Danella Booth v True North Australia Pty Ltd

[2014] FWC 2370

[2014] FWC 2370

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Danella Booth
v
True North Australia Pty Ltd
(U2013/15597)

COMMISSIONER WILSON MELBOURNE, 14 APRIL 2014

Application for relief from unfair dismissal.

[1] Danella Booth has made an application for an unfair dismissal remedy against her former employer, True North Australia Pty Ltd (True North Australia).

[2] Ms Booth was informed of her dismissal on 15 October 2013 and she made an application for an unfair dismissal remedy on 4 November 2013, which is within the period required in subsection 394(2) of the Fair Work Act 2009 (the Act).

[3] True North Australia argue that their decision to dismiss Ms Booth is a genuine redundancy, within the meaning of s.389 of the Act.

[4] For the reasons set out below, I am satisfied that Ms Booth’s dismissal was a genuine redundancy and so her dismissal is not, within the meaning of the Act, an unfair dismissal.

[5] I am satisfied from the evidence and submissions before me that Ms Booth was a person protected from unfair dismissal for reason that she had completed a period of employment with True North Australia of at least the minimum employment period and her annual rate of earnings were lower than the high income threshold.

[6] This last element is relevant since it was submitted Ms Booth’s employment was not covered by a modern award or enterprise agreement and a person earning more than the high income threshold is not a person protected from unfair dismissal. 1

[7] The evidence shows that at the time of the termination of her employment Ms Booth’s annual salary was $103,550, inclusive of superannuation, plus potential bonuses of up to $25,000 2. The evidence provided to the Commission indicates that at least in the quarter immediately prior to her termination not all of the bonuses were paid to Ms Booth. Noting that the high income threshold increased to $129,300 from 1 July 2013, I am satisfied that Ms Booth is not a person excluded from consideration of protection from unfair dismissal by reason of her annual rate of earnings.

[8] Ms Booth’s employment with True North Australia commenced on 22 February 2012 and continued until the date of her dismissal on 15 October 2013 3. Although she was unfortunate enough to require an extended time off from work in late 2012/early 2013 as a result of illness, True North Australia agree that Ms Booth’s employment continued during this period. While Ms Booth’s solicitor filed short submissions regarding what he perceived as an objection by True North Australia to the effect that Ms Booth had not served the Minimum Employment Period, this objection was not put, and True North Australia concede she has served the statutory period.

[9] Ms Booth was employed as a Brand Logistics Manager and her duties at the time she was dismissed were described as being of a client liaison nature in relation to the consumer marketing activities of True North Australia’s customer.

[10] In particular, True North Australia’s Chief Executive John-George Snaith related Ms Booth’s duties as being responsible for sourcing details of the company client requirements, determining the optimum third party manufacturer (printer), and managing the timely distribution and delivery of quality materials. The materials to which he referred included operational printed items and marketing campaign point of sale items. His evidence included that Ms Booth focused mostly on the larger campaigns while another employee, Ms Jadrea Mitchell spent most of her time dealing with operational and field requirements. 4

[11] Each of the parties submitted that Ms Booth’s employment was not subject to a modern award or enterprise agreement.

[12] I have considered these submissions, together with the possibility there may have been award coverage. I am satisfied that Ms Booth’s employment was not covered by a modern award or enterprise agreement. In forming this view I have had regard to the evidence and submissions before me about the duties actually performed by Ms Booth and have had regard to the criteria set out by the Full Bench for determining whether or not a particular award applies to employment. In Carpenter v Corona Manufacturing, 5 the Full Bench held that;

“... more is required than a mere quantitative assessment of the time spent in carrying out various duties. An examination must be made of the nature of the work and the circumstances in which the employee is employed to do the work with a view to ascertaining the principal purpose for which the employee is employed”. 6

[13] The Full Bench in Brand v APIR Systems Ltd 7 elaborated on this test with the following;

“[13] We note that the Commissioner adopted and applied a test based on the principal purpose for which the applicant was employed. She relied upon the Full Bench decision in Carpenter v Corona Manufacturing Pty Ltd in that respect. An analysis of the authorities referred to in that case shows that industrial courts and tribunals have at different times adopted different formulations of the test to be applied in determining whether the work of an employee or group of employees is within a particular occupation or classification. One formulation requires that the question should be decided by reference to the major and substantial employment of the employee. Another formulation requires that the principal purpose or purposes of the employment be identified. In some cases the formulations have both been referred to. In one case a Full Bench of the Commission held that the principal purpose formulation was a refinement of the major and substantial employment formulation. A Full Court of the Federal Court of Australia, without reference to other authorities, adopted a test based on whether the employees were “engaged substantially” in the duties of the relevant occupation. 8” (references omitted)

[14] As referred to above, and elaborated in more detail in the oral evidence, Ms Booth’s duties included taking orders for printing and merchandising from a client; to arrange for the work to be produced on time and within an agreed budget and quality framework. As with the interpretation of all parts of a modern award, the meaning of the coverage clause of a modern award “begins with a consideration of the natural and ordinary meaning of its words”, however, that “is not to say the words must be interpreted in a vacuum divorced from industry realities” 9.

[15] The evidence does not support that Ms Booth’s employment was in the general retail industry, since the principal purpose of her employment was not “the sale or hire of goods or services to final consumers for personal, household or business consumption” (which would attract the coverage of the General Retail Industry Award 2010, MA000004). Similarly, she was not engaged “for the purpose of soliciting orders for, or selling articles, goods, wares or merchandise or material for wholesale sale”, etc or engaged in merchandising functions or selling advertising space or time (which would attract the coverage of the Commercial Sales Award 2010, MA000083). Neither does the principal purpose of her employment appear to be within the scope of, or classifications contained within, the Graphic Arts, Printing and Publishing Award 2010, MA000026.

[16] Section 385 of the Act provides the meaning of unfairly dismissed;

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.

[17] Section 396 requires that certain initial matters are to be considered by the Commission before turning to the merits of a matter;

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.

[18] True North Australia argue that the dismissal of Ms Booth was a case of genuine redundancy and thereby she was not unfairly dismissed within the meaning of s.385 of the Act. The company does not rely upon the small business exclusion despite the evidence indicating that its Australian operations at least employed only four people, including the applicant and the part-time, New Zealand-based Chief Executive, Mr Snaith (noting there has been no consideration of whether its New Zealand-based parent is an associated entity within the meaning of the Act which may require being taken into account in so far as s.23 is concerned which provides the definition of a small business employer).

[19] The meaning of “genuine redundancy” is defined by the Act in s.389 in the following manner;

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.

[20] The evidence relating to True North Australia includes;

• The company was incorporated in January 2012 as an Australian entity, related to True North New Zealand Ltd, which is incorporated under New Zealand law following the invitation of the company’s customer to provide print management services to them in Australia 10.



• The Australian company provides its services to a single customer in Australia out of small offices in both Melbourne and Sydney. Its Chief Executive Officer, Mr Snaith was involved in establishing the New Zealand company and he provides only part-time services to the Australian company.



• The Australian company is small, and at the time of Ms Booth’s dismissal employed only four people – Ms Booth and Ms Mitchell who were both based in Melbourne, Ms Sharp who was based in Sydney, and Mr Snaith. 11



• Other services, including human resource management services, are provided to the Australian company from staff, directors or contractors of the New Zealand parent.

[21] Mr Snaith gave evidence that in September 2013 he was informed by the company’s customer that it intended to reduce its requirement for services from True North Australia. This came about as a result of a downturn in the customer’s own business.

[22] Ms Booth agrees she and other staff were advised of the likely implications of the customer’s changed business expectations. Her evidence is that on 25 September 2013 she was told the customer was experiencing a downturn and that not only had this resulted in a reduction in revenue for True North Australia but that it would also have a further adverse effect on True North Australia’s business. Ms Booth’s evidence is that in the meeting the company informed her that the customer had confirmed its reduced level of spend would continue. 12

[23] Mr Snaith’s evidence is that he and the other owners of the business responded to this news by taking the view that they could not sustain the employment of the three staff engaged in Australia. He recalls communicating the following about True North Australia’s decision-making to Ms Booth in September and October 2013;

“8 At September 2013 the company employed two full-time members of staff in Melbourne (Danni Booth and Jadrea Mitchell), plus a part-time contracted member of staff based in Sydney (Amanda Sharp). We considered it necessary to make a change in structure that involved the two current Brand Logistics Manager roles becoming redundant and the creation of a new position (that would include both the campaign work and the operational requirements) and a proposal was drafted that involved reducing the number of staff in Melbourne from two to one.

9 The proposal was explained at a meeting with Danni Booth and Jadrea Mitchell on 2 October 2013. Meetings with the individuals were held on 4 October. Each employee was given the opportunity to give us feedback and any suggestions about the proposed structure and invited to express interest in the on-going role.

10 Both members of staff expressed their interest in the on-going role.” 13

[24] Ms Booth’s evidence in relation to this communication included that she and Ms Mitchell were told by Mr Snaith of the things he refers to above and in particular the news about the company’s client. She agrees that she and Ms Mitchell were told in that meeting True North Australia intended to reduce its staff by one in Melbourne. She recalls being told that instead of there being two Brand Logistics Managers in Melbourne in the future, there would only be one, and the ongoing position would be offered at a lower salary. Ms Booth’s evidence is that in the meeting she was informed she could apply (along with Ms Mitchell) for the ongoing position, and was given some information about how to apply. While she asked for a job description for the ongoing position, she did not receive it either before the applications closed, or at any time.

[25] Ms Mitchell’s evidence is that the ongoing position was offered at a considerably lower wage than her current salary level. Her evidence in this regard is that she was told the ongoing position would attract an annual salary of $80,000 per year plus superannuation and that there would be potential bonuses of $5000 per year. 14 This stood in comparison with the salary level she enjoyed at the time of termination which was an annual salary of $103,550, inclusive of superannuation, with potential bonuses of up to $25,000 per year in addition to the annual salary.

[26] Ms Booth subsequently applied for the position and was interviewed by two people associated with the New Zealand entity, one of whom was a founding partner and director and the other a human resources consultant providing services to the company. The interview was conducted via Skype and was, in Ms Booth’s opinion at least, relatively brief.

[27] Ms Mitchell also applied for the position and was also interviewed, and as a result of the interview obtained the ongoing position.

[28] The interview rated Ms Booth along certain criteria, which are referred to in greater detail below. Ms Booth’s rating was lower than that of Ms Mitchell and sufficiently so for True North Australia to form the view that the ongoing position should be offered to Ms Mitchell.

[29] On 15 October, Mr Snaith met with Ms Booth and informed her that her application for the ongoing position had been unsuccessful and that the position would be offered to Ms Mitchell. In the course of the meeting, he advised Ms Booth that as a result she was made redundant. He provided her with a letter of termination that referred to the following;

“Dear Danni,

As you are aware, for financial reasons it has been necessary for True North Australia to consider a change in structure that involves the two current Brand Logistics Manager roles becoming redundant and the creation of a new position

The Leadership team has concluded that the proposed change will be implemented, and have gone through a process to assess the applicants for the new position. Applicants were assessed based on the key skills and experience required for the new role, including Campaign Management, Operational Stationery, Corporate Stationery, Distribution and Reporting, Online Catalogue support and TouchPoint System and support.

Your application for the new position has not been successful.

We advise that termination of your employment is as of today.

...” 15

[30] Ms Booth’s termination took effect on the same day she was advised. She was paid upon termination one month’s pay in lieu of notice and four weeks’ redundancy pay. True North Australia say about the redundancy pay that, since it was uncertain whether it fitted the Act’s definition of a small business, which would exempt it from making redundancy payments, it decided to pay the amount anyway.

[31] In addition to the evidence and submissions referred to already, it is appropriate to take into account the evidence from True North Australia about the company’s position since November 2013. The company expects to make a loss in the financial year about to end on 31 March 2014, compared with a profit in the previous financial year (the quantum of these amounts was referred to in the hearing, and is not disclosed in these reasons). Since appointing Ms Mitchell to the ongoing position, the company’s need to provide services to its client has reduced further than originally expected and as a result Ms Mitchell is now working part-time four days per week (compared with an original offering of the position on a full-time basis) and the part-time team leader position that had been held by Ms Sharp no longer exists. 16

[32] Ms Booth’s submissions include that her claims against the ongoing position were insufficiently taken account of; that she had greater experience than the person who obtained the ongoing position, and that there had not been complaints about her performance that would suggest she should not be considered favourably. She also submits that, having taken significant sick leave at the end of 2012 and the start of 2013, a Sydney based employee who had been engaged when she was away (Ms Sharp), seemed to have taken over a large part of her work by the time she returned, or was somehow favoured by the company to Ms Booth’s detriment.

[33] Ms Booth submits that the ongoing position was not materially different to the one she was doing, yet it had a significant pay difference, and that pay differential amounted to a constructive dismissal.

[34] Ms Booth claims she was not considered fairly when True North considered her application. She feels that the interview was just going through the motions. She also observes that the assessment ratings she was given by the interview panel were lower in comparison to Ms Mitchell when her view is that she should have been rated higher. She also observes that she was not informed of the ratings before these proceedings.

[35] The evidence indicates that the candidates were rated against each of these criteria in respect of their skills, experience, assessment of current performance against role requirements, and performance and training required to meet future needs. 17 The ratings for both candidates were provided to the Commission which verify that Ms Booth had a lower point score than Ms Mitchell18. Mr Snaith’s evidence on these matters includes the following;

“The selection process was entirely merits based. Each member of leadership team was given criteria to assess each applicant. The criteria were the key requirements of the position - Campaign Management, Operational Print, Corporate Stationery and Print, Distribution and Reporting, Online Catalogue Support and TouchPoint system management and support. For each criterion scores were given for skills, experience and current performance against role requirements (except Corporate Stationery and Print, since this was a new requirement). We also considered whether training was required to meet future needs. Each member of leadership team scored the individuals on their own, then we met to reach consensus on an agreed score. We then compared the overall scores for each candidate. The Applicant’s score was lower than Ms Mitchell’s. ... In addition to comparing the scores we also discussed some of the selection criteria in more detail. In particular we noted that Ms Mitchell had been managing the whole process of distribution and reporting and managing the online catalogue. We also noted that Ms Mitchell had a higher level of expertise in using the TouchPoint system, which was vital to ensure that we provided effective and efficient service ...” 19

[36] Mr Snaith’s evidence is also that he and the panel took into account the candidates’ respective work performance, and that the panel and he preferred Ms Mitchell as the ongoing employee over Ms Booth. His evidence is also that, in so preferring Ms Mitchell, he was not saying Ms Booth’s work performance was unsatisfactory; and his oral evidence included praise for work that Ms Booth had done. The evidence of both parties is that Ms Booth was not provided with details about the suitability analysis prior to these proceedings.

[37] As referred to above, the ongoing position for which Ms Booth was interviewed was a at a salary level appreciably lower than the position in which she was employed.

[38] Whether or not the ongoing position had the same duties as the one performed by Ms Booth, there is obviously a large pay difference between the two.

[39] It is Ms Booth’s argument that by offering a considerably lower salary for what was (on her contention at least) essentially the same position there has been a constructive dismissal pursuant to s.386(1)(b) of the Act. 20

[40] In relation to this proposition, the argument was advanced by Ms Booth that True North Australia’s invitation to her to apply for what was demonstrably a significantly lower paid position than that which she held amounted to a constructive dismissal.

[41] This submission is, with respect, misconceived.

[42] The evidence discloses that Ms Booth was invited to apply for the position, which she did. She was unsuccessful in her application and was dismissed as a result, because True North Australia no longer had a position for her. Upon this factual base, the jurisdictional element contained within s.386(1)(a) of the Act (of a person being dismissed because they resigned from employment having been forced to do so because of the employer’s conduct 21), is not enlivened. There was no resignation by Ms Booth and there is no evidence before me of conduct by the employer that would amount to action being taken by them with the intent to bring the employment relationship to an end.22

[43] Instead the evidence is that True North Australia advised its Melbourne staff, including Ms Booth that a reduction in staff numbers was needed as a correction to its forecast trading position and that Ms Booth and Ms Mitchell could both apply for the ongoing position (albeit one that, on the agreed evidence was lower paid, for reasons that the employer puts forward are deserved). The evidence is that Ms Booth voluntarily applied for the ongoing position and hoped to obtain it. When she failed to obtain the position, she was terminated at the employer’s initiative.

[44] As a result, the jurisdictional enlivenment that is before the Commission is that expressed within s.386(1)(a) of the Act, which refers to a person who has been terminated at the employer’s initiative.

[45] It is not strictly necessary for me to resolve the issue of whether the ongoing position had the same, or different duties to those performed by Ms Booth prior to dismissal. This is for the reason that a finding that an employer no longer requires an employee’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise is a finding about whether an employee has ‘any duties left to discharge’ after a reorganisation or redistribution of duties. In this regard, the Full Bench has said;

“[17] It is noted that the reference in the statutory expression is to a person’s “job” no longer being required to be performed. As Ryan J observed in Jones v Department of Energy and Minerals (1995) 60 IR 304 a job involves “a collection of functions, duties and responsibilities entrusted, as part of the scheme of the employees’ organisation, to a particular employee” (at p. 308). His Honour in that case considered a set of circumstances where an employer might rearrange the organisational structure by breaking up the collection of functions, duties and responsibilities attached to a single position and distributing them among the holders of other positions, including newly-created positions. In these circumstances, it was said that:

“What is critical for the purpose of identifying a redundancy is whether the holder of the former position has, after the re-organisation, any duties left to discharge. If there is no longer any function or duty to be performed by that person, his or her position becomes redundant…” (at p.308)

This does not mean that if any aspect of the employee’s duties is still to be performed by somebody, he or she cannot be redundant (see Dibb v Commissioner of Taxation (2004) FCR 388 at 404-405). The examples given in the Explanatory Memorandum illustrate circumstances where tasks and duties of a particular employee continue to be performed by other employees but nevertheless the “job” of that employee no longer exists.” 23

[46] The above paragraph, from Ulan Coal Mines Limited v Howarth, refers to examples in the Explanatory Memorandum of reorganised work, and the same decision refers to the following paragraph in the Explanatory Memorandum;

“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.”²⁴

[47] The Explanatory Memorandum also provides this example;

“Illustrative example

Cath is one of four chefs at Kat’s Bar and Bistro. She has been working at the restaurant for five years. Six months ago a new restaurant opened up across the road and business has been steadily declining. The manager, Kristy, has made the decision to cut the number of chefs from four to two as only two chefs are needed to manage the reduced workload. There are no redeployment opportunities for either of the chefs as Kat’s bar and bistro only employs a small number of staff and has no associated entities. Before deciding to make employees redundant, Kristy checks the award that applies to the chefs and finds that there are no obligations to consult about the redundancy. Kristy dismisses Cath and one other chef and provides them with notice of termination under the NES and pays all amounts owing on termination (e.g., untaken annual leave).

Based on these facts, Cath’s dismissal would be a case of genuine redundancy and she would not have been unfairly dismissed.

However, Kristy’s reason for selecting Cath as one of the employees to be dismissed was that she had recently complained to her union that she was not being paid the correct allowances under the award.

While this would not change a finding that it was a genuine redundancy, it may contravene the general protections as it may involve Kristy taking adverse action (being the dismissal) against Cath because she exercised a workplace right to complain to the union about not receiving her entitlements.” 25

[48] A consideration of whether a person’s termination of employment is a genuine redundancy within the meaning of the Act requires consideration not only of whether their employer no longer requires their job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise, but also of two other factors set out in s.389. These requirements are firstly a consideration of whether the employer has complied with any modern award or enterprise agreement obligation to consult about the redundancy (s.389(1)(b)) and secondly whether redeployment would have been reasonable in all the circumstances (s.389(2)).

[49] In the event that a modern award or enterprise agreement applied to Ms Booth’s employment and such instrument contained an obligation to consult about the proposed redundancy, the Commission would need to expressly test whether the consultation occurred. 26 I have already referred to the parties’ submissions that Ms Booth’s employment was not covered by a modern award or enterprise agreement, and have concluded this is an accurate submission.

[50] Accordingly, the need to consider whether the employer has complied with any obligation in a modern award or enterprise agreement to consult about the redundancy does not arise.

[51] In relation to the subject of consultation, I note the Respondent’s submissions and the evidence of Mr Snaith is that, in any event, he believed he was consulting with Ms Booth and Ms Mitchell when he met with them in September and October 2013 to appraise them of the changes he expected in the work required for the company’s customer and what True North Australia was going to do as a result.

[52] In relation to the potential of redeployment, the Act provides about the subject in s.389;

(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.

[53] There was no evidence before the Commission about alternative positions that might be available either in the Australian or New Zealand entities and submissions were not made to the effect that it would have been reasonable in all the circumstances for Ms Booth to be redeployed.

[54] In relation to the possibility of redeployment to the New Zealand entity, I note that SDP Richards considered the question of international redeployment in Roy v SNC-Lavalin Australia Pty Ltd. 27 In that matter, the Applicant contended that Mr Roy alleged that, at the time of his dismissal, there were a large number of overseas positions to which he could have been redeployed.28 SDP Richards considered that addressing the proposition required a consideration of numerous factors including whether there is central management control over associated entities29; the financial burden of relocation30 and whether the identified positions were acceptable alternative employment, which is an objective test, taking into account the whole of the alternative position under consideration31. Having noted “the Respondent has never held out that it has a facility to redeploy redundant employees to international locations (even if any such appropriate positions were identified)”32, SDP Richards continued;

“[39] Mr Young gave uncontested, detailed evidence of the ad hoc arrangements whereby an employee who was made redundant might identify and apply for a position overseas, meet the stated requirements, resign their position with their local employer (and not be paid redundancy pay), and then relocate entirely at their own expense. But such outcomes are not established practices, and the Respondent might at best assist informally in facilitating applications and so forth, but little more. This is not a redeployment process.” 33

[55] In this matter, in the absence of identification of an alternative position, or a contention that redeployment would have been reasonable, and in the absence of any evidence or submissions on the criteria referred to in Roy v SNC-Lavalin Australia Pty Ltd, I am satisfied that it would not have been reasonable in all the circumstances for Ms Booth to be redeployed either within the Australian entity or an associated entity.

[56] Having taken into account the circumstances of Ms Booth’s dismissal, I am satisfied that her dismissal was a genuine redundancy within the meaning of s.389 of the Act. True North Australia no longer required her job to be performed by anyone because of changes in the operational requirements of its enterprise; there was not a failure to comply with any obligation in a modern award or enterprise agreement that applied to Ms Booth’s employment to consult about the redundancy; and it would not have been reasonable in all the circumstances for Ms Booth to be redeployed to a position either within True North Australia or an associated entity.

[57] Having formed the conclusion that Ms Booth’s dismissal was a genuine redundancy, she was not unfairly dismissed within the meaning of s.385, and so I must dismiss her application for an unfair dismissal remedy.

[58] An Order to that effect will be issued in conjunction with this decision.

COMMISSIONER

Appearances:

Mr G Grabau, of Counsel, for the Applicant

Ms A Duffy, of Counsel, for the Respondent

Hearing details:

2014.

Melbourne:

March 18

 1   Fair Work Act 2009, s.382(b)(iii)

 2   Exhibit MFI1, para 2

 3   Ibid., para 1

 4   Exhibit R1, para 4

 5 (2002) 122 IR 387, see print ref PR925731; followed by McMenemy v Thomas Duryea Consulting, [2012] FWAFB 7184, at [37]

 6   Ibid., at [9]

 7   (2003) (unreported, AIRC (FB)), PR938031

 8   Ibid., at [13]

 9   Re City of Wanneroo v Holmes [1989] FCA 369; 30 IR 362, at [43]

 10   Exhibit R1, para 3

 11   Ibid., para eight

 12   Exhibit A1, para seven

 13   Exhibit R1, paras 8-10

 14   Exhibit A1, para 9

 15   Application for Unfair Dismissal Remedy, Attachment

 16   Exhibit R2, para 6

 17   Ibid.

 18   Ibid., attachments JGS 2-3

 19   Ibid., para 5

 20   Applicant's Outline of Submissions, para 1

 21   See Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200, at 206

 22   See O’Meara v Stanley Works Pty Ltd (2006) 58 AILR 100, at [23].

 23   Ulan Coal Mines Limited v Howarth[2010] FWAFB 3488, at [17]

24 Ibid., at [16]; and Explanatory Memorandum to the Fair Work Bill 2008, paras 1547 - 1548

 25   Explanatory Memorandum to the Fair Work Bill 2008, after para 1553, p 247

 26   Livingstones Australia v ICF (Australia) Pty Ltd T/A IC Frith & Associates[2014] FWCFB 1276, at [49]

 27   [2013] FWC 7309

 28   Ibid., at [19]

 29   Ibid., at [42]

 30   Ibid., at [40]

 31   Ibid., at [46]

 32   Ibid., at [38]

 33   Ibid., at [39]

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