Joyce Rego v Firma Foreign Exchange Corporation (Formerly known as Globex) T/A Firma Foreign Exchange Corporation

[2014] FWC 8225

[2014] FWC 8225

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Joyce Rego
v
Firma Foreign Exchange Corporation (Formerly known as Globex) T/A Firma Foreign Exchange Corporation
(U2014/6489)

DEPUTY PRESIDENT LAWRENCE SYDNEY, 21 NOVEMBER 2014

Application for relief from unfair dismissal.

[1] On 12 April 2014 Joyce Rego (the Applicant) lodged an application for relief from unfair dismissal pursuant to Section 394 of the Fair Work Act 2009 (the Act) against Firma Foreign Exchange Corporation (Formerly known as Globex) T/A Firma Foreign Exchange Corporation (the Respondent).

[2] The Applicant commenced with the Respondent on 4 January 2011. She was notified of her dismissal on 9 April 2014 and it took effect on that day.

[3] The Applicant claims that she was unfairly dismissed because she was forced to sign a redundancy letter. This letter was dated 9 April and stated that the Applicant’s position of Branch Administrator is redundant because of ‘reducing operational costs and thus requiring less staff.” She was paid 4 weeks pay in lieu of notice and 7 weeks redundancy pay as per the National Employment Standards. The Applicant submits that other employees, rather than her, should have been made redundant. She seeks reinstatement.

[4] The Respondent submits that there was no unfair dismissal because this was a genuine redundancy. The Respondent is a financial services company with its Australian office located in Sydney. It removed trader positions in the office because of low volumes. One of the two Branch Administrator positions was removed. The Applicant was the one chosen. She asserts that no issue was raised with respect to her performance or capacity.

[5] The Respondent started discussions about the restructure in August 2013. The Applicant was chosen based on a range of factors and, overall, a decision as to who would “be providing the better service” (Paragraph 3.2 in F3 form). The Respondent’s decision was based on performance, it submits.

[6] The Respondent concedes that three new staff were hired in March 2014 but these were “Business Development Assistants’ who were dedicated cold callers. It was the reduction in the number of traders that meant the second Branch Administrator position was not required. The Respondent emphasises that the position of Traders and “Business Development Assistants” are very different.

[7] A conciliation conference on 5 June 2014 was unsuccessful.

[8] I conducted a programming conference by telephone on 25 August 2014.

[9] The hearing took place in Sydney on 1 September and was conducted as a determinative conference.

[10] The Applicant represented herself. The Respondent was represented by its Branch Manager, Matthew Hayja and Assistant Branch Manager, Dougal Moffatt.

[11] The Applicant relied on oral submissions and evidence and written submissions, with various attachments lodged on 21 July and 25 August 2014.

[12] The Respondent relied on oral submissions and evidence and written submissions lodged on 11 August 2014.

Protection from Unfair Dismissal

[13] An order for reinstatement or compensation may only be issued where I am satisfied the applicant was protected from unfair dismissal at the time of the dismissal.

[14] Section 382 sets out the circumstances that must exist for the applicant to be protected from unfair dismissal:

“382 When a person is protected from unfair dismissal

A person is protected from unfair dismissal at a time if, at that time:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(b) one or more of the following apply:

(i) a modern award covers the person;

(ii) an enterprise agreement applies to the person in relation to the employment;

(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.

[15] There was no dispute that the Applicant had the required service and it appears that the Banking, Finance and Insurance Award 2010 (the Award) applied. The Applicant’s income was below the high income threshold being $38,459 per annum plus a bonus of $961.48 per quarter.

[16] The Applicant was therefore protected from unfair dismissal.

Was the dismissal unfair?

[17] A dismissal is unfair if I am satisfied, on the evidence before me, that all of the circumstances set out at s.385 of the Act existed. Section 385 provides the following:

“385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

Was the Applicant dismissed?

[18] A person has been unfairly dismissed if the termination of their employment comes within the definition of “dismissed” for purposes of Part 3–2 of the Act. Section 386 of the Act provides that:

“386 Meaning of dismissed

(1) A person has been dismissed if:

(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

(2) However, a person has not been dismissed if:

(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or

(b) the person was an employee:

(i) to whom a training arrangement applied; and

(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;

and the employment has terminated at the end of the training arrangement; or

(c) the person was demoted in employment but:

(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and

(ii) he or she remains employed with the employer that effected the demotion.

(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person’s employment, to avoid the employer’s obligations under this Part.”

[19] There was no dispute that the Applicant was dismissed. She submits that the dismissal was “not a case of genuine redundancy” and therefore was unfair.

[20] Section 396 provides that the Commission must decide whether the dismissal was a case of genuine redundancy before considering the merits of the application.

[21] “Genuine redundancy” is defined in s.389 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.”

[22] An employer will not be able to rely on the defence of “genuine redundancy” to an unfair dismissal application if it would have been reasonable, in all the circumstances, for the person to be redeployed within the employer’s enterprise or the enterprise of an associated entity. Similarly, “the genuine redundancy’ defence will not apply if the consultation requirement in an award applies and it has not been complied with.

Summary of the Applicant’s Case

[23] The Applicant denies that this was a genuine redundancy and argues:

● She had lodged a complaint with the Fair Work Ombudsman in August 2013 about non-payment of annual leave by the previous Branch Manager. She applied for further annual leave with the current Branch Manager, Matthew Hayja in March 2014. She was not told about a pending redundancy at that time. The Respondent had maintained that annual leave did not accumulate from year to year. The Applicant submits that she was made redundant because she made this complaint.

● The Applicant’s employment contract executed in November 2010 specifically acknowledges that the Banking, Finance and Insurance Award 2010 applies to her employment. Her job description involves general clerical/administrative duties as set out in the award.

● No consultation took place in accordance with the modern award. She submits the decision to make her redundant was made in August 2013.

● There was no reason, based on performance, for her to be made redundant as against the other employee.

● She was not considered for redeployment within the Respondent’s business.

● The Respondent hired 3 new staff, in March 2014, and this is inconsistent with a genuine redundancy.

Summary of the Respondent’s Case

[24] The Respondent submits that the dismissal was a genuine redundancy because:

● The Respondent is incorporated in Canada with 220 staff worldwide, 11 staff in the Sydney office are its Australian employees. It does not press its Small Business Fair Dismissal Code defence.

● It agrees that the Award applied to the Applicant.

● It states that the initial dispute about entitlements, especially annual leave, has been resolved.

● At the time of the Applicant’s termination there was another employee performing the same duties. That employee is now undertaking the Applicant’s duties. There is no new employee. The Applicant’s job is not now being performed by anyone. This was as a result of changed operational requirements and financial reasons and a reduction in the number of trades.

● The Applicant did not have the skills to be redeployed to other roles.

● The Applicant was not terminated because she made a complaint about her annual leave.

● An extended downturn in the volume of business led to a review of the administrative staff in the Sydney office by the previous manager in August 2013.

● Having decided that only one administrative staff was necessary, the decision to select the Applicant for redundancy was made for bona fide reasons. It is conceded that the termination’s implementation was delayed. Exhibit H1 was an exchange of emails between management which shows that the decision to have one administration staff was taken in August 2013.

● The Respondent concedes it did not notify the Applicant about the redundancy or consult with her. It submits that this would not have been practical in the circumstances. Choosing between two employees would lead to workplace conflict and dysfunction in the office.

● There is no position available to which the Applicant could be reinstated.

Was the Dismissal a Genuine Redundancy within s.389(1)?

[25] The Respondent must show that it no longer required the Applicant’s job to be performed by anyone because of changes in the operational requirements of its enterprise and that it complied with the consultation obligations in a modern award or enterprise agreement, if they apply.

[26] The test is whether the previous job had survived a restructure or downsizing, rather than a question as to whether the duties have survived in some form: Kekeris v A. Hartrodt Australia Pty Ltd ([2010] FWA 674). A “job” being “a collection of functions, duties and responsibilities, as part of the scheme of the employees’ organisation, to a particular employee” Jones v Department of Energy and Minerals ([1995] QIR 304). The onus is on the employer to prove, on the balance of probabilities that the redundancy was due to changes in operational requirements: Kieselbach v Amity Group Pty Ltd (DP Hamilton, 9 October 2006 PR973864).

[27] The obligation to consult is set out in Clause 8 of the Award. It is:

“8. Consultation

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 0, 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 0.

(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.

8.2 Consultation about changes to rosters or hours of work

(a) Where an employer proposes to change an employee’s regular roster or ordinary hours of work, the employer must consult with the employee or employees affected and their representatives, if any, about the proposed change.

(b) The employer must:

(i) provide to the employee or employees affected and their representatives, if any, information about the proposed change (for example, information about the nature of the change to the employee’s regular roster or ordinary hours of work and when that change is proposed to commence);

(ii) invite the employee or employees affected and their representatives, if any, to give their views about the impact of the proposed change (including any impact in relation to their family or caring responsibilities); and

(iii) give consideration to any views about the impact of the proposed change that are given by the employee or employees concerned and/or their representatives.

(c) The requirement to consult under this clause does not apply where an employee has irregular, sporadic or unpredictable working hours.

(d) These provisions are to be read in conjunction with other award provisions concerning the scheduling of work and notice requirements.”

[28] It is conceded that the Respondent did not comply with this. It says that to do so in a small workforce where it was selecting one of two employees performing the same tasks would have caused conflict and disharmony. This may be true but it does not remove the obligation. This is especially so where the decision seems to have been made long before the termination. This exchange was at PN106 - PN107.

“PN106

It’s similar, yes. The discussions began in August. A decision was made that it would be done - possible two dates. It was acknowledged in our employer response, I believe October or January, but due to Blaine, the previous branch manager, transferring and other issues, it was - actually it just went off the agenda for a while and then in came back in April.

PN107

So that was not consulted, and then when I applied for my annual leave in March, you didn’t say anything about the thing. You took my annual leave. You didn’t say anything about my redundancy at all so I went and booked my flight tickets and I wasn’t aware of it, and after I booked my flight tickets, you mentioned that - you came to me and suddenly said I’m made redundant”.

[29] I find that the Respondent did not comply with the obligation to consult about the redundancy contained in the modern award.

[30] I accept the evidence of the Respondent that the business was restructured because of a downturn in business. Four traders left the company. The Business Development Assistants that were hired were in very different roles. The downturn meant there was less work for the two administrative staff. It was a legitimate business decision for the administrative work to be done by one staff member. There was little justification put forward as to why the Applicant was made redundant as opposed to the other employee. However, I find, on the balance of probabilities, that the selection was unlikely to have been made because the Applicant had made a complaint about her annual leave. That issue has been resolved in any event.

[31] I accept that the redundancy was implemented for bona fide economic/operational reasons and not as a device to remove the Applicant unfairly. The Respondent was entitled to make a decision as to which employee was best for the business.

[32] The issue of possible redeployment was also raised by the Applicant.

[33] The approach of the Commission with respect to redeployment is contained in recent Full Bench decisions such as:

● Ulan Coal Mines Limited v Honeysett and others[2010] FWAFB 7578

● Technical and Further Education Commission t/a TAFE NSW v L. Pykett[2014] FWCFB 714

● Teterin v Resource Pacific Pty Limited T/A Ravensworth Underground Mine [2014] FWFB 4125

● Ventyx Pty Ltd v Mr Paul Murray[2014] FWCFB 2143

[34] I have dealt with the issues in recent decisions:

● Teterin v Resource Pacific Pty Limited T/A Ravensworth Underground Mine [2014] FWC 1578

● Vukoja v Toyota Motor Corporation Australia Limited[2014] FWC 3764

● King v Catholic Education Office Diocese of Parramatta T/A Catholic Education Diocese of Parramatta[2014] FWC 6413

[35] The Applicant must establish that it was reasonable for her to be redeployed within s.389(2) for her dismissal to be decided to be not a genuine redundancy. If this is so, the “defence” of “genuine redundancy” available to the Respondent under s.385 will not apply. A decision will then need to be made as to whether the dismissal was otherwise harsh, unjust or unreasonable. An examination of both the actions of the employer and the employee is required. As to what is considered reasonable will turn on the circumstances of each case.

[36] There was some consideration by the Respondent of redeployment options. I accept, however, that given the nature and size of the business, and the Applicant’s skills, redeployment was not a practical option.

[37] There was a suggestion by the Applicant that she should have been considered for a compliance position but she conceded that this position was not vacant and was in fact filled in May 2013 (see PN286-293).

[38] I find therefore that there was not a job, position or other work within the Respondent’s enterprise, at the date of dismissal, to which it would have been reasonable in all the circumstances to redeploy her.

Conclusion under s.387

[39] Because the Respondent did not comply with its obligation to consult pursuant to the Award, I cannot find that the dismissal of the Applicant by the Respondent was a genuine redundancy pursuant to s.389(1).

[40] There was not full argument before me on the consequences of this conclusion. The dismissal would have been a genuine redundancy if the required consultation had taken place.

[41] I must consider therefore whether the dismissal was harsh, unjust or unreasonable in accordance with s.387 of the Act.

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh,

unjust or unreasonable, FWA must take into account:

(a) whether there was a valid reason for the dismissal related to

the person’s capacity or conduct (including its effect on the

safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to

any reason related to the capacity or conduct of the person;

and

(d) any unreasonable refusal by the employer to allow the person

to have a support person present to assist at any discussions

relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the

person—whether the person had been warned about that

unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise

would be likely to impact on the procedures followed in

effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource

management specialists or expertise in the enterprise would

be likely to impact on the procedures followed in effecting

the dismissal; and

(h) any other matters that FWA considers relevant.”

[42] Watson V.P. considered a similar case in Maswan v Escada Textilvertrieb T/A Escada [2011] FWA 4239 (Maswan). He stated inter alia:

s.387(h)

“[36] Most of the relevant factors fall into this category. In my view it is clear that the company conducted a restructure of its Australian operations and decided to merge the two positions of Regional Manager and Retail/Marketing Manager. Mr Maswan was not considered appropriate for the merged role. I do not consider that this conclusion was unreasonable. As one incumbent had resigned and the other incumbent was not considered suitable, it was reasonable to seek to recruit a person suitable for the role. Once a good candidate was identified it became almost inevitable that Mr Maswan’s employment would need to be terminated.

[37] The failure to notify and consult with Mr Maswan in accordance with the award is a serious defect in the procedure. If the outcome of consultation was less predictable the failure to consult over proposed changes could render the termination unfair. However, the decision to terminate appears to be rational and justified. Clearly Escada needed a strong performer with all of the requisite skills in the merged role in order to turn around a poor trading history. It did not consider that Mr Maswan was that person. It found a good candidate who accepted the offer of employment. It therefore made the business decision to make Mr Maswan’s position redundant and terminate his employment for that reason. It advised him of the reason, but not until it was in the process of implementing his termination.

[38] Payments were made in accordance with the Act and the Award and an additional amount of 2 weeks pay in lieu of notice was given. There was some delay in paying the redundancy pay which is not explained in the evidence. It appears that the obligation to make the payment was not known to Hong Kong management at the time. However it does not follow that redundancy is not the real reason for termination. The restructuring and the merger of positions are clearly established as the true reasons for dismissal.

[39] In my view a decision to dismiss on account of redundancy will only be harsh, unjust or unreasonable if the rationale for the decision is seriously undermined or if there is a serious error in procedure such that renders the termination unfair in the circumstances. Here the decision appears open to the employer to make. The failure to consult is not a trivial matter. But as it is clear that consultation was highly unlikely to have negated the operational reasons for the dismissal or lead to any other substantive change, I do not believe that the failure to consult prior to the date of termination rendered the dismissal unfair. Given the evidence in relation to the operational need to restructure, I am of the view that it is likely that Mr Maswan would have been dismissed in any event, even if timely consultation had occurred.

[40] In all of the circumstances I am not satisfied that the termination of Mr Maswan’s employment was harsh, unjust or unreasonable.”

[43] A Full Bench in USE (Int’l) Pty Ltd v Harvey (2011) 215 IR 263 (USE) decided that the failure to consult should be considered in relation to s.387(h) not s.387(a). The Full Bench stated:

“[26] We have concluded, however, that s.387(a) of the FW Act regarding the matter of whether there was a valid reason for the dismissal related to the person’s capacity or conduct does not go to the process for selecting the person for redundancy. We have come to this conclusion having regard to the following factors and for the following reasons.

[27] The terms of s.389 of the FW Act suggest the process for selecting individual employees for redundancy is not relevant to whether a dismissal was a case of genuine redundancy. The relevant Explanatory Memorandum confirms as much. Setting aside jurisdictional pre-requisites and the matters in s.396(a) to (c), FWA only needs to consider s.387(a) concerning whether there was a valid reason for a person’s dismissal related to the person’s capacity or conduct if one or more of the criteria in s.389 of the FW Act, which sets out the meaning of genuine redundancy, have not been met. The criteria in s.389 which have not been met can be taken into account in FWA’s consideration as to whether the dismissal was harsh, unjust or unreasonable as part of s.387(h), being “any other matters that FWA considers relevant”.

[28] We think it unlikely that it was intended that FWA’s consideration of whether there was a valid reason for the dismissal related to the person’s capacity or conduct would extend to the process for selecting the person for redundancy when:

(i) the process for selecting a person for redundancy is not relevant to FWA’s determination of an unfair dismissal remedy application if the s.389 criteria for a case of genuine redundancy are met, and

(ii) any unmet criteria in s.389 of the FW Act can be taken into account as part of s.387(h) in FWA’s consideration as to whether the dismissal was harsh, unjust or unreasonable.

[29] To conclude otherwise would mean that where an employer met the s.389 criteria for a genuine redundancy the process for selecting the person for redundancy would not be a matter FWA would consider in respect of an unfair dismissal remedy application. However (unless the application was otherwise determined) an employer who did not meet the s.389 criteria because, for example, they failed to consult as required by s.389(b) of the FW Act would have both the failure to consult and the process for selecting the person for redundancy considered in any unfair dismissal remedy application.

...

[33] The Commissioner’s decision that there was no valid reason for Mr Harvey’s dismissal was erroneously founded on a conclusion that the reason for his dismissal related to his capacity. Further, the Commissioner failed to have regard to the fact there were sound, defensible and well-founded reasons for Mr Harvey’s dismissal due to changes in operational requirements and no reasonable redeployment, when taking into account other matters relevant to his consideration as to whether Mr Harvey’s dismissal was harsh, unjust or unreasonable. The Commissioner’s reference to UES’s “operational need to restructure” in the course of considering UES’s failure to relevantly consult is not sufficient. As a result, his decision that there was no valid reason for Mr Harvey’s dismissal was affected by appealable error.

...

[39] We also find that the dismissal was not a case of genuine redundancy. The evidence is that there was a significant decline in the business of UES with insufficient sales to sustain three storepersons in its warehouse. The warehouse employed a supervisor and three storepersons. Mr Harvey was a storeperson. The employer consulted with the other employees in the warehouse, while Mr Harvey was on annual leave, about potential redundancies in the warehouse due to the downturn in UES sales. UES then decided to make Mr Harvey’s position as storeperson redundant due to the downturn in its sales. However, UES did not consult with Mr Harvey about the redundancy as required by the modern award applying to his employment. The evidence establishes that it would not have been reasonable in all the circumstances for Mr Harvey to be redeployed within the enterprise of UES or the enterprise of an associated entity of UES.

[40] On the evidence, therefore, we consider Mr Harvey’s dismissal was not a case of genuine redundancy within the meaning of s.389. However, this is only because UES did not consult with Mr Harvey about the redundancy in accordance with its obligation in the modern award that applied to Mr Harvey’s employment.

...

Other matters (s.387(h))

[47] As we have earlier indicated, there were sound, defensible and well-founded reasons for Mr Harvey’s dismissal, being that UES no longer required his job to be performed by anyone because of changes in the operational requirements of its enterprise and it was not reasonable in all the circumstances to relevantly redeploy him. We regard such valid reasons as matters relevant to our consideration as to whether Mr Harvey’s dismissal was harsh, unjust or unreasonable. They are matters telling against a conclusion that the dismissal was harsh, unjust or unreasonable.

[48] UES, however, failed to consult with Mr Harvey as required by the “consultation regarding major workplace change” clause in the modern award that applied to his employment. In the circumstances the failure to so consult was unreasonable. We regard such a failure to consult as also a matter relevant to our consideration as to whether Mr Harvey’s dismissal was harsh, unjust or unreasonable. Further, it is a matter telling for a conclusion that Mr Harvey’s dismissal was harsh, unjust or unreasonable.

Conclusion regarding harsh, unjust or unreasonable

[49] Taking into account the matters referred to above, we are satisfied Mr Harvey’s dismissal by UES was harsh, unjust or unreasonable. A failure to consult does not necessarily mean a dismissal was harsh, unjust or unreasonable. However, in this case we consider the failure to consult was unreasonable and is sufficient to lead us to conclude Mr Harvey’s dismissal was harsh, unjust or unreasonable, notwithstanding the valid reasons for his dismissal and the due weight we have given to those valid reasons.”

[44] I have found that the reason for termination was a redundancy consequent upon economic/operational requirements that merged two positions into one. This reason does not relate to the Applicant’s capacity or conduct. In dealing with s.387(a), I therefore find this is not relevant to the fairness of the termination. It follows that s.387(b)-(e) are not relevant.

[45] Section 387(f) and (g) are of some relevance. The Respondent is a small employer in Australia with the major decisions being made overseas. It is clear that there was some lack of awareness of Australian industrial relations. However, I accept that the main reason consultation didn’t take place was the reason given by the Respondent combined with the changes that took place within the company at the relevant time.

[46] Applying the approach in Maswan, I have taken into account the failure to consult under s.387(h). Once the Respondent had decided that there was only enough work for one administrative staff, it was reasonable to select the most suitable for the job. I have found that this decision was for bona fide reasons. I do not think the failure to consult renders the decision unfair. The circumstances were different in UES where the Applicant had been treated differently to other employees in relation to consultation. As in Maswan consultation would not have likely led to a different result. The Applicant would have been dismissed in any event, even if timely consultation had occurred.

Conclusion

[47] I find that the Applicant’s dismissal is not a genuine redundancy pursuant to s.389(1) because of the Respondent’s failure to comply with the consultation provisions of the Award. I find however the dismissal is not harsh, unjust or unreasonable pursuant to s.387.

[48] It follows that the Applicant’s claim for a remedy for unfair dismissal must fail and is therefore dismissed. An order in these terms will be issued with this decision.

DEPUTY PRESIDENT

Appearances:

Joyce Rego on her own behalf.

Matthew Hayja with Dougal Moffatt for the Respondent.

Hearing details:

Sydney - Programming Teleconference

2014

August 25

Sydney

2014

September 1

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