Lupka Mickovska v Ultraceuticals Pty Limited
[2025] FWC 377
•10 FEBRUARY 2025
| [2025] FWC 377 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Lupka Mickovska
v
Ultraceuticals Pty Limited
(U2024/14147)
| DEPUTY PRESIDENT COLMAN | MELBOURNE, 10 FEBRUARY 2025 |
Unfair dismissal application – whether genuine redundancy – application dismissed
Lupka Mickovska has made an application for an unfair dismissal remedy under s 394 of the Fair Work Act 2009 (Act). Ms Mickovska was employed by Ultraceuticals Pty Limited (company) as a part-time ‘growth development partner’. She was dismissed for reason of redundancy following a company restructure which abolished her position. Ms Mickovska contends that the redundancy was not genuine for various reasons, including because the work that she used to perform is still required and is being undertaken by another person in a new ‘hybrid’ role for which she was not given an opportunity to apply. The company contends that Ms Mickovska’s position was not needed, that her dismissal was a ‘genuine redundancy’ within the meaning of s 389 of the Act, and that as a consequence her application must be dismissed.
Ms Mickovska gave evidence that in the week of 21 October 2024, staff attended an on-line meeting with the chief executive officer, Andrew Dingle, at which they were informed about a company project to deliver savings in response to declining performance. At a further meeting on 31 October 2024, Mr Dingle confirmed that there would be a restructure and that affected employees would be notified of the implications in the next two weeks. Ms Mickovska did not expect to be affected. But on 12 November 2024, Ms Mickovska was called to a meeting with the national sales manager, Filis Gattuso, who told her that the Victorian team size could not be sustained and that the company had decided to remove 2 of its 4 positions: both of the growth development partners in the team were now redundant. Ms Mickovska was told that her duties would be taken over by the ‘new business manager’, Lily Pivik, whose position would become a hybrid role. Ms Mickovska asked why she had not been considered for the hybrid role. Ms Gattuso said that the role was full-time and that it required travel, flexibility and a new business skillset for the region. Ms Gattuso told her that there were no concerns about her performance. She said that the only other available role was that of beauty therapist, which was a lower-grade position with a lower salary. Ms Gattuso gave her 2 days to come up with any alternative solutions and said that they would meet again on 14 November 2024.
Ms Mickovska said that at the meeting on 14 November 2024, she told Ms Gattuso that she should have been considered for the hybrid role and that she was capable of working full-time, traveling and being flexible, and meeting the other requirements of the position. Ms Gattuso replied that Ms Pivik was more senior and had a stronger skill base than her. Ms Gattuso then told Ms Mickovska that her last day of employment would be 15 November 2024, but that since she did not work on Fridays, today was her last day of work.
Ms Mickovska said that she could have done the new hybrid role but was not given the opportunity to apply for it. She had always demonstrated flexibility, met her sales targets, and had a high customer satisfaction rating, and should therefore have been considered for the new role. Although Ms Pivik was paid more than her, and the company evidently regarded Ms Pivik as more senior than her, Ms Mickoska believed that they were of equivalent seniority. Ms Mickovska said that she would have considered working full-time. She had been a high performing employee. The work of her old position was still being done, and the company could have reasonably redeployed her into the hybrid role. Ms Mickovska said that she has since obtained a new job, the requirements of which aligned closely with that of the hybrid role, and that this was proof that she would have been able to do the new role effectively.
Ms Mickovska said that she was not properly consulted about her redundancy and that the process was not transparent and also very short. Some of her colleagues were involved in extensive discussions to explore alternatives to redundancy, but this did not occur in her case, despite her having 6 years of experience. Ms Mickovska also said that she was nearing the point of eligibility for long service leave, and that this was another element of unfairness in her dismissal. She said that despite the company having indicated that it would consider paying her an amount referable to long service leave, it never did so. Ms Mickovska said that her dismissal was not a case of genuine redundancy and that it was unfair.
Ms Gattuso gave evidence that, following a review prompted by a protracted sales decline, the company determined that it did not require the two growth development partners in its Victorian team, and that both of these roles, together with several others, were made redundant because they were not needed. The restructure meant that the number of professional roles in the Victorian team was reduced from 4 to 2. The new business manager, Ms Pivik, would take over the growth development work of Ms Mickovska which covered the western Victorian region. The regional manager, Courtney Cohn-Robes, would continue in that role but take over the work of the other GDP, who had serviced south eastern Victoria. Several support roles were also removed from the organisation structure for reason of redundancy.
Ms Gattuso said that on 12 November 2024, she met with Ms Mickovska to explain the company’s decision and to consult with her about it. She told Ms Mickovska that the company had taken many weeks to consider and confirm the restructure and had taken into account a range of factors, including business profitability and required changes to its business model in order to remain viable and relevant to the market. She said that the company had considered any redeployment opportunities in Victoria that might be suitable for Ms Mickovska but had not been able to identify anything at the same or a similar level. She said that there was a part-time beauty therapist role, but that she appreciated that this was a lower level position. Ms Gattuso said that Ms Mickovska should think about this and come back to the company with any questions or suggestions regarding any possible redeployment opportunities within the business, such as working in a different position or capacity that she may consider suitable, as an alternative to being made redundant. They would meet again on 14 November 2024. Ms Gattuso told Ms Mickovska that if the outcome of the meeting was that there were no suitable redeployment options, her employment would end on 15 November 2024. Ms Mickovska asked for a breakdown of her redundancy entitlements. She also asked what would happen with her pro rata long service leave, to which she would have been entitled in 9 months. Ms Gattuso said that she would check with human resources. She told Ms Mickovska to call or email if she had any questions prior to the meeting on 14 November 2024.
Ms Gattuso said that at the meeting on 14 November 2024, she asked Ms Mickovska whether she had questions, feedback, suggestions or ideas on other opportunities to continue working in the business. She replied that she was not interested in the beauty technician role and said that she was disappointed not to have been consulted about the proposed restructure. Ms Gattuso said that consultation occurred when there was a final decision, rather than just a plan. Ms Mickovska also said that she was disappointed not to have been considered for the hybrid role and that she thought her performance and experience in account management was better than Ms Pivik’s, and she had also been at the company for longer than Ms Pivik. Ms Gattuso replied that Ms Mickovska had in fact been considered for the role, as had the other growth development partner, and that the final decision was based on the company’s assessment of who had the right level of senior management and practical experience combined with strong commercial skills, which were required for the role. In this regard, Ms Gattuso’s evidence was that seniority of experience was a major factor, and that Ms Pivik had previously been a national sales manager, with multiple account managers reporting to her. The company considered that Ms Pivik had substantial breadth and depth of experience, as well as considerable commercial acumen and strategic experience. She said that the fact that Ms Pivik was paid more than Ms Mickovska was irrelevant. Rather, the company considered that Ms Pivik was more senior and experienced than Ms Mickovska.
Ms Gattuso said that during the meeting on 14 November 2024, Ms Mickovska said that she would accept the redundancy but would be happier if the company agreed to pay her a pro rata amount in respect of long service leave and also for untaken personal leave. Ms Gattuso said that she would make further inquiries about this. In the end, the company decided not to make these payments because of concerns it held about Ms Mickovska having forwarded documents from her work email address to her private one in the last days of her employment. Ms Mickovska denied any wrongdoing here and said that this was for the purpose of completing her outstanding work.
The company submitted that it had consulted with Ms Mickovska in accordance with clause 26 of the Commercial Sales Award 2020 (Award), which covered her employment, including by providing her information in writing about the redundancy (this included correspondence from the CEO, human resources and Ms Gattuso). The company submitted that it had considered redeployment and offered Ms Mickovska an alternative role, albeit at a lower level, and that this was the only available role within the business. It had considered her for the ‘hybrid’ role, but Ms Pivik was the better person. Ms Gattuso said that she was unaware of any work in the company’s business or that of any associated entity that Ms Mickovska could usefully have performed.
Finally, the company noted that in addition to accrued entitlements, Ms Mickovska received a severance payment of 11 weeks’ salary, which is the amount required to be paid under s 119 of the Act to a person who is made redundant and who has between 6 and 7 years of service, as well as 5 weeks’ pay in lieu of notice, and that there was nothing unfair about Ms Mickovska’s dismissal in these circumstances.
Consideration
A person cannot have been unfairly dismissed if the Commission is satisfied that the dismissal was a case of ‘genuine redundancy’ (s 385). This expression is defined in s 389 of the Act. A person’s dismissal was a case of genuine redundancy if 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’ (s 389(1)(a)); and the employer complied with any obligation in a modern award or enterprise agreement to consult about the redundancy. Section 389(2) then states that 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 the employer’s enterprise or that of an associated entity.
I accept the evidence of Ms Gattuso. It was detailed and credible. Ms Gattuso had direct knowledge of the relevant parts of the business, the composition of the workforce, and the operational requirements of the business. I find that the company’s operational requirements were such that it no longer needed its two growth development partner positions, including that of Ms Mickovska. The company no longer required Ms Mickovska’s job to be done by anyone. This was the result of the company’s review of its requirements in light of prevailing business circumstances. The functions of Ms Mickovska’s role were to be subsumed by Ms Pivik. The work of the other growth development partner was taken over by the regional manager. The fact that the work of Ms Mickovska’s position continued to be required does not cast any doubt on these conclusions. The question is not whether the work of the applicant is no longer required, but whether the employer no longer requires the job to be performed by anyone because of changes in its operational requirements.
As I have said in other matters, at the time when the Commission is considering whether a dismissal was a case of genuine redundancy, it is not necessary to inquire into the fairness of the selection criteria or their application, because s 389 is not concerned with fairness; if a dismissal is found not to have been a genuine redundancy, the Commission may then proceed to consider whether the dismissal was unfair by reference to the considerations in s 387. On the other hand, s 389 does require a particular causation: to be a genuine redundancy, the employer must have no longer wanted the applicant’s job to be done by anyone because of changed operational requirements, and not because of some other reason, such as a desire to be rid of an employee. I note that in this matter there is no suggestion of some ulterior motive for Ms Mickovska’s dismissal having been at play.
Although not strictly relevant, I will briefly comment on the company’s decision to select Ms Pivik for the hybrid role rather than Ms Mickovska, because it is a matter of some importance to her. I find that Ms Pivik had experience at levels higher than Ms Mickovska. She had been a national sales manager. Ms Mickovska had not. She had a greater breadth and depth of experience and was therefore more versatile and useful to the company in the new hybrid role. Further, Ms Pivik was the manager for new business; it would be easier for her and the regional manager to absorb what was referred to as the ‘individual contributor’ work of the two GDPs than for a GDP to absorb a manager’s work. Seniority was needed, and the two more senior employees were retained. This did not require some separate consultation process. In any event, I consider that such a process would not have made any difference to the outcome.
I find that the company complied with its obligations under the Award to consult about Ms Mickovska’s redundancy. I accept Ms Gattuso’s evidence about the steps taken by the company to consult with Ms Mickovska. I find that, consistent with clause 26 of the Award, after making a definite decision to make major changes to its organisation and structure, the company gave notice to Ms Mickovska as an employee who may be affected (clause 26.1(a)) and discussed with her the introduction of the change and its likely effect (redeployment or redundancy) (clause 26.1(b)). In my view, the discussions which occurred with Ms Gattuso commenced as soon as practicable after the decision was made (clause 26.1(c)). I also consider that the company gave Ms Mickovska the relevant information in writing about the changes, including their nature and expected effects on employees (clause 26.1). In this regard, I refer to the email to Ms Mickovska from Mr Dingle dated 31 October 2024, the email to Ms Mickovska from Ms Gattuso dated 11 November 2024, and the emails to Ms Mickovska from Ms McPhee dated 12, 13 and 14 November 2024. In my view, the company promptly considered the matters raised by Ms Mickovska, including whether she could do the new ‘hybrid’ role. In fact it had already considered this question and Ms Mickovska did not raise anything that caused the company to reconsider its decision.
Based on the evidence before the Commission, I do not consider that it would have been reasonable in the circumstances for the company to redeploy Ms Mickovska to another position within its enterprise or that of any associated enterprise. I accept Ms Gattuso’s evidence that she was not aware of any work that Ms Mickovska could have usefully done. Ms Mickovska was offered a position as a beauty therapist, which she declined because it was a lower grade, and a less well-paid position. She has not pointed to any other position or work that she could have performed, other than the hybrid role, which was filled by Ms Pivik.
I find that Ms Mickovska’s dismissal was a case of ‘genuine redundancy’ as defined in s 389 of the Act. It follows that she was not unfairly dismissed. But in any event, had I reached a different conclusion on this point, I would have found that the dismissal was not unfair, having regard to the matters in s 387 of the Act. Although the considerations in ss 387(a) to (c) would weigh in favour of a conclusion that the dismissal was unfair (no valid reason related to ‘capacity or conduct’, no notification of or chance to respond to such a reason), the other relevant matters (s 387(h)) would outweigh these. The company had a legitimate operational reason to dismiss her. It did not require her position to be done by anyone. Further, Ms Mickovska received a severance payment of 11 weeks’ pay, as well as 5 weeks’ payment in lieu of notice, and started a new job on 3 February 2025, just over 11 weeks after her dismissal. Her termination payments served to tide her over until she could find a new job. In all the circumstances, the dismissal was not unfair.
Conclusion
Ms Mickovska’s dismissal was a case of genuine redundancy. It was therefore not unfair. The application is dismissed.
DEPUTY PRESIDENT
Appearances:
L. Mickovska for herself
B. McPhee for the respondent
Hearing details:
2025
Melbourne (by Microsoft Teams)
4 February
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