Kylie Eaton v Craveable Brands

[2021] FWC 6705

[2021] FWC 6705

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Kylie Eaton
v
Craveable Brands
(U2021/6235)

DEPUTY PRESIDENT EASTON SYDNEY, 30 DECEMBER 2021

Application for relief from unfair dismissal – genuine redundancy – complete defence – whether the “job” was redundant – duties distributed to other employees including a new, more qualified employee – reasonableness of redeployment – alternative position raised but disregarded – skill set required for alternative position – genuine redundancy – application dismissed.

[1] Ms Kylie Eaton commenced employment with Craveable Brands Pty Ltd on 25 November 2019 as an IT administrator. In early May 2021 Craveable Brands decided it would make Ms Eaton’s position redundant. Craveable Brands spoke with Ms Eaton about alternative positions but only one position was identified and it was not pursued. Seven weeks later on 30 June 2021 Ms Eaton’s employment concluded. The termination package included four weeks’ severance pay plus an ex-gratia payment of three weeks’ pay. Ms Eaton did not receive any actual payment as she owed Craveable Brands a greater sum because of other circumstances unconnected to the redundancy.

[2] Ms Eaton made an application to the Fair Work Commission under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for a remedy, alleging that she had been unfairly dismissed from her employment.

[3] For the reasons that follow I find that Ms Eaton’s dismissal was a case of genuine redundancy and therefore she has not been unfairly dismissed and her application must be dismissed.

Genuine Redundancy

[4] Section 385 of the FW Act is in the following terms:

“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.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”

[Emphasis added]

[5] Section 389 explains the meaning of the s.385(d):

“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.”

[6] I am required to decide whether the dismissal was a case of genuine redundancy before considering the merits of the application (per s.396). Genuine redundancy is a complete defence to an unfair dismissal application. 1

[7] The explanatory memorandum to the FW Act includes the following informative summary:

“Clause 389 – Meaning of genuine redundancy

1546. This clause sets out what will and will not constitute a genuine redundancy. If a dismissal is a genuine redundancy it will not be an unfair dismissal.

1547. Paragraph 389(1)(a) provides that a person’s dismissal will be a case of genuine redundancy if his or her job was no longer required to be performed by anyone because of changes in the operational requirements of the employer’s enterprise. Enterprise is defined in clause 12 to mean a business, activity, project or undertaking.

1548. The following are possible examples of a change in the operational requirements of an enterprise:

•  a machine is now available to do the job performed by the employee;

•  the employer’s business is experiencing a downturn and therefore the employer only needs three people to do a particular task or duty instead of five; or

•  the employer is restructuring their business to improve efficiency and the tasks done by a particular employee are distributed between several other employees and therefore the person’s job no longer exists.

1549. It is intended that a dismissal will be a case of genuine redundancy even if the changes in the employer’s operational requirements relate only to a part of the employer’s enterprise, as this will still constitute a change to the employer’s enterprise.

1550. Paragraph 389(1)(b) provides that it will not be case of genuine redundancy if an employer does not comply with any relevant obligation in a modern award or enterprise agreement to consult about the redundancy. This does not impose an absolute obligation on an employer to consult about the redundancy but requires the employer to fulfil obligations under an award or agreement if the dismissal is to be considered a genuine redundancy.

1551. Subclause 389(2) provides that a dismissal is not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within the employer’s enterprise, or within the enterprise of an associated entity of the employer (as defined in clause 12).

1552. There may be many reasons why it would not be reasonable for a person to be redeployed. For instance, the employer could be a small business employer where there is no opportunity for redeployment or there may be no positions available for which the employee has suitable qualifications or experience.

1553. Whether a dismissal is a genuine redundancy does not go to the process for selecting individual employees for redundancy. However, if the reason a person is selected for redundancy is one of the prohibited reasons covered by the general protections in Part 3-1 then the person will be able to bring an action under that Part in relation to the dismissal.”

[emphasis added]

[8] Section 389 requires a series of stepped findings 2: firstly, whether the Applicant’s job is redundant; secondly whether the employer complied with any applicable consultation obligations under a modern award or agreement and thirdly whether it would have been reasonable to redeploy the Applicant in another role.

[9] There must be an appropriate evidentiary basis for the Commission’s findings and the relevant facts are usually peculiarly within the knowledge of the employer respondent rather than the dismissed employee. Therefore, if an employer wishes to rely on the ‘genuine redundancy’ exclusion then they would ordinarily be expected to adduce evidence that they no longer required the dismissed employee’s job to be performed by anyone because of changes in the operational requirements, that they met their consultation obligations and that it would not have been reasonable in all the circumstances to redeploy the dismissed employee. 3 There are practical limits on the material that will need to be put by employers, as there are limits in the other matters heard by the Commission, to avoid defeating the intent of the genuine redundancy exclusion – in this regard an employer need only satisfy the Commission on the balance of probabilities.⁴

The Evidence

[10] Mr Paul Kennedy appears to be the person who decided that Ms Eaton’s position was to be made redundant. Mr Kennedy was the Chief Information Officer of Craveable Brands and Ms Eaton’s direct line manager. During her employment Ms Eaton made a complaint or allegation against Mr Kennedy – the details of which are not in evidence. In his email on 14 May 2021 to the “IT Team” announcing that Ms Eaton’s position was redundant, Mr Kennedy states “The team has gone through a lot of change over the past few months and today is my last day.”

[11] Mr Kennedy did not give any evidence and there was no explanation proffered for his absence. The unexplained failure by a party to call a witness may in appropriate circumstances support an inference that the uncalled evidence would not have assisted the party's case – often referred to as a Jones v Dunkel inference. 5 If that uncalled witness appears to be in a position to cast light on whether particular inferences should be drawn from other evidence, the court or tribunal can have greater confidence in drawing those inferences because of the failure to call the witness.6 This rule relates to the drawing of inferences from other facts7, and is not available to fill any gaps in another party’s case.8

[12] Ms Eaton is convinced that she was made redundant as retribution for her complaint against Mr Kennedy. Apart from voicing her deeply held suspicions, Ms Eaton led no evidence from which adverse inferences could be made that Mr Kennedy decided to make Ms Eaton redundant as retribution. Obviously, it was not possible for Ms Eaton to directly lead evidence going to Mr Kennedy’s motivations or reasons for deciding to make Ms Eaton’s position redundant. However, there was nothing within her evidence, such as evidence of the surrounding circumstances, evidence of particular conversations between herself and Mr Kennedy, that squarely raise the possibility that Mr Kennedy did not genuinely hold the view that that Ms Eaton’s job was no longer required for operational reasons.

[13] Craveable Brands led very little direct evidence about the decision to make Ms Eaton’s position redundant. The evidence instead focused upon the process undertaken by Craveable Brands following the decision by Mr Kennedy to make the position redundant. There was no evidence led by Craveable Brands about the new position, such as a job description, or about the differences between the new position and Ms Eaton’s old position.

[14] I have significant flexibility in how I might inform myself in relation to any matter before me (per s.590 of the FW Act), and I am not bound by the rules of evidence and procedure in the same way that a Court is bound (per s.591). That said, I must determine matters only on the evidence before me.

[15] Craveable Brands’ Chief People Officer, Ms Trudie Harriman, gave the following evidence about the decision to make Ms Eaton’s position redundant:

“In March 2021, Mr Paul Kennedy, the then Chief Information Officer of the Respondent, raised a proposal to the Respondent’s executive leadership of which I am a member.

Mr Kennedy flagged that due to significantly increasing capital expenditure and complicated projects being handled by the Respondent’s IT team, there was a real need for greater accounting experience in order for the team to manage its budget, invoices and accounts receivable.

At this time it was identified that there would be an overlap between the administrative duties of the Applicant and those of the newly created financial accountant role. In addition to this a companywide review of admin self-service in business that required reallocation of administrative work from a central admin support to individuals within the IT team. The result of this restructure was that the Applicant’s role was no longer required by the Respondent.”

[16] Ms Rachel Templeman, a Human Resources Business Partner for Craveable Brands, gave the following evidence about the decision to make Ms Eaton’s position redundant:

“In early May 2021, I was approached by Mr Kennedy in relation to a decision taken by the Respondent’s executive team to restructure the Respondent’s IT team.

Mr Kennedy explained to me that the IT team needed a qualified financial accountant to look after major projects, capital expenditure and to perform accounting work for the IT team while also working with the Respondent’s finance team.

As there was insufficient accounting work for a dedicated full-time financial accountant role within the IT team, the new incumbent would also performance accounting responsibilities in other areas of the business. The residual administrative tasks which were currently performed by the Applicant duties were to be spread amongst the IT team.

Following this conversation, I prepared a redundancy plan to assist Mr Kennedy with the consultation obligations inherent in a redundancy…”

[17] Craveable Brands tendered in evidence a “redundancy plan” that was developed and implemented by a human resources practitioner within Craveable Brands. The plan was orthodox in its terms and included:

(a) a staged process whereby Craveable Brands meets with Ms Eaton to advise her of the decision and invited her to a further meeting where she could provide feedback and discuss alternative positions;

(b) a draft redundancy calculation to be provided at the initial meeting;

(c) a script for each meeting;

(d) a second meeting to receive responses from Ms Eaton and to consider alternative positions; and

(e) a notice of dismissal if no positions are identified.

[18] In accordance with the plan, on 10 May 2021 Ms Eaton was invited to a meeting the next day. The invitation telecasted Craveable Brands’ intentions by a reference to the IT Team “currently going through a period of transition” and that Mr Kennedy would like to “talk through the next steps on this journey and how these changes are going to impact on [Ms Eaton’s] role as well.” The invitation foreshadowed that Ms Templeman (HR) would be present although it did not offer Ms Eaton the facility of having a support person present.

[19] On 11 May 2021 Ms Eaton met with Mr Kennedy and Ms Templeman, both of whom stuck to the script in the redundancy plan. Ms Eaton’s responses were noted, including:

“She had a feeling that there might have been a change coming in the works. She was thankful to [Mr Kennedy] for supporting her in her need to move to Port Mac when she knew it wasn’t a given. Advised that she knew she was ‘lucky’ to have kept her job after the credit card incidents.

PK reminded her that it wasn’t about the CC incidents and that this was about the needs of the role.

She asked to have the time off and that she would get back to us in the consultancy follow up meeting. Advised to reach out if she needed any help in the meantime.”

[20] Later that day Ms Templeman sent a summary of the meeting by email to Ms Eaton and told her she could take time off with pay “to rest”. The email also included arrangements for a further meeting on Friday, 14 May 2021 and included the following:

“I encourage you to consider if there are any current availabilities at Craveable that you would like to discuss and I will be happy to help you arrange that time with the hiring manager. You can review these on our careers site, or by reaching out to Lyndal or I.”

[21] At the meeting on 14 May 2021 Ms Eaton expressed interest in a vacant position for an “Administration & Office Support – PA” role that was being advertised at the time. Ms Templeman gave evidence about the discussion that followed:

“The Applicant asked about potential redeployment into a role offered by the Respondent’s Oporto brand, I explained to the Applicant that the suggested role required a high degree of experience in operational project management, but offered to line up an interview for the Applicant with the Oporto CEO Ms Samantha Bragg, however the Applicant responded that she didn’t want to be a bother and said she was not interested in investigating the role further.”

[22] The updated note on the redundancy plan included the following:

“Kylie advised that she had seen a position that was vacant in Oporto – Project and Admin Coord, but that she assumed she wasn’t going to be considered if that was the case.

Rach advised that I had spoken with Sam, but that she was looking for someone who was experienced in Project Management and that was a core component of the role, more so that administration or coordination. However, advised that if she wanted to pursue it I would line up an interview with Sam and she would be able to speak to her more so about the role.

Kylie advised that she didn’t want to be a bother. I insisted that it wasn’t a problem but Kylie agreed not to pursue investigating the role any further.”

[23] Ms Templeman also gave the following oral evidence regarding the role itself:

“So there were strategic operational project management requirements for that role that was required from someone who had a background in managing projects within like an operations team, so field-based operations team as well, and for that reason as well, they were after someone who came from the industry and had that experience and we didn't feel that that was aligned with [Ms Eaton’s] experience.”

[24] Ms Eaton says of the discussion regarding this position:

“I had advised Mr Kennedy and Rachel of a job I had been made aware of and also that I was recommended this by a Project Manager. They both said no I don’t think you would be good for that. So I wasn’t even allowed to apply for anything else.”

[25] There was no evidence of any consideration by Ms Eaton or Craveable Brands of any other positions to which Ms Eaton might have been deployed.

[26] Ms Eaton’s employment continued through May 2021 however relationships became unstuck in June 2021 over other matters that do not need to be traversed in this decision suffice to say that Ms Eaton made various allegations against Craveable Brands and its management – none of which have any substance.

Was Ms Eaton’s “job” made redundant?

[27] Section 389(1)(a) of the FW Act refers to an employer making a decision about an employee’s “job”. A job involves “a collection of functions, duties and responsibilities entrusted, as part of the scheme of the employees’ organisation, to a particular employee”. 9

[28] The test is not whether the functions or duties themselves continue, 10 but whether the “job” itself survives. What is said to be critical for the purpose of identifying a redundancy is whether the employee has any duties left to discharge after the re-organisation. If there is no longer any function or duty to be performed by that employee, his or her “job” is redundant.11

[29] Craveable Brands says that it decided to make Ms Eaton’s position redundant and to create a new position to perform some of Ms Eaton’s functions plus additional, higher order, accounting functions. Craveable Brands decided it needed a qualified accountant for the new role and Ms Eaton does not have these qualifications. The balance of Ms Eaton’s functions were disbursed to others.

[30] Ms Eaton included in her evidence a job advertisement for the new position as well as her position description. Ms Eaton also relies on the fact that she was asked to participate in a handover process with the incoming IT Financial Accountant.

[31] Ms Eaton submits that the replacement position is substantially her old position with a new label. She points to the numerous similarities between the description of the new role in the public advertisement and the job description for her position. There is some significant force to Ms Eaton’s argument in this regard. She asks, as she is entitled to ask, “how can someone replace a redundant role?”

[32] Craveable Brands does not shy away from the fact that there is some overlap between Ms Eaton’s role and the new IT Financial Accountant role. In fact, in its letter of 11 May 2021 Craveable Brands said:

“…the Executive Leadership Team have been exploring the best way to position the business to deliver strategic objectives in the new financial year.

As part of this, we have found that there is a very significant portion of the role that is focused on managing financial outcomes, and we will be restructuring the department and introducing a new IT Financial Accountant.

In making this change we have realised that a lot of your current work will be absorbed into this new position, and therefore this letter is to formally inform you that the position you currently hold as Technology Administrator has been made redundant.”

[emphasis added]

[33] Ms Eaton referred to the case of McIlwraith v Toowong Mitsubishi Pty Ltd 12in which Commissioner Cribb found:

“[43] The first issue to be dealt with is whether or not Mr McIlwraith’s position was no longer required by the company to be performed by anyone because of changes in the operational requirements of the business (section 389(1)(a)). It was argued by the respondent that, due to operational changes in the business (e.g. its growth, acquisition of a new franchise), it was necessary to restructure the business by making the position of Financial Controller redundant and creating a new position of Dealership Accountant which required a tertiary qualification in accounting. A qualification was said to bring with it the (new and required) capacity to provide analytical and strategic accounting advice to the business about how to make it more productive and efficient. The former duties of Financial Controller were to be undertaken by the Dealership Accountant, in addition to the provision of strategic/analytical accounting advice (the value-add tasks).

[44] The genuineness of the redundancy was challenged by Mr McIlwraith on the basis that his job was still required to be done and that his duties were being performed by the new employee (Dealership Accountant). He said that the position that was advertised was “Financial Controller” and that the advertisement did not state that a tertiary accounting qualification was required. In addition, it was indicated that the advertisement set out the same duties that he was performing at that time. Further, he argued that he had the capacity to perform these additional functions (strategic/analytic accounting advice). He held a Diploma of Accounting but not a Bachelor or Masters of Accounting.

…

[46] In this case, on the basis of the evidence before me, I find that the job of Financial Controller, occupied by Mr McIlwraith, is still required to be performed by the Company. It is being performed by the new Dealership Accountant. The Financial Controller’s tasks were not distributed amongst several other employees. Rather, they are now being performed by the new Dealership Accountant. In its final submissions, the respondent stated that the position of Financial Controller was abolished and replaced by the Dealership Accountant position. The latter position was said to have assumed all of the duties of the Financial Controller but it was also alleged that there were additional duties including strategic/analytical advice being performed by the Dealership Accountant. The evidence of Mr Burgess was that these were the result of the new Dealership Accountant having a tertiary accounting degree. The stated reason for restructuring (abolishing) the Financial Controller position was to upgrade the skills of that position to a tertiary qualified accountant.

[47] With respect to the respondent’s submissions that the restructuring of the Financial Controller’s position was the result of a decision that a tertiary qualified accountant was required in order to take the business forward, it is noted that the job advertisement, placed in June 2011 on behalf of the Company, did not specify the requirement for a tertiary qualification. The Company placed considerable emphasis, during the hearing and as part of its submissions, on the requirement for the new Dealership Accountant to be tertiary qualified in accounting. I do not find Mr Burgess’ explanation as to why this requirement did not appear in the job advertisement credible. He stated that it was not included because, when BDO wrote the advertisement indicating that a multi franchise metro dealer was looking for a Financial Controller, they anticipated they would get applications from qualified accountants. Given that the advice from BDO (who placed the advertisement) and from Deloittes was allegedly that the business needed a tertiary qualified Dealership Accountant consistent with industry practice, it would naturally be most likely that this requirement would have appeared in the job advertisement. Further, it was Mr Burgess’ evidence that Mr McIlwraith had not been asked specifically to undertake the more strategic/analytical work.

…

[53] Taking all of this into account, I am not satisfied that the Financial Controller position that Mr McIlwraith occupied no longer exists or that the duties of that position have been distributed between several other employees so that the position no longer exists. On the basis of the evidence, I find that the job performed by Mr McIlwraith in the Financial Controller position is now being performed by the Dealership Accountant (a now tertiary qualified accountant). Therefore, it cannot be said that the company no longer requires the Financial Controller’s job to be performed by anyone as the duties of that position are now being performed by the Dealership Accountant.

[54] Accordingly, I am not satisfied that Mr McIlwraith’s dismissal was a case of genuine redundancy in that the requirements of section 389 (1) of the Act have not been met.”

[34] According to Craveable Brands the advertised job did not replace Ms Eaton’s job and that the principal differences between Ms Eaton’s role and the newly created role are that the new role included more complex accounting functions such as overseeing/“delivering” budgets as opposed to collecting information to pass upwards for someone else to do so.

[35] Craveable Brands also relied on the fact that some of Ms Eaton’s administrative work was reallocated to individuals within the IT team as part of a companywide review of admin self-service in business.

[36] Overall I am satisfied for the purposes of s.389(1)(a) of the FW Act that Craveable Brands no longer required Ms Eaton’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise.

[37] Craveable Brands made a decision that it would expand and upgrade some of Ms Eaton’s duties and responsibilities to a new person with more senior qualifications, to give some of Ms Eaton’s duties to the new incumbent unaltered, and to allocate the balance of Ms Eaton’s duties to other people.

[38] In this scenario it is not surprising that some parts of the advertised new position are the same or very similar to Ms Eaton’s job description. It is also not surprising that Ms Eaton was asked to participate in a handover. If the new person is to be assuming some of Ms Eaton’s tasks then the benefits of a handover are obvious. If the new IT Financial Accountant is to understand what has gone on in the past and/or is to understand the old structure of the administration function in the IT Team, then the benefits of a handover are similarly quite obvious. No handover actually took place because the IT Financial Accountant did not commence until after Ms Eaton’s employment finished - however I also note that Ms Eaton appears to have been comfortable with and cooperative about the handover process up until the point when Craveable Brands raised other matters in June 2021.

[39] As referred to above, the relevant test is not whether Ms Eaton’s functions or duties themselves continue – although in this case I am content to find that they do. The test is whether Ms Eaton’s job survived and whether, after the restructuring in May 2021, Ms Eaton had any duties left to discharge. I am comfortable in finding on the evidence that there was no longer any job for Ms Eaton to perform and that her job was redundant. As is apparent from these findings, the circumstances in the present matter are distinguishable from the circumstances in the McIlwraith v Toowong Mitsubishi Pty Ltd matter referred to earlier.

[40] I am also comfortable in finding that Ms Eaton’s job was redundant for operational reasons. I do not need to consider whether it was a good decision to restructure the relevant functions, let alone consider whether it was the best decision available. The division of Ms Eaton’s duties to a more senior person and to other workers was operationally logical and plausible.

Compliance with consultation obligations

[41] Both parties agree that the Clerks—Private Sector Award 2020 covered Ms Eaton’s employment. There is no debate between the parties that the consultation obligations under the Award were met. I am separately satisfied on the evidence that the employer has complied with its obligation under the modern Award to consult about the redundancy (per s.389(1)(b)).

Redeployment

[42] The final consideration, being whether it would have been reasonable to redeploy Ms Eaton to another position, is less straightforward than the consultation requirements.

[43] After the first meeting on 11 May 2021 Ms Eaton was told to consider other positions within Craveable Brands’ enterprise and to raise any interest at the next scheduled meeting on 14 May 2021.

[44] On 14 May 2021 Ms Eaton did so by referring to an administration support role in the Oporto Business at Artarmon. Earlier I referred to the evidence of the discussion that ensued on 14 May 2021. On the evidence it seems clear that after Ms Eaton raised the position she was not actively encouraged to pursue it any further. Whilst Ms Templeman literally said that Ms Eaton could apply for the position, and that Ms Templeman could make the relevant enquiries, Ms Templeman did not indicate that Ms Eaton had any tangible prospect of being considered for the role. In cross-examination Ms Eaton said “there was that one job, project assistant for Oporto, which was right up my alley, but they wouldn't let me apply for it."

[45] The test is whether it would have been reasonable in the circumstances for Ms Eaton to be redeployed within Craveable Brands’ enterprise. It might be the case that Ms Eaton was so far out of contention that Ms Templeman acted reasonably in not encouraging any further futile enquiries. Conversely, it might be the case that the new position was within Ms Eaton’s skill set and that Ms Templeman unreasonably failed to make further enquiries.

[46] Under cross-examination Ms Templeman gave a further description of the conversation with Ms Eaton on 14 May 2021 about this position:

“I did say that I would be happy to connect [Ms Eaton] with … Samantha Bragg, who is the Oporto CEO, the role does fall within her team. I had already spoken to her prior to the redundancy process to make an assessment if there was any suitable roles that [Ms Eaton] could be redeployed to within the business. Unfortunately, at that time, she did state that there was significant areas, I guess, that she was looking for that she didn't feel that [Ms Eaton] had the right skills for, but we did say that we would connect [Ms Eaton] if [she] felt that [she] wanted to be included in the interview process for the role.

…

… in that meeting [on 14 May], we advised that we had considered other redeployment opportunities and none were available, so at that meeting, I didn't mention that I had had that meeting with Samantha, but I did say that there weren't other redeployment opportunities available.”

[47] It is also important to note that s.390(2) requires consideration of more than just whether it would have been reasonable for the respondent to arrange an interview or merely make further inquiries. In Ulan Coal Mines Limited v Honeysett and others 13 a Full Bench considered the finding at first instance that the employer taking steps to make employees aware of vacancies in a related entity was not redeployment but was “merely assisting in the gaining of employment” (at [10]). The Full Bench found that “even though [the parent company] had overall managerial control in relation to the mining operation and the associated entities” it did not have a policy of employing persons who might be redundant in the other enterprises in the group, and that it would have been reasonable for the employer to direct the redeployment (as opposed to facilitate the application by competitive selection) to a related entity (at [31]).

[48] On the evidence before me I am not satisfied that it would have been reasonable in all the circumstances for Ms Eaton to be redeployed into this other role.

[49] Firstly, Ms Eaton did not have experience in project work which, on the face of the evidence, was a significant component of the role. Ms Eaton’s situation is not unlike the situation in Reid v Quayclean [2013] FWC 31 where an employer’s decision not to redeploy an area manager in other parts of its enterprise was reasonable because it was looking for workers with different skill-sets for those other positions(at [20]-[21]).

[50] Secondly, and most importantly, the role was in Artarmon in Sydney and Ms Eaton had recently moved out of Sydney to Port Macquarie and showed no inclination or preparedness to move back. Ms Templeman’s evidence was that “the role did need to be performed in Sydney as well, so it wasn't a role that was open remotely. The team is predominantly located here that they were supporting and there are in person - at the time, there were in person obligations that we were looking at as well.”

[51] Lastly, and less importantly, Ms Eaton decided on 14 May 2021 not to pursue the role, told Craveable Brands on that day that she didn’t want to pursue it, and did not raise it again. This element only carries a small weight in my considerations, primarily because Ms Eaton was not encouraged by Craveable Brands to pursue it and I recognise that it would have been quite difficult for Ms Eaton to have insisted that Ms Templeman follow it up on her behalf.

[52] On the evidence before me I cannot conclude that it would have been reasonable in all the circumstances for Ms Eaton to have been redeployed within Craveable Brands’ business (per s.389(2)).

Conclusions

[53] In light of the above findings I must conclude that each of the elements of s.389 have been satisfied and therefore that Ms Eaton’s dismissal was a case of genuine redundancy. As such, her unfair dismissal claim must be dismissed and I will make an order accordingly. 14

[54] Two further things can be said about Ms Eaton’s application for an unfair dismissal remedy.

[55] Firstly, even if the dismissal was not a genuine redundancy I would not be inclined to find that her dismissal was unfair, taking into account the requisite factors listed in s.387. By the time Ms Eaton’s employment ended Craveable Brands was fully aware of the extent of certain other conduct by Ms Eaton that does not need to be recited in this decision. If it were necessary to decide the matter I would comfortably find that there was a valid reason for dismissal, that Ms Eaton was given a reasonable opportunity to respond to that valid reason and that her dismissal would not otherwise have been harsh, unjust or unreasonable.

[56] Secondly, even if I were to find that Ms Eaton was unfairly dismissed, I am satisfied that Ms Eaton’s employment would not have survived the events in June 2021 and would not have continued beyond 30 June 2021. As such there would be no basis upon which I could award any monetary compensation, particularly in light of the redundancy benefits already provided by Craveable Brands.

[57] Ms Eaton’s application is dismissed.

DEPUTY PRESIDENT

Appearances:

Ms K Eaton, Applicant
Mr C Mahoney and Ms T Harriman, for the Respondent

Hearing details:

2021.
Sydney (By Video)
7 October, 4 November.

Printed by authority of the Commonwealth Government Printer

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 1   Ulan Coal Mines Limited v Honeysett and others (2010) 199 IR 363, [2010] FWAFB 7578 at [26].

 2   Pankratz v Regional Housing Limited[2013] FWC 1259 at [6]-[9].

 3   Technical and Further Education Commission T/A TAFE NSW v Pykett (2014) 240 IR 130, [2014] FWCFB 714 at [36].

4 Kieselbach and Amity Group Pty Ltd, PR973864 at [34]-[36].

 5   Jones v Dunkel (1959) 101 CLR 298.

 6   Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361, [2011] HCA 11 at [63] citing Jones v Dunkel (1959) 101 CLR 298 at 308, 312 and 320-321; [1959] HCA 8, Dilosa v Latec Finance Pty Ltd (1966) 84 WN (Pt 1) (NSW) 557 at 582 and Australian Securities and Investments Commission v Fortescue Metals Group Ltd (No 5) (2009) 264 ALR 201 at 225, [2009] FCA 1586 at [102].

 7   RPS v R (2000) 199 CLR 620, [2000] HCA 3 at [23]‑[26]

 8   Jones v Dunkel (1959) 101 CLR 298 at 308 (per Kitto J) and 312 (per Menzies J), [1959] HCA 8.

 9   Ulan Coal Mines Limited v Henry Jon Howarth and others (2010) 196 IR 32, [2010] FWAFB 3488at [17] citing Jones v Department of Energy and Minerals (1995) 60 IR 304 at 308.

 10   Kekeris v A. Hartrodt Australia Pty Ltd[2010] FWA 674 cited in Ulan Coal Mines Limited v Henry Jon Howarth and others (2010) 199 IR 363, [2010] FWAFB 3488 at [18].

 11   Jones v Department of Energy and Minerals (1995) 60 IR 304 at 308.

 12   [2012] FWA 9662.

 13 (2010) 199 IR 363, [2010] FWAFB 7578.

 14   PR737233.