection arises from the provisions of subsection 396 (d) of the Act. The particular provisions of s. 396 of the Act are:

“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) ...

...

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

The Genuine Redundancy Question

[39] It would seem that a person cannot be unfairly dismissed if the dismissal was a case of genuine redundancy. This appears to be the clear corollary of subsection 385 (d) of the Act:

“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

…

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

[40] Section 389 of the Act provides for a meaning of 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.”

[41] An examination of the provisions of s. 389 of the Act identifies three specific elements which, if satisfied in combination, determine whether or not a dismissal was a case of genuine redundancy. Subsection 389 (1) contains two affirmative elements, both of which must be established, in order to allow for a finding that a dismissal was a case of genuine redundancy, and subsection 389 (2) contains one negatory element which, if established, renders the dismissal not to be a case of genuine redundancy

[42] For convenience I have abbreviated the three elements identified within s. 389. The first affirmative element which is extracted from subsection 389 (1) (a) has been described as “job lost due to operational requirements”, the second affirmative element extracted from subsection 389 (1) (b) has been called “consultation obligations”, and the third negatory element found in subsection 389 (2) is abbreviated as “reasonable redeployment”.

[43] Consequently, the consideration of the question of whether the dismissal of the applicant was a case of genuine redundancy has involved examination of the three separate elements contained in s. 389 of the Act, such that, each of these three separate elements must, in combination, be satisfied in order to make any finding of genuine redundancy. This means that the two affirmative elements contained in subsection (1) must be established, and the negatory element found in subsection (2) must not be present in order to make a finding that a particular dismissal was a case of genuine redundancy.

Job Lost Due To Operational Requirements

[44] In this instance, the evidence has established that the position that the applicant occupied as an Accounts Officer was no longer required. As a result of the acquisition of the Synergy Company and the transfer of staff from Synergy into the single business operation, the employer had four accounting staff when it required only two.

[45] Consequently, the first element of s. 389 of the Act has been established, that is, the employer no longer required the job of, inter alia, the applicant, who was one of four Accounts Officers to be performed by anyone because of changes in the operational requirements of the employer's enterprise.

Consultation Obligations

[46] The second element contained in s. 389 of the Act requires a positive finding that the employer had complied with any Award or Agreement obligations to consult about the redundancy. In this instance the relevant provisions are found in clause 8 of the Award, and in particular clause 8.1 is relevant to the applicant’s circumstances. At the time of the dismissal of the applicant, clause 8.1 of the Award was in the following terms:

“8. CONSULTATION

8.1 Consultation regarding major workplace change

(a) Employer to notify

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

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

(b) Employer to discuss change

(i) The employer must discuss with the employees affected and their representatives, if any, the introduction of the changes referred to in clause 8.1(a), the effects the changes are likely to have on employees and measures to avert or mitigate the adverse effects of such changes on employees and must give prompt consideration to matters raised by the employees and/or their representatives in relation to the changes.

(ii) The discussions must commence as early as practicable after a definite decision has been made by the employer to make the changes referred to in clause 8.1(a).

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

[47] In this case there was no dispute that there was no consultation with the applicant prior to 26 September 2018, when, upon her return from leave, she was told by Mr Cao that her position was redundant, and her dismissal would take effect immediately. The employer endeavoured to defend the absence of consultation by relying upon that part of clause 8.1 (b) (iii) of the Award which stated that the employer was not “required to disclose confidential information the disclosure of which would be contrary to the employer’s interests.” In this regard the employer made the following written submission:

“iii. The Applicant claims, accurately, that no warning or consultation was provided prior to her redundancy being notified and taking effect. However, we note that clause 8.3 [sic] of the Banking, Finance and Insurance Award 2018 (the Award) provides that consultation about major workplace changes (including terminations) is not required where such disclosure of confidential information would be contrary to the employer’s interests. This was most certainly the case here, as the Respondent’s acquisition of a competitor was highly confidential and could not be disclosed to employees or the industry, until the transaction was completed.

iv. By the time the acquisition was completed, the applicant was overseas on annual leave and was not available for consultation.” 2

[48] This submission has fundamentally misconstrued the terminology of the relevant provisions of the Award. The Award terms provides that as part of the obligation on the employer to discuss the change, it is relieved of any requirement to disclose confidential information, the disclosure of which would be contrary to the employer’s interests. This term does not relieve the employer of the obligation to discuss the change, it only allows that as part of those discussions it may not be required to provide confidential information which would be contrary to the employer’s interests.

[49] In this case, there was simply no discussion at any time prior to the advice to the applicant that she had been dismissed on the basis of redundancy. The commercial sensitivities of the acquisition of the Synergy Company may have established proper basis for there to have been no discussion with the applicant prior to 5 September 2018, (the date of the acquisition). However, after that date, the consultation provisions of the Award required that the employer discuss with the applicant the effectsthat theacquisitionwasto have on her,and measures to avert or mitigate the adverse effectsof the acquisition, so that it could give prompt consideration to any matters raised bytheapplicant. At very least, upon the applicant’s return from leave the employer should have engaged in some discussion with her before telling her that she was redundant.

[50] Consequently, the employer did not comply with the obligation under the Award that applied to the employment to consult with the applicant about the redundancy. Therefore, the relevant consultation obligations have not been met, and this element of s. 389 of the Act has not been satisfied.

Reasonable Redeployment

[51] The third element of s. 389 of the Act is the negatory provision contained in subsection 389 (2). This element renders what may have been a genuine redundancy, which possessed the elements of subsection 389 (1), to not be a case of genuine redundancy if redeployment was reasonable in all the circumstances. Redeployment is contemplated to extend to any associated entities of the employer.

[52] The first and second affirmative elements extracted from subsection 389 (1) broadly involve an examination of the conduct of the employer, essentially what gave rise to the dismissal and whether there was compliance with any relevant consultation obligations. The third element concerning reasonable redeployment involves examination of both the employer’s actions and those of individual employees. The reasonableness or otherwise of any redeployment is a matter that would need to be assessed on a case by case basis having regard for the approach to redeployment adopted by both the employer and the employee.

[53] Consequently, the consideration of the reasonable redeployment element of s. 389 of the Act has involved an examination of the actions which the employer undertook in the pursuit of redeployment for the applicant, and it has also involved careful scrutiny of the conduct and approach to redeployment demonstrated by the applicant.

[54] In this case, because the employer failed to comply with its obligations to consult as required by the Award it is strictly unnecessary to further consider the question of the pursuit of reasonable redeployment. However, for completeness, the evidence has established that the employer took no steps to properly consider redeployment of the applicant particularly as it may have applied to associated entities of the employer. Further, it is relevant to recognise that at the time that she was advised of her dismissal, circa 10 am on 26 September 2018, the applicant inquired about other job opportunities and this prospect was bluntly rejected by the employer.

[55] Therefore, in this instance the conduct of the employer did not involve proper consideration of reasonable redeployment opportunities, and thus the requirements of subsection 389 (2) of the Act, as confirmed in the Full Bench Decision in Ulan Coal Mines v Honeysett and Ors 3, have not been satisfied.

[56] In summary, in this instance the evidence has established that the employer did not comply with the consultation obligations of the Award, nor did it discharge the requirement for it to properly explore redeployment of the applicant. Consequently, I am satisfied that the dismissal of the applicant on 26 September 2018, was not a case of genuine redundancy in satisfaction of the meaning of genuine redundancy provided in s. 389 of the Act.

Harsh, Unjust or Unreasonable

[57] As the dismissal of the applicant was not a case of genuine redundancy, the matter has required further consideration in respect to that element contained in subsection 385 (b) of the Act, being whether the dismissal of the applicant was harsh, unjust or unreasonable. Section 387 of the Act contains criteria that the Commission must take into account in any determination of whether a dismissal is harsh, unjust or unreasonable. These criteria are:

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

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

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

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

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

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

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

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

S. 387 (a) - Valid Reason for the Dismissal Related to Capacity or Conduct

[58] The reason for the applicant’s dismissal was that she occupied one of four accounting positions and the employer had a need for only two of those accounting positions. Consequently, there was not a valid reason for the dismissal of the applicant that related to her capacity or conduct.

S. 387 (b) - Notification of Reason for Dismissal

[59] The employer provided notification of dismissal in the form of the “REDUNDANCY NOTICE” of 5 October 2018, which informed the applicant that her role had been made redundant effective 26 September 2018.

S. 387 (c) - Opportunity to Respond to any Reason Related to Capacity or Conduct

[60] The dismissal of the applicant was not for reason that related to her capacity or performance.

S. 387 (d) - Unreasonable Refusal to Allow a Support Person to Assist

[61] The applicant was not provided with an opportunity to have a support person present during the brief discussion about her redundancy that occurred when she returned to work from leave on 26 September 2018.

S. 387 (e) - Warning about Unsatisfactory Performance

[62] The applicant was not dismissed for unsatisfactory performance and therefore this factor is not relevant in this case.

S. 387 (f) - Size of Enterprise Likely to Impact on Procedures

[63] The employer is a medium size business employer and appropriate recognition for a degree of informality and flexibility in respect to employment related procedures has been provided.

S. 387 (g) - Absence of Management Specialists or Expertise Likely to Impact on Procedures

[64] There was no evidence that the employer did have dedicated human resource management specialists. The absence of human resource management specialists and the level of informality that would understandably exist in a medium size business enterprise, could not justify the adoption of the unnecessarily abrupt and perfunctory manner in which the applicant was advised of the termination of her employment.

S. 387 (h) - Other Relevant Matters

[65] The employment agreement document 4 under which the applicant was engaged, stipulated at clause 21.2, that the applicant was entitled to receive a redundancy payment in accordance with the Act. In addition, clause 9 of the employment agreement document stipulated that for a period of continuous service of more than one year but not more than three years, the applicant would be provided with a notice period of six weeks. The employer made two separate redundancy payments totalling six weeks.

[66] Consequently, the applicant was entitled to a notice payment in accordance with the employment agreement document, being six weeks, and, in addition, she was entitled to a redundancy payment as prescribed by s. 119 of the Act, being, for her length of service, a period of four weeks. Consequently, the total payment made to the applicant upon termination of six weeks represented a failure to pay all due entitlements arising in respect to the termination of employment.

[67] The failure to pay all due entitlements arising in respect to the termination of employment would likely render the dismissal to have been unlawful. Although these entitlements are matters that may be pursued in other forms of litigation, a dismissal that included unlawful elements such as the failure to make payment of recognised entitlements, would establish that the dismissal was unjust and unreasonable.

Conclusion

[68] This unfair dismissal claim has involved consideration of firstly, whether the dismissal of the applicant was a case of genuine redundancy and secondly, whether the dismissal of the applicant on 26 September 2018 was harsh, unjust or unreasonable.

[69] Upon examination of all of the evidence and submissions, the dismissal of the applicant on 26 September 2018, was not a case of genuine redundancy.

[70] Further, in this case, the reason for the dismissal of the applicant did not relate to her capacity or conduct. The reason for the applicant’s dismissal was that she occupied one of four positions in circumstances where the employer only required two of those positions. The selection of the applicant as a person who should be made redundant appeared to be somewhat arbitrary, and perhaps more related to the fact that she was on a period of approved leave at the time that the employer identified that it had two more accounting employees than were required. Therefore, the reason for the dismissal of the applicant was not sound, defensible or well-founded. There was not a valid reason for the dismissal of the applicant related to her capacity or conduct.

[71] The employer adopted an unnecessarily abrupt and perfunctory procedure to advise and implement the dismissal of the applicant. The dismissal of the applicant was without valid reason and implemented improperly. The applicant was entitled to some level of consultation prior to the employer implementing the decision to dismiss. The dismissal of the applicant was a callous act, which was further exacerbated by the failure of the employer to pay all due entitlements to the applicant, and as such, it was unjust, unreasonable, and unnecessarily harsh.

[72] In summary, the dismissal of the applicant was not a case of genuine redundancy. Further, upon analysis of the various factors that are identified in s. 387 of the Act, an objective and balanced evaluation of all of the relevant circumstances has provided compelling basis to establish that the dismissal of the applicant was harsh, unjust and unreasonable.

[73] Therefore, the applicant’s claim for unfair dismissal remedy in respect to her dismissal on 26 September 2018, has been established. The applicant was a person protected from unfair dismissal, she was unfairly dismissed, and she is entitled to a remedy for her unfair dismissal.

Remedy

[74] The applicant has not sought reinstatement as a remedy for her unfair dismissal. In the circumstances, particularly as the employment of the applicant was irreparably damaged by the unfortunate circumstances surrounding the perfunctory dismissal on 26 September 2018, reinstatement would not be an appropriate remedy.

[75] I have decided that compensation would be an appropriate remedy for the applicant’s unfair dismissal, and I turn to the factors which involve the quantification of any amount of compensation.

[76] Section 392 of the Act prescribes certain matters that deal with compensation as a remedy for unfair dismissal. I have approached the question of compensation having regard for the guidance that can be identified in the Full Bench Decisions of, inter alia; Sprigg v Paul’s Licensed Festival Supermarket 5 (Sprigg); Smith and Ors v Moore Paragon Australia Ltd 6 and more recently, the cases of; McCulloch v Calvary Health Care Adelaide7; Balaclava Pastoral Co Pty Ltd v Nurcombe;8 and Hanson Construction Materials v Pericich9(Pericich).

[77] Firstly, I confirm that an Order for payment of compensation to the applicant will be made against the respondent employer in lieu of reinstatement of the applicant.

[78] Secondly, in determining the amount of compensation that I Order, I have taken into account all of the circumstances of the matter including the factors set out in paragraphs (a) to (g) of subsection 392 (2) of the Act.

[79] There was no specific evidence provided which established that an Order of compensation would impact on the viability of the employer’s enterprise.

[80] The applicant had been employed for a period of a little more than one year. The applicant would have been likely to have received remuneration of approximately $769.00 per week if she had not been dismissed.

[81] There was evidence upon which to conclude that the employment of the applicant may have finalised in accordance with a genuine redundancy that involved proper consultation and exploration of redeployment opportunities. Alternatively, if such proper procedure had been adopted by the employer the applicant may have been able to persuade the employer to adopt some alternative course of action which did not involve her dismissal from employment. For example, a job sharing arrangement with one of the accounting staff previously employed by Synergy. On balance, I have determined that the employment of the applicant would have been likely to have concluded within a 10 week period after her unfair dismissal.

[82] For the purposes of calculation of remuneration that the applicant would have received or would have been likely to receive if she had not been dismissed, I have considered that the employment of the applicant would have continued for a further 10 weeks. Therefore, the total remuneration that the applicant would have received in the notional period of 10 weeks following dismissal amounted to a figure of $7,690.00.

[83] The total amount of remuneration received in alternative employment, as identified, and that which may be reasonably likely to be earned between dismissal and the making of the Order for compensation, has been calculated to be $0.

[84] Thirdly, in this instance there was no established misconduct of the applicant, and consequently I have decided to make no reduction to the amount of compensation to be provided to the applicant on account of any established misconduct.

[85] Fourthly, I confirm that any amount Ordered does not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt caused to the applicant by the manner of the dismissal.

[86] Fifthly, the amount Ordered does not exceed the compensation cap as prescribed by s. 392 (5) of the Act.

[87] Consequently, for the reasons outlined above, taking into account all of the circumstances of the case, and having cognisance so as not to apply the approach taken in the Decision in Sprigg in a rigid, determinative manner, as was cautioned in the Decision in Pericich, I have decided that the amount of compensation to be provided to the applicant should be a gross figure of $7,690.00.

[88] Accordingly, separate Orders [PR705792] providing for unfair dismissal remedy in these terms will be issued.

COMMISSIONER

Appearances:

Ms C Hu appeared unrepresented.

Ms G Block, solicitor from Block Legal & Compliance appeared for the employer.

Hearing details:

2019.

Sydney:

January, 7.

Printed by authority of the Commonwealth Government Printer

<PR705791>

 1   Exhibit 1 - Attachment C.

 2   Respondent's outline of arguments: merits – paragraphs iii and iv.

 3   Ulan Coal Mines Limited v A. Honeysett and Ors and R. Murray and Ors v Ulan Coal Mines Limited [2010] FWAFB 7578.

 4   Exhibit 1 - Attachment A.

 5 Sprigg v Paul’s Licensed Festival Supermarket, (Munro J, Duncan DP and Jones C), (1998) 88IR 21.

 6   Smith and Ors v Moore Paragon Australia Ltd, (Lawler VP, Kaufman SDP and Mansfield C), (2004) PR942856.

 7   John McCulloch v Calvary Health Care Adelaide, (Ross P, Hatcher VP and Gostencnik DP), [2015] FWCFB 873.

 8   Balaclava Pastoral Co Pty Ltd t/a Australian Hotel Cowra v Darren Nurcombe, (Hatcher VP, Gostencnik DP and Cribb C) [2017] FWCFB 429.

 9   Hanson Construction Materials Pty Ltd v Darren Pericich, (Ross P, Masson DP and Lee C), [2018] FWCFB 5960.