Dr Ngaire Bissett v Ducere Global Business School
[2023] FWC 132
•19 JANUARY 2023
| [2023] FWC 132 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Dr Ngaire Bissett
v
Ducere Global Business School
(U2022/8999)
| DEPUTY PRESIDENT BELL | MELBOURNE, 19 JANUARY 2023 |
Application for an unfair dismissal remedy.
On 6 September 2022, Dr Ngaire Bissett (Applicant) made an application (the Application) to the Fair Work Commission (Commission) for relief from unfair dismissal under s.394 of the Fair Work Act 2009 (the FWAct). The Applicant alleges she was unfairly dismissed by Ducere Global Business School (Respondent) on 30 September 2022[1].
In its Form F3 Employer Response, the Respondent raised a jurisdictional objection that the Applicant’s dismissal was a case of genuine redundancy. The jurisdictional objection raised by the Respondent was one appropriate to be dealt with together with the merits of the unfair dismissal application.
Uncontentious matters
Section 390 of the FW Act provides that the Commission may order a remedy if the Commission is satisfied that the Applicant was “protected from unfair dismissal” at the time of being dismissed and if the Applicant has been “unfairly dismissed”. It was not in contention, and I am satisfied, that the Applicant was protected from unfair dismissal under s.382 of the FW Act and had made her application within time.
The primary issue in contention was whether the was dismissed as a result of a “genuine redundancy” (s.385(d) and s.389). If the Applicant’s dismissal was not a genuine redundancy, then the matters requiring determination were whether her dismissal was “harsh, unjust or unreasonable” (s.385(b) and s.387). Subsequently, the Commission would consider what, if any, relief ought to flow from that conclusion. It was not contended, and I am satisfied, that there was any issue concerning the application of the “Small Business Fair Dismissal Code” (s.385(c)).
The Applicant represented herself at the hearing. The Respondent was represented by Mr Simpson of Melbourne HR, with permission for representation having been granted at a mention hearing on 13 October 2022. At this same mention hearing, and following consultation with the parties, I determined that the matter would proceed by a hearing (s.399).
The Applicant gave evidence on her own behalf. The Respondent filed witness statements for Mathew Jacobson, CEO, and Neil Schyer, Chief Operating Officer, although Mr Jacobson was not called to give evidence (and his statement was not tendered). All witnesses were cross-examined, albeit not extensively. The Applicant also filed written submissions.
Factual background and findings
The Respondent is a business whose operations involved partnering (in the commercial sense, not as a description of the legal arrangements) with universities to deliver undergraduate and postgraduate degrees. There are two such ‘partnerships’ in Australia and four internationally.
Mr Schyer’s witness statement summarised the business model of the Respondent. The Respondent’s only revenue is generated through student fees in courses run by the Respondent as part of its ‘partnership’ arrangements with universities. The Respondent obtains a percentage of the fees paid to the universities, with the exact percentage depending on the institution and the Respondent’s share of the responsibilities as between it and the relevant university.
Mr Schyer gave evidence of decreasing enrolment data for the Respondent, both in his witness statement and by a spreadsheet referred to as document “A” during the hearing (the “enrolment data spreadsheet”). The enrolment data spreadsheet was prepared by Mr Schyer. He prepared it based on the Respondent’s records and collated it for the purpose of the hearing.
As the contents of the enrolment data spreadsheet are potentially commercially sensitive, I will not set them out here. Mr Schyer’s e vidence in chief was that the Respondent has experienced declining enrolment numbers since early 2021 and in particular from the commencement of 2022. Document A certainly reflects that statement. Based on enrolment data spreadsheet, it would be a fair characterisation to say that the decrease in enrolment numbers has been significant.
The impact of the declining enrolment numbers was, in Mr Schyer’s assessment, fairly alarming. He said that, as a result, the business had been directed by the CEO to find ways to get enrolments back up and to reduce costs. In his oral evidence, Mr Schyer stated that the situation of the business required an overall reduction in its costs. For its teaching staff, it was not looking to simply restructure but to reduce the costs of the business.
The effect of these concerns led to the Respondent undertaking a head count analysis of three of its key academic staff (including the Applicant), plus its Director of Academic Affairs (who was academically qualified). The evidence is that the Respondent formed the view that the teaching workload requirements could be met with one less full-time academic. The result of that analysis led to a decision to reduce costs by making the Applicant’s position redundant. In substantive terms, it appears that the bulk of the Applicant’s teaching workload was allocated to the Director of Academic Affairs although the exact allocation of units described by Mr Schyer in his oral evidence was more nuanced and the reallocation meant that teaching content that could have been picked up by the Applicant was instead allocated to other persons based in Manila.
However, while some of the exact details were not clearly explained, it is clear to me (and I accept) that the net effect of the Respondent’s decision was that the Applicant’s workload would be reallocated to existing staff members, at no further cost to the Respondent in relation to those staff members. The Applicant’s position, which would be made redundant, would represent a direct cost saving for the Respondent.
The Applicant disputed the decline described by Mr Schyer. In the Applicant’s written submissions[2], she stated that the number of students enrolled by the Respondent as described in Mr Schyer’s statement are “misleading and not supported by the underpinning documents.” The basis of that claim appeared to rest on the Applicant’s contention that she had never taught the volume of students – the number being 56 – at a particular institution referred to in the enrolment data spreadsheet.
I would record here that shortly prior to the hearing, the Applicant made an application for the production of documents from the Respondent. That application was supported by an affidavit made by her then solicitor. Fourteen categories of documents were sought. I rejected the request for documents, in part because of its lateness (as many of the categories sought were capable of identification much earlier) but primarily because of their sheer breadth and, in many instances, lack of apparent relevance. One of the categories sought was for the “actual enrolment records” for hundreds of students. The purpose of that request was to “verify” the enrolment numbers (which were otherwise disputed) described in Mr Schyer’s evidence. I invited the Applicant to reframe a modified request for enrolment data details if those disputes were pressed, yet no request was ultimately made.
There were a number of peripheral challenges by the Applicant to the Respondent’s evidence. The overall purpose of those challenges – as best as I understand them – appeared to advance the proposition that there was no need for any redundancy within the Respondent either because the enrolment data was good (or at least had not changed) or because of alleged ulterior reasons. Perhaps in the former category, the Applicant asserted that two other staff members who had been dismissed (and were described in Mr Schyer’s evidence) in June 2022 were not dismissed because of redundancy but due to “performance”. More broadly, a recurring theme of the Applicant’s written material was to the effect that the true reason she was dismissed was not due to redundancy but because she had lodged a complaint with one of the executive managers about how recent changes affecting some students had been handled.
Mr Schyer was cross-examined about his evidence regarding the declining enrolments. I accept his evidence on that matter, as well as his evidence generally. I consider that Mr Schyer was a witness of truth, who was doing his best to answer questions candidly and accurately. As to the enrolment data, this was information that Mr Schyer personally extracted from the Respondent’s records. He was the Respondent’s Chief Financial Officer and he also deposed that the declining enrolment figures had been a metric that the business had been carefully watching (with growing concern) over a period of time well before the Applicant’s employment was terminated. I have no doubt that the declines were real, were significant and were being carefully monitored.
I also accept Mr Schyer’s evidence as to the reason why the Applicant was selected for redundancy. This aspect of the Respondent’s evidence was also challenged. I described the reallocations of roles that were undertaken above. I accept Mr Schyer’s evidence that the changes were aimed at direct costs savings.
The Applicant contends that she was the best qualified person to remain – she describes herself as “fully trained social scientist” with post-graduate degrees and teaching experience. She asserts that “neither” of the two other teachers who remained following the restructure had the “necessary qualifications and/or experience” to perform the Applicant’s work. Whatever might be the position regarding who is the best qualified, I am not satisfied that the two teachers the Applicant referred to were unsuitable. The Respondent clearly thought they were suitably qualified and I note that it was in the Respondent’s interests to ensure suitable people were in the role.
Following the hearing, the parties sought to make final written submissions. In the Applicant’s final submissions, she again asserted that there was no “verification” of the figures required. The Applicant pressed her contention that the enrolment figures “do not have a basis in fact”. I do not accept those contentions. As noted above, the Applicant was at liberty to file written evidence about her observations of enrolments. In part, her written evidence contained some such material but none of that material caused me to disbelieve Mr Schyer’s evidence about declining enrolments and revenues. She also had opportunity to seek specific, probative documents about enrolments (as opposed to the extremely broad requests initially made). During most of those opportunities, the Applicant was also legally represented. In addition, aspects of her final written submissions appeared to relate to new evidence, such as references to online presentations or to the recent status of the Director of Academic Affairs apparently leaving.
Some of the Applicant’s closing submissions appeared to be directed at denigrating the ability of persons conducting teaching work for the Respondent. The purpose in doing so appeared to be demonstrating that the Applicant was simply replaced with a cheaper (and inferior) alternative. Other submissions made assumptions about the workload of the Academic Direction and therefore sought to demonstrate that it was “simply implausible” such a person could take on such work. I will not repeat the entire detail of the Applicant’s written submissions regarding those and related assertions but I have had regard to them and they do not cause me to alter my acceptance of Mr Schyer’s evidence, particularly with regard to declining enrolments, declining revenue, and the decision taken to reduce the costs of academic staff in response.
If I accepted the Applicant’s contention that the enrolment figures presented by Mr Schyer “do not have a basis in fact”, it is difficult to see how I could perceive Mr Schyer as an honest witness on those critical issues. Mr Schyer was the Chief Commercial Officer. He personally prepared the enrolment figures presented to the Commission and they were based on company records that a person in such a position would be expected to be very familiar with. If those figures had “no basis” in fact, his analysis would either be the product of gross incompetence or dishonesty. I accept neither position was the case. I repeat my conclusion that I accept that Mr Schyer was giving his evidence honestly and candidly and putting to one side a potential mistake or error of a minor kind, I accept the stark picture he presented of the commercial circumstances of the Applicant.
On 17 August 2022, the CEO of the Respondent met with the Applicant. Noting that the CEO did not give evidence (despite a statement being filed on his behalf), I broadly accept the Applicant’s evidence about this meeting. In her oral evidence, the Applicant states the meeting went for about an hour. It may have been less but the duration is not material. I accept Dr Bissett’s evidence, which was to the effect that a significant part of the meeting was about the CEO discussing an “offer” in which she might take up regarding a sales position.
Briefly summarised, that offer would involve the Applicant undertaking contract work for the Respondent to bring in revenue through, I infer, extra student enrolments. The details of the arrangement were not explained but, in his oral evidence, Mr Schyer stated that the marketing work was a “partnership opportunity” that was at “no cost” to the Respondent. In effect, it appears to be a form of commission-based revenue sharing with individuals (acting as independent contractors, not employees) who would be building their “own business” and who would “get their share of that revenue”.
The Applicant says, and I accept, that she initially understood that the offer regarding the sales role would be in addition to her (then) existing duties. It was only in the final ten minutes of her discussion with the CEO on 17 August 2022 that she was told her role was going to be made redundant. I conclude that there was no meaningful opportunity for the Applicant to engage with potential alternatives to her redundancy at this meeting.
Following that meeting, the CEO contacted Mr Schyer. Mr Schyer was told that the Applicant had been informed her role had become redundant, as well as telling him that the CEO had discussed the “independent partner” initiative with the Applicant.
On 18 August 2022, it is not in dispute that Mr Schyer called the Applicant. The discussion appears to have been relatively brief. Mr Schyer says he called the Applicant to discuss the details of her redundancy. Among other matters, he explained the company had no choice with such low enrolment numbers. There was a discussion about the Applicant’s end date, which Mr Schyer said would be 6 weeks away. The Applicant stated that the CEO had discussed the “independent partner” opportunity, although she expressed concern about the sales side of that work. There otherwise did not appear to be any detailed discussion.
Mr Schyer subsequently sent the Applicant a letter confirming the termination of her employment effective 30 September 2022. The letter was dated 18 August 2022 and appears to have been sent on that date or by the following date at the latest. As to the reasons for dismissal, the letter referred to the meeting on 17 August 2022 (but did not elaborate) and simply stated “current circumstances require Ducere to reduce our academic resourcing and will [sic – ‘we’] are no longer able to continue with your employment.”
In her Form F2, the Applicant contends that the offer by the CEO to enter the independent partnership was “clearly to cover up the notion that they were terminating me”. I do not accept that contention. The evidence does not establish that the offer was confected or a “cover up”. To the contrary, from the Respondent’s perspective, the offer would appear attractive to the Respondent (as it would establish an arrangement with no downside cost in which it might be able to improve its revenue stream) although not necessarily for the Applicant as the risk in failing to secure new enrolments would now be shared with her.
The Applicant’s evidence is that she would have been able to make positive suggestions in relation to possible redeployment options potentially beneficial to herself and the Applicant. An example she gave was working 2-3 days per week. In her cross-examination of Mr Schyer, she put to him that she could have been deployed to assist the Respondent “developing partnerships” with other universities.
Was the dismissal a case of genuine redundancy?
The Respondent contends that the dismissal was a “genuine redundancy” within the meaning of s.389 of the FW Act. If that contention is correct, then a dismissal will not be an “unfair dismissal” under s.385, because an essential condition under s.385(d) – which is that the dismissal must not be a case of genuine redundancy – could not be satisfied.
Under s.389(1) of the FW Act, a person’s dismissal is a case of genuine redundancy if:
(a) the 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.
However, by section 389(2) of the FW Act, a person’s dismissal will not be a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to have been redeployed with the employer’s enterprise or within an associated enterprise.
Section 389(1)(a) criteria
As to the first criteria in s.389(1), an oft-cited explanation of the operation of that section was given by a Full Bench in Ulan Coal Mines Ltd v Howarth (2010) 196 IR 32 as follows:
“[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” Jones v Department of Energy and Minerals (at 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 (at 308):
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…
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 Federal Commissioner of Taxation (2004) 136 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.”
I am satisfied that the Respondent no longer required the Applicant’s job to be performed by anyone, because of changes in the operational requirements of the Respondent, wherein the Applicant’s position was eliminated and her duties were redistributed. The objective of that restructure was to reduce costs by the elimination of a full-time teaching position while continuing to meet its teaching requirements. I have set out those matters above in further detail, which I will not repeat here.
I would note for completeness that the Applicant submitted various materials after the hearing of the matter that sought to demonstrate by more recent events that a redundancy was not required. That material was late with no apparent explanation, leave was not sought for it, and none of it was put to Mr Schyer. Putting those matters aside, that material also appears to refer to events occurring (as best as I can discern them) some months after the Applicant’s employment was terminated. If that material was intended to somehow reflect the ‘true’ commercial circumstances on the Applicant at the time of her dismissal, I do not accept it.
In terms, I am satisfied that the requirements of s.389(1)(a) were established.
Section 389(1)(b) criteria
The requirements of s.389(1)(b) first require identification of an applicable award or enterprise agreement relevant to the employment.
In the Applicant’s submissions filed on 21 November 2022, she contended that she was covered by the Educational Services (Post-Secondary Education) Award 2020 (Award). In the Respondent’s closing written submissions, it agreed that the Award would apply “if” an industrial award applied to the Applicant’s employment. The coverage clause of the Award is:
“4.1 This industry award covers employers throughout Australia in the post-secondary educational services industry and their employees (other than trades, cleaning or maintenance staff) employed in the classifications listed in Schedule A—Classifications—Academic Teachers, Schedule B—Classifications—Teachers and Tutor/Instructors and Schedule C—Classifications—General Staff, to the exclusion of any other modern award.
4.2 Post-secondary educational services industry means the provision of education and training to persons over the age of 16 years who have exited the school education system; and includes:
(a) …
(g) undergraduate and postgraduate teaching leading to the conferring of accredited degrees or other higher education qualifications recognised within the AQF, except teaching in a university approved to operate in Australia;”
With reference to the above part of the Award, the Respondent’s closing submissions contended the Applicant would be a “Level 7” (which I infer to be A7 for Academic Staff) and stated:
“Dr. Bissett provided post-graduate teaching and that teaching lead to the conferring of a degree or other higher education qualification. Additionally, Dr. Bissett was not teaching at an Australian approved University during this time. Therefore, it is the opinion of Ducere that Dr. Bissett would be covered by this industrial instrument if an industrial Award applied.”
I am satisfied that the Award applied to the Applicant’s employment. Clause 29 of the Award dealt with consultation in the event of certain changes that would have a “significant effect” on employees, which included termination of employment. I am satisfied the provisions of clause 29 of the Award applied to the circumstances of making the Applicant redundant. Clauses 29.1 to 29.4 were as follows (my emphasis):
“29.1 If an employer makes a definite decision to make major changes in production, program, organisation, structure or technology that are likely to have significant effects on employees, the employer must:
(a) give notice of the changes to all employees who may be affected by them and their representatives (if any); and
(b) discuss with affected employees and their representatives (if any):(i) the introduction of the changes; and
(ii) their likely effect on employees; and
(iii) measures to avoid or reduce the adverse effects of the changes on employees; and
(c) commence discussions as soon as practicable after a definite decision has been made.
29.2 For the purposes of the discussion under clause 29.1(b), the employer must give in writing to the affected employees and their representatives (if any) all relevant information about the changes including:
(a) their nature; and
(b) their expected effect on employees; and
(c) any other matters likely to affect employees.
29.3 Clause 29.2 does not require an employer to disclose any confidential information if its disclosure would be contrary to the employer’s interests.
29.4 The employer must promptly consider any matters raised by the employees or their representatives about the changes in the course of the discussion under clause 29.1(b).
It would appear from the evidence that the “definite decision” was made close to 17 August 2022, which is when the CEO called the Applicant. The Respondent contended in its written closing submissions that the Respondent “did, through 2 separate and extensive phone calls and the termination letter provided on the 18th August 2022”, comply with the requirements of clause 29. I disagree.
The two telephone calls the Respondent refers to are the call on 17 August 2022 with the CEO and the call on 18 August 2022 with Mr Schyer. The first of those calls was arguably the more important of the two. Far from the first of those calls being “extensive”, the Applicant’s evidence is that it was relatively brief as regard to informing her about the redundancy but with little other information provided (and I note again that the CEO did not give evidence himself).
The telephone call on 18 August 2022 with Mr Schyer was an improvement but Mr Schyer’s evidence of that conversation was at a high-level and was somewhat conclusionary. That evidence, even taken at its highest, does not reflect an “extensive” call and, more importantly, does not satisfy me that the requirements of clause 29.1(b) were met.
I also disagree that there was information “in writing” given to the Applicant. The letter of termination stated the reasons for the dismissal and identified the Applicant’s final day. But it did not contain information about the changes as required by clause 29.2.
In summary, I am not satisfied that the requirements of s.389(1)(b) were met. As a consequence, I am not satisfied that the Applicant’s dismissal was a “genuine redundancy” for the purpose of s.389 of the FW Act. It is therefore unnecessary for me to consider s.398(2).
Was the dismissal unfair?
A finding that the dismissal was not a case of genuine redundancy does not automatically lead to a conclusion that a person was unfairly dismissed for the purpose of s.385, but it does not negate that conclusion. It remains to be determined whether the dismissal was “harsh, unjust or unreasonable”.
Was the dismissal harsh, unjust or unreasonable?
Section 387 of the FW Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account:
(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.
I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me.[3] I set out my consideration of each below.
Sections 387(a) – (c), (e)
There was no suggestion by the Respondent that the Applicant’s employment was terminated due to her “conduct”.
As to “capacity”, it has been held that a “reason will be ‘related to the capacity’ of the Applicant where the reason is associated or connected with the ability of the employee to do his or her job.”[4] I consider that there was no termination due to the Applicant’s “capacity”. As recently summarised by Deputy President Colman in circumstances not dissimilar to those before me:[5]
“As is common in a redundancy situation, the company does not contend that there was any valid reason for dismissal related to Ms Quiah’s capacity or conduct. Rather, the employer’s reason for dismissal was that it no longer required the employee’s position. It is well-established that such a reason for dismissal is to be considered under s 387(h), ‘any other matters that the FWC considers relevant’ (see below).”
The matter that is required to be taken into account under s.387(b) of the Act is whether the Appellant “was notified of that reason”. Contextually the reference to “that reason” is the valid reason found to exist under s.387(a),[6] which I have concluded is not applicable.
As neither s.386(a) or s.386(b) are applicable, for the reasons set out above, similar considerations apply for s.386(c), which concern the opportunity to respond to the any reasons relating to the “conduct or capacity” of the employee and also for s.387(e). Notwithstanding, I consider that matters concerning notification of reasons for dismissal and opportunity to respond are matters that may (although not always must) be capable of consideration under s.387(h).
Section 387(d)
Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, an employer should not unreasonably refuse that person being present.
There is no positive obligation on an employer to offer an employee the opportunity to have a support person. In the present case, the Applicant was not refused the opportunity to have a support person, although it might also be observed that the opportunity did not meaningfully arise. I treat this factor neutrally.
Section 387(g)
The evidence indicates that the Respondent did not have dedicated human resource management specialists. I have taken this into account in my assessment of the Respondent’s handling the termination of the Applicant’s employment (described further below).
Section 387(h)
While I have concluded that the Applicant’s dismissal was not a “genuine redundancy” for the purposes of s.389 it also remains my conclusion that the Applicant was dismissed because her job was not longer required to be performed. I consider that this is a matter that falls in favour of the dismissal not being harsh, unjust or unreasonable.
Similarly, I do not consider that there were plausible alternatives for redeployment. Some of the scenarios put by the Applicant were, in my view, unrealistic. For example, she suggested to Mr Schyer that she could have been engaged as a “negotiator to develop more partnerships to gain students”. I do not wish to be overcritical of the Applicant, as the dismissal was obviously stressful for her, but the evidence was clear to me that the Respondent was attempting to decrease its cost base. While the alternative role the Applicant gave an example of (and there were others) was intended to be a profit-making role, that belied the fact that the Respondent’s view was that there was an immediate need to reduce costs.
Notwithstanding, had the Applicant been given a meaningful opportunity to discuss her redundancy and whether there were available options instead of dismissal there is a possibility – albeit slim – that those discussions might have been fruitful. I do not wish to overstate those prospects, but the Applicant struck me as someone who was passionate about her work, evidently competent at performing it and well educated.
The Respondent did not comply with its consultation obligations under the Award and nor, do I consider, did it give any meaningful opportunity for discussion about those matters to the Applicant. While I accept that Mr Schyer engaged with the Applicant to a degree on 18 August 2022, by that stage the decision for the redundancy had clearly been resolved by the CEO in all respects beyond informing the Applicant of her final day. While I recognise that the Respondent did not have dedicated human resource specialists, its process for managing the redundancy of a well-established employee was poorly managed. I have also had regard to the Applicant’s age and economic circumstances.
Consideration
Having considered each of the initial matters, I am required to consider the merits of the Applicant’s application. I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable.[7]
Having considered each of the matters specified in section 387 of the FW Act, set out above, I am satisfied that the dismissal of the Applicant was harsh.
I am therefore satisfied that the Applicant was unfairly dismissed within the meaning of section 385 of the FW Act.
Remedy
In her written submissions, the Applicant states that reinstatement would be “inappropriate” due to “the level of rancour between the parties”. I accept that submission and I note that the Applicant’s description of the process involved in dismissing her was a “dishonest process” and one that involved “constructed” offers of alternative work. While I do not accept the Applicant’s descriptions, reinstatement would clearly be inappropriate.
Having found that reinstatement is inappropriate, it does not automatically follow that a payment for compensation is appropriate. As noted by the Full Bench, “[t]he question whether to order a remedy in a case where a dismissal has been found to be unfair remains a discretionary one…”[8]
Where an applicant has suffered financial loss as a result of the dismissal, this may be a relevant consideration in the exercise of this discretion. I am satisfied that an order for compensation is appropriate, although not in the amount sought by the Applicant.
Section 392(2) of the FW Act requires all of the circumstances of the case to be taken into account when determining an amount to be paid as compensation to the Applicant in lieu of reinstatement including:
(a)the effect of the order on the viability of the Respondent’s enterprise;
(b)the length of the Applicant’s service;
(c)the remuneration that the Applicant would have received, or would have been likely to receive, if the Applicant had not been dismissed;
(d)the efforts of the Applicant (if any) to mitigate the loss suffered by the Applicant because of the dismissal;
(e)the amount of any remuneration earned by the Applicant from employment or other work during the period between the dismissal and the making of the order for compensation;
(f)the amount of any income reasonably likely to be so earned by the Applicant during the period between the making of the order for compensation and the actual compensation; and
(g)any other matter that the Commission considers relevant.
I have considered the above matters. There was no specific evidence led to the effect that an order for compensation would have any particular effect on the Respondent’s enterprise, although the decision to make the Applicant redundant was clearly in the context of collapsing revenue.
The Applicant has been employed with the Respondent for a reasonable period and I accept her submission that she has made genuine attempts at obtaining further employment, albeit unsuccessful.
However, the commercial reality of the Respondent’s position was that had the Applicant not been given notice of redundancy on 18 August 2022, that notice would have followed very shortly after. While I concluded above that the Applicant’s dismissal was harsh because the Respondent failed to engage in any meaningful consultation with the Applicant, I do not consider that better or more meaningful consultation would have necessarily taken much longer or altered the outcome. In the Applicant’s favour, I consider that such consultation would have taken no longer than a week, although it was finely balanced in my mind whether that was too long. So far as there was opportunity for redeployment, I am satisfied that no such opportunity would have arisen. Simply put, the redeployment options advanced by the Applicant were either not realistic, not clearly articulated, or would have involved another person’s position being made redundant in whole or in part. I am not satisfied that the selection of the Applicant over others was improper. The decisions made by the Respondent were decisions of business judgment, and it is not for the Commission to substitute those views for its own.
In the circumstance, I find that the Applicant would have been employed for a further week before she was given notice of termination due to redundancy. I do not consider that there is any reason to discount that amount due to vicissitudes, money earnt elsewhere, misconduct or any other factor drawn to my attention. Based upon the Applicant’s contracted salary, I find the amount of remuneration that she would have received or would have been likely to receive during that period is $2,115 plus superannuation, inclusive of taxation. I am satisfied that this amount is appropriate in all the circumstances of the case.
Disposition
In light of the above, I will make an order[9] that the Respondent pay $2,115 gross less taxation, plus superannuation, as required by law to the Applicant in lieu of reinstatement within 14 days of the date of this decision.
DEPUTY PRESIDENT
Appearances:
Dr A Bissett on her own behalf
D Simpson of Melbourne HR for the Respondent
Hearing details:
2022.
Melbourne:
November 25.
Final written submissions:
9 December 2022
[1] On 6 October 2022, Commissioner Bisset issued an ex tempore decision waiving the irregularity of the application being lodged prior to the dismissal taking effect. The Commissioner also issued an Order amending the application date to 1 October 2022.
[2] Exhibit A5
[3] Sayer v Melsteel Pty Ltd[2011] FWAFB 7498, [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [69].
[4] Crozier v Australian Industrial Relations Commission [2001] FCA 1031, [14].
[5] Ms Christabel Quiah v Vital Care Pty Ltd[2022] FWC 2602, [30].
[6] Reseigh v Stegbar Pty Ltd [2020] FWCFB 533, [55].
[7] ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357, [51]. See also Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [92]; Edwards v Justice Giudice [1999] FCA 1836, [6]–[7].
[8] Nguyen v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter[2014] FWCFB 7198, [9].
[9] PR749747
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