Jacqueline Clare v The Bet Deck Pty Ltd
[2023] FWC 2309
•11 SEPTEMBER 2023
| [2023] FWC 2309 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Jacqueline Clare
v
The Bet Deck Pty Ltd
(U2023/4865)
| DEPUTY PRESIDENT SAUNDERS | NEWCASTLE, 11 SEPTEMBER 2023 |
Application for an unfair dismissal remedy – jurisdictional objection – genuine redundancy – failure to comply with consultation obligations – dismissal not unfair – application dismissed.
Ms Clare was employed as a Trader by The Bet Deck Pty Ltd (The Bet Deck) until her dismissal on 29 May 2023. The Bet Deck accepts that it did not consult with Ms Clare prior to her dismissal but contends that in all other respects her dismissal was a genuine redundancy within the meaning of s 389 of the Fair Work Act 2009 (Cth) (Act). The Bet Deck also contends that it complied with the Small Business Fair Dismissal Code in relation to Ms Clare’s dismissal. Ms Clare denies those assertions and contends that her dismissal was harsh, unjust and unreasonable.
Ms Clare gave evidence at the hearing, as did Mr Scott Cantlon, Ms Briony Young, and Mr Patrick McInerney. The Bet Deck adduced evidence from Mr Jeremy Turner, Managing Director.
Initial matters to be considered
Section 396 of the Act sets out four matters which I am required to decide before I consider the merits of Ms Clare’s unfair dismissal application.
There is no dispute between the parties and I am satisfied on the evidence that:
(a)the application was made within the period required in s 394(2) of the Act; and
(b)Ms Clare is a person protected from unfair dismissal.
As to the third initial matter which I am required to consider, The Bet Deck contends that Ms Clare’s dismissal was consistent with the Small Business Fair Dismissal Code. Ms Clare opposes this contention.
As to the fourth initial matter which I am required to consider, there is a dispute between the parties regarding whether Ms Clare’s dismissal was a genuine redundancy. I will address this issue first.
Genuine redundancy
Section 389 of the Act defines genuine redundancy 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.”
“Associated entity” has the meaning given by s 50AAA of the Corporations Act 2001 (Cth).
The employer no longer required the employee’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise (s 389(1)(a))
It is necessary to determine whether The Bet Deck no longer required the job of Ms Clare to be performed by anyone because of changes in the operational requirements of The Bet Deck’s enterprise.[1]
A job involves “a collection of functions, duties and responsibilities entrusted, as part of the scheme of the employer’s organisation, to a particular employee”.[2] Where there has been a reorganisation or redistribution of duties, the question is whether the employee has “any duties left to discharge”.[3] If there is no longer any function or duty to be performed by that person, their job becomes redundant.[4] For example, an employer may redistribute all the tasks done by a particular person between several other employees or outsource the tasks to a third party, resulting in the person’s job no longer existing.
An employee’s job may still be genuinely made redundant when there are aspects of the employee’s duties still being performed by other employees.[5] The test is whether the job previously performed by the employee has survived the restructure or downsizing, not whether the duties have survived in some form.[6]
The reference to “changes in the operational requirements of the employer’s enterprise” in s 389(1)(a) of the Act includes circumstances where an employer restructures its business to improve efficiency, productivity, sales, revenue or some other aspect of performance. The operational circumstances of a business which may give rise to a redundancy will reside in the direct knowledge of the employer. The evidentiary onus is on the employer to provide direct evidence about the nature of the employee’s job and why it is no longer required to be performed as a result of changes in the operational requirements of the employer’s enterprise.
If a dismissal is found to be a genuine redundancy within the meaning of the Act, issues such as unfair selection procedures for redundancy are not relevant, because they go to the merits of the claim that the applicant was dismissed harshly, unjustly or unreasonably.[7]
Relevant facts
On 19 March 2020, Ms Clare commenced employment with Bbet (Berman) Pty Ltd (Bbet), an affiliate company of The Bet Deck. Bbet traded as Bbet, Action Bet and Bet Hunter.
On 7 February 2022, Ms Clare became employed by The Bet Deck in the position of Client Support Officer. On 16 March 2022, Ms Clare received a telephone call from Mr Turner, at which time he explained that her role had no job security and the only way to ensure job security was to be redeployed into a trading position.
On 28 March 2022, Ms Clare moved from the position of Client Support Officer into the position of Trader with The Bet Deck. By the end of 2022, Ms Clare was working simultaneously for four affiliated businesses: The Bet Deck; Bbet; Action Bet; and Bet Hunter.
On 14 October 2022, Ms Clare emailed Mr Turner to inform him of her pregnancy and provide him with a parental leave notification form which she had found on the Fair Work Ombudsman’s website.
On 27 March 2023, Ms Clare commenced her period of unpaid parental leave. She was due to return to work towards the end of August 2023.
On 3 April 2023, Ms Clare had her last direct contact with The Bet Deck when she received an email seeking clarification about her request to have some of her accumulated annual leave paid out.
In early May 2023, Mr Turner contacted The Bet Deck’s outsourced human resources representative about a restructure of the business due to the severe financial stress it was undergoing.[8] Mr Turner says that four Traders employed by The Bet Deck, being about 50% of its workforce, were made redundant and their roles were outsourced to an external company at a cheaper rate.[9] Mr Turner says that The Bet Deck’s trading function was outsourced to an automated system supplied by an external non-related company, which provides a far more economic and reliable service.[10] Mr Turner also gave oral evidence that, since the termination of Ms Clare’s employment, The Bet Deck has changed the provider of the outsourced trading function to a different company in order to save more costs and allow the trading function to be further automated.
On 15 May 2023, The Bet Deck terminated the employment of Mr Scott Cantlon, a Sport Trader.[11] Mr Turner had told Mr Cantlon that the business had to cut costs.[12]
On the morning of 29 May 2023, Ms Clare missed a telephone call from Mr Turner. At 10:25am on 29 May 2023, Mr Turner sent a text message to Ms Clare, asking her to call or indicate a time when it would be convenient for Mr Turner to call her.[13] Ms Clare sent a text message to Mr Turner to ask him to send all correspondence to her personal email. At 10:53am on 29 May 2023, Mr Turner emailed a termination letter to Ms Clare in the following terms:[14]
“Hi Jacqui,
Thank you for responding to my call via text and I respect that you want to communicate via email.
I would always prefer to discuss these matters in person or over the phone but it is with regret that I need to officially inform you that your employment with The Bet Deck will be terminated as at 29/5/2023.
In accordance with your employment contract, it outlines that we will pay you up to and including the 25th of June 2023(4 weeks) and any outstanding leave entitlements.
We will notify you of these amounts in the upcoming 7 days and will pay into your nominated bank account.
If you would like to discuss, please feel free to give me a call.
I wish you the best of success in the future.
Kind regards,”
Mr Turner contends that Ms Clare had prior knowledge of the redundancy because her partner, Mr McInerney, worked in a related entity.[15] Ms Clare denies this and says that she was napping with her new born baby when Mr Turner called on 29 May 2023, and she was under the impression that it would have been a call to discuss the dates of her return to work because she took a month of unpaid maternity leave prior to her baby being born, with the result that the dates stated in her maternity leave form were not correct.[16] On receipt of the termination email on 29 May 2023, Ms Clare says that she asked her partner if he knew about it, to which he said that he received a phone call and chose to let her sleep rather than wake her with the news that she was about to be fired.[17] Mr McInerney gave evidence to a similar effect.[18] I accept the consistent evidence given by Ms Clare and Mr McInerney about these matters. I am satisfied that Ms Clare was not aware of the redundancy of her position at any time prior to 29 May 2023.
At 1:22pm on 29 May 2023, Ms Briony Young, a Trader and Customer Support Officer employed by The Bet Deck, was told by Mr Turner that her employment had to be terminated.[19] Mr Turner told Ms Young that all Trader positions in the business were also terminated.[20]
Ms Clare contends that her job has been partially outsourced and is partially being completed by the remaining employees of The Bet Deck.[21] Ms Clare has a copy of an email dated 9 May 2023, which sets out that the team engaged by The Bet Deck is to undertake a portion of her Trader role. Ms Clare says that this email demonstrates that a decision had already been made prior to 9 May 2023 to outsource part of her role.
Because her job is being performed by multiple people, Ms Clare says that The Bet Deck still requires her job to be performed.
Ms Clare also contends that while the claim that the trading role has been outsourced to a separate company is true, the outsourced system is not fully automated and requires the outsourced team of Traders to accept bets, reject bets, cancel bets placed, result sporting events, profile customers based on their bets, and notify The Bet Deck on the WhatsApp chat.[22] Mr McInerney gave evidence to a similar effect.[23]
Mr McInerney also gave evidence that after the trading function was outsourced to a third party, he was required, in his capacity as Head Trader, to undertake all the other tasks that would have been undertaken by Traders employed by The Bet Deck prior to their dismissal.[24]
I am satisfied on the evidence before the Commission that The Bet Deck needed to reduce its operational costs in May 2023. It was in a dire financial position and was only surviving by injections of cash from existing shareholders. The Bet Deck saved $20,000 per month by outsourcing the trading function to a third-party company and arranging for Mr McInerney, Head Trader, to undertake the remaining trading duties. These changes meant that the trading function was partly automated, not fully automated, as was inferred by The Bet Deck’s initial outline of argument.[25] I am therefore satisfied that there were changes in the operational requirements of The Bet Deck’s enterprise, as a result of which it no longer required the role of Trader to be performed by anybody within its enterprise. It is not to the point that the duties undertaken by Ms Clare and the other Traders employed by The Bet Deck are being performed by an external company and the remaining employees of The Bet Deck. The important point for the purpose of s 389(1)(a) of the Act is that The Bet Deck no longer requires the job of Trader to be performed by anyone.
For the reasons set out above, I am satisfied on the balance of probabilities that the real reason for Ms Clare’s dismissal was the redundancy of her role as Trader and that The Bet Deck no longer required Ms Clare’s role of Trader to be performed by anyone because of changes in the operational requirements of The Bet Deck’s enterprise.
Compliance with any consultation obligation in a modern award or enterprise agreement that applied to the employment (s 389(1)(b))
For there to be a genuine redundancy within the meaning of s 389 of the Act, The Bet Deck must have complied with any obligation in a modern award or enterprise agreement to consult about the redundancy.
There is no dispute between the parties, and I accept on the evidence, that Ms Clare was covered by the Clerks – Private Sector Award 2020 (Clerks Award) during her employment with The Bet Deck. Clause 38 of the Clerks Award governs consultation. It provides:
“38. Consultation about major workplace change
38.1If an employer makes a definite decision to make major changes in production, program, organisation, structure or technology that are likely to have significant effects on employees, the employer must:
(a)give notice of the changes to all employees who may be affected by them and their representatives (if any); and
(b) discuss with affected employees and their representatives (if any):
(i)the introduction of the changes; and
(ii)their likely effect on employees; and
(iii)measures to avoid or reduce the adverse effects of the changes on employees; and
(c)commence discussions as soon as practicable after a definite decision has been made.
38.2For the purposes of the discussion under clause 38.1(b), the employer must give in writing to the affected employees and their representatives (if any) all relevant information about the changes including:
(a)their nature; and
(b)their expected effect on employees; and
(c)any other matters likely to affect employees.
38.3Clause 38.2 does not require an employer to disclose any confidential information if its disclosure would be contrary to the employer’s interests.
38.4The employer must promptly consider any matters raised by the employees or their representatives about the changes in the course of the discussion under clause 38.1(b).
38.5In clause 38 significant effects, on employees, includes any of the following:
(a)termination of employment; or
(b)major changes in the composition, operation or size of the employer’s workforce or in the skills required; or
(c)loss of, or reduction in, job or promotion opportunities; or
(d)loss of, or reduction in, job tenure; or
(e)alteration of hours of work; or
(f)the need for employees to be retrained or transferred to other work or locations; or
(g)job restructuring.
38.6Where this award makes provision for alteration of any of the matters defined at clause 38.5, such alteration is taken not to have significant effect.”
Nor is there any dispute that The Bet Deck did not consult with Ms Clare before dismissing her. The first communication between The Bet Deck and Ms Clare in relation to her dismissal, apart from the unanswered telephone call to Ms Clare on the morning of 29 May 2023, was the letter of termination sent to Ms Clare on the afternoon of 29 May 2023, which did not give any reason for the termination of Ms Clare’s employment. It follows that The Bet Deck did not comply with its obligations under clause 38 of the Clerks Award to consult with Ms Clare about her redundancy.
Mr Turner contends that if Ms Clare had spoken to him by telephone on the morning of 29 May 2023 and taken some time to consider her options, it would have only delayed the genuine redundancy by one day.[26] He says there was no other option available to the business other than to restructure.[27]
The fact that Ms Clare was not able or willing to speak to Mr Turner on the morning of 29 May 2023 does not excuse The Bet Deck from its failure to consult with Ms Clare about her redundancy. The Bet Deck could have complied with its consultation obligations by sending correspondence to Ms Clare in May 2023, informing her of the need and reasons to restructure its business, explaining that the restructure would likely result in her position becoming redundant, and offering her a genuine opportunity to ask questions about the proposal and make a meaningful contribution to the options which may have been available to address the situation or ameliorate the impact of it on Ms Clare and her future employment with The Bet Deck and its associated entities.
I do not accept Mr Turner’s contention that a meaningful consultation process could have been completed in one day. In my view, it would have taken approximately one week for The Bet Deck to take the steps necessary to comply with its consultation obligations under the Clerks Award.
Was it reasonable in all the circumstances for the person to be redeployed within the employer’s enterprise or the enterprise of an associated entity of the employer (s 389(2))
For the purposes of section 389(2) of the Act, the Commission must consider whether there was a job or a position or other work within the employer’s enterprise (or that of an associated entity) to which it would have been reasonable in all the circumstances to redeploy the dismissed employee. There must be an appropriate evidentiary basis for such a finding.[28] The word “redeployed” in section 389(2) of the Act should be given its ordinary and natural meaning, which is to “transfer to another job, task or function”.[29]
If an employer wishes to rely on the “genuine redundancy” exclusion in section 389 of the Act, then it would ordinarily be expected to adduce evidence, on the question of redeployment, as to whether there was a job or a position or other work within the employer’s enterprise (or that of an associated entity) to which it would have been reasonable in all the circumstances to redeploy the dismissed employee. Such evidence would usually include the steps taken by the employer to identify other jobs, positions or work which could be performed by the dismissed employee.[30]
Whether it would have been reasonable in all the circumstances for the person to be redeployed, directs attention to the circumstances which pertained when the person was dismissed.[31] However, the circumstances leading up to the time the employee was dismissed may, in particular cases (such as where there has been a redeployment period for an employee prior to their dismissal), be relevant to a determination of whether it would have been reasonable in all the circumstances for the employee to have been redeployed.[32]
In determining whether redeployment would have been reasonable a number of matters may be relevant, including:
(a)whether there exists a job or position or other work to which the employee can be redeployed;[33]
(b)the nature of any available position;[34]
(c)qualifications required to perform the job;[35]
(d)the employee’s skills, qualifications and experience. The employee should have the skills and competence required to perform the role to the required standard either immediately or within a reasonable period of retraining;[36] and
(e)the location of the job in relation to the employee’s residence and the remuneration which is offered.[37]
Where an employer decides that, rather than fill a vacancy by redeploying an employee into a suitable job in its own enterprise, it will advertise the vacancy and require the employee to compete with other applicants, it might subsequently be found that the resulting dismissal is not a case of genuine redundancy.[38]
It is important, however, to appreciate that, because there is a requirement to assess the reasonableness of redeployment “in all the circumstances”, it is not possible to establish binding or decision rules concerning the application of section 389(2) of the Act in all cases; the circumstances of each particular case must be considered.[39]
Ms Clare contends that there was the ability for her to be redeployed into a customer service role. In support of this contention, Ms Clare points to the fact that she has been redeployed multiple times during her employment with The Bet Deck and its affiliated companies. As a result, Ms Clare says that she has the skills to be redeployed into any area of the business. Not only did Ms Clare work in customer service roles for the business, she created the structure for customer service in the business and developed responses that have been used across all four affiliated businesses.
Ms Clare understands that one of The Bet Deck’s employees consistently works overtime, with the result that, so Ms Clare contends, there is a possibility that she could have been redeployed into a part time customer service role, for at least eight hours a week, after the completion of her period of maternity leave, whether or not her period of maternity leave was extended.
Mr Turner says that in light of the financial status of the business there were no other positions available in The Bet Deck or any of its affiliated businesses at the time Ms Clare’s position was made redundant.[40] Mr Turner also says that the situation would not have been any different if Ms Clare had offered or proposed to delay her return-to-work date following her period of unpaid parental leave. That is because Bbet has since gone into external administration and the number of employees in employ of The Bet Deck and its affiliated businesses has reduced further since Ms Clare’s dismissal.
Mr Turner says that it would not have been feasible to employ Ms Clare on a part-time basis in a customer service role at the end of her period of unpaid parental leave because (a) the employee who has been working about five hours of paid overtime each week is a ‘key employee’ and needs to reside in the Northern Territory pursuant to The Bet Deck’s licence in the Northern Territory, (b) the person who works in the ‘key employee’ role must pass a probity check, which Ms Clare would not have met in light of her criminal record, and (c) Mr Turner could have covered the extra work being undertaken by way of overtime by the ‘key employee’ to further save costs, particularly in circumstances where this additional work will not continue to be required at all times in the future.
I accept Mr Turner’s evidence that there were no alternative positions into which Ms Clare could have reasonably been redeployed within The Bet Deck’s enterprise, or the enterprise of any associated entity of The Bet Deck, in May 2023, at the end of August 2023 (when Ms Clare’s unpaid parental leave was due to end), or at a later time if there had been an extension to Ms Clare’s period of unpaid parental leave. I accept Mr Turner’s evidence that the businesses run by The Bet Deck and Bbet have been in a very difficult financial position since at least May 2023, as a result of which there were no alternative positions available in May 2023 and there was no realistic prospect in May 2023 of any such position becoming available at the end of August 2023 or at a later time. As to the suggestion that a new part-time (5-8 hours/week) customer service position could have been created for Ms Clare to work in on her return from unpaid parental leave, I am satisfied on the balance of probabilities that it would not have been feasible for The Bet Deck to create such a position. I do not accept that Ms Clare would have had to reside in the Northern Territory to undertake some of the customer service work being performed by the ‘key employee’ in the Northern Territory. Nor do I accept that any probity checks would have prevented Ms Clare from performing such duties. That is because Ms Clare had undertaken customer service work from New South Wales for the business without difficulty prior to her move into the role of Trader. However, I accept that it would not have been reasonable for The Bet Deck to create an ongoing part-time role for Ms Clare to perform the work being undertaken by the ‘key employee’ on overtime because Mr Turner did not believe that such work would be required to be undertaken on an ongoing basis, and if it was required, he would have performed the work to further save costs for the business.
Conclusion on genuine redundancy
The Bet Deck did not comply with its consultation obligations under clause 38 of the Clerks Award. For this reason alone, The Bet Deck’s dismissal of Ms Clare was not a case of genuine redundancy within the meaning of s 389 of the Act.
Small Business Fair Dismissal Code
The Small Business Fair Dismissal Code does not capture economic dismissals, including redundancy situations.[41] Accordingly, Ms Clare’s dismissal was not consistent with the Small Business Fair Dismissal Code.
Harsh, Unjust or Unreasonable
Because Ms Clare’s dismissal was not a genuine redundancy within the meaning of s 389 of the Act, I must take into account, in determining whether the dismissal was harsh, unjust or unreasonable, the matters set out in s 387 of the Act.
Section 387(a) – valid reason related to capacity or conduct
If an employee has been dismissed because of changes to the operational requirements of their employer’s enterprise, the reason for the dismissal will not be related to the employee’s capacity or conduct. It follows that, in those circumstances, there will not be a valid reason for the dismissal related to the employee’s capacity or conduct, and s 387(a) should be regarded as a neutral matter with respect to the question of whether the dismissal was harsh, unjust or unreasonable.[42]
However, if the employee was dismissed because of changes to the operational requirements of their employer’s enterprise and it was not reasonable in all the circumstances for the employer to redeploy him or her, they are matters which should be considered under s 387(h) of the Act and are telling against a conclusion that the dismissal was harsh, unjust or unreasonable.[43]
For the reasons set out above, I am satisfied that Ms Clare was dismissed because of changes to the operational requirements of The Bet Deck’s enterprise. Accordingly, s 387(a) is a neutral factor in this case.
Section 387(b) – notification of reason
Section 387(b) relates to notification of “that reason”, being a reason related to the person’s capacity or conduct.[44]
Because the reason for the termination of Ms Clare’s employment was the redundancy of her job and such a reason is not related to her capacity or conduct, s 387(b) is a neutral factor in relation to the question of whether Ms Clare’s dismissal was harsh, unjust or unreasonable.[45]
Section 387(c) – opportunity to respond
Section 387(c) is also predicated on there being a reason for dismissal related to the capacity or conduct of the employee.[46]
It follows that s 387(c) is a neutral factor in relation to the question of whether Ms Clare’s dismissal was harsh, unjust or unreasonable.[47]
Section 387(d) – support person
The Bet Deck did not unreasonably refuse to allow Ms Clare to have a support person present to assist at any discussions relating to her dismissal. There were no discussions in relation to Ms Clare’s dismissal. Accordingly, s 387(d) is a neutral factor in relation to the question of whether Ms Clare’s dismissal was harsh, unjust or unreasonable.[48]
Section 387(e) – warning about unsatisfactory performance
Ms Clare’s dismissal did not relate to any unsatisfactory performance by her. It follows that s 387(e) is also a neutral factor in relation to the question of whether Ms Clare’s dismissal was harsh, unjust or unreasonable.[49]
Section 387(f)&(g) – size of enterprise and dedicated human resource management specialists
The Bet Deck is a small employer. It did not have any dedicated human resource management specialists or expertise in its enterprise at the time it decided to terminate Ms Clare’s employment on the grounds of redundancy. It did obtain advice from an external human resources consultant. The advice given was for Mr Turner to have a discussion with the employees impacted by the restructure to obtain their views before making a decision to terminate their employment on the grounds of redundancy. Mr Turner accepts that he should have taken that step with Ms Clare, even if it had involved communicating with her by email rather than in person.
In my view, the size of The Bet Deck’s enterprise and the lack of any dedicated human resource management specialists or expertise in its business did not have an impact on the procedures followed in effecting Ms Clare’s dismissal. The procedure adopted by The Bet Deck would have been fine if it had followed the advice given by the external human resources consultant. In all the circumstances, I consider that these factors (s 387(f) & (g)) are neutral in my consideration of whether Ms Clare’s dismissal was harsh, unjust or unreasonable.
Section 387(h) – other relevant matters
Ms Clare points to the following other matters in support of her contention that she was unfairly dismissed:
(a)an employee is guaranteed 12 months unpaid maternity leave under Chapter 2, Part 2-2, Division 5, Subdivision B, section 70 of the Act;
(b)there is an ability to discuss a further 12 months of unpaid leave beyond the initial guaranteed period of 12 months unpaid maternity leave under Chapter 2, Part 2-2, Division 5, Subdivision B, section 75 of the Act;
(c)there is a return to work guarantee in Chapter 2, Part 2-2, Division 5, Subdivision B, section 84 of the Act; and
(d)an employee is protected from unfair dismissal under Chapter 3, Part 3-2, Division 2, section 389 of the Act.
Although an employee such as Ms Clare has a right to take unpaid parental leave for a period of 12 months, which may be extended, under Division 5 of Part 2-2 of the Act, this does not provide any guarantee that their employer will still be in business or their job will still exist at the conclusion of their period of parental leave. The Act does not prohibit an employer from making changes to its business during an employee’s period of unpaid parental leave, including changes which impact on the position of the employee on such leave.
In Stanley v Service to Youth Council Inc[50] and Poppy v Service to Youth Council Inc,[51] the employer restructured its business while the employees were on parental leave, with the result that the positions held by the employees were no longer required, and their employment was terminated on the grounds of redundancy. Justice White held that, because the termination of employment served to end the period of parental leave, the guarantee in s 84 of the Act was enlivened. However, it was held that the guarantee was not breached by the employer because the pre-parental leave positions of the employees no longer existed and there were no other positions available for the employees. For the reasons set out above, the same analysis applies to the present case.
As to Ms Clare’s argument set out in paragraph [62(d)] above, the fact that Ms Clare is protected from unfair dismissal in the sense that she is eligible to make an application for relief from unfair dismissal does not say anything about the fairness of her dismissal.
Ms Clare was employed by The Bet Deck and its affiliated businesses for just over three years at the time of her dismissal. There is no suggestion that there were any deficiencies in her performance or conduct. This weighs in Ms Clare’s favour.
There were sound, defensible and well-founded reasons for Ms Clare’s dismissal, namely The Bet Deck no longer required Ms Clare’s job to be performed by anyone because of changes to the operational requirements of The Bet Deck’s enterprise. Those changes were, in my view, both rational and justified; they were made in a bona fide attempt to reduce costs in circumstances where The Bet Deck was in dire financial circumstances. These matters weigh against a conclusion that the dismissal was harsh, unjust or unreasonable.[52]
The Bet Deck’s material failure to comply with its consultation obligations under the Clerks Award is also a relevant matter which should be considered pursuant to s 387(h) of the Act.[53] However, a failure to consult does not necessarily mean a dismissal was harsh, unjust or unreasonable.[54] The weight to be given to a failure to consult depends primarily on the degree to which, if any, the absence of proper consultation led to any unfairness in practice.[55]
As was the situation in cases such as Maswan[56] and Smith v Alice Car Centre Pty Ltd[57], I am satisfied in the particular circumstances of this case that if consultation in accordance with the requirements of the Clerks Award had occurred, “it would have made no difference to the ultimate outcome”.[58] That is because The Bet Deck and its affiliated businesses were in dire financial circumstances in May 2023, with the result that there was no realistic prospect of redeployment or any other step being taken to prevent the termination of Ms Clare’s employment on the grounds of redundancy. Even if Ms Clare had been employed for a further week from 29 May 2023 until 4 June 2023, during which genuine consultation had taken place, she would not have received any further income from The Bet Deck because she was on unpaid parental leave at that time and extending her termination date from 29 May 2023 until 4 June 2023 would not have provided any other practical benefit to Ms Clare.
Conclusion on harsh, unjust or unreasonable dismissal
After considering each of the matters specified in s 387 of the Act, my evaluative assessment is that The Bet Deck’s dismissal of Ms Clare was not harsh, unjust or unreasonable. The Bet Deck needed to reduce its costs. It did this by outsourcing the trading function of its business to a third party, which resulted in all positions of Trader within The Bet Deck’s business being made redundant. Unfortunately, there were no redeployment opportunities in The Bet Deck’s enterprise or that of any of its associated entities. The evidence does not suggest that any other step could have reasonably been taken to prevent the termination of Ms Clare’s employment on the grounds of redundancy. Although The Bet Deck failed to comply with its consultation obligations, I have found that this did not give rise to any practical unfairness.
Conclusion
Because Ms Clare’s dismissal was not harsh, unjust or unreasonable, she was not unfairly dismissed. It follows that her unfair dismissal application must be dismissed.
DEPUTY PRESIDENT
Appearances:
Ms J Clare, on her own behalf
Mr J Turner, on behalf of The Bet Deck
Hearing details:
2023
Newcastle
31 August (by videoconference).
[1] Section 389(1)(a) of the Act
[2] Jones v Department of Energy and Minerals (1995) 60 IR 304 (Jones) at 308 per Ryan J; applied in Ulan Coal Mines Limited v Howarth [2010] FWAFB 3488; (2010) 196 IR 32 (Ulan Coal 1) at [17]
[3] Ibid
[4] Ibid
[5] Dibb v Commissioner of Taxation (2004) 136 FCR 388 at 404-5
[6] Kekeris v A. Hartrodt Australia Pty Ltd[2010] FWA 674 at [27] per Hamberger SDP
[7] Johnston v Blue Circle Southern Cement Pty Ltd (2010) 202 IR 121 at [48]
[8] Court Book at p 122
[9] Court Book at p 128
[10] Court Book at p 161
[11] Court Book at p 66
[12] Ibid
[13] Court Book at p 192
[14] Court Book at pp 89 & 193
[15] Court Book at p 176
[16] Court Book at p 203
[17] Ibid
[18] Court Book at p 205
[19] Court Book at p 68
[20] Ibid
[21] Court Book at p 49
[22] Court Book at p 203
[23] Court Book at p 206
[24] Court Book at p 206
[25] Court Book at p 161
[26] Court Book at p 143
[27] Ibid
[28] Technical and Further Education Commission T/A TAFE NSW v Pykett[2014] FWCFB 714; (2014) 240 IR 130 (TAFE ) at [36]
[29] Ibid at [25]
[30] Ibid at [36]-[37]; Teterin & Ors v Resource Pacific Pty Limited t/a Ravensworth Underground Mine[2014] FWCFB 4125; (2014) 244 IR 252 (Teterin) at [28]-[29]
[31] TAFE at [24] & [35]; Ulan Coal Mines Ltd v Honeysett[2010] FWAFB 7578; (2010) 199 IR 363 (Ulan Coal 2) at [28]
[32] Bhalla v Welltech Total Water Management[2014] FWC 7565 at [55]
[33] Ulan Coal2 at [28]
[34] Ibid at [28]
[35] Ibid at [28]
[36] Ibid at [28] & [34]
[37] Ibid at [28]
[38] Ibid at [34]
[39] Teterin at [35]
[40] Court Book at p 163
[41] Groszek v Toyvision International Pty Ltd[2015] FWC 697 at [37]; Harrison v Queensland University of Technology[2010] FWA 8789 at [6]; Nalevansky v Thought Equity Motion Inc. [2010] FWA 3707; Iannello v Motor Solutions Australia Pty Ltd[2010] FWA 3125
[42] UES (Int’l) Pty Ltd v Harvey[2012] FWAFB 5241 (UES) at [42]; Ventyx Pty Ltd v Murray[2014] FWCFB 2143 (Ventyx) at [142]
[43] UES at [33] & [47]
[44] UES at [43]; Ventyx at [143]
[45] UES at [43]; Ventyx at [143]
[46] UES at [43]; Ventyx at [144]
[47] UES at [43]; Ventyx at [144]
[48] UES at [44]
[49] UES at [45]; Ventyx at [146]
[50] (2014) 225 FCR 317
[51] (2014) 318 ALR 195
[52] UES at [33] & [47]; Ventyx at [149]-[150]
[53] UES at [48]
[54] UES at [49]; Maswan v Escada Textilvertrieb[2011] FWA 4239 (Maswan) at [39]; Ventyx at [151]-[162]
[55] Gomes v OE & DR Pope Pty Ltd[2014] FWC 8342 at [59] per Hampton C
[56] [2011] FWA 4239 at [39]
[57] [2013] FWC 9093 (Alice Car Centre) at [53]
[58] Alice Car Centre at [53]
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