[2015] FWC 3147 [Note: An appeal pursuant to s.604 (C2015/4092) was lodged against this decision - refer to Full Bench decision dated 6 October 2015 [[2015] FWCFB 6833] for result of appeal.]

FAIR WORK COMMISSION

DECISION

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

Frances Bertrand
v
Navitas Professional Institute Pty Ltd
(U2014/6268)

DEPUTY PRESIDENT SAMS

SYDNEY, 7 MAY 2015

Application for an unfair dismissal remedy - restructuring of College student learning support services - whether applicant’s dismissal a case of genuine redundancy - allegations that restructuring unnecessary - no change to position - redeployment options - applicant unsuitable for position of Head of Student Learning Support - consultation obligations complied with - case of genuine redundancy - applicant’s performance and conduct relevant to selection procedure - application dismissed.

BACKGROUND

[1] This decision will determine an application, filed by Ms Frances Bertrand (the ‘applicant’), pursuant to s 394 of the Fair Work Act 2009 (the ‘Act’). The applicant seeks reinstatement to the position of Head, Student Learning Support for Navitas Professional Institute Pty Ltd (‘Navitas’ or the respondent’). Her application for unfair dismissal follows her dismissal for reasons of alleged redundancy on 31 March 2014. The applicant had commenced employment with the respondent on 18 July 2012. Her salary at the time of her dismissal was $85,000 and she was employed according to the terms of the Educational Services (Post-Secondary Education) Award 2010 [MA000075] (the ‘Award’).

[2] The applicant maintains that her dismissal was not a ‘genuine redundancy’ within the meaning of s 389 of the Act; while the respondent’s defence was that, following a restructure of the Navitas Group, a new organisational division was created and:

‘As part of this restructure, the current Manager Student Learning Support for ACAP was made redundant.

After a review of Ms Bertrand’s current qualifications and her skills and experience to date in her previous roles prior to joining ACAP and her role at ACAP, it was assessed that Ms Bertrand does not have the required qualification, skills and experience to undertake the new role of Head of Student Learning Support for NPI, specifically:

A PhD or equivalent work experience;

Extensive experience within tertiary education at a senior academic management level;

Demonstrated capacity to inspire and innovate and to identify and take advantage of new opportunities.

Capacity to drive culture change and establish strong partnerships and networks.

After exploring any other suitable roles, the College was unable to offer Ms. Bertrand a suitable comparable role within the College or the Navitas group and she was therefore retrenched from the College.’

[3] The focus of this case was clearly on s 389 of the Act, which sets out the meaning of ‘genuine redundancy’. That section is as follows:

‘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.’

PRELIMINARY MATTERS

[4] Section 396 of the Act requires the Commission to determine a number of preliminary matters before considering the merits of an unfair dismissal application. Section 396 is expressed in these terms:

‘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;

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

[5] In determining these matters, I find as follows:

1. The applicant’s unfair dismissal application was made within the 21 day statutory time period set out in s 394(2)(a) of the Act (s 396(a)).

2. The applicant was a national system employee and the respondent was a national system employer, as defined (ss 13, 14).

3. The applicant was a person protected from unfair dismissal (s 382) in that:

(a) she had completed the minimum employment period of 6 months (2 years) (s 383);

(b) the sum of the applicant’s earnings ($85,000) did not exceed the high income threshold (s 382(b)); and

4. The respondent is not a small business employer (139 full/part time employees), as defined, so the Small Business Fair Dismissal Code does not apply (ss 23, 380).

[6] As earlier mentioned, the issue to be determined is a preliminary one, as to whether the applicant’s dismissal was a case of ‘genuine redundancy’. However, understandably, the case also proceeded on the basis that if the dismissal was not a case of ‘genuine redundancy’, then the question was whether the applicant’s dismissal was ‘harsh, unjust or unreasonable´, within the meaning of s 387 of the Act. This is a two step process and if the dismissal was a case of ‘genuine redundancy’, the Commission has no jurisdiction to consider the second stage and the substantive application must be dismissed.

The relevant provisions of the Award

[7] At this juncture, I outline the consultation provision in the Award. Its terms are unremarkable and are set out as follows:

‘8.1 Consultation regarding major workplace change

(a) Employer to notify

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

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

(b) Employer to discuss change

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

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

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

Permission to be represented by a lawyer

[8] As the issue of permission to be represented by a lawyer arose periodically during the proceedings, I propose to give substantive reasons for granting permission for the respondent to be represented by Mr T Frost, Solicitor. At the outset, I note that while the applicant appeared for herself, she was assisted on the first day of hearing by her partner and on the last day of hearing by her son, a solicitor.

[9] Section 596(2) of the Act is the relevant section on this matter. It is expressed in the following terms:

‘(2) The FWC may grant permission for a person to be represented by a lawyer or paid agent in a matter before the FWC only if:

(a) it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter; or

(b) it would be unfair not to allow the person to be represented because the person is unable to represent himself, herself or itself effectively; or

(c) it would be unfair not to allow the person to be represented taking into account fairness between the person and other persons in the same matter.’

[10] At the outset, four points need to be made about the Commission’s grant of permission for a party to be represented by a lawyer or paid agent. Firstly, while the decision is a discretionary one, it ought not be regarded as a mere procedural decision; See: Warrell v Walton [2013] FCA 291 (‘Warrell’) at para [24]. A grant of permission decision sits alongside of, and is complementary to ensuring the Commission’s powers in the performance of its functions under the Act are fair, just, quick, informal, open and transparent and avoid unnecessary technicalities (s 577).

[11] Secondly, there must be some doubt as to whether the objection to legal representation can, or should be able to be reagitated, once permission has been granted prior to, or at the outset of proceedings. In this case, the applicant plainly disagreed with my decision for Mr Frost to appear at the outset of proceedings. In fact she reagitated her objection at the close of her own evidentiary case. It seems to me that if an application for permission has been granted and is then reversed midway through the proceedings, there may well be difficulties for the orderly and efficient conduct of proceedings.

[12] Thirdly, there is no basis in the statutory provisions for considerations of:

who the party seeking to be represented by a lawyer chooses as its lawyer, whether a barrister, solicitor or particular law firm; See: New South Wales Bar Association v McAuliffe and another[2014] FWCFB 1663 (‘NSW Bar Association v McAuliffe’) at para [24]; or

what the costs may be to the party seeking to be represented by a lawyer.

[13] Fourthly, the principles to be applied by the Commission were first judicially considered in Warrell and subsequently adopted by a Full Bench of the Commission in NSW Bar Association v McAuliffe. In Warrell, Flick J said at para [24]:

‘A decision to grant or refuse “permission” for a party to be represented by “a lawyer” pursuant to s 596 cannot be properly characterised as a mere procedural decision. It is a decision which may fundamentally change the dynamics and manner in which a hearing is conducted. It is apparent from the very terms of s 596 that a party “in a matter before FWA” must normally appear on his own behalf. That normal position may only be departed from where an application for permission has been made and resolved in accordance with law, namely where only one or other of the requirements imposed by s 596(2) have been taken into account and considered. The constraints imposed by s 596(2) upon the discretionary power to grant permission reinforce the legislative intent that the granting of permission is far from a mere “formal” act to be acceded to upon the mere making of a request. Even if a request for representation is made, permission may be granted “only if” one or other of the requirements in s 596(2) is satisfied. Even if one or other of those requirements is satisfied, the satisfaction of any requirement is but the condition precedent to the subsequence exercise of the discretion conferred by s 596(2): i.e., “FWA may grant permission...”. The satisfaction of any of the requirements set forth in s 596(2)(a) to (c) thus need not of itself dictate that the discretion is automatically to be exercised in favour of granting “permission”.

See also: Asciano Services Pty Ltd v Hadfield[2015] FWCFB 2618.

[14] While I respectfully accept the findings in both Warrell and NSW Bar Association v McAuliffe and am bound by those decisions, I reiterate what I said in Applicant v Respondent[2014] FWC 2860, where one party is unrepresented, more usually, but not always the applicant:

‘[17] In passing, I note that Flick J also said in Warrell:

‘The appearance of lawyers to represent the interests of parties to a hearing runs the very real risk that what was intended by the legislature to be an informal procedure will be burdened by unnecessary formality.’

[18] For my part, and with respect, this observation has not been my experience. Invariably, I have found the skills and expertise of an experienced industrial legal practitioner will be more of a help than a hindrance, particularly bearing in mind a legal practitioner’s professional obligations to the Commission and the Courts. In this respect, I refer to the comments of Mason CJ in Giannarelli v Wraith (1988) 165 CLR 543; [1988] HCA 52:

‘[A] barrister’s duty to the court epitomizes the fact that the course of litigation depends on the exercise by counsel of an independent discretion or judgment in the conduct and management of a case in which he has an eye, not only to his client’s success, but also to the speedy and efficient administration of justice. In selecting and limiting the number of witnesses to be called, in deciding what questions will be asked in cross-examination, what topics will be covered in address and what points of law will be raised, counsel exercises an independent judgment so that the time of the court is not taken up unnecessarily, notwithstanding that the client may wish to chase every rabbit down its burrow. The administration of justice in our adversarial system depends in very large measure on the faithful exercise by barristers of this independent judgment in the conduct and management of the case.’

[19] More recently, a Full Bench of the Commission in E. Allen and Ors v Fluor Construction Services Pty Ltd[2014] FWCFB 174 said at para [48]:

‘A lawyer’s duty to the Commission is paramount and supercedes a lawyer’s duties to their client. A grant of permission to appear pursuant to s.596(1) of the Act is based upon a presumption that the representative to whom leave is granted will conduct themselves with probity, candour and honesty. The duty of advocates in that regard has been long recognised by the Commission [footnotes omitted].’

[20] Informality is one thing, but there is still a statutory foundation which must be observed in the exercise of all the Commission’s powers and functions. In my experience, the prospects of a case being run more efficiently and focused on the relevant issues to be determined, is more likely where competent legal representation is involved. I agree with what was said by the Full Bench in Priestley:

‘[13] In our view DPS has established that representation would assist DPS to bring the best case possible. Representation by persons experienced in the relevant jurisdiction will be of undoubted assistance in this regard. We are satisfied that the particular counsel has the capacity to assist the DPS and assist the Tribunal in performing its functions.’

[21] In my view, balancing fairness between parties is as much a case of courtroom management, as it is a case of legislative mandate. With the greatly increased exposure of all courts and tribunals to self-represented litigants, with all of the well known difficulties this brings, the appearance of a focused, experienced and sympathetic legal practitioner is, more often than not, a welcome relief.

[22] On one interpretation, the Commission is positively required to undertake consideration and make appropriate findings in accordance with s 596(2) of the Act, even in circumstances where both parties are legally represented and neither party objects to the legal representation of the other party. To my mind, this is an unnecessary waste of the Commission’s time and resources.’

[15] Turning then to the specific legislative provisions, in my view, this matter would be dealt with more efficiently, taking into account the complexity of the matter, if legal representation was granted to the respondent. The issue to be determined (whether the applicant’s case was a ‘genuine redundancy’) was of some complexity and significant evidentiary conflict (s 596(2)(a)). While a reasonably large employer, there was no evidence that the respondent engaged a person/s with any particular employment law expertise or experience in proceedings before the Commission (s 596(2)(b)). In any event, I need only find that one of the three sub-sections of s 596(2) has been established, before considering the general discretionary power to grant permission to be represented by a lawyer; See: Warrell at para [24].

[16] Given the amount of documentary material relied upon by the applicant, her familiarity with the Commission’s processes and the manner in which she conducted both herself and her case, the unfairness balance would have been against the respondent, if it was required to conduct its case without legal assistance. Now the case has concluded, it was apparent how stark this unfairness would have been had the respondent’s witnesses not been assisted (and sometimes protected) by legal representation given the unrelenting, inappropriate (‘You are a liar’) and largely irrelevant questioning of them by the applicant. To demonstrate this point, I quote excerpts from transcript.

[17] PN 1075 - PN1083:

‘And I say that that's a lie?---I disagree.

I say that if she had a masters degree, you could have produced the academic transcript.

MR FROST: I object. This isn't an occasion for Ms Bertrand to be making statements from the bench. She's had her opportunity to give evidence and she's done so. Her role here is to ask questions of Dr Dickson and she should confine herself to asking questions and not to making statements, in my submission.

MS BERTRAND: I believe that was a question?---Sorry, what was the question again?

That you say that she has a masters degree?---Correct.

And I say that's a lie?---Well, that's not a question.

MR FROST: I renew the objection. That's not a question.

MS BERTRAND: Sorry, I suggest that's a lie?---It's still not a question. It's not a lie.

THE DEPUTY PRESIDENT: The question has been answered, Ms Bertrand.’

[18] PN 1152 - PN 1157:

‘MR FROST: I object to the question on two bases: one is this continued use of the word "lie" is unhelpful and offensive and involves not just an assertion that the evidence is false but also an assertion that it's deliberately or knowingly false. So on that basis I object. Secondly, whether a particular piece of evidence is believable or not is not a matter that Dr Dickson should be asked about. He can be asked about the underlying factual matter as to what is the salary for the position but putting an assertion that his earlier evidence is not believable is an opinion matter that he's in no position to answer and shouldn't be required to answer, in my submission.

THE DEPUTY PRESIDENT: I just ask you, Ms Bertrand, to restrain your exaggerated use of the word "lie" and "liar". This is not the place for such allegations to be made without little or no foundation. If they're your opinions, you're perfectly entitled to hold them and you can say what you like in submissions but I'd ask you to restrain yourself. It's most unbecoming.

MS BERTRAND: Your Honour, I don't believe I used the word "liar".

THE DEPUTY PRESIDENT: It's the same thing. If you're asking someone if their statement is a lie, you're calling them a liar.

MS BERTRAND: If I may just disagree with that. When I - - -

THE DEPUTY PRESIDENT: You can disagree all you like. Your role is to ask questions, it's not to make statements and it's certainly not to make offensive statements.’

[19] PN 1054 - PN1062, PN 1075:

‘MS BERTRAND: I put it to you that what you just said is a lie. I put it to you that no serious college would not have the academic transcripts?

DR DICKSON: I would put it to you that no institution would have academic transcripts of all its staff, particularly it's academic staff.

MS BERTRAND: Could you please answer the question?

DR DICKSON: I'm not lying.

MS BERTRAND: You're a liar.

MR FROST: I object to that. This is going nowhere and it's offensive, frankly, for an honourable man to have that sort of accusation to him.

MS BERTRAND: I thought that's what he said. What did you say?

DR DICKSON: I did not lie.

MS BERTRAND: I put it to you that you failed to comply with an order of the Fair Work Commission.

MR FROST: I object to that. That's not a matter of evidence, that's just an allegation against Dr Dickson and it's entirely unfounded and inappropriate to put to him.

MS BERTRAND: I put it to you that the reason given for the academic transcript not being produced is a lie?

DR DICKSON: That is not correct.

MS BERTRAND: I put it to you that the real reason that the document has not been produced is because on 26 August, at this hearing, you lied about Ellen Cooper's qualifications?

DR DICKSON: That is not correct.

...

MS BERTRAND: And I say that that's a lie?

DR DICKSON: I disagree’

[20] That said, I am more than satisfied that the applicant was well able to prosecute her case and cross-examine witnesses. Moreover, her claims of unfairness sit rather uncomfortably with the assistance provided to her by her son, Mr Leon Bertrand, on the second day of hearing, who, despite being a solicitor, failed to disclose his status until pressed, as the following exchange will demonstrate:

‘THE DEPUTY PRESIDENT: People can answer by - by the way, who's giving you advice?

MS BERTRAND: Are you sure that it's more than - - -

THE DEPUTY PRESIDENT: Ms Bertrand, I asked you a question.

MS BERTRAND: Yes.

THE DEPUTY PRESIDENT: Who is giving you advice?

MS BERTRAND: My son.

THE DEPUTY PRESIDENT: Is he a trained lawyer?

MS BERTRAND: Yes, he is, your Honour.

THE DEPUTY PRESIDENT: And yet you object to the other side being represented by a lawyer.

MS BERTRAND: He's not representing me.

THE DEPUTY PRESIDENT: He's directing questions to you. I can hear him.

MS BERTRAND: Good. Anyway, I don't withdraw my objection.’

[21] While I accept that there is a distinction between a person assisting a party, who is a solicitor (as claimed by the applicant), and a solicitor representing a party, it was obvious to me that the applicant’s son was telling her what questions to ask and had more than likely assisted with preparing her final submissions. Given these circumstances, her objections to Mr Frost’s representation have somewhat of a ‘hollow ring’ to them. I reaffirm my decision to grant permission for the respondent to be represented by a lawyer.

THE EVIDENCE

[22] The following persons gave written and oral evidence in the proceeding:

The applicant;

Dr Scott Dickson, Dean, Navitas; and

Ms Hilda Driessen, formerly HR Manager (PEP), Navitas.

For the applicant

[23] In written evidence, the applicant stated that she had over twelve years experience in Educational Management, which she set out as follows:

Academic Director, Academy of Information Technology (2006-2011);

Senior Secondary School Principal and Director of Studies, Oxford College/Specialty Language Centre (2003-2006);

Academic Coordinator (Junior Manager), Language Studies International (2000-2002).

[24] The applicant listed her qualifications as:

Masters Degree in Computers, Technology and Language Learning (University of Queensland);

Graduate Diploma in Computer Education;

Graduate Certificate in Business Administration;

Graduate Diploma in Education;

Honours Degree in Science, majoring in mathematics.

[25] The applicant described her role and responsibilities as Manager, Student Learning Support, as follows:

‘a) Developing and implementing strategies to deliver a high standard of support for student learning at ACAP/NPI for students in all modes of study (on campus, online and blended) on all campuses, incorporating continuous improvement

b) Establishing professional relationships and liaising and collaborating with personnel in other departments, for example, heads of school, in order to carry out support activities effectively and smoothly

c) Hiring, leading and managing the SLS team across campuses, including responsibility for performance review

d) Preparing and submitting an annual Operational Plan for SLS

e) Communicating and promoting services to all stakeholders

f) Developing and implementing policy proposals that align with overall organisation policy and enhance, streamline and systematise student learning support

g) Reporting regularly on all SLS activities and initiatives and maintaining records

h) Working with others to enhance the reputation of ACAP and NPI

i) Undertaking applied research and scholarly activities to inform the department’s initiatives and practice

j) Enhancing and extending the use of technology in service development and delivery.’

The applicant attached copies of her contract of employment and a position description for her role as Manager, Student Learning Support. The latter is annexed to this decision and marked ‘Annexure A’.

[26] The applicant gave evidence in relation to conflict in her workplace prior to her dismissal. She said that in January 2013, Ms Maria Spies, Head of Learning, Teaching & Technology Services had told her that her leadership skills needed improvement. She was directed to attend a formal meeting with Ms Hilde Driessen, Human Resources Manager. The applicant had sent Ms Spies an email on 25 March 2013 in the following terms:

‘I would like to write to you about the meeting you flagged in your email, to me of 1 February 2013. The meeting was to be in your words ‘a proper discussion of the issue’ of your opinion of my leadership and interpersonal skills. However, now more than seven weeks has passed since that email and there has been no meeting, nor has a date has been set. Perhaps you realise that your claims will not stand up to scrutiny, which would be good news.

My employment at ACAP is under a cloud. I am anxious and have trouble sleeping because this meeting is supposed to substantiate your unsubstantiated claims regarding my job performance, but time is passing and no meeting has been arranged. This is in spite of the fact that I requested that any such discussions take place promptly. I ask that a date be set, and that I have at least one week’s notice, in order to prepare. A suitable time will also have to be arranged so that my NTEU support person can be present.

I look forward to your suggested dates ’

[27] The applicant attended a meeting with Ms Spies and Ms Driessen on 9 April 2013. Mr Kobie Howe of the National Tertiary Education Union (the ‘Union’) attended with her. Ms Spies had referred to anonymous feedback from other employees that the applicant was autocratic in her style and approach to staff.

[28] The applicant complained that Ms Spies had allocated her ‘huge’ extra reporting responsibilities. She had sought extra resources from Ms Spies in a three page memo to her dated 7 June 2013. This request was not granted and she was directed to attend a further meeting on 27 June 2013. The applicant claimed that in the course of that meeting (with the same attendees), Ms Spies had falsely asserted that she had apologised to her, in the past, for being disrespectful and discourteous to her.

[29] After reading Ms Spies’ final comments of her performance review in August 2013, the applicant provided a written response. She alternately refuted Ms Spies’ comments and attributed any perceived shortcomings to a lack of resources - resources which she had previously sought and had been denied. She described a number of Ms Spies’ points as ‘vague’. In response to Ms Spies’ report that her ‘leadership behaviours had improved’, the applicant had responded that her ‘leadership skills were always good and have not changed; the team members that I work with have changed.’ She took issue with an assertion by Ms Spies that she was not open to compromise to achieve critical goals and that she was inflexible. She said that Ms Spies’ assertions on this point were unsubstantiated by reference to particular incidents. She strongly disagreed that she had been disrespectful when she had told Ms Spies she was ‘lying’ at the meeting on 27 June 2013.

[30] The applicant lodged a formal grievance on 27 September 2013 after she had been told that her salary would not be adjusted from 1 July 2013. She received a response from Mr Andrew Little, Principal Executive General Manager on 22 October 2013, stating that he would be the Grievance Handler and Decision Maker in relation to her grievance. As she believed the procedure followed by the respondent was ‘informal’, she had sought a formal grievance process on 20 November 2013. This was refused by Mr Little in a further email on 11 December 2013, on the basis that the applicant had refused to sign a blanket confidentiality agreement. The applicant conceded that the confidentiality requirement in relation to her grievance process would not have prevented her talking to her Union official or lawyer.

[31] The applicant said that she was asked to attend an ‘informal talk’ with Ms Driessen and Dr Dickson in Dr Dickson’s office on 27 February 2014, in relation to allegations made by Ms Jacqui Parker, one of her subordinates. She sent an email to Ms Driessen and Dr Dickson on 28 February 2014 in the following terms:

‘After reflecting on the informal talk/meeting with you that I was called to yesterday, I would like to ask a few questions so that I can be clear on the purpose of the meeting. Could you please let me know in writing:

1. Whether you approached Jacqui Parker or whether she first approached you regarding problems with her SLS position and or myself.

2. What her complaints were or serious criticisms of me or my behaviour (I am aware that she was not happy that I contacted her daughter [my emphasis]).

3. Can you confirm that you (Hilde) know of no problems between Jacqui Parker and the School of Counselling where she was a teacher until recently?’

Dr Dickson refused to provide an answer to the third question on that basis that it was irrelevant. The applicant said that she did not get answers to her other questions.

[32] On 25 March 2014, the applicant received an email from Mr Richard Arkell, Acting Principal, informing her that her position would be made redundant, but that Navitas would make ‘every effort’ to find an alternate position for her. Dr Dickson sent her a letter on 31 March 2014 informing her that she had been made redundant. She did not work for the respondent after that day.

[33] The applicant referred to the respondent’s evidence that her redundancy had been necessary to ‘bring the Student Learning Support (SLS) Services within the NPI Colleges together.’ The College, for which she was the Manager of Student Learning Support, Australian College of Applied Psychology (ACAP) had approximately 3,900 students, many more than in the other Navitas Colleges. The only difference between her role and the new role was that it would involve an increase of 20% in the number of students. She was already liaising with Heads of School, Regional Directors and General Managers in her role as Manager, Student Learning Support. There was no reason why she could not perform the new role and the respondent was aware of her extensive qualifications and substantial experience. In referring to Dr Dickson’s statement, she denied that her work was restricted to ACAP.

[34] The applicant claimed that the respondent had not engaged in a proper consultation process, as she had not been asked whether she could perform the new role. She had never been asked if she had experience in reporting department activities at industry forums. Indeed, she had made such presentations in the past. She believed that any attempts by Navitas to find an alternative role for her were ‘cursory’. Her redundancy was a ‘sham’ designed to end her employment.

[35] The applicant said that she went to Melbourne for talks on the integration of SLS services, on or around 25 February 2014 (for the first time with Navitas) to talk to Ms Angela Bradley (Head of Health Skills Australia (HSA)), Mr Ed Irons (Learning Support Officer, National College of Public Safety (NCPS)) and Ms Jacqueline Delord (Human Resources Coordinator). She denied having said that she did not have any ideas when she met with Dr Dickson on her return on 26 or 27 February and, in any event, this was just a passing encounter and could not be said to be a meeting.

[36] The applicant rejected Dr Dickson’s evidence that her reports lacked ‘deeper analysis’ and said that the conclusion he had drawn from the email of 20 February 2014 (see para [95]) was incorrect. She had been conscientious in attempting to ensure that the SLS service would not be short staffed as a result of Dr Dickson going on leave.

[37] The applicant explained that on 28 February 2014, she had conducted a performance assessment of her subordinate, Ms Belinda Cutting in a public area as Ms Cutting had delayed the process, which was due to be completed by 5:00pm that day and had refused to have the meeting in private, without a support person present. She would have been happy for Ms Cutting to have a support person, but no-one was available. Ms Cutting seemed to become upset during the review and they were approached by Dr Dickson.

[38] The applicant emphasised that she had only had short notice of the meeting with Mr Dickson and Ms Driessen on 25 March 2014 and she told him that she was busy. Dr Dickson had said that it would only take 6 or 8 minutes. She was uncomfortable with this, which was why she remained standing throughout the meeting. She had been polite and businesslike during this meeting. She had not said ‘No. I don’t have time for this and / don’t want to sit down’. Nor had she refused to take the day off.

[39] The applicant stated she had not applied for the new position as this would have meant acknowledging that she was just one of many candidates. She added: ‘The issue is not whether I compare well with other candidates, but whether I am capable of doing my job.’

[40] The applicant referred to Ms Driessen’s evidence and clarified that the SLS role did not include assistance with content. The help given by staff members was restricted to text organisation, formal and academic (where appropriate) English language skills, time management and study techniques. The applicant believed that Ms Driessen had extracted her comments in relation to criticism of her leadership skills out of context.

[41] In cross examination, after Mr Frost referred to emails annexed to her statements, the following exchange took place:

‘MR FROST: Ms Bertrand, in your second statement, the one that's marked exhibit 2, you've attached 39 documents, including eight documents numbered FB20 to FB27, which are put forward as copies of emails between Ms Jacqui Parker and Ms Susannah Gregory. Is that right?---Not just Susannah Gregory. There are some of the emails that have been written to other people.

But the emails include Ms Parker and Ms Gregory?---Yes.

Emails to and from those two people?---Yes.

Those emails were not emails to or from you, were they?---They may have included some emails from me.

They weren't sent to you, were they?---Well, each document has more than one email, so within the document there may be emails to me.

Are you saying that some of those emails - and I'm talking about the eight chains of emails from FB20 through to FB27?---Yes.

Are you saying that some of those emails were sent to you?---Yes, I am.

And some of them were not?---Correct.

Where did you get the emails - the emails that were not sent to you?---Okay. So I decline to answer that on the grounds of relevancy. I feel it's not relevant.

I press the question. It bears on - I press the question.

THE DEPUTY PRESIDENT: Yes, you must answer the question?---Okay. I decline to answer on the grounds that I may incriminate myself.

THE DEPUTY PRESIDENT: Ms Bertrand, this isn't a criminal trial.

MR FROST: Can I make a submission, your Honour?

THE DEPUTY PRESIDENT: Yes.

MR FROST: The emails in the main, if not exclusively, are between two other employees and relate to the dealings that one of both of them have had with Ms Bertrand. It appears, on the face of the emails, that they were not sent to Ms Bertrand, and that they must have been obtained by some inappropriate means. That's the appearance on the face, hence the question. If there has been some tampering with email systems then there's a potential for Ms Bertrand to have breached - I will use a neutral term - legal obligations in relation to those acts.

The respondent, I submit, is entitled to know where these emails came from. I think it bears on the approach the commission should take in determining the application; but I'm not sure that the reference to incrimination is inappropriate.

THE DEPUTY PRESIDENT: Are the persons exchanged in the emails giving evidence?

MR FROST: No.

THE DEPUTY PRESIDENT: Ms Bertrand, if you refuse to answer, there may well be an adverse inference taken. So if there's a perfectly reasonable explanation as to how you obtained those emails, you should say so?---Well, I'm not saying there isn't a perfectly reasonable explanation, but - and I don't believe I've done anything illegal, but just in case, I've been advised to say that I decline to answer on the grounds that I may incriminate yourself.

Who told you that?---A person who has been advising me.

A lawyer?---Do I have to say?

Well, I'm asking you a question?---I'm representing myself.

You're now telling me that you're getting advice which is directly contrary - - - ?
---No, I'm taking responsibility - - -

- - - which is directly contrary to your earlier submissions when we were discussing permission to appear, you said it was all unfair because the employer was represented by a lawyer. It now appears you're getting some form of legal advice, because an ordinary person would not talk about incrimination in civil proceedings?---Every statement I'm making, I'm taking responsibility for myself. There's no lawyer here. My support person is not a lawyer. I'm not being represented by a lawyer.

But you've had some advice, have you not?---As the other side has also, yes.

You never told me that before?---What has it got to do with it?

It may go to questions of your credibility. I require you to answer the question?
---I'm sorry, I can't. I won't, on the grounds that I may incriminate myself.

In what way?---I don't - I don't have the legal knowledge to know what's - - -

So how do you know?--- - - - and what's not. I've been advised to say that and not to answer.

I've just told you that a submission is going to be put about this from the respondent and it may well be that adverse inferences will be drawn because of your refusal to answer the question.’

[42] The applicant believed that these emails proved that Ms Gregory and Ms Parker had colluded to make her job difficult and that they were encouraged to do so by the Management of Navitas. She agreed that most of the emails were between Ms Gregory and Ms Parker. None were between either one of them and the Management of Navitas. She accepted that neither she, Ms Gregory or Ms Parker had been present in the meetings where the decision was made for her role to be made redundant and that she did not know what had been discussed in those meetings.

[43] The applicant agreed that ACAP was an organisation within the Navitas Group. There had been a name change to Navitas Professional Institute around June or September 2013. She noted that she had made preparations to extend the services that she was in charge of across all the Navitas Colleges. She had travelled to Melbourne to meet personnel from the Colleges from there, but this was at the stage of preliminary planning.

[44] The applicant acknowledged that the position description attached to her contract of employment described her role as ‘Manager, Student Learning Support’ and that this role only related to ACAP. However, she said that this role had changed in February 2014 in discussions she had with Dr Dickson at that time. She had not been given a new position description, there had been no formal steps to change her role title and she continued to be employed by Navitas.

[45] The applicant agreed that the Navitas Workplace Division and Navitas English had merged to form a new organisational unit called Navitas Professional and English Programs (PEP). One Unit within PEP was NPI. NPI was made up of four previously existing businesses, being ACAP, NCPS, HSA and the Australian TESOL Training Centre (ATTC). Dr Dickson had assumed the role of heading up NPI as Dean as part of this gradual process. He had previously been Dean of ACAP. The applicant accepted that she reported to Ms Spies until September 2013. Her role then reported to Dr Dickson in his capacity as Dean.

[46] In response to a question as to whether other Colleges had SLS functions, the applicant agreed that NCPS had a part time SLS resource. Health Skills Australia had no allocated SLS resources and she had never been told whether ATTC had SLS resources.

[47] The applicant said that her regular weekly or fortnightly meeting with Dr Dickson had been cancelled on 26 February 2014, after she returned from Melbourne. She denied that the brief conversation in passing she had with Dr Dickson constituted a ‘meeting’. She referred to Dr Dickson’s evidence that she had been asked for her thoughts on how the business could integrate SLS across the NPI Colleges and that she had responded negatively, as a ‘fabrication’. She was disappointed that there was no real follow-up; Dr Dickson was on leave in March. There had been a discussion prior to her trip to Melbourne, in which she and Dr Dickson had discussed extending the services across the Colleges, which took place at the end of January or the beginning of February 2014 and he had asked her to draw up a position paper. She had been aware from January or early February 2014 that Navitas was considering extending SLS services to at least NCPS and HSA, but denied that there had been further conversations with Dr Dickson.

[48] The applicant agreed she had been sent an email on 24 March 2014 proposing that she attend a meeting at a set time the next day. She sent an email on 25 March 2014 saying that she was too busy and proposed another time. Dr Dickson had then called her and asked her to attend the meeting, which she did directly after the telephone conversation. She rejected a proposition that this failure to mention the email of 24 March 2014, in her written evidence, was misleading.

[49] The applicant agreed that she had declined to sit during this meeting. She could recall the word ‘restructure’ being used. She had been told that her skill set did not match the new role and that she and her role were redundant. Dr Dickson said that the College would consider other positions for her. She had not proposed any positions to which she could have been redeployed during the period between 25 and 31 March 2015. She had not been aware of, prior to the evidence given in these proceedings, of the steps taken by the respondent to find an alternative position for her. There was no discussion as to who would be recruited into the new position across NPI Colleges. Any evidence that she had been given a position description in relation to this position was ‘fabricated’.

[50] The applicant could not recall being given the complete Navitas policy and procedure for redundancy, but may have been given an extract from it. However, she had been given an Employee Assistance Program flyer. She had also been given a letter from Mr Arkell which referred to the redundancy policy, but there had been nothing else attached to the letter.

[51] The applicant believed that Ms Driessen had been lying to her when she said that there were steps being taken to seek her redeployment. She did not believe that there had been any genuine redeployment efforts made. Ms Driessen had sent her an email headed ‘Estimated Redundancy Calculation’ on 26 March 2014. While this email asked if the applicant had any questions about the redundancy of her role, she did not accept that Ms Driessen was seeking to engage in the redundancy and redeployment process. It was merely made to look as if they were engaging with her. She had received a position description for the new position which was virtually identical to her current one.

[52] The applicant had responded to this email by seeking a meeting to have the changes explained to her, including who would be undertaking duties that she carried out and how SLS would be restructured. She had asked that a Union official be present and the earliest anyone could attend was Friday 28 March 2014. Navitas had proposed meeting at 11:00am, 11:30am or 12:00pm and asked that she respond to confirm the Union official’s availability. She did not respond until 9:00am, Friday 28 March when she wrote to Ms Driessen to say that she had been unable to fix a time for the Union official to attend, that she was feeling unwell and would not be attending ACAP that day and that she would post her keys and swipe card to the respondent. She had not done so, because nobody had asked her to send them in.

[53] The applicant agreed that Ms Driessen had offered to extend the consultation period to Monday and then said again on Monday that the College was continuing to look for suitable alternative roles for her. She regarded this process as a ‘sham’, but had participated by indicating the roles in which she would be interested. She came to strongly suspect that the process was a ‘sham’ by 27 March 2014. She clarified that she sought a role at a similar level at CBD premises or within Sydney which was within a reasonable distance of her home in Bexley. She agreed that Ms Rosemary Hans from Navitas had sent an email asking if there were any available positions. She was not saying that Ms Hans was part of the ‘sham’. She denied that her view that the process was a ‘sham’ was self-fulfilling. She believed that Navitas were unhappy with her and wanted her to go. She denied that this was the reason she had not attended the meeting on 28 March 2014. She had not looked for a job within Navitas. She had been sent a confirmation of her redundancy on 31 March 2014.

[54] After considering the position description and becoming aware of the person working in the role, the applicant did not accept that the new NPI focused role had a significantly more senior leadership focus, than her previous role. She did not believe that the new role attracted a remuneration package of $120,000p.a., rather than her own $85,000p.a.

[55] In response to questions from me, the applicant said she had not applied for the new role and explained: ‘Because I don’t think it’s a matter of me being the best for the position, it’s a question of whether I can do it effectively.’ She did not believe that the person in that role was more qualified than her. She knew this because she had perused the person’s LinkedIn profile. She acknowledged that she could not know how a person would perform at an interview. If she had been doing the job, which she had been from February 2014, and she was capable, then she should have been retained. She maintained that the planning work she did in February 2014, constituted management responsibilities for the three Colleges. However, she conceded that she did not manage the provision of SLS services in the other Colleges. She did not believe that a candidate would need extensive experience within tertiary education at a senior tertiary management level to perform the new role. She refuted a proposition that she did not have a demonstrated capacity to drive cultural change and establish strong partnerships and network.

[56] The applicant disputed Dr Dickson’s evidence that the ACAP student numbers consisted of 3,800 and that of NPI in total consisted of 6,700. She had retained and relied on information from the respondent’s database to prosecute this case and to get her job back. She acknowledged that this information included confidential student information. However, she believed that who the information belonged to was irrelevant.

[57] The applicant rejected the proposition that she was an unsuccessful leader of the SLS role at ACAP or NPI. She had never received any indication from Dr Dickson that he was unhappy with her management. Ms Spies had talked vaguely of leadership issues, based on anonymous feedback from Melbourne and Brisbane. The applicant acknowledged that her individual performance was given as a reason for the College denying her a salary increase, but she did not accept adverse findings as to her performance and leadership style. She accepted that Navitas was within its rights not to award her a salary increase.

[58] The applicant defended her decision to conduct a performance review in a public area, saying that ‘It wasn’t optimal, but it wasn’t a terrible thing.’ It was a Friday and there had been no people walking past.

[59] The applicant acknowledged that the respondent had paid all her legal entitlements.

[60] I note that, at the close of the respondent’s evidentiary case, the applicant submitted an email from Ms Spies to her, dated 7 June 2013. This related to the reporting requirements which Ms Spies had expected from the applicant and her team at the time.

For the respondent

Dr Scott Dickson

[61] Dr Dickson has been employed as Dean of Navitas’ Colleges since February 2012 and was Dean of ACAP between February 2012 and July 2013. Since July 2013, he has been Dean of ACAP, NCPS, ATTC and HSA. He was previously employed by the Australian College of Physical Education between March 2004 and February 2012. He holds the following qualifications:

Bachelor of Education (Physical and Health Education), University of Wollongong;

Master of Education, University of Wollongong; and

Doctor of Philosophy, University of New England.

[62] In written evidence, Dr Dickson referred to the applicant’s employment contract and the position description, which indicated that the applicant was employed in the role of Manager, Student Learning Support. Before the restructure in July 2013, the applicant had reported to Ms Spies in her role as Head of Learning, Teaching and Technology Services (LTTS). After this date, the applicant reported to him.

[63] Dr Dickson explained the restructure of the respondent’s operations in July 2013. It consisted of Navitas Professional and Navitas English merging to form Navitas Professional and English Programs (NPEP). NPI was one of the new business units within NPEP. ACAP, NCPS, HSA and ATTC were brought under NPI. He had initiated a change in structure and reporting line for SLS services, which had previously come under LTTS, headed by Ms Spies. LTTS formed part of the Teaching and Technology Services team after July 2013, but he requested that SLS be moved into the NPI business, because it related directly to the academic success of students. He became responsible for SLS services in September 2013. This arrangement had been communicated to the applicant in a letter dated 16 September 2013.

[64] Since assuming responsibility for the NPI Colleges, Dr Dickson had been involved in ongoing reviews to integrate them. He felt SLS services needed to be more widely offered. Mr Andrew Little, Executive General Manager agreed that he should arrange this focus. Industry regulators expected quality SLS services available to all students. There was an underlying principle that all students, regardless of the course delivery type and geographical location, should be able to access information and services at a level of quality consistent with any other students. This led to further centralisation and integration for all the NPI Colleges.

[65] Together with Mr Little, Dr Dickson had discussed the creation of a senior role for SLS services, which was more senior to the role performed by the applicant and had offered his opinion that the applicant was not a suitable candidate for such a role. He had decided that there should be a nationally based leadership role, reporting directly to him. Because SLS services would be coordinated and performed centrally, there would be no need for the ACAP specific position. He had consulted with Ms Driessen, HR Manager (PEP) in developing a proposal for the recruitment of Head of Student Learning Support and the redundancy of Manager, Learning Student Support.

[66] Dr Dickson set out the key responsibilities of the successful candidate in the role of Head of Student Learning Support as follows:

(a) Leading the strategic expansion of SLS services across NPI academic units.

(b) Leading the development of SLS activities based on industry best practice.

(d) Managing resources and budgets.

(e) Fulfilling reporting obligations and coordinating communications systems and processes.

(f) Representing NPI and NPI Colleges in the community and interacting with internal and external stakeholders.

[67] Dr Dickson was also of the view that it was implicit that the new role be able to:

(a) identify resource needs amongst the NPI Colleges;

(b) manage the existing SLS service units within NPI Colleges and their staff;

(c) liaise and engage with existing SLS service units to bring them ‘on board’ with a central and harmonised SLS services system, so as to facilitate a cohesive team; and

(d) understand and apply the most current scholarly thinking and developments to the process.

[68] Accordingly, Dr Dickson believed that the following skills and experience were essential in a successful candidate for the new role:

(a) a PhD or equivalent work experience in an area relevant to this position;

(b) extensive experience within tertiary education at a senior academic management level with a thorough understanding of contemporary student learning support methodologies and the ability operate in a commercial environment;

(d) demonstrated capacity to inspire and innovate and to identify and take advantage of new opportunities;

(e) excellent written, oral communication and presentation skills;

(f) capacity to drive cultural change and establish strong partnerships and networks; and

(g) high-level management and interpersonal skills with a proven ability to motivate, mentor and challenge.

[69] Having considered the above requirements, a position description for the Head of Student Learning Support was developed. A copy of the position description is annexed to this decision and marked ‘Annexure B’. Dr Dickson considered that the new role had a significantly greater responsibility in terms of student numbers and the provision of SLS services. There was a total of 6,700 students across the four Colleges, of which 3,838 were ACAP students. The base salary for the new role was $120,000, rather than the $85,000 paid to the applicant in her former role. The duties performed by the Manager, SLS would become a small part of the Head of Student Learning Support role.

[70] Based on his experience working with the applicant and his assessment of her skills and qualities since working with her from July 2013, Dr Dickson did not view the applicant as a suitable candidate for the Head of Student Learning Support. He agreed that she had attended the HSA campus in Melbourne to meet with Ms Angela Bradley, Head of School and Mr Ed Irons, Manager Student Learning Support, NCPS. This was in order for her to determine the needs for HSA and NCPS in relation to the centralisation of SLS services. However, when she returned on 27 February 2014 and he asked her if she had any thoughts, she had replied, ‘Not at the moment...’.

[71] Dr Dickson believed the applicant was unable to engage in a collegial discussion about the integration process. The reports she had provided to present to the NPI Academic Board as part of the Learning and Teaching Committee, consisted of simple tallies of student attendances and lacked ‘deeper analysis’. He expected a higher level of data collection and critical analysis.

[72] Dr Dickson specified the types of deeper data analysis he would have expected in the applicant’s reports as including retention, pass rates, progression rates and improvements in learning. He had had to encourage the applicant to seek this data from the Registrar’s office. The reports that she had provided did not provide sufficient insight into the effectiveness of the programs implemented by the SLS team.

[73] Dr Dickson also described a number of incidents which demonstrated the applicant’s lack of leadership and staff management skills, including:

(a) her failure to use professional support development initiatives provided to her by Ms Delord in February 2014;

(b) her forwarding a position description in respect to recruitment to Dr Dickson prior to having that document being properly reviewed. He said this demonstrated the applicant’s difficulties in managing staffing issues in her team; and

(c) her conducting a performance review in the public ACAP reception area on 28 February 2014. He had directed her to move the performance review to a private area. When he asked the applicant why she had saw it fit to conduct the performance review in a public area, she had said that the staff member had wanted a support person, which she was not willing to allow, so she decided to hold it in a public area.

[74] Dr Dickson clarified that there were specific details of the role in relation to her permission to recruit request such as salary, on costs, projected time of employment that were not provided in the applicant’s documentation provided to him at the time.

[75] Dr Dickson reaffirmed his view that conducting a performance review in a public space was ‘completely unacceptable’. Reviews should be conducted in a confidential and private environment. Private rooms and offices could be utilised, if necessary.

[76] Dr Dickson put his proposal for the new role to Mr Richard Arkell, Chief Strategy and Operating Officer (PEP), who was acting in Mr Little’s role while he was absent in March 2014. After receiving Mr Arkell’s approval, he met with Ms Driessen and the applicant on 25 March 2014 to notify her of the coming change. Dr Dickson described their conversation in the following terms:

Dr Dickson:	Please sit down Frances.
Applicant:	No. I would rather stand thank you.
Dr Dickson:	It would be easier if you were to sit down Frances, as we have called you here today to inform you that we have decided to make your role redundant. We have decided to restructure the student support and learning services as we need to have a more strategically focussed approach across the NPI colleges. In order to do this we need to recruit a more strategically focussed and senior leader. We need a person with a high level of strategic thinking and the integration of the colleges and someone with a strong academic and scholarly background

[77] When Dr Dickson gave the applicant the position description for the Head of Student Learning Support (See: Annexure B), the following exchange ensued:

Dr Dickson:	This is what the new role will look like, it requires a strong leadership skills. I don’t think that your skill set is suitable for the position. HR will work with you to find a suitable alternative role within Navitas if one is available. Do you have any questions?
Applicant:	No. When will I finish up?
Dr Dickson:	Hilde has that detail for you. We don’t expect you to go back to your desk and work... but you can if you want to... you can take the rest of the day off.

[78] Dr Dickson believed that Ms Driessen had later discussed the applicant’s redundancy entitlements and redeployment opportunities with her. A letter was provided to the applicant in these terms:

‘This is to confirm the conversation we had with you Tuesday 25 March, 2014 at which time you were informed of our decision to make the position of Manager, Student Learning Support within Navitas Professional Institute redundant. We will make every effort to find an alternative role for you within the Navitas Group, but cannot guarantee that a suitable position is or will become available between now and the proposed effective date of the redundancy, which is 31 March 2014.

Should the redundancy proceed, we do not envisage that you will be required to work out your notice period. As per the Navitas redundancy policy, which we have attached for your information, you would be entitled to a redundancy payment as listed in the policy as well as any accrued and untaken annual leave.

In addition to the above payment, you would be offered access to an external outplacement service up to the value of $1,000. Further details of this service would be discussed between HR and yourself.

I would like to encourage you to contact HR should you have any questions about this letter or the policy. HR will be in contact with you in due course to discuss the next steps.’

The applicant provided an email to Dr Dickson indicating that she would continue to work at the College while she was being paid and would not be taking the afternoon off.

[79] Dr Dickson referred to a number of emails between Ms Driessen and the applicant that he was copied into between 26 and 28 March 2014. On 26 March 2014, the applicant wrote to Ms Driessen invoking the major workplace change provisions of the Award and asking that a meeting be arranged so that the changes could be explained to her and advise her of the person who would be undertaking her duties and the restructuring of SLS. She also asked that a Union official be present, noting that no-one would be available until 28 March 2014. Ms Driessen wrote to the applicant later that day and put her view that the applicant’s redundancy did not constitute a major workplace change within the meaning of the Award and that the consultation period for the applicant’s redundancy was ongoing. She suggested meeting at 11:00am, 11:30am or 12:00pm on 28 March 2014. On 27 March 2014, the applicant wrote to Ms Driessen in the following terms:

‘Thank you for your reply. I am available for work at a similar level to the job I do now. I am willing to work at any CBD premises, and other Sydney locations that are reasonably easy to travel to from my home in Bexley.
I will get back to you re meeting times tomorrow as soon as I can.’

[80] At 8:51am on 28 March 2014, the applicant wrote to Ms Driessen to say that she had been unable to fix a time for the Union officer to attend the meeting and that, as she was not feeling well, she would not be coming into work. She intended to post her keys and swipe card. She provided her personal contact details. No meeting took place on Friday 28 March 2014.

[81] Dr Dickson said that after a discussion with Ms Driessen, a letter in the following terms was sent to the applicant on 31 March 2014:

‘Following on from our letter dated March 25, 2014, this is to inform you that we have decided to now proceed with the redundancy of your role as Manager Student Learning Support with ACAP. Unfortunately, we have been unable to find a suitable alternative position for you within the Navitas Group. As such, this letter formally confirms that we will now proceed with your retrenchment. Your last day of employment with us is today, March 31, 2014. There will be no requirement for you to attend work today or to work out your one months notice period.

Arrangements have been made for your final pay to be paid to you by April 3rd, 2014. Navitas payroll is responsible for authorising the preparation and release of your final pay, including any relevant accrued and untaken leave entitlements. Please note that your access to EMO (the online Employee Manager Online payroll information system) will be cancelled following your final pay. Please ensure that you have printed off all payment advices from the system that you may need for future reference. Your final payment advice will be sent to your home address by payroll and a group certificate will be sent to you following the end of the current financial year. At your request, Human Resources can provide you with a certificate of service.

If you have purchased Navitas shares under any of the Navitas employee share plans whilst working for the Company, then we would inform ComputerShare (the Company who manage Navitas shares) that you have left the Company. They would then contact you to explain your options in relation to your Navitas shares.

If you would like to take up our offer of accessing outplacement (information has been provided previously), please contact Hilde Driessen on [number supplied].

I would like to take this opportunity to wish you all the best for the future and thank you for your contribution to ACAP.’

Dr Dickson emailed Navitas staff to inform them of the restructure and the applicant’s redundancy that same day.

[82] Dr Dickson specifically noted that the applicant did not apply for the Head of Student Learning Support role once it was advertised (internally and externally) from 3 April 2014. Five candidates were interviewed by a panel, including Dr Dickson, and the successful candidate was selected in May 2014. She was successful due to her extensive and targeted academic qualifications, significant work experience in a private education provider and positive references, particularly in relation to leadership skills.

[83] In oral evidence, Dr Dickson disputed that the following responsibilities were part of the applicant’s role as Manager, Student Learning Services:

development and implementation of policy proposals that align with overall organisation policy and enhance, streamline and systematise student learning support; and

undertaking applied research and scholarly activities to inform the department’s initiatives and practice.

Nor was it true to say that the difference in student numbers between the applicant’s role and the new role was 20%. The difference was much more substantial than that figure. The new role also required liaison with Heads of School, Regional Directors and General Managers, which was not being performed, in any substantial sense, by the applicant in her role as Manager, SLS.

[84] Dr Dickson denied that Navitas had ‘gone through the motions’ in attempting to redeploy the applicant. He rejected the applicant’s view that her redundancy was a ‘sham’ as the new job was substantially different in terms of diversity, level of responsibility, salary, level of strategic thinking and integration.

[85] Dr Dickson stated that the discussion he had with the applicant after her return from Melbourne on 26 or 27 February 2014 was not an informal or casual exchange. He had not had any discussion with the applicant subsequent to this conversation as to any ideas she had in relation to the integration of SLS services.

[86] Dr Dickson said that after he had requested the meeting on 25 March 2014, there had been no indication from the applicant that she intended to attend. He had made a phone call requesting she do so. She replied that she was busy. However, he maintained management’s right to insist that the meeting take place. He could not recall saying that it would take ‘six or eight minutes’ and suggested that this was not the sort of language he would use. He agreed that the applicant was polite and businesslike throughout that meeting.

[87] In cross examination, Dr Dickson agreed that he had not been unhappy with the applicant during the time she had reported to him. But it did not follow that she was suitable for the new, more senior position.

[88] Dr Dickson was referred to the position description for Manager, Student Learning Support. He did not believe that the applicant’s role required strategic planning skills. While the applicant’s role involved developing policy proposals, this work could be reactive, rather than analytical. Dr Dickson agreed that undertaking applied research and scholarly activities formed part of the duties in both the applicant’s role and the new role. Collaboration with academic staff could include people like Heads of School. Dr Dickson had been of the view that the applicant had needed to be encouraged to engage in this aspect of her role. He could not see why the applicant would have needed to liaise with Regional Directors in her time in the role.

[89] Dr Dickson identified specific differences between the two roles. The latter role had a particular reference to the diversity of students and their courses across NPI Colleges. He acknowledged that the applicant had experience in Colleges which ran short courses and Masters courses, although noted that during the applicant’s period of employment, ACAP did not undertake short courses.

[90] Dr Dickson explained that he had never sat down and discussed requirements for the strategic and high level functions of the new role with the applicant after her trip to Melbourne, as there was already a plan to change the role to a higher level position, following consultation and discussions with Mr Little, Mr Arkell and Ms Driessen. He did not believe that the applicant was capable of providing services that were the most beneficial for students. He gave the example of an overseer provider that reviewed students’ assignments for structure and grammatical accuracy. He had felt that this was a student learning service function and the applicant had maintained that it should stay in the technology side of the business. He was not aware of discussions between the applicant and Ms Spies in relation to this provider.

[91] Dr Dickson disagreed that the applicant had been denied an opportunity to have a ‘collegial discussion’ with him in relation to the integration process after her return from Melbourne. She could have raised it with him at any time. He could not recall the timeframe of his leave around this time, although the applicant put to him that he was on leave from 1 to 24 March.

[92] Dr Dickson said that he had not been able to make a full assessment of the applicant’s capacity in the short period he had been her manager, although he thought that on some occasions, her judgement and initiative were lacking. As he was conceptualising the new role, he had begun to form the opinion that it was beyond her capabilities.

[93] Dr Dickson was referred to a report prepared by the applicant in relation to the contribution of SLS to the Academic Board meeting. He maintained his view that her report lacked the level of analysis he had expected. He denied that he had not sought this level of analysis from the applicant. When he had referred the applicant to the Deputy Registrar and the types of retention statistics, he was using this as an example; he would have spoken about other types of impacts as well. His understanding was that her previous supervisor had to push the applicant to provide appropriate detail for these meetings.

[94] Dr Dickson was also referred to a report prepared under the applicant’s leadership, relating to the impact of the implementation of the Peer Assisted Study Sessions (PASS) program. His view was that it lacked pre-test results, but it was a comparison of marks of those who had attended, as opposed to those who did not. The report was not useful or meaningful. He could not recall telling the applicant that the report was ‘incredibly detailed’. He had told the applicant that ‘deeper analysis’ was required.

[95] Dr Dickson explained that he viewed the recruitment email the applicant had sent to him on 20 February 2014, as demonstrative of her limitations. He had believed she would provide him with documentation that he would be able to forward for approval. Dr Dickson said that in his role as Dean over the last three years, he had nine staff who reported to him and he had recruited two who reported directly to him. The documents that would be required to recruit someone would include a position description and a request to recruit, which would outline background information and financial implications. In this case, the request to recruit documentation was incomplete. He could not recall if the complete documentation had come through later that day. He did not think that this material should have needed his review prior to completion. He did not think that this represented a difficulty of the applicant to meet deadlines, rather it demonstrated a difficulty with her following his instructions.

[96] Dr Dickson understood that there had been changes to academic skills workshops for students under the applicant’s leadership. However, his expectation was that there would have been ongoing evaluation of these workshops. He could not say what the state of these workshops was, prior to the changes implemented by the applicant.

[97] Dr Dickson was referred to the following statement in the Form F3 Employer’s Response:

‘During this time there has been little or no evidence of innovation and growth in the services provided initiated by Ms Bertrand.’

While he could not say who wrote this statement, he suspected that ‘innovation’ related to the nature of the SLS programs not being particularly innovative, notwithstanding that they were new. Having a generic SLS website was not innovative - it was a basic expectation. The initiative of having eight subjects delivered online and on campus had not come from the applicant, but from himself.

[98] Dr Dickson denied that he was ‘annoyed’ or had viewed the applicant as disloyal when she wore a Union lapel pin at work.

[99] Dr Dickson was not aware of any changes that the applicant had brought to SLS services prior to September 2013. He was aware of program and staffing changes which were brought to his attention in reports from Ms Spies, but not whether these changes had been led by the applicant. He did not know whether the applicant had led the change in implementing a website at the beginning of 2013 and, in any event, it was not a specific online support service. The expansion in webinars had resulted in a small uptake by students, but had not been well publicised. The focus on online services needed to be stronger. He rejected a proposition that it would have been illogical for anyone else to lead online services and noted that Ms Spies had a learning technology background.

[100] Dr Dickson agreed that the applicant’s team had two or three persons in Sydney, one in Melbourne and one in Brisbane. He was aware that the applicant’s team would occasionally provide workshops in Brisbane. He agreed that her leadership role had some impact on other states and that both her role and the Head of Student Learning Services reported directly to him. He drew a distinction between asking the applicant for ideas on how SLS services could be extended across other Colleges and the applicant actually managing SLS services for the Colleges.

[101] Dr Dickson noted that there was a significant need for English language proficiency programs to be rolled out across NPI. This was not discussed with the applicant because he did not believe she had the capacity to perform to the level of liaison and consultation required for the ‘roll out’ and integration of that kind of program. Towards the end of her tenure, he had addressed her level of consultative and liaison skills with her, particularly in regard to her relationship with her staff. He denied that she had had regular conversations with Heads of School about the learning needs of their students. He believed these skills were just a natural part of a manager’s job.

[102] Dr Dickson could not recall whether he had raised any concerns with the applicant in relation to her abilities in meetings on 24 January or 5 February 2014. He had many meetings with numerous staff. The applicant may have been asked to change her KPIs to an NPI focus on the internal system in her personal performance review on 25 February 2014. This was consistent with what the applicant was doing at the time. In the context of an understanding that SLS services needed to be extended, the applicant was the person to make the initial steps. At that point, he had expected the applicant would have been the person to do that, but the role was later conceptualised to a more senior management role.

[103] Dr Dickson denied that he was planning for the applicant to extend SLS services, without any increase in salary. He would have formed the opinion that the applicant was unsuitable for the newly conceptualised role, some time before the meeting with Mr Little on 27 February 2014.

[104] Dr Dickson said that the duties of the applicant’s former role, did not include significant resource allocation, in contrast to what was required for the new Head of Student Learning Services’ role. He had not asked the applicant about her experience prior to working for Navitas as it was not relevant; she had not previously managed or had responsibility for SLS services for over 6,000 students. Management of SLS services across all Colleges would have involved supervising increasing numbers of staff. He was aware of leadership issues with the applicant raised by Ms Spies, but he could not speak for her. The differences in the roles could be seen as differences of scale, dealing with higher student numbers. The nature of the programs across the Colleges was vastly different to what the applicant had previously managed.

[105] Dr Dickson acknowledged that the references to research and scholarly activities in both position descriptions were similar, but said that he had never seen any real evidence of these skills being exercised in the applicant’s role. Her organisation and recording of a seminar could be considered low level scholarly activity.

[106] Dr Dickson had that he expected the successful candidate in the new role to have a PhD or equivalent work experience. He clarified equivalent work experience as being one which demonstrated a high level of analytical understanding. While the successful candidate did not have a PhD, she had undertaken research reflecting the impact of projects initiated during her tenure in a previous role. He had not asked the applicant about her research, but noted again that he had raised a need for deeper analysis in the applicant’s reports. He did not consider the applicant’s Masters degree as a research based degree.

[107] Dr Dickson was asked to set out the nature of the consultation he had engaged in with Mr Little, Mr Arkell and Ms Driessen in relation to the new role. He had discussions with Mr Little about restructuring the SLS Team. He agreed that he was on leave for the first two weeks of March and that he was on duty for the following week, albeit that he was in Singapore to seek opportunities for Navitas. While he acknowledged that he had consulted with Mr Arkell in March and that he had previously given evidence that he had told Mr Little that the applicant was unsuitable for the new role in February, he noted that Mr Arkell was acting in Mr Little’s place. As he could not act unilaterally, he had consulted with Mr Arkell as to the formalities of the redundancy.

[108] Dr Dickson said that Ms Ellen Cooper, the successful candidate for the new role had been involved in SLS services for some time and had a history in education and online delivery. He could not be more specific without the details of her CV before him. However, he believed she had over five years experience at the Australian College of Physical Education (ACPE), where she was Head of Student Learning Support. He believed that she had a Masters degree in online education, and a Bachelor or Graduate Diploma in Education. He disagreed that she had no other significant management experience, aside from those five years at ACPE. In any event, a panel of three persons had come to the same conclusion that she was sufficiently qualified. He could not say whether Ms Cooper’s experience in educational management was limited to one college on one campus, with a total of 800-900 enrolled students. He rejected the assertion that she did not have work experience equivalent to a PhD. He understood that she had been successful in achieving academic outcomes in relation to pass rates and retention and she had been able to utilise these skills to further develop SLS services.

‘MR FROST: I object to the question. There's no basis for believing that Ms Driessen is aware of why Ms Spies is or isn't here and the consideration impacting on Ms Spies not being here, that's a decision that's been taken by the company and its legal team and not by Ms Driessen. It's relevant to observe that Ms Driessen is no longer employed by Navitas and hasn’t been for some months.

MS BERTRAND: Yes, so why are you here today helping them?

MR FROST: I object to that question too. What possible relevance has that got to anything?---I actually find that quite offensive. I'm not here to help out anyone.

I objected to the question.

THE DEPUTY PRESIDENT: Yes, your objection is upheld. You don't ask those sort of gratuitous questions.’

[227] I note that the applicant consistently sought to ‘cut off’ the answers being given, if she felt their responses were unhelpful to her case. An example of cutting off Ms Driessen can be seen below:

‘Can you tell us what was said, though, because that's - - -

MR FROST: Can the witness finish her answer, please?

MS BERTRAND: No, she's not answering.

THE DEPUTY PRESIDENT: Yes, she will be allowed to finish her answer.

MS BERTRAND: All right, finish your answer?---I believe Scott relayed most of the concerns by Jacqui Parker that she approached Scott and myself, I think she spoke to both of us, about a concern that her daughter had been contacted by an employee of ACAP who did not mention the name but made some inquiries about enrolment about further studies at ACAP, and she believed that person to be you, although, a name wasn't mentioned, so we raised the concern. Scott raises concerns about that, that we believed it was unprofessional and inappropriate to ring an employee of the college without stating who the person is to find out information that would have been much better obtained in another way. So we discussed the concerns you had about - or the reasons you had why you rang Jacqui's daughter, and I believe you stated at a meeting that you needed to know that information, and we had a conversation that it would have been much better obtained through Jacqui or from Jacqui and discussed the issues that way, so we had a conversation about that and Scott and I clearly, I believe, relayed that we felt it was inappropriate to do that.

...

Why didn't you wait to terminate my employment? Why didn't you wait until the union officer could be present?---I did not terminate your employment. We asked for you to meet with us again on Thursday and initially you said, "That depends on the availability of a union officer. I will get back to you." Then you indicated that that might not be possible to meet for a union - - -

I - - -?---Can I finish? You indicated that it might not be possible for a union officer to be available. Then I suggested that we wanted to continue this process and move along. We offered you three or four available times on Friday and you did not get back to us on that at all. You did not say, "Yes, I can meet on Friday," or, "I can't meet on Friday." So we gave you alternatives. It actually says that on 46. We had 11.00, 11.30 or 12 pm. I continued to engage with you around possible other options.’

[228] For the above reasons, where the evidence of the applicant conflicts with that of Dr Dickson’s and Ms Driessen’s, it is their evidence which I prefer.

[229] Unfortunately, I feel bound to say that the applicant displayed a hugely exaggerated sense of her own performance and capabilities, which fall well short of reality. Her questions in cross examination of Dr Dickson frequently began with, ‘Under my leadership..’. Yet it was a leadership which her colleagues regarded as autocratic, uncooperative and uncollegiate to the point of anonymous feedback being made about her leadership style. While the applicant criticised this feedback as baseless and wanted to know who had made them, the College was perfectly entitled to maintain confidentiality, given the nature of the complaints and her propensity to twist and manipulate events in order to denigrate anyone who criticised her. Importantly, the substance of the feedback was put to the applicant.

[230] During the proceedings, the applicant displayed extraordinary confidence as to the merits of her case to the point of bravado and disrespect. She was argumentative, condescending and she had a fundamental, all-consuming belief in her own abilities and strengths. Not once would she admit to any weaknesses or fault. When viewed from the prism of this all-consuming self-belief, any criticism of her was out of the question. Anyone who did so was just part of a conspiracy to get rid of her. This would have included Dr Dickson, Ms Driessen, Mr Little, Mr Arkell, Ms Spies and her own team. The applicant’s conspiracy theories are just implausible nonsense.

[231] The applicant criticised the failure of the respondent to call Ms Spies and Mr Little. From her own submissions, there were tensions and disagreements between herself and Ms Spies prior to Dr Dickson becoming her direct report in September 2013. Mr Little’s absence was criticised because he had reviewed Ms Spies’ decision not to award the applicant a pay rise and upheld it. Even though these are factual matters (not even disputed by the applicant), the decision to make her redundant and not to offer her the new role was Dr Dickson’s, supported by Ms Driessen. They were perfectly entitled to take these factual matters into account in determining the applicant’s unsuitability for the new role.

[232] Moreover, an employer is not obliged to call every witness or person involved (no matter how loosely connected) to support its case. The relevant decision maker was called, as was the HR Advisor. In any event, the applicant could have subpoenaed other persons if she believed their sworn evidence would assist her position. Given she had been receiving some legal advice from an unnamed source and that she had earlier sought orders for production in the case, she would not have been unfamiliar with the summons process. In any event, the fact that Dr Dickson said he had not been unhappy with her while he was her manager, is beside the point. He was well positioned and well informed to have made the decision of her unsuitability for the new, different and more senior position.

[233] In respect to the decision not to award the applicant a pay rise in 2013, I note that a formal grievance was not followed up, because the applicant refused to be bound by confidentiality. The applicant’s criticism of the failure to award her a pay increase was misconceived. Confidentiality about such a matter was a perfectly understandable expectation of the respondent. She had no basis to complain when she refused to keep the matter confidential.

[234] In a very odd submission, the applicant put that Dr Dickson was not an impartial witness, because his evidence merely sought to justify his own judgements and decisions. One would hardly expect him to do otherwise, but it does not follow that his evidence was untruthful or unreliable. More generally, the applicant criticised Dr Dickson and Ms Driessen as being unfair and partial witnesses. It followed that their evidence was unreliable and should not be accepted by the Commission.

[235] Unfortunately, the applicant has a misplaced understanding of the role of a witness in the Commission. A witness’s evidence cannot be assumed to be impugned because that person’s evidence appears to an opposing party, as unfair or partial when viewed from the perspective of the person who is being criticised. A witness’s duty to the Commission is to answer questions clearly, relevantly and truthfully. I am satisfied that Dr Dickson and Ms Driessen did so. I apprehend the applicant’s opinion that a witness adverse to her cause was unfair or biased was in reality because she simply did not find their evidence helpful to her own case.

[236] The applicant rejected Dr Dickson’s reliance on matters critical of her after he had made up his mind that she was unsuitable for the new role. She described this evidence as as ‘reconstruction’ and ‘post facto self justification’. I disagree. Any incidents which occurred after Dr Dickson had formed his view of the applicant’s unsuitability merely corroborated his original thinking and confirmed the applicant’s unsuitability for the new role. In any event, he had plenty to go on before these later incidents.

[237] The applicant claimed Dr Dickson was vague because he prefaced answers with words such as, ‘my understanding was’, ‘my recollection is’ or ‘I would suspect’. This is not a sustainable criticism. Witnesses frequently answer questions in this way because no witness can exactly recall the words used in conversations or discussions, which occurred many months earlier; 6-9 months in this case. It is an entirely sensible and responsible way to answer questions. This was a ridiculous criticism.

[238] That is not to say that the applicant is not a well educated, articulate and intelligent person. The fact was that her personal management and leadership skills were a poor match for someone in her position and a complete mismatch for what Navitas expected of the person for the new role. I will elaborate on this conclusion later in this decision.

Rationale for the restructuring

[239] Given that I have accepted Dr Dickson as a credible witness, whose evidence I prefer to that of the applicant, I accept Dr Dickson’s evidence that he had been involved in ongoing reviews to integrate the NPI Colleges. One of the objectives of these reviews had been to centralise the Student Learning Support services (SLS) under a single umbrella. This was to ensure a high quality, equitable service for all students, regardless of the campus, the courses delivered or geographic location. In the result, the SLS services across four Colleges were to be integrated into one business unit, whose head would report directly to Dr Dickson. The number of students able to avail themselves of the service, roughly doubled. Logically, this role required a senior, suitably qualified and experienced person to fill it at a salary level of $120,000p.a. I note that a recent decision in the Federal Circuit Court in Penglase v Allied Express Transport Pty Ltd [2015] FCCA 804, in which Turner J said at para [32]:

‘32. The Court finds that there was a genuine restructure as the new position created was at a much higher level than that which had been occupied by the applicant, and had a much higher salary ($110,000.00pa compared with $75,000.00pa).’

[240] Dr Dickson described the key responsibilities of the new role as:

(a) Leading the strategic expansion of SLS services across NPI academic units.

(b) Leading the development of SLS activities based on industry best practice.

(d) Managing resources and budgets.

(e) Fulfilling reporting obligations and coordinating communications systems and processes.

(f) Representing NPI and NPI Colleges in the community and interacting with internal and external stakeholders.

[241] Implicit in the role was that the person be able to:

(a) identify resource needs amongst the NPI Colleges;

(b) manage the existing SLS service units within NPI Colleges and their staff;

(c) liaise and engage with existing SLS service units to bring them ‘on board’ with a central and harmonised SLS services system, so as to facilitate a cohesive team; and

(d) understand and apply the most current scholarly thinking and developments to the process.

[242] Putting this together, Dr Dickson determined that a successful candidate should have the following skills and experience:

(a) a PhD or equivalent work experience in an area relevant to this position;

(d) demonstrated capacity to inspire and innovate and to identify and take advantage of new opportunities;

(e) excellent written, oral communication and presentation skills;

(f) capacity to drive cultural change and establish strong partnerships and networks; and

(g) high-level management and interpersonal skills with a proven ability to motivate, mentor and challenge.

[243] In my opinion, the rationale for the restructure of the SLS services was soundly based, educationally positive, in the best interests of the students and a sensible business decision. On the other hand, the applicant claimed from the outset that the restructure was just a ‘sham’ arrangement, contrived by Dr Dickson (and supported by others) to get rid of her. This was her starting point and she would not be swayed from this belief. All her subsequent actions, including the possible improper access and retrieval of email exchanges between two other employees, were designed to corroborate this belief. Anything which pointed to a conventional and entirely unremarkable restructure for genuine operational reasons, was regarded by her as part of the conspiracy to give the impression of a genuine redundancy. This was misconceived nonsense.

[244] To suggest that Dr Dickson, conspiring with others, would go to the trouble of the restructure exercise, merely as a ruse to get rid of the applicant, when he may well have had justifiable performance reasons to dismiss her, in any event, is a phantom interpretation, grounded in a misguided notion of the applicant’s own self-importance.

[245] On this leg of s 389 of the Act (sub-section (1)(a)), I find that Navitas no longer required the applicant’s job to be performed by anyone because of changes in the operational requirements of the Colleges.

Duty to consult

[246] The applicant was advised of the likely redundancy of her position on 25 March 2014 and her last day of employment was 31 March 2014. On its face, 6 days might appear to be a relatively short timeframe in which to properly consult with the applicant and explore options for deployment. That said, under the relevant Award provisions, there is no set or minimum period of time during which the employer is required to consult. Unsurprisingly, this will vary according to the circumstances of each case and, in this case, depends in large measure on the applicant’s willingness to cooperate; See: Fitzjohn v Southern Cross Protection Pty Ltd[2015] FWC 2601.

[247] In my view, the applicant was confused as to the meaning of consultation. Consultation relates to the decision to restructure. It does not go to the actual decision to make her position redundant. While the applicant was told her position was to be made redundant on 25 March 2014, at that point, there was no certainty or inevitability of her redundancy. The respondent’s subsequent redeployment inquiries and its invitation to the applicant to identify any option she thought might be appropriate, demonstrate its bona fides in this regard.

[248] In any event, the restructure was well known to the applicant at the end of January/early February 2014, as she made clear in her own evidence. Her reliance on the trip to Melbourne in late February to identify issues for the restructure, make it clear she was well aware of the main outcome of the restructure as it affected her role.

[249] The applicant initially refused to attend a meeting with Dr Dickson and Ms Driessen on 25 March 2014, despite being directed to do so, claiming she was ‘frantically busy’ and then, when she did so, she remained standing, appeared agitated and merely said, ‘I don’t have time for this’ and ‘When will I finish up?’. This did not bode well for a cooperative and effective consultation process going forward. In fact, the applicant had been informed of the meeting the day before. When asked why she had not mentioned this in her statement, she claimed it was not relevant. Given that the applicant criticised Dr Dickson for calling her to a meeting with little notice, the fact she knew of it the day before was highly relevant. Her failure to mention it in her statement was a deliberate attempt to mislead the Commission as to when she was told of the meeting.

[250] Additionally, it is trite to observe that a manager is perfectly entitled to request a meeting with a member of his/her staff. It is a lawful and reasonable direction. In my view, the applicant’s claim of being ‘frantically busy’ was a ‘furphy’ to avoid the meeting.

[251] The applicant was then sent a letter confirming the above conversation (see para [78]). Ms Driessen’s evidence - which I accept - was that she had directed Ms Hans to search Navitas’ intranet for available positions and sent an email to all HR managers to check of any pending vacancies not yet advertised. Two positions were found, but were obviously considered inappropriate; one being in England and another not being commensurate to her existing role.

[252] Ms Driessen sought the applicant’s input into possible alternative positions and she replied as follows:

[253] I note that, despite clear documentary evidence (see below), the applicant claimed Ms Driessen was lying when she gave evidence that redeployment options had been explored. On 28 March 2014, Ms Driessen sent the applicant an email, which said inter alia:

‘We continue to explore possible comparable roles for you at Navitas and any suitable roles identified by Monday 31, 2014 [sic] will be discussed with you for further review and consideration. If we will be unable [sic] to find a suitable role however, we intend to proceed with your retrenchment on Monday.’

[254] The applicant was invited to a further meeting on Friday 28 March 2014. However, Ms Driessen nominated three times to assist in accommodating a Union official’s attendance. The applicant took personal leave on 28 March 2014. On that day, Ms Driessen offered the applicant a final opportunity to put any pressing reason why the College should not proceed with her redundancy by 31 March 2014. She failed to do so.

[255] Sending in her swipe card and keys and offering her private email was hardly indicative of someone who wanted to positively engage with her employer. The applicant rejected any suggestion that this email was a refusal to engage with the respondent. Rather, she had expected a further meeting to be arranged. Notwithstanding the respondent had sought to meet with her that day, the applicant makes no mention at all of wanting to arrange a further meeting.

[256] In my view, Ms Driessen was entitled to believe that the applicant was not interested in discussing this matter when the applicant emailed her on 28 February 2014 as follows:

‘Hi Hilde,
I have not been able to fix a time for the union officer to come. In addition, I am not feeling very well, feeling stressed and have decided not to come in to ACAP. I will post my keys and swipe card to admin.
I am contactable by phone, and will check my email later this morning. When ACAP closes down my email account, I am contactable on my private email: [personal email address supplied].
I am also contactable on my mobile: [phone number supplied].
Regards
Frances’

[257] In my opinion, the applicant’s refusal to cooperate or offer any suggestions for deployment was based on her belief that:

(a) her position was not redundant; and

(b) even if it was, she was the best, and only person, capable of filling the new Head of Student Learning Services role.

[258] Given the applicant’s intransigence and non-acceptance of the factual reality, there was nothing more the College could have done to fulfil its consultation obligations under the Award and the Act. If an employee refuses to cooperate with the process, he/she is hardly in any justifiable position to criticise either the length of the process, its substance or its outcome.

[259] One further point needs to be made. The applicant did not even apply for the new role, despite it being widely advertised. While it was probably unlikely that she would have been successful, that is not the point. Here was her opportunity to convince the interview panel (albeit that Dr Dickson was likely to be on the panel) that she was as good as she would have everyone believe. Moreover, she explained that she did not apply for the role, because it was not about her competing with others, but whether she was able to perform the role effectively. This is a contradictory curiosity, given her focus on attacking the successful candidate as having less skills and experience than her and utterly ignoring her own shortcomings. Indeed, her criticism of Ms Cooper extended over ten pages of transcript in questions to Dr Dickson.

[260] In addition, the applicant criticised Dr Dickson, Ms Driessen and Ms Spies for their views on her performance and skills, by saying that she was the only one who knew what her capabilities and capacities were. This was a strange, unrealistic assertion to make.

[261] I am satisfied that Navitas has complied with its consultation obligations under s 389(1)(b) of the Act and cl 8.1 of the Award.

Was it unreasonable not to appoint the applicant to the position of Head of Student Learning Support?

[262] Having found the restructure of the Student Learning Support was a legitimate management decision to restructure its business so as the role of Manager, Student Learning Support no longer existed, the consequential question is whether the applicant should have been offered the new role of Head, Student Learning Support.

[263] It must be emphasised that, consistent with the authorities earlier referred to, if an employer, in good faith:

has reallocated duties;

considers that the employee is not suitable to perform any available job defined by reference to those reallocated duties; and

for that reason dismisses the employee, then the employee is dismissed by reason of his/her bona fide redundancy; See: Quality Bakers of Australia v Goulding (1995) 60 IR 327.

[264] Put another way, if the employer has created a new and more senior role arising from a restructure of its operations, it is not obliged to make the new role available to a redundant employee where the employer considers the redundant employee is unsuitable for the new position. Apart from this being the correct legal position, it would make no business sense at all, for an employer to appoint an unsuitable candidate to a vacant position in the new structure.

[265] The harsh reality is that this scenario is not uncommon in Australian workplaces. In a redundancy situation where the employer seeks to restructure its workforce by reducing the numbers of its workforce and reallocating the duties to be performed by a reduced workforce, it will often ‘spill and fill’ all the available positions and undertake a selection process from the existing employees. This process will usually include both subjective factors, such as a supervisor’s assessment and objective factors, such as absenteeism and attained skills and experience.

[266] In this case, not only did the applicant not apply for the new role in the restructure, but she believed she should have been appointed to the position as a matter of right and no one else should have been considered because she was the best qualified and most experienced candidate. It is a bizarre proposition for someone who believes he/she is the best candidate for a role, but did not even apply for it. There is no doubt that Dr Dickson and Ms Driessen believed that the applicant was unsuited for the new role. They were both unmoved in this view and, frankly, I agree with them.

[267] The reality was that the applicant could not effectively manage a small team of two in Sydney, one in Melbourne and a half position in Brisbane. She had not demonstrated effective leadership skills, nor had she the experience or personal qualities to meet the job description for the new role. I accept the following evidence as demonstrating this conclusion:

(a) the applicant had performance issues almost immediately after she commenced employment and was reporting to Ms Spies;

(b) there were numerous, albeit anonymous, complaints about the applicant’s autocratic management style. Considering the small team she directly managed, one can assume most, if not all of her team, held this view;

(d) the applicant refused to acknowledge any personal or professional shortcomings and refused to accept any criticism in her 2013 performance review;

(e) the applicant conducted a performance review of a subordinate in a hallway;

(f) the applicant had no previous responsibility for budgets;

(g) the applicant’s reports to the Board were merely student numbers statistics, without any detailed analysis;

(h) the applicant made much of the fact that Dr Dickson had asked her to go to Melbourne in late February 2014 for two days to commence preliminary planning for the restructure. When she came back and Dr Dickson asked her if she had any ideas about the integration, she said she had none. The point was not whether there had been a formal debrief or meeting (no matter how brief). The point was that the applicant had no ideas and, having been asked if she had any, she did not make any subsequent attempt to offer any. In evidence, she claimed she had many ideas. If this was right, it is curious that she never offered them, particularly given that it was her evidence that Dr Dickson had asked her to prepare a position paper after her trip. There was no evidence of any such paper having been written.

(i) the applicant believed she met the requirement to undertake ‘scholarly activity’ because she had invited an academic to a workshop. I agree with Dr Dickson that inviting a person to present at a seminar/workshop is hardly an example of ‘scholarly activity’;

(j) the applicant improperly and dishonestly contacted the daughter of a colleague in order to get information on that colleague;.

(k) the applicant insisted that the two roles were virtually the same. Dr Dickson gave evidence that the applicant could not fulfil the functions in the new role’s job descriptions because of the following differences:

(i) the nature of the strategic and analytical thinking that is required for the new role is greater than it was in the applicant’s role;

(ii) the leadership responsibilities of the new role are elevated to a different level to that in the applicant’s role;

(iii) there is a higher level of more diverse responsibility, oversight and integration than that required in the applicant’s role;

(iv) the applicant’s role was a leadership role, but not a national leadership role, although there was some impact on other states.

(v) the applicant’s role was focused on ACAP, while the new role covered the different Colleges within NPI, with a fundamental increase in scale and diversity in management and leadership;

(vi) the new role involved significant relational tasks beyond rolling out programs;

(vii) it was expected that the new role would require the application of substantial scholarly overview, a stronger emphasis to the provision of SLS to students and a very strategic and high level view taken as to how SLS services could be developed across the Colleges, recognising the diversity of student learning needs within those groups; and

(viii) the new role covered four campuses instead of one and about double the number of students.

[268] In my view Dr Dickson, as Dean of ACACP from February 2012 to July 2013 was well placed to be aware of, and familiar with the applicant’s performance and management style. The two roles were substantially different both in scope of skills and responsibilities required.

[269] I would also add that contrary to the applicant’s criticism of Dr Dickson, an employer does not have to conduct a full assessment of an employee’s capacity to do a job. For example, in a management role, a prospective employee might have all the necessary qualifications for a position, be a brilliant academic, but be utterly unsuitable because of poor people management or leadership skills. For the sake of completeness, I am satisfied that Navitas was justified in forming the view that it would not have been reasonable to redeploy the applicant into the casual teaching role or the role based in Oxford, England.

[270] Pursuant to s 389(2) of the Act, I am satisfied that it would not have been reasonable, in all the circumstances, for the applicant to be redeployed to another position within the Colleges. I emphasise the phrase, ‘in all the circumstances’ because, in my opinion, these words empower the Commission to consider, not merely the skills, qualifications and experience of a redundant employee, but must include other circumstances the Commission considers relevant, as I have discussed in this decision.

CONCLUSION

[271] For the aforementioned reasons, I am satisfied that the applicant’s dismissal was a case of ‘genuine redundancy’ within the meaning of s 389 of the Act. Navitas has complied with its consultation obligations under the Award and s 389(1)(b) of the Act. Further, it would not have been reasonable, in all the circumstances for the applicant to be redeployed within the employer’s enterprise. Accordingly, it is unnecessary to consider whether the applicant’s dismissal was ‘harsh, unreasonable or unjust’ within the meaning of s 387 of the Act. I uphold the respondent’s jurisdictional objection.

[272] Accordingly, there is no jurisdiction for the Commission to determine this application for an unfair dismissal remedy. The application must be dismissed. An order to that effect will be published contemporaneously with this decision.

DEPUTY PRESIDENT

Appearances:

Applicant in person.

Mr T Frost, Solicitor for the applicant

Hearing details:

2014:

Sydney

26 August, 22 December

Final written submissions:

Applicant: 15 January 2015

Respondent: 16 February 2015

Printed by authority of the Commonwealth Government Printer

Frances Bertrand v Navitas Professional Institute Pty Ltd

[2015] FWC 3147

7 MAY 2015