Darlene Khoury v Vaughan Constructions Pty Ltd

[2021] FWC 339

[2021] FWC 339

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Darlene Khoury
v
Vaughan Constructions Pty Ltd
(U2020/10259)

DEPUTY PRESIDENT BOYCE SYDNEY, 23 FEBRUARY 2021

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 — Award consultation provisions do not apply because redundancy not a “major” change — no suitable alternative jobs for redeployment — objection regarding genuine redundancy upheld — application dismissed.

Introduction

[1] Ms Darlene Khoury (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 claims that she was dismissed from her employment with Vaughan Constructions Pty Ltd (Respondent) on 27 July 2020, and that her dismissal was “unfair” within the meaning of Part 3-2 of the Fair Work Act 2009 (Act).

[2] In the Form F3 Employer Response filed with the Commission, the Respondent asserts that the Applicant’s dismissal was a case of “genuine redundancy” within the meaning of s.389 of the Act.

[3] Following the receipt of submissions and evidence in accordance with directions made, I held a hearing in Sydney to resolve the Application on 6 October 2020. The Applicant appeared for herself. Mr L Howard of counsel, instructed by Ms Grace Turner-Mobbs (Solicitor, KCL Law), appeared with permission for the Respondent.

[4] Following that hearing, written closing submissions from both parties were filed, and closing oral submissions were made on 25 November 2020. Mr John Peters (the Applicant’s brother-in-law, and neither a lawyer nor paid agent) appeared for and was instructed by the Applicant. The Respondent’s appearances remained the same as the prior hearing.

[5] Having had regard to the evidence tendered, and the submissions of the parties on the facts and the law, I have determined that the Applicant’s dismissal was a case of “genuine redundancy” within the meaning of the Act. My reasons for this decision follow.

Representation by lawyer or paid agent

[6] The Respondent sought to be represented by a lawyer in this matter. The Applicant did not oppose the Respondent being represented. Pursuant to the discretion afforded to me under s.596 of the Act, I granted permission to the Respondent to be legally represented by solicitors from KCL Law.

[7] I made this decision having had regard to the criteria set out under s.596 of the Act. In that regard, I note the following:

(a) The facts and circumstances leading up to the Applicant’s dismissal are lengthy.

(b) The case law relied upon by the Respondent is somewhat complex, in that it advances such law in terms of the correct way to construe terms of the relevant modern award.

(c) Given that the parties would be engaging in cross-examination of witnesses, I formed the view that the Commission would be in a better position to conduct the proceedings more efficiently with the assistance of a legal representative for the Respondent.

Factual Background

[8] The Respondent tendered the following witness statements into evidence:

(a) Witness Statement of Mr Mark Cormack dated 11 September 2020;

(b) Second Witness Statement of Mr Mark Cormack dated 2 October 2020; and

(c) Witness Statement of Ms Lauren Houlihan dated 1 October 2020.

[9] The Applicant tendered the following witness statements into evidence:

(a) Witness Statement of Ms Darlene Khoury (undated); and

(b) Witness Statement of Ms Lydia Peters dated 2 October 2020.

[10] Having regard to those statements, and the cross-examination at the hearing, I find the following to be the relevant factual background (at least, for the purposes of determining the question of genuine redundancy):

(a) The Respondent is a company that offers “commercial, retail and industrial design and construction services.” The Respondent is headquartered from Melbourne, and has offices in both Sydney and Brisbane.

(b) On or about 11 June 2018, the Applicant was employed by the Respondent as a “Receptionist” on a part-time basis at the Respondent’s Sydney premises.

(c) On 25 September 2018, the Applicant was offered the full-time role of Sydney “Office Coordinator”, which she commenced on 1 October 2018.

(d) On or about 2 October 2019, the Applicant injured her back at work after carrying stationery boxes up some stairs.

(e) On 15 October 2019, the Applicant made a workers’ compensation claim which was consequently accepted by iCare.

(f) From 2 October 2019 until about 28 October 2019, the Applicant took leave from work while on workers’ compensation. During the Applicant’s period of absence, the Respondent hired an employee on a temporary basis (Temporary Employee) to cover the Applicant’s position.

(g) On 28 October 2019, the Applicant returned to work and recommenced her role of Office Coordinator on a part-time basis. The Temporary Employee who performed the Applicant’s duties whilst she was on leave was moved to a different role supporting the “Construction Team”.

(h) On 6 February 2020, the Applicant was certified as fit for full-time duties and returned to her role as Office Coordinator on a full-time basis.

(i) On 17 February 2020, Mr Cormack (New South Wales General Manager), held a performance management meeting with the Applicant where he addressed the issue of the Applicant not meeting the Respondent’s expectations regarding her performance, conduct, and notifications of her non-attendance and absences from work.

(j) From March 2020, and due to the impacts of COVID-19 lockdowns, the Respondent was forced to “streamline its administration functions”, and to shift its focus more towards “business development.” Consequently, a majority of administrative duties were shifted from Sydney to the Respondent’s headquarters in Melbourne.

(k) On 9 March 2020, the Applicant was instructed to leave the Sydney premises after exhibiting flu-like symptoms in the wake of COVID-19. The Applicant duly attended Bankstown Hospital, where she was screened for the virus. The Applicant returned to work on 16 March 2020, but was again sent home at Mr Cormack’s direction due to the Applicant appearing ill.

(l) On 17 March 2020, the Applicant received an offer to work from home from Mr Cormack, which she accepted. However, on 30 March 2020, the Applicant received emailed advice from Ms Houlihan (Human Resources Manager), who stated that the Applicant’s role was “not viable to work remotely.” The Applicant was instructed to “take leave” and to use “annual or unpaid leave” since she had exhausted her sick leave.

(m) On 6 April 2020, the Applicant received an email from Mr Cormack regarding her absences from work and work performance (Cormack Email). In that email, Mr Cormack states:

“Your absences are creating operational difficulties for us. It is inefficient for us to backfill this position with other resources indefinitely”. 1

Mr Cormack also offered the Applicant the opportunity to resign, including a cash incentive, if she no longer wished to be employed by the Respondent.

(n) On 15 April 2020, Mr Cormack sent the Applicant a second warning letter regarding her absences from work and work performance. The letter specified that the Applicant would now be placed on a “Performance Improvement Plan” and the Applicant was warned that if her conduct, performance and communication did not improve, her employment would be terminated.

(o) On 17 April 2020, after obtaining medical clearance, the Applicant returned to work, however her duties were restricted to archiving hardcopy documents. The temporary employee continued working for the Respondent.

(p) In June 2020, the Respondent established a dedicated “Business Development Coordinator” position. On 15 June 2020, the Temporary Employee was offered the “Business Development Coordinator” position, which she accepted accordingly.

(q) On 23 July 2020, Mr Cormack held a meeting with the Applicant, where she was alerted about the Respondent’s views that her Office Coordinator role may not be required “going forward” due to the impact of COVID-19 on the administrative needs of the Respondent, which may result in the redundancy of her position and potentially the termination of her employment. The Applicant was provided with a consultation letter which provided her with an opportunity to comment on the changes and to provide feedback.

(r) On 27 July 2020, Mr Cormack held a further meeting with the Applicant. The Applicant had Ms Peters in attendance as a support person. During this meeting, the Applicant provided Mr Cormack with a letter dated 26 July 2020, which raised a number of issues — including that she “wanted her job back” and if she did not get it back, she would pursue a bullying claim against Ms Houlihan. Mr Cormack explained to the Applicant that her role had been made redundant, and that he did not consider there to be evidence of any bullying. Mr Cormack informed the Applicant that redeployment options were considered, including in the Brisbane and Melbourne premises. However, it was determined that there were no suitable roles within the organisation for the Applicant. Mr Cormack confirmed that due to the Respondent undertaking a restructure to reduce administrative support positions “business wide”, based upon the Applicant’s skillset, there was not an available position for her in the Sydney office. The Respondent’s restructure changes were to be a permanent change and there was no need for the “Office Coordinator” role in the future. Consequently, a termination letter was provided to the Applicant dated 27 July 2020.

(s) On 29 July 2020, the Applicant was paid two weeks’ notice and relevant redundancy pay entitlements.

Relevant law

[11] 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.”

[12] 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.”

[13] 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”.

[14] In view of s.389 of the Act, and for the Commission to be satisfied that a dismissal was a case of genuine redundancy, 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?

[15] 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.

[16] These words have long been used and applied in industrial tribunals and courts as a practical definition of redundancy. 2 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”.

[17] Further, 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”. It has also been held 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”. 3

[18] Put another way, the test is not whether the person’s duties survive. The test is whether the job previously performed by an employee still exists. 4

Respondent’s submissions

[19] The Respondent submits that the redundancy of the Office Coordinator position arose out of three developments:

(a) First, there was the change in the way in which the Respondent interacts with its clients, by reason of the COVID-19 pandemic.

(b) Second, there was the centralising of administrative functions between the Respondent’s three offices, caused by the need for the Respondent to reduce expenditure due to the loss of projects.

(c) Third, there was a shift towards business development due to the need for the Respondent to attract new business flowing from the new business environment under COVID-19. 5

[20] The Respondent relies upon Mr Cormack’s witness evidence in this regard. 6 To the extent that the Applicant claims that her dismissal was an “orchestrated campaign” to remove her from her employment,7 the Respondent says that the Applicant’s argument in this regard is not borne out on the evidence.8

[21] The Respondent notes that the Applicant asserts that her Office Coordinator role has merely been “re-labelled” as a Business Development Coordinator. 9 Again, the Respondent says that the Applicant’s assertion in this regard is not made out on the evidence.10

[22] Regarding the difference between the two jobs in question, the Respondent relies upon Ms Houlihan’s witness evidence — specifically, a “matrix” prepared by Ms Houlihan that explains the re-allocation and absorption of the Applicant’s former duties. In brief, the Respondent notes the following aspects of Ms Houlihan’s evidence:

(a) The Applicant’s reception duties were no longer required to be performed by one person, and have effectively been dispersed amongst those present at the Sydney office.

(b) The Applicant’s office co-ordination duties were reallocated to Respondent’s employees at its headquarters in Melbourne.

(c) The Applicant’s role in assisting the events co-ordinator with client functions and entertainment is no longer required. All such functions have been cancelled, and will not be reinstated in the near future.

(d) The Applicant’s tasks associated with the setting up of tender and EOI documents have been re-allocated to the Business Development Coordinator role.

(e) The balance of the duties outlined in the Office Co-ordinator position description were never performed by the Applicant regularly, and are otherwise not required to be performed. 11

[23] To the extent that the Applicant asserts that she was performing business development duties prior to her dismissal, the Respondent notes that the Applicant was referring to a meeting in January 2020 where Mr Cormack allocated her some business development related tasks. 12 During cross- examination, however, the Applicant ultimately accepted that these tasks were never delivered.13 The Respondent says that the Commission can infer that the Applicant was not (and could not) perform the Business Development Coordinator role as designed.14

[24] The Respondent submits that the Applicant has misunderstood the nature of the new Business Development Coordinator role created by the Respondent. The Business Development Coordinator role involves functional business development tasks that are client facing, and directed at attracting new business. It is wholly divorced from the internal and administrative role that was the Office Coordinator role. The Respondent submits that the evidence comfortably establishes that the collection of functions, duties and responsibilities that formed the Office Coordinator role have been removed or reorganised such that the role is no longer required to be performed by anyone at the Respondent’s workplace. 15

Applicant’s submissions

[25] The Applicant says that the Office Coordinator was required to be undertaken when the Applicant refused the Respondent’s offer to have her resign. The Applicant asserts that the Respondent essentially redistributed some of the existing administration duties to their head office in Melbourne, and relabelled the other functions and duties into a new position of Business Development Coordinator — a position that still exists. Accordingly, the Applicant’s job still exists, but has been relabelled. 16

[26] The Applicant relies upon her own evidence to establish that the Office Coordinator role consisted of a mix of business development and office management duties. 17 Further, the Applicant points to the quoted portion of the Cormack Email extracted above.18 The Applicant submits that this email clearly identifies that the Office Coordinator exists, and that there was never an intention to remove it. The Applicant also says that that same email contains a “thinly veiled” attempt to have her resign.19

[27] The Applicant challenges Ms Houlihan’s comparative matrix. 20 In short, the Applicant’s position is that there are other people carrying out her former administrative and reception duties, including the person now employed in the role of Business Development Coordinator.21 Furthermore, the Applicant submits that she demonstrated a capacity to perform the Business Development Coordinator role, as she was performing business development duties prior to her dismissal.22 The Applicant casts the Respondent’s submissions on this point as either erroneous, or deliberately misleading.23 The upshot of these submissions is encapsulated in the Applicant’s statement, as follows:

“Clearly the bulk of the roles and responsibilities of Ms Khoury’s Office Coordinator job are being undertaken within Vaughan in the guise of the Business Development Coordinator and only a minor portion being transferred to Melbourne head office. As the Act requires that for a genuine redundancy “these roles are not to be performed by anyone” then this is not a genuine redundancy”. 24

Respondent’s reply

[28] The Respondent says that the Applicant’s submissions are replete with contentions that are not supported on the evidence. The Respondent says that, in the making of her submissions, the Applicant relies upon her questioning of witnesses, rather than the witness’s answer. 25 Answers, not questions, constitute evidence. Questions do not form part of evidence unless the witness accepts the premise of the question.26

[29] Again, the Respondent submits that the evidence “comfortably” establishes that the Office Co-ordinator job does not exist. It has not been relabelled as Business Development Co-ordinator; it is a different job requiring a different skillset. The Respondent says that the Applicant did not establish the contrary position in cross examination. 27 The Office Co-Ordinator job was not, and is not, required to be performed by anyone at the Respondent’s workplace.

[30] Again, the Respondent asserts that the Applicant’s claim that the Respondent set out on a “campaign” to remove the Applicant from her employment is not borne out on the evidence. 28 The Respondent submits that it is important not to combine events, without regard to how they chronologically unfolded. The evidence is that:

(a) The Applicant was injured on 2 October 2019.

(b) The Applicant returned to work on restricted duties on 28 October 2019.

(c) The Respondent accommodated those restricted duties until she was certified to return to full duties on 6 February 2020.

[31] The Respondent notes that these events occurred prior to the onset of the COVID-19 pandemic in March 2020, and the challenges that the pandemic presented. 29 The Applicant was not notified of her dismissal until 27 July 2020.

Consideration

[32] Having regard to the evidence and submissions before me (including the cross-examination of the Applicant, Mr Cormack, and Ms Houlihan) I make the follow findings:

(a) The Respondent sought to dissolve the role of Office Coordinator in Sydney, and it did so after creating the Business Development Coordinator role. The Respondent took this action because it wanted to redirect its resources to business development, in the hope of securing new business opportunities in circumstances where it was concerned about the impact that the COVID-19 pandemic would have on its future prospects. In doing so, it redistributed the Office Coordinator’s administration tasks to other persons in its business. I accept that this restructure was brought about because there were changes in the operational requirements of the Respondent’s enterprise.

(b) While there is some overlap between the two roles, with some of the Office Coordinator duties being retained, the Business Development Coordinator role is distinct in its focus on what would typically be associated with a business development function. There is an ongoing expectation that the person performing these duties actively seek out new business, as opposed to supporting other persons in the business to carry out that responsibility on an ad hoc basis. For this reason, it is not the same role as the Office Coordinator.

(c) Just because there are similarities between roles does not mean they are the same job. The person employed as the Business Development Coordinator is effectively performing a different function within the Respondent’s enterprise. To that end, I find that the Office Coordinator role was no longer required to be performed by anyone in the Respondent’s enterprise at the time of the Applicant’s dismissal.

[33] Having regard to the foregoing, I find that the Respondent has satisfied s.389(1)(a) of the Act.

[34] I anticipate that the Applicant would be disappointed in my making this finding. I am not without sympathy for her situation. The Applicant clearly feels aggrieved by the way she was brought back into the Respondent’s business following her work-related injury. However, I do not accept the Applicant’s assertions that the redundancy was motivated for reasons other than operational ones. The Applicant has put a lot of circumstantial evidence before the Commission in an effort to cast doubt over the Respondent’s case. This circumstantial evidence has produced a lot of “smoke” around the reasons for her redundancy. However, I am not persuaded that there is the requisite “fire” — that is, that the redundancy was effectively a ‘sham’ to replace the Applicant. The Respondent has made out its case on the balance of probabilities. Despite her efforts, the Applicant’s case does not outweigh or undermine the Respondent’s evidence, and so I must accept that the facts before me satisfy s.389(1)(a) of the Act.

Did the Respondent comply with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy?

[35] The parties accept that the Applicant was covered by the Clerks - Private Sector Award 2010 (Award).

[36] Clause 38 of the Award relevantly requires consultation after an employer “makes a definite decision to make major changes in production, program, organisation, structure or technology that are likely to have significant effects on employees”. The phrase “significant effects” is relevantly defined to include “termination of employment”.

[37] The Respondent submits that cl.38 of the Award is not enlivened because:

(a) the “definite decision” made by the Respondent was to invest in its business development function, and to centralise administrative functions (expenses, updating phone lists, ordering supplies, and travel bookings) to its Melbourne headquarters. 30 This decision had no consequence on the senior employees, caused no disconnection to the Respondent’s design and construction work, and caused no internal disconnection for staff in the Sydney office. The decision was not a “major” one; and

(b) The decision did not have “significant effects on employees” as a collective. The decision ultimately resulted in one redundancy. The mere decision to declare one position redundant does not automatically trigger the consultation clause. 31

[38] Regardless of when the “definite decision” was made to make the Office Coordinator role redundant, the consultation requirements under cl.38 of the Award are conditional on the change being a “major” one that is likely to have “significant effects on employees”. Determination of whether the impugned change falls within this definition appears to be one of fact and degree. As White J said in Port Kembla Coal Terminal Ltd v CFMMEU 32:

“I do not regard a simple comparison between the number of employees to be terminated, and the number of the employees in its workforce overall … as being necessarily conclusive of the question of whether a change is “major”. Much may depend on the circumstances of a given case including, for example, the seniority and importance of the employees … , the extent to which … employees work in an integrated or disconnected manner; the consequences for the continuing employees of the redundancies and consequent terminations, as well as other matters”. 33

[39] It has been said that reference to the plural “employees” rather than “employee” in similarly worded clauses does not capture individual redundancies on the basis that individual redundancies do not constitute a “major change” to the Respondent’s operations that impact upon a collective of employees. 34

[40] In this case, there was only one redundancy. The effect of this redundancy is, in all the circumstances of the business, a minor change — other staff may have had to pick up administrative duties, but this could hardly be said to be a seismic shift in their day to day function. Moreover, the Business Development Coordinator role had already come into existence prior to the Applicant’s role being made redundant. The absorption and expansion of the Office Coordinator role did not fundamentally alter that employee’s responsibilities; it was merely to avoid duplicity.

[41] I can appreciate that the decision to make one employee redundant would be a “major” change to their personal circumstances. However, in this case, having regard to the legal authorities that are I am bound to follow, as a matter of law, such change for the Applicant is not the “major” change contemplated by terms of the Award. In view of the foregoing, I do not find that s.389(1)(b) is enlivened for determination in these proceedings beyond confirming my finding that, on the terms of clause 38 of the Award, by reference to the case law set out in this decision, the Respondent has complied with its modern award obligations as to consultation concerning the Applicant’s redundancy. 35

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?

[42] 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 be redeployed within the employer's enterprise.

[43] The highest, binding interpretation of sub-s.389(2) remains that stated in Ulan Coal Mines Limited v A. Honeysett & Ors: 36

“[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)

[44] The Respondent says this is a question addressed at the time of dismissal. It is only reasonable to redeploy if an alternative job existed for the Applicant. 37 The Respondent notes it is not contested that there was another position available for redeployment.

[45] The Applicant says that s.389(2) poses a question to be addressed at the time the position is made redundant, not merely at the time of dismissal. 38 I note that the Applicant has not directed me to any authority to make this proposition good.

[46] I accept that on the evidence there was no alternative role for the Applicant to have been redeployed into at the time of her dismissal. That being the case, I find that s.389(2) of the Act is of no application in this case.

[47] I would note that the parties put on lengthy, contrasting submissions and witness evidence regarding whether the Applicant was suitable to perform the Business Development Coordinator role, and whether she should have been redeployed into the role at the time it became available. I do not need to resolve those arguments to resolve the question posed by s.389(2) of the Act. The redundancy occurred approximately one calendar month after the Business Development Coordinator position was created and filled. It was not available at the time of dismissal.

[48] Again, I anticipate that the Applicant will be disappointed with this finding. Rightly or wrongly, she believes she could and should have been retained and redeployed into the Business Development Coordinator role instead of the Temporary Employee. Whether that is the case or not, however, is not an issue that requires resolution by the Commission in the facts and circumstances of this case.

Conclusion

[49] The Respondent has made good its case as to genuine redundancy. Accordingly, the Applicant’s dismissal is not one to which the Commission has the power to interfere with under the Act. Her Application is hereby dismissed. An order to that effect will follow the publication of this decision.

DEPUTY PRESIDENT

Appearances at hearing:

Ms D Khoury appeared on her own behalf.

Mr L Howard of counsel, instructed by Ms Grace Turner-Mobbs (Solicitor, KCL Law), appeared with permission for the Respondent

Hearing details:

A hearing was held by telephone on 6 October 2021.

Closing submissions

A hearing to make closing oral submissions was held by telephone on 25 November 2021.

Printed by authority of the Commonwealth Government Printer

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 1   Witness Statement of Ms Darlene Khoury, Annexure DK-29

 2   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.

 3   Jones v Department of Energy and Minerals (1995) 60 IR 304 at 308 (Ryan J), cited with approval in Ulan Coal Mines Limited v Henry Jon Howarth & Ors[2010] FWAFB 3488 at [17] (Boulton J, Drake SDP, and McKenna C). See also: Dibb v Commissioner of Taxation (2004) 136 FCR 388; [2004] FCAFC 126 at [43]-[44] (Spender, Dowsett, and Allsop JJ).

 4   Kekeris v A. Hartrodt Australia Pty Ltd[2010] FWA 674 (Hamberger SDP) at [27].

 5   Transcript, 25 November 2020, PN5 and PN16.

 6   See: Witness Statement of Mr Mark Cormack at [5], [24], [25] to [27], and [28].

 7   Transcript, 6 October 2020, at PN106.

 8   Respondent’s Closing Submissions at [12] to [13].

 9   Ibid at [5] to [6].

 10 Witness Statement of Ms Lauren Houlihan at [12].

 11   Transcript, 25 November 2020, PN28.

 12   Witness Statement of Ms Darlene Khoury, Annexure DK-5.

 13   Transcript, 6 October 2020, at PN798.

 14   Ibid at PN174 to PN175, PN508, and PN521.

 15 Respondent closing submissions at [9].

 16 Ibid at [4]. See also Transcript, 25 November 2020, PN37 to PN38.

 17   Witness Statement of Ms Darlene Khoury, Annexure DK-1

 18 See [10](m).

 19   Applicant’s closing submissions at [14] to [15]. See also Transcript, 25 November 2020, PN36, PN43 to PN45, and PN51.

 20   Transcript, 25 November 2020, PN64 and PN65.

 21 Ibid at [19].

 22   Ibid at [21] to [25].

 23   Ibid.

 24 Applicant’s closing submissions at [26]. See also Transcript, 25 November 2020, PN67 to PN68.

 25 Respondent’s closing reply submissions at [1].

 26   Spiteri v Visyboard Pty Ltd [2005] VSCA 132 at [41] to [42].

 27 Respondent’s reply submissions at [3]. The duties within the job of Business Development Co-ordinator are different to the Office Coordinator job: PN413, PN418 to PN419, PN469 to PN473, PN479, PN481, PN485,PN494 to PN495, PN497 to PN502, PN507 to PN513. The Applicant was either was unable to, or did not, perform a number of duties required in the Business Development Coordinator position: PN412, PN426 to PN429, PN437 to PN438, PN444, PN463 to PN466, PN492, PN496, PN504 to PN505. Several of the Office Coordinator duties were reallocated: PN415, PN462, PN491.

 28   Respondent closing reply submissions at [6], and [9] to [11].

 29   Ibid at [7] to [8].

 30   Witness Statement of Ms Lauren Houlihan at [12]; Witness Statement of Mr Mark Cormack at [25] – [27].

 31   Transcript, 25 November 2020, PN8, and PN17 to PN27.

 32 (2016) 248 FCR 18; [2016] FCAFC 99.

 33 Ibid at [499].

 34   Tsiftelidis v Crown Melbourne Limited[2016] FWCFB 4675 at [33].

 35   Note Applicant’s closing oral submissions as to consultation. See Transcript, 25 November 2020, PN48, PN53 to PN55, and PN57.

 36   [2010] FWAFB 3488.

 37 Respondent closing submission at [25].

 38 Applicant’s closing submissions at [46].