Emily Oratis v Melbourne Business School Ltd T/A Melbourne Business School

[2014] FWC 7463

[2014] FWC 7463

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Emily Oratis
v
Melbourne Business School Ltd T/A Melbourne Business School
(U2013/14884)

COMMISSIONER BISSETT MELBOURNE, 21 OCTOBER 2014

Application for order requiring a person to attend Fair Work Commission - relief from unfair dismissal.

[1] Ms Emily Oratis has made an application alleging that she was unfairly dismissed from Melbourne Business School Ltd (MBS). MBS say that Ms Oratis was made redundant and it was a genuine redundancy in accordance with section 389 of the Fair Work Act 2009 (the Act).

[2] Ms Oratis has sought orders in accordance with s.590(2) of the Act requiring three individuals to attend the Commission for the purpose of giving evidence in the matter. Ms Oratis, in her application for the orders, says that each of the individuals is aware of a conversation Ms Jayne Jennings of MBS had with her in April 2013 with respect to the position of Principal Consultant - Learning Network

[3] Each of the three individuals is still employed by MBS. MBS object to the orders to attend being issued on the grounds that none of the three was a party to the conversation Ms Oratis says took place and, in any event, the conversation to which Ms Oratis refers is not a conversation relevant to the decision to make Ms Oratis redundant. The conversation Ms Oratis says she had with Ms Jennings took place in April 2013, six months prior to her position being made redundant.

[4] I have considered the material and submissions made by Ms Oratis and Mr Ruskin for MBS. For the reasons given below I have decided not to issue the orders sought for any of the three individuals to attend the Commission.

[5] Ms Oratis’ employment was terminated on 8 November 2014. In October 2013 Ms Oratis was advised that the area she worked in for MBS was being restructured. Positions occupied by her and by Ms Celeste Perfect were being abolished and there were two new roles within the organisation for which she could apply. She was subsequently interviewed for the Principal Consultant role but was not successful. She was soon after interviewed for a position of Senior Consultant for which she was also not successful. Following from this Ms Oratis’ employment was terminated.

[6] I have issued orders for the production by MBS of relevant material from each of the interviews attended by Ms Oratis.

[7] MBS have submitted witness statements from two of the three members of the interview panel that was constituted for selection for the Principal Consultant role. Ms Jennings has also made a witness statement. All shall be available for cross examination by Ms Oratis. Issues associated with the conversation - to the extent they are relevant - and with the restructure and selection decisions can all be addressed through those witnesses.

[8] Ms Oratis seeks to have orders to attend issued to three people she says she spoke to after a conversation she had with Ms Jennings in April 2013, six months prior to the interviews and five months prior to being advised that there was to be a restructure. Ms Oratis says that in the conversation with Ms Jennings in April 2013 Ms Jennings had sought to gauge her interest in the Principal Consultant role. Ms Oratis says she then reported this conversation to each of the three people she seeks to have ordered to attend and that each of the three can verify her conversation with Ms Jennings.

[9] I am not convinced that any of the three witnesses can provide evidence on the matters I must decided in the substantive application (that is, whether the dismissal was a genuine redundancy). I am not convinced that there is any relevant connection between the matters to be decided and a conversation that Ms Oratis had with Ms Jennings about the Principal Consultant role five months prior to the restructure that ultimately led to the termination of Ms Oratis’ employment. In any event the evidence of any of the three does not go directly to the conversation between Ms Oratis and Ms Jennings. None of them were present at the conversation and can only give direct evidence of their conversations with Ms Oratis. Further, I am satisfied that other witnesses are to be called who can be questioned and give direct evidence as to the reasons why Ms Oratis was not successful in her application for the position of Principal Consultant.

[10] For these reasons I decline to issue orders to attend directed to Mr Michael Curtain, Mr Greg Harbridge and Ms Jan Marshall.

COMMISSIONER

Appearances:

E. Oratis for herself.

N. Ruskin of K&L Gates for the Respondent.

Hearing details:

2014.

Melbourne:

20 October.

Printed by authority of the Commonwealth Government Printer

<Price code A, PR556858>