Maree O'Flaherty v Clear Dynamics Pty Ltd t/a Clear Dynamics

[2020] FWC 4564

[2020] FWC 4564

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s 394—Unfair dismissal

Maree O’Flaherty
v
Clear Dynamics Pty Ltd t/a Clear Dynamics
(U2020/4713)

DEPUTY PRESIDENT SAMS SYDNEY, 9 OCTOBER 2020

Termination of employment – application for an unfair dismissal remedy – Senior Business and Technology Consultant – impact on business due to COVID-19 pandemic – steps taken to minimise adverse effects – redundancy of applicant – whether applicant’s dismissal a case of genuine redundancy (s 389 of the Act) – jurisdictional objection – whether applicant’s job no longer required to be performed by anyone – appropriate consultation – redeployment options considered but not appropriate – jurisdictional objection made out – applicant’s dismissal a case of genuine redundancy – no jurisdiction – application dismissed.

BACKGROUND

[1] Ms Maree O’Flaherty commenced employment with Clear Dynamics Pty Ltd t/a Clear Dynamics (‘Clear Dynamics’, the ‘Company’ or the ‘respondent’) on 21 January 2019 as a Senior Business and Technology Consultant. Ms O’Flaherty was employed on a part time basis (3 days a week) under the Professional Employees Award 2010 (the ‘Award’) on a pro-rated salary of $144,000 per annum. Clear Dynamics is engaged in the computer software industry and employs 37 persons.

[2] On 24 March 2020, Ms O’Flaherty was notified that her employment was to be terminated for reasons of redundancy, in a meeting with Mr Matthew Talbot, Chief Commercial Officer (‘CCO’), and Ms Roslyn Hames, Director and Chief Operations Officer (‘COO’). A letter confirming her termination reads as follows:

‘Dear Maree,

Confirmation of Redundancy

We refer to our meeting on Thursday 19th March.

At this meeting we again provided an overview of the current position, summarised the matter to date, and sought your further comments and proposals in relation to this matter.

We have since also confirmed that, having reviewed other areas within the business, there are currently no vacancies or opportunities for redeployment within the business.

Consequently, we confirm that your position is redundant, effective 24th March 2020.

As a result of this redundancy, you will be entitled to the following:

• $11,046.56 (before tax) redundancy pay;

• $5,523.28 (before tax) pay in lieu of notice;

• $2,761.64 in respect of 1 week pay pursuant to clause 23.3 of your contract;

• and Accumulated statutory and contractual entitlements up to and including termination.

As per your request, we’ve agreed to waive the clause 24.2 of your contract. We are also more than happy to provide you with a reference.

We sincerely thank you for your efforts to date and hope that you appreciate that our decision to restructure Clear operations has been made to ensure the future success of the business.

Please contact us if you wish to discuss further.

Yours Sincerely,

Matthew Talbot’

I note that Cl 24.2 referred to above is a post termination restraint clause.

[3] On 13 April 2020, Ms O’Flaherty (hereafter the ‘applicant’) filed an application, pursuant to s 394 of the Fair Work Act 2009 (the ‘Act’) seeking orders from the Fair Work Commission (the ‘Commission’) for a remedy from her alleged unfair dismissal. An unsuccessful conciliation with a Commission Conciliator resulted in the matter being remitted to me for hearing on a jurisdictional objection to the application; namely, that the applicant’s dismissal was a case of genuine redundancy, according to s 389 of the Act and therefore, the Commission could not proceed to hearing the merits of the matter, pursuant to s 385 of the Act. I shall return to these statutory provisions shortly.

[4] In accordance with my usual practice, I convened a further conciliation with the parties on 17 June 2020. As the conciliation was unsuccessful, I reaffirmed directions for a hearing and confirmed a hearing date on 28 July 2020, which was conducted by Microsoft Teams due to the restrictions on in-person hearings as a result of the COVID-19 pandemic.

[5] At the hearing, the applicant represented herself and Mr R Hassall, Partner, Sparke Helmore Lawyers, represented Clear Dynamics, with permission being granted for the respondent to be legally represented, pursuant to s 596 of the Act; noting the applicant did not object to Mr Hassall’s appearance.

THE EVIDENCE

[6] Statement and oral evidence were provided by Ms R Hames and the applicant. As the objector, I will deal with Ms Hames’ evidence first.

Ms Hames’ statement

[7] Attached to Ms Hames’ statement were:

• the applicant’s contract of employment and position description;

• the minutes of the respondent’s Board meeting of 24 February 2020;

• communications to staff concerning the impact on work due to the COVID-19 pandemic; and

• various emails to the applicant in respect to her employment.

[8] Ms Hames said that following the Board meeting of 24 February 2020, where it was decided to concentrate on the domestic market due to the worsening effects of COVID-19 overseas, the Executive team met bi-weekly to discuss the changes necessary to the business in order to minimise the adverse effects of the pandemic. On 12 March 2020, a comprehensive policy update was sent to all staff attached to the following email:

‘Hi Team,

You will have seen our communications to our clients and suppliers just now. Please find attached our policy to enable us to respond to changes in public health advisories due to COVID-19. Our BCP team is also on standby.

Business is very much as usual and I ask you to please retain focus. If you need to relocate, do so quickly and make practical arrangements with your manager. This may be the new normal for a while, and we can best support each other by continued concentration on our amazing opportunities, delivery and support.

For Docklands staff, I have been in touch with Ari. They have increased signage and instructions on washing hands, and have supplied hand sanitisers in the toilets, same as us. They are also bringing in free-standing hand sanitisers located at the lifts. He will also provide me with any changes or updates if required. Business as usual there.

I will connect with the BCP Managers now for our larger clients and advise AMs/PMs of any updates, but suggest that staff on the ground note any client communications and advise of any changes.

Back on with work, Team.

Thanks,

Roz’

[9] Ms Hames said that from 13 March 2020, the Executive met in daily crisis meetings to focus on delivering existing projects and close and finalise any sales opportunities, communicate with customers and suppliers and discuss reducing expenses and any financial pressures on the business. The risk became extremely high of severe adverse impacts on the business and in the final two weeks in March 2020, the impacts included:

‘(a) Xinja Bank, our major prospect, had overseas funding restricted therefore resulting in Clear Dynamics signing a dramatically reduced deal under $300,000 in total.

(b) Bank of Queensland were to sign up to $500,000 in work and this was put on hold.

(c) Latitude were to sign up to $312,000 in work and this was cancelled.

(d) Nimble were to sign up to $250,000 in work and this was cancelled.’

[10] At a meeting on 13 March 2020, a decision was made to identify and redirect essential staff to focus on delivering existing contracts and supporting customers. It was at this meeting that the applicant’s role was deemed non-essential and not critical to the business. The applicant’s role was the only person in the role and it was no longer required to be performed by anyone.

[11] Ms Hames also described other reactive measures taken in these early weeks of the crisis. A third of the business moved to four days a week, four Executives took a 100% pay cut, another senior staff member took a 30% pay cut and cost cuts and changes were made across the business. Ms Hames said that as the business does not have an internal human resources (‘HR’) function, advice was sought from an external provider, Employsure, on the employment impacts. A meeting was held with the applicant, Mr Talbot and herself on 18 March 2020. It confirmed as follows:

‘Dear Marie,

Potential Redundancy

We refer to our informal meeting today.

As discussed, we are presently considering a restructure of the area in due to the need to focus finances on operationally critical departments that are delivering projects.

In the circumstances, we confirm that we are considering making your role as a Consultant redundant.

As such, we would like to meet with you on 19th March 2020 at 4:30pm to discuss the potential redundancy and any suggestions you may have to avoid this, or any other matters that you would like to raise with us in respect of this proposal.

You are of course welcome to bring a support person or representative to this meeting should you choose.

Before we make a final decision in this regard, we will consider any suggestions or matters raised by you. We will also consider whether you can reasonably be redeployed into any other roles within the Company.

Should you have any queries or concerns throughout this process, please contact me on [mobile number provided].

Yours Sincerely,

Matthew Talbot’

[12] During this meeting, Ms Hames stated that the following exchange took place between Mr Talbot and the applicant:

Mr Talbot: ‘Your role is at risk of being made redundant and we want to hear any suggestions that you might have for redeployment.’

The applicant: ‘I could work as a project manager or business analyst and as I have work history and references for these options. I could also do testing, coding or other business roles.’

Mr Talbot: ‘We are looking at all roles across the company and all the options around how we can restructure the company more efficiently to survive the next 6 months and beyond. The mandate agreed by the executive team is to ensure that we are 100% focused on delivering successful projects profitably due to the very uncertain economic environment going forward.’

[13] On 20 March 2020, the applicant emailed Ms Hames and Mr Talbot seeking clarification of the redundancy process and timetable. Mr Talbot replied by reiterating no decision had been made, and inviting the applicant to explore with them all available options. Decisions would then be made.

[14] Over the weekend of 21-22 March 2020, the Executive Team reviewed all roles and the restructure. Ms Hames agreed that the applicant had project management experience, but this role was already filled, and a second person was not required. Other roles she suggested also did not require a second person. With new work slowing, Ms Hames said that no redeployment options were available, and it was decided to make the applicant’s role redundant. By this time, while the applicant’s role was the only one made redundant, Clear Dynamics had made the following cost savings:

(a) the closure of an office and an apartment in Melbourne;

(b) negotiating terms with some of its suppliers;

(c) negotiating rent on some of its offices;

(d) negotiating reduced working hours with one third of its staff;

(e) two directors took a 100% pay cut; and

(f) other senior management also took a pay cut.

[15] After the meeting with the applicant on 24 March 2020, she sent Ms Hames the following email:

‘Hi Roz,

Not ideal to have to sleep on it with nothing in writing officially so can you please at least put in writing this evening that I’ve been made redundant and it’s effective today so that I know for certain at least that my position is made redundant as of today and that I’m not expected to work tomorrow.

Happy to speak tomorrow but in the current circumstances I’m not feeling comfortable at all with this all via phone conversation and nothing in writing as yet regarding being advised in our meeting at 3pm today that I’ve been made redundant effective today. Feeling quite vulnerable and personally disregarded actually, especially with such a minimal and inappropriate offer of 5 weeks in lieu of notice and zero redundancy pay despite being made redundant and my personal delivery of continued revenue opportunities to the business.

I have already told Jamie after my advice of redundancy effective today that he can go to work meetings in the morning and I will cover the children so 12 or 12.30 would be suitable when they are asleep.

Kind regards,

Maree’

[16] It was Ms Hames’ evidence that the applicant’s position no longer exists and is not being performed by anyone.

The applicant’s statement

[17] The applicant provided a 22-page closely typed and well set out statement, large sections of which, with respect, were not relevant to the issues to be decided in this case going to the respondent’s jurisdictional objection.

[18] The applicant went to considerable detail in explaining how she had been ‘head hunted’ to work for Clear Dynamic in the second half of 2018, after the birth of her twins on 20 April 2018, and having been enticed by Ms Hames to leave her then employment which she enjoyed with Experian. The applicant believed that certain persons of Clear Dynamics had misrepresented her role. Nevertheless, she claimed that in 14 months of her employment she delivered 2-3 years’ worth of value to Clear Dynamics.

[19] Turning to the background to her dismissal, the applicant said that the meeting on 18 March 2020, was described as a ‘catch up’ meeting, but was told her employment was at risk due to COVID-19 and the business was moving from a sales focus to a delivery focus. She was asked to consider in 24 hours, what skills and experience she could bring to the new business model. She was told that other employees’ jobs were at risk and that the period ahead would see business lost. As she was working from home, she asked what ‘gaps’ there were which she could fill, but did not receive an answer.

[20] The next day, she met again with Mr Talbot and Ms Hames. She told them of her extensive project work for Westpac and Experian (for which she had also been ‘head hunted’). She told them she could support delivery focussed roles and quality assurance. The applicant said she was very stressed about this process and the short timelines.

[21] The applicant said that at the meeting on 24 March 2020, after being told there was no role for her, she asked if others were being made redundant, and was told there was. She queried a number of customer contracts lost and told that only Nimble (valued at $347,000) had been lost. But this was only known after her redundancy decision was made. She then suggested reduced hours, taking annual leave or time off, but was told that this would not be considered because she had not raised these options earlier.

[22] The applicant said she was ‘absolutely appalled’ that all other staff were later put on reduced hours and wages when she was denied this opportunity. She believed that this discrimination was abhorrent, even more so when she learnt that Clear Dynamics went on to hire five new employees, some of whom were not even business critical. She believed she was treated as someone who had been dismissed for poor performance or unacceptable conduct, despite being told by both Mr Talbot and Ms Hames, her performance had nothing to do with her dismissal.

[23] The applicant stated that a former colleague had called her and expressed shock at her redundancy. The applicant also claimed that Clear Dynamics had wrongly calculated her termination entitlements, until she sought legal advice to rectify her entitlements. She had also emailed Ms Hames on 7 and 8 April 2020 to see if she could be reinstated, and then nominated for JobKeeper payments. She was told that this was not possible. Ms Hames had also sent her a defamatory letter reminding her of her non-compete obligations and obligations not to influence her former colleagues to leave the Company. She said she was ‘absolutely flawed’ by this letter, which came with no explanation.

[24] The applicant set out details of discussions and comments made in the conciliation conferences, which she now challenged. While I accept the applicant was unrepresented, it was inappropriate to rely on ‘without prejudice’ discussions in private conciliation conferences. Therefore, I will not recite any details in these paragraphs.

[25] The applicant said she struggled to believe two explanations of the respondent. Firstly, there was no other part time or full time role that she could fulfil, even on reduced hours; and secondly, that there is no requirement for a sales department in the new structure, which was her role.

[26] The applicant claimed that Clear Dynamics have since hired five new senior roles. This does not demonstrate the Company is in dire financial circumstances and has plenty of opportunities to focus on. The applicant complained about some of the respondent’s post dismissal conduct and its lack of compassion for her financial and family circumstances and her difficulties in finding alternative employment. She had now been diagnosed with an adjustment disorder and her outlook is ‘grim’. In looking for alternative jobs, she has been told she is overqualified and should look for lower level roles.

[27] Under the heading ‘Prior HR Issues’, the applicant claimed she had issues with Mr Talbot from the very beginning and then sought to strongly criticise his management style by reference to various incidents and feelings she had about how he treated her. Again, with respect, these are not matters going to the issues to be determined at this stage in this case.

[28] The applicant then spent a considerable amount of effort in explaining the physical, emotional and health impacts she has experienced since her dismissal focussing particularly on pressures of looking after her twins, while looking for high level job opportunities, pressures on her husband, even the moving of her home from Clovelly to Helensburgh. These matters may become relevant if the jurisdictional objection is dismissed, but for present purposes, and while I have sympathy for the applicant’s circumstances, these are matters which are not relevant at this point.

[29] The applicant said she does not seek reinstatement, given how poorly she was treated by Clear Dynamics. She calculated compensation she sought by reference to the period of time she has been out of work and how long it might take until she secures alternative employment. She estimates the compensation she could receive is between 22-26 weeks’ pay.

Reply statement of Ms Hames

[30] Ms Hames responded to the applicant’s statement, but only to the extent of the issues to be determined in this case. She did not respond to other matters raised and her failure not to do so, should not be interpreted as her agreement to those matters.

[31] Ms Hames reiterated that the applicant’s role in business development did not address the Company’s shift in focus to the fulfilment of current contracts. It was Ms Hames’ evidence that the sales role, and managing opportunities and closing contracts is carried out by herself and Mr Talbot. While it was conceded the applicant’s role added side value to the sale process, this was not the core function of her role. There is no arrangement for referrers of business and ongoing sales leads are usually generated by word of mouth. Ms Hames said that identifying sale opportunities to existing customers is carried out by two existing Account Managers. On contract delivery, the applicant’s role did not involve a delivery function. This was the Implementation Manager’s role.

[32] As to the other leadership functions such as running webinars, building industry relationships and markets had always been subsidiary to her role and not essential to generating revenue, or closing deals or delivery on contracts. Ms Hames emphasised that at the time, the business perceived a potentially catastrophic downturn from the COVID-19 pandemic that could see the business’ closure. This was why the business imperative had to change. The applicant’s role was no longer required, had not been replaced and Clear Dynamics has no plans to replace it, in the foreseeable future. Ms Hames responded to each of the redeployment proposals the applicant had suggested.

[33] As to project management, the business employed two Implementation Managers, and a third person was not required. In fact, in May 2020, one of these managers had resigned and had not been replaced. Similarly, there was no vacant business analyst role and in any event, it was not considered the applicant’s skillset and experience would have qualified her to perform this role.

[34] Clear Dynamics did not have a vacant coding role and this role required a deep technical knowledge for delivery and platform developers. As to a Quality Assurance role, no vacancy existed and, in any event, the position requires at least 10 years’ experience.

[35] Ms Hames acknowledged that since her first statement, the business has continued to operate as a result of a number of cost saving measures, some of which have been able to be reversed, such as staff returning to normal working hours. However, the business is not ‘out of the woods’ and no large contracts have been closed out. Clear Dynamics is adopting a dual strategy to respond to the effects of COVID-19, particularly in Melbourne where many of its customers are based and cautiously position for growth. Since the applicant’s redundancy, three mid-range salary employees had resigned, and ongoing salary cuts for the CEO. Ms Hames said this has allowed the business to invest in two strategic roles and utilise contract delivery for three other roles. She described these roles as:

‘(a) Chief Financial Officer – this position was engaged on 5 May 2020 on a part-time basis working 2 days per week. The incumbent is highly qualified and experienced and is a registered CPA. The incumbent was sourced through an internal referral and was initially identified in February, however commencement was put on hold due to COVID-19 and the business’ financial uncertainty at the time.

(b) Head of Product – this position was engaged on 29 June 2020 on a full-time basis. This position did not exist at the time of the redundancy of Maree’s position. The objective of this role is to grow our product capabilities across multiple industries verticals and functional horizontals globally. The incumbent was sourced through an internal referral.

(c) Technical Business Analyst – this position was engaged on 3 June 2020 on a full-time basis. The role was initially advertised on Seek on 26 October 2019, however recruitment for this role was put on hold due to COVID-19. The incumbent is a tertiary-qualified engineer with recent global experience in similar roles across a number of domains, not just finance, and is critical for Clear Dynamics in our growth strategy. This role is 100% utilised on contract delivery.

(d) Graduate Tester/Developer – this position was engaged on 13 July 2020 on a casual basis and is 100% utilised on contract delivery. The incumbent was sourced through an internal referral.

(e) Student Tester/Developer – this position was engaged on 22 June 2020 on a full-time basis and is 100% utilised on contract delivery. The incumbent was sourced through our graduate partnership with Deakin University.’

Ms Hames said that none of these roles overlap with the applicant’s former role, which had not been replaced.

[36] Ms Hames explained that the roles advertised on the business website are not active job advertisements and simply represent the types of roles in the business. They have been on the website since November 2019 and the website has not been updated, due to cashflow issues. One of the five employees above was recruited online, but was sourced through Seek, on 26 October 2019, and not from the website.

Oral evidence

[37] In cross examination, Ms Hames said that at the point of 18 March 2020, there was very clear evidence from her conversations with all the Company’s marquee customers that proposals had limited opportunities and were at risk and unlikely to continue. While there was nothing in writing, the business was verbally told contracts were unlikely to go ahead. She said losses in the millions was a very high probability.

[38] Mr Hames confirmed that the date of signing the Xinja $300,000 contract was 8 April 2020. Ms Hames said that at the time the applicant’s role was identified at risk, the situation was being reviewed almost daily, even hourly. Her role was not directly contributing to revenue and not delivering on contracts.

[39] It was Ms Hames’ evidence that in respect to the Genwest project, Mr Talbot did not request she drive the project and in fact, he had asked her to step back, so the Implementation Manager could drive the project. The applicant was not assigned to that project. Ms Hames said there were a number of people accountable for closing contracts, but the applicant’s role was not one of them. Ms Hames confirmed that staff were offered reduced hours in the second week of April 2020.

[40] Ms Hames said that as at 24 March 2020, the business loss was over a million dollars. Ms Hames estimated that the savings from the three resignations was $350,000. Ms Hames could not say whether the total of the salaries for the five new positions exceeded these savings. She denied the business was on a recruitment drive.

[41] Ms Hames claimed that the applicant’s offer of a three-month sabbatical was not accepted because it made difference to her role no longer being required. Ms Hames was asked whether it is reasonable to advertise positions that are not available. She answered that the website advertisements were not acted upon and no one had applied for them. Ms Hames insisted there was no need for a sales and development role in the new structure, which was not much different to the old structure, except for the sales arm.

[42] Ms Hames agreed that the applicant was told that other employees’ roles may be made redundant and the numbers were a rapidly changing ‘moving feast’. She acknowledged that a catastrophic loss had been avoided, but the risk was very real and still is. Ms Hames said in respect to impacts on other staff, that there were ‘one on one’ meetings where suggestions were discussed, and most of them were accepted. Of 37 employees, about a third had reduced hours and the Executive Team took pay cuts.

[43] Ms Hames agreed that the applicant’s redundancy had nothing to do with her performance. She confirmed that with a small company, great care and empathy is extended to all staff and their personal and family responsibilities. Finally, Ms Hames said that at the present time, there was no intention to develop webinars, hold promotional events or raise brand identification.

The applicant’s cross examination

[44] Prior to her cross examination, Mr Hassall identified the following paragraphs in the applicant’s statement which were irrelevant or inadmissible due to comments made in conciliation conferences. These were paragraphs:

•  1-15;

•  40-42;

•  47-51;

•  53-57;

•  65-67;

•  68-71;

•  82-88;

•  90-96; and

•  97-116.

[45] Given the applicant was unrepresented, I accepted the statement and noted the above paragraphs as to relevance. However, I struck out any paragraph which referred to discussions in conciliation conferences and annexures which deal with ‘without prejudice’ settlement offers. In light of these considerations, Mr Hassall did not require the applicant for cross examination.

SUBMISSIONS

For the respondent

[46] Mr Hassall submitted that the operational requirements of the employer’s enterprise had changed in light of the COVID-19 pandemic. The business needed to focus on delivering on its existing contracts and supporting its customers. Roles which were non-essential to this new focus were deemed non-essential. The applicant was the only person performing the role of Senior Business and Technology Consultant, and it was identified as a position that was no longer required to be performed by anyone. The role did not form part of any operationally critical departments required to perform existing contracts and support customers.

[47] Mr Hassall noted that whilst the applicant’s role was the only one to be made redundant, the redundancy should be viewed in the context of other cost saving measures undertaken by the business, including:

(a) one third of staff reducing their working hours to four days per week;

(b) one senior staff member taking a 30% pay cut; and

(c) two executives taking a 100% pay cut.

[48] With the significant uncertainty caused by the COVID-19 pandemic, the applicant’s role was surplus to business requirements. This was because of the operational changes made to ensure the business could continue to meet its obligations on current contracts and survive into the future. The applicant’s position had not been replaced, nor was there any intention to do so, in the foreseeable future.

[49] Mr Hassall accepted that the applicant was an Award covered employee, and that the relevant award, as set out by the contract of employment, is the Professional Services Award 2010. That being so, the respondent was required to consult with the applicant about major change, in accordance with Cl 9 of the Award.

[50] In this respect, Mr Hassall referred to meetings with the applicant on 18 and 19 March 2020, during which it was explained that a focus on operationally critical roles was necessary, and that the business was considering making her role redundant. It was explained that the operational changes were necessary due to the COVID-19 pandemic. The evidence was that the respondent sought the views and suggestions of the applicant as to avoiding her redundancy, including redeployment suggestions. The business responded to all the applicant’s enquiries, both in meetings and in writing. It further submitted that the matters raised by her had been dealt with promptly.

[51] Accordingly, Mr Hassall contended that the respondent had complied with its consultation obligations under the Award.

[52] Mr Hassall referred to the decision in Ulan Coal Mines Limited v Honeysett & Ors[2010] FWAFB 7578 (‘Ulan Coal’), by noting that the question of whether redeployment is reasonable is to be applied, at the time the dismissal occurs.

[53] As to the applicant’s suggestions for redeployment, including in a project manager or business analyst role, were given due consideration by Mr Talbot and Mr Hames. However, both these roles were not suitable, as the positions were already filled and the respondent did not require an additional person to perform these roles.

[54] Mr Hassall submitted that it was not reasonable in the circumstances to redeploy the applicant within the respondent’s business, as there was no suitable position after various options were considered. Finally, he put that the applicant’s dismissal was a case of ‘genuine redundancy’, consistent with s 389 of the Act and the respondent’s objection should be upheld.

For the applicant

[55] The applicant’s evidence, her detailed written and oral submissions, were in substance, a replication of her 22-page statement of evidence. I will endeavour to summarise what I apprehend was the gravamen of her case.

[56] The applicant rejected the submission that the COVID-19 pandemic had resulted in any severe financial consequences for the respondent. She did not believe that ‘COVID-19 impacts’ were, in and of itself, a valid reason for redundancy.

[57] The applicant submitted that when she was first advised her position was at risk, on 18 March 2020, there had been no business loss at that point, or any indications from clients that contracts would be lost. It was just anticipated there would be fall out and a ‘catastrophic’ impact on revenue, which did not happen.

[58] The applicant further stated that when she was advised of her redundancy at a meeting on 24 March 2020, Mr Talbot referred to a contract of work for Nimble at $347,000 being lost. This amount of money was immaterial to the business. In addition, the applicant said she was aware of new contracts being signed up by the respondent, which would deliver revenue for the Company.

[59] The applicant believed that the respondent’s decision to focus on domestic opportunities, should not have affected her role, as it was always focused on domestic opportunities. The applicant noted that as she had two-month-old twins, an internationally focused role was not a practical possibility for her.

[60] Further, since the dismissal, she had become aware that the respondent had hired and filled five new positions. This was further evidence that the respondent had not suffered any financial detriment that would have necessitated making her role redundant.

[61] The applicant rejected the assertion that her redeployment and alternative proposals had been genuinely considered and responded to by Mr Talbot and Ms Hames. She was only asked to advise the Company how her skills and experience could be used in the business. At that time, she was unaware that alternatives, such as reduced hours or reduced wages could be put forward as alternatives to redundancy. She believed that the respondent intentionally decided not to highlight the availability of reduced hours or wages, despite this being raised with all other staff members as a way for them to retain their employment.

[62] The applicant further submitted that she had not been advised as to the redundancy process and that she was not aware that the meeting on 24 March 2020 was to advise her of the termination of her employment.

[63] The applicant submitted that redeployment should have been an option that was made available to her, particularly since the respondent had hired five new employees since she was made redundant. She believed she had the appropriate skills and experience, with references offered, to perform other roles which have been filled followed her redundancy.

In reply

[64] Mr Hassall said the hiring of new employees from 5 May to 13 July 2020 is irrelevant to whether redeployment options were genuinely considered, at the time of the applicant’s redundancy, on 24 March 2020. At the time of the applicant’s redundancy, hiring had been halted due to the financial uncertainty, as a result of the COVID-19 pandemic. In any event, the new roles were possible as a result of cost savings measures and the roles would have been unsuitable for the applicant, even if they had existed at the time of her termination. None of these positions overlap with the applicant’s former role, which has not been replaced. Nor did they align with her skills and experience. Mr Hassall relied on Ms Hames’ evidence in this regard; see: [35] above.

CONSIDERATION

[65] At this juncture, the matter which falls for determination by the Commission is whether the applicant’s dismissal was a case of ‘genuine redundancy’, pursuant to the statutory definition set out in s 389 of the Act, which reads 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.

[66] A person can only be unfairly dismissed if the Commission is satisfied that each of the matters in s 385 of the Act have been established. Section 385 states:

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.

Plainly, all four matters in s 385 must be satisfied, including as is here, that the dismissal was not a case of genuine redundancy.

Meaning of redundancy

Redeployment

[67] As mentioned earlier, s 389 of the Act expressly defines ‘genuine redundancy’; see: [65] above. The Explanatory Memorandum to the Fair Work Bill 2008 further developed the meaning of ‘genuine redundancy’ as follows:

‘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’. (my emphasis)

[68] It is trite to observe that the meaning of the term ‘redundancy’ may vary, depending on the particular industrial context, and/or the text of an applicable industrial instrument. In Amcor Limited v Construction, Forestry, Mining and Energy Union [2005] HCA 10, Gleeson CJ and McHugh J [12] held that:

‘In the industrial context, redundancy of position is not a concept of clearly defined and inflexible meaning.’

[69] A Full Bench of this Commission in Construction, Forestry, Mining and Energy Union (CFMEU) and others v Spotless Facility Services Pty Ltd t/a Spotless[2015] FWCFB 1162 said at [66]:

‘[66] The meaning of the word ‘redundancy’ is not fixed and the term will take colour from its context. However, in any relevant context it is the abolition of a position which leads to that position being redundant. The cause of the abolition of the position – whether business restructure, technological advance, loss of contract/ordinary turnover or otherwise – is a separate matter, albeit one which may determine the entitlements of the redundant employee.’

[70] Further, in Hodgson v Amcor Ltd; Amcor Ltd & Ors v Barnes & Ors [2012] VSC 94, Vickery J (‘Hodgson v Amcor’), after summarising the various authorities, arrived at the following conclusions:

‘In essence, subject to any qualification or re-statement found in the relevant contract of employment or any applicable statute, the common law concept of “redundancy” comes down to the following propositions:

(a) A job becomes redundant when the job of the employee ceases to exist because the employer, for whatever reason, whether by reason of reorganisation, mechanization, change in demand or other reason, no longer desires to have it performed by anyone;

(b) This can occur either when the role no longer exists or the duties have so changed that for all practical purposes the original role no longer exists;

(c) However, redundancy is not limited to the circumstance where the employer, no longer desires to have the work previously performed by the terminated employee done by anyone;

(d) A redundancy may also arise upon the redistribution of job functions, where the duties performed by an employee are redistributed among other employees. In this case the employer still requires the duties to be performed, but the re-organisation may give rise to a redundancy. In this event, although the duties remain to be performed, “for all practical purposes the original role no longer exists” because the duties are divided and assigned amongst others. In such a case the question is whether any function or duty remains to be performed by the employee. A redundancy will occur if, after the reorganisation, the employee in question is left with no duties to discharge;and

(e) Redundancy will not arise where the termination of employment is carried out solely because of any personal act or default of the employee terminated or for any consideration peculiar to that employee.’ (endnotes omitted)(my emphasis)

[71] In Ulan Coal, a Full Bench of the Commission held at [19]-[20] that:

‘[19] In the present case, the Commissioner appears not to have drawn an appropriate distinction in his reasoning between the “jobs” of the mineworkers who were retrenched and the functions performed by those mineworkers or take proper account of the nature of the restructure at the mine which led to an overall reduction in the size of the non-trades mineworker workforce. The Company restructured its operations in various ways including by outsourcing certain specialised, ancillary and other work and increasing the proportion of trade-qualified mineworkers in underground development and outbye crews. As a result, it was identified that there were 14 non-trades mineworker positions which were surplus to the Company’s requirements. The mineworkers whose employment was to be terminated were determined according to the seniority principle as provided in the Agreement. This did not mean that the functions or duties previously performed by the retrenched mineworkers were no longer required to be performed. It also did not mean that the positions of some of these mineworkers (e.g. in underground crews) did not continue, although those positions might after the restructure be filled by more senior non-trades mineworkers transferred from other parts of the operations or by trade-qualified mineworkers. However fewer non-trades mineworker jobs were required overall at the mine as a result of the operational changes introduced and, for this reason, the jobs of the 14 mineworkers selected for retrenchment could be said to no longer exist.

[20] These circumstances readily fit within the ordinary meaning and customary usage of the expression in s.389(1)(a) of the Act where a job is no longer required to be performed by anyone because of changes in the operational requirements of the employer’s enterprise’.(my emphasis)

[72] The Full Bench in Ulan Coal, after considering relevant authority and the Explanatory Memorandum to the Fair Work Bill 2008, concluded that:

‘It is noted that the reference in the statutory expression is to a person’s “job” no longer being required to be performed. As Ryan J observed in Jones v Department of Energy and Minerals (1995) 60 IR 304 a job involves “a collection of functions, duties and responsibilities entrusted, as part of the scheme of the employees’ organisation, to a particular employee” (at 308). His Honour in that case considered a set of circumstances where an employer might rearrange the organisational structure by breaking up the collection of functions, duties and responsibilities attached to a single position and distributing them among the holders of other positions, including newly-created positions. In these circumstances, it was said that (at 308):

What is critical for the purpose of identifying a redundancy is whether the holder of the former position has, after the re-organisation, any duties left to discharge. If there is no longer any function or duty to be performed by that person, his or her position becomes redundant… (at 308)

This does not mean that if any aspect of the employee’s duties is still to be performed by somebody, he or she cannot be redundant (see Dibb v Commissioner of Taxation (2004) FCR 388 at 404-405). The examples given in the Explanatory Memorandum illustrate circumstances where tasks and duties of a particular employee continue to be performed by other employees but nevertheless the “job” of that employee no longer exists.’ (my emphasis) 

[73] In Dibb v Commissioner of Taxation (2004) 136 FCR 388; [2004] FCAFC 126 (‘Dibb’) referred to above, the Federal Court said at 404-405:

‘43. The difficulty in this case has been caused by the aphorism which appears in both paras 12 and 42 of TD 94/12 to the effect that the job, not the employee, becomes redundant. However s 27F speaks of the “bona fide redundancy of the taxpayer”. We consider that it is more accurate to say that an employee becomes redundant when his or her job (described by reference to the duties attached to it) is no longer to be performed by any employee of the employer, though this may not be the only circumstance where it could be said that the employee becomes redundant. Reallocation of duties within an organisation will often lead the employer to consider whether an employee, previously employed to perform specific functions assigned to a particular “job”, will be able to perform any available “job” existing after such reallocation. Even if the employee’s job, defined by reference to its duties, has disappeared, he or she may be able to perform some other available job to the satisfaction of the employer. In that case, no question of redundancy arises. It is only if the employer considers that there is no available job for which the employee is suited, and that he or she must therefore be dismissed, that the question of redundancy arises. If, in good faith, the employer:

•  has reallocated duties;

•  considers that the employee is not suitable to perform any available job, defined by reference to those reallocated duties, existing after the re-allocation; and

•  for that reason, dismisses the employee,

then, for the purposes of s 27F, the employee is dismissed by reason of his or her bona fide redundancy. In the above discussion we have used the word “available” as meaning “vacant”, and the word “suitable” as meaning “within the employee’s capacity”.

44. In the present case, the employer redistributed the duties previously performed by its District Managers and at the same time, added further duties. The job, described by reference to its duties as previously performed by Mr Dibb, ceased to exist. The employer no longer wished to have that job performed by anybody. The work was to be differently distributed. The result was that there was no job for which his skills qualified him. He was “surplus to [AVCO’s] personnel needs”. We consider that the respondent was in error in concluding that Mr Dibb’s dismissal was not by reason of his bona fide redundancy. As a result, the respondent also erred in failing to address the matters prescribed by s 27F. These errors have inevitably deprived Mr Dibb of the benefit conferred by Subdiv AA upon a person receiving a bona fide redundancy payment as part of an ETP.’

[74] It would also seem obvious, and entirely understandable, that the Commonwealth Parliament considered the history of the meaning of redundancy, as expressed in the early authorities, when it crafted the statutory meaning used in s 389 of the Act.

Employer’s obligation to consult

[75] In this case, Clear Dynamics’ obligation to consult the applicant about her possible redundancy arises from the statutory command in s 389(1)(b) of the Act, dealing with award obligations to do so. In this case, Cl 9 of the Award is a conventional consultation provision and reads as follows:

‘9. Consultation

9.1 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 9.1(a), the effects the changes are likely to have on employees and measures to avert or mitigate the adverse effects of such changes on employees and must give prompt consideration to matters raised by the employees and/or their representatives in relation to the changes.

(ii) The discussions must commence as early as practicable after a definite decision has been made by the employer to make the changes referred to in clause 9.1(a).

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

9.2 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’.

[76] The meaning of the word ‘consult’, was considered by the Full Bench in Consultation Clause in Modern Awards [2013] FWCFB 10165 (‘Consultation Clause in Modern Awards’). At [30]-[33], the Full Bench said:

‘[30] The word ‘consult’ means more than the mere exchange of information. As Young J said in Dixon v Roy:

“The word ‘consult’ means more than one party telling another party what it is that he or she is going to do. The word involves at the very least the giving of information by one party, the response to that information by the other party, and the consideration by the first party of that response.” [citations omitted]

[31] The right to be consulted is a substantive right, it is not to be treated perfunctorily or as a mere formality. Inherent in the obligation to consult is the requirement to provide a genuine opportunity for the affected party to express a view about a proposed change in order to seek to persuade the decision maker to adopt a different course of action. As Logan J observed in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v QR Limited (QR):

“... A key element of that content [of an obligation to consult] is that the party to be consulted be given notice of the subject upon which that party’s views are being sought before any final decision is made or course of action embarked upon. Another is that while the word always carries with it a consequential requirement for the affording of a meaningful opportunity to that party to present those views. What will constitute such an opportunity will vary according the nature and circumstances of the case. In other words, what will amount to “consultation” has about it an inherent flexibility. Finally, a right to be consulted, though a valuable right, is not a right of veto.

To elaborate further on the ordinary meaning and import of a requirement to “consult” may be to create an impression that it admits of difficulties of interpretation and understanding. It does not. Everything that it carries with it might be summed up in this way. There is a difference between saying to someone who may be affected by a proposed decision or course of action, even, perhaps, with detailed elaboration, “this is what is going to be done” and saying to that person “I’m thinking of doing this; what have you got to say about that ?”. Only in the latter case is there “consultation. ...”

[32] We respectfully adopt his Honour’s observations. Similar to the obligation to accord a person procedural fairness, the precise content of an obligation to consult will depend on the context. The extent and significance of a proposed change, in terms of its impact on the affected employees, will have a bearing on the extent of the opportunity to be provided. Hence a change of limited duration to meet unexpected circumstances may mean that the opportunity for affected employees to express their views may be more limited than would be the case in circumstances where the proposed change is significant and permanent. It is also relevant to note that while the right to be consulted is a substantive right, it does not confer a power of veto. Consultation does not amount to joint decision making.

[33] Some of the ordinary incidents of a requirement to consult are reflected in s.145A(2), that is:

•  ‘to provide information about the change; and

•  to provide an opportunity for affected employees to give their views about the impact of the change; and

•  to consider any views about the impact of the change that are given by the employees’(my emphasis)

[77] In Maswan v Escada Textilvertrieb t/a ESCADA [2011] FWA 4239 (‘Maswan’), Watson VP held at [39]:

‘[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 the 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 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 [my emphasis].’

[78] It hardly needs stating that the word ‘consultation’ is, arguably the most oft debated word in the industrial relations lexicon (perhaps, ‘reasonable’ being another). It has been the subject of considerable judicial and Commission exegesis. That said, it is important to note that despite the views of some uninformed litigants, consultation does not mean agreement. However, nor does it simply mean an exchange of information; nor is it a mere formality or triviality; see: Maswan above. Consultation must be meaningful, open, and transparent and involve a reasonable and realistic consideration of each other’s views.

Redeployment

[79] In Ulan Coal, the Full Bench set out the obligations on an employer in regard to redeployment under s 389(2)(b) of the Act. At [27],[28] and [34] the Bench said:

‘[27] Secondly, it is implicit in the terms of s.389(2)(b) that it might be reasonable for an employee dismissed by one employer to be redeployed within the establishment of another employer which is an entity associated with the first employer. It follows that an employer cannot succeed in a submission that redeployment would not have been reasonable merely because it would have involved redeployment to an associated entity. Whether such redeployment would have been reasonable will depend on the circumstances. The degree of managerial integration between the different entities is likely to be a relevant consideration.

[28] Thirdly, the question posed by s.389(2), whether redeployment would have been reasonable, is to be applied at the time of the dismissal. If an employee dismissed for redundancy obtains employment within an associated entity of the employer some time after the termination, that fact may be relevant in deciding whether redeployment would have been reasonable. But it is not determinative. The question remains whether redeployment within the employer’s enterprise or the enterprise of an associated entity would have been reasonable at the time of dismissal. In answering that question a number of matters are capable of being relevant. They include the nature of any available position, the qualifications required to perform the job, the employee’s skills, qualifications and experience, the location of the job in relation to the employee’s residence and the remuneration which is offered.

…

[34] It may be appropriate to make some concluding remarks about the operation of s.389(2). It is an essential part of the concept of redeployment under s.389(2)(a) that a redundant employee be placed in another job in the employer’s enterprise as an alternative to termination of employment. Of course the job must be suitable, in the sense that the employee should have the skills and competence required to perform it to the required standard either immediately or with a reasonable period of retraining. Other considerations may be relevant such as the location of the job and the remuneration attaching to it. 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. This is because it would have been reasonable to redeploy the employee into the vacancy. In such a case the exception in s.385(d) would not apply and the dismissed employee would have the opportunity to have their application for a remedy heard. The outcome of that application would depend upon a number of other considerations.’ (my emphasis)

[80] In Technical and Further Education Commission T/A TAFE NSW v Pykett[2014] FWCFB 714, a Full Bench of the Commission held:

‘[36] We have earlier set out the submissions of the appellant and the respondent as to the proper construction of s.389(2) (see paragraphs [15] to [18] above). We accept the respondent’s submissions. For the purposes of s.389(2) the Commission must find, on the balance of probabilities, that 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 also be an appropriate evidentiary basis for such a finding. Such an interpretation is consistent with the ordinary and natural meaning of the words in the subsection; the Explanatory Memorandum and Full Bench authority. We acknowledge that the facts relevant to such a finding will usually be peculiarly within the knowledge of the employer respondent, not the dismissed employee. If an employer wishes to rely on the ‘genuine redundancy’ exclusion then it would ordinarily be expected to adduce evidence as to the following matters:

(i) that the employer no longer required the dismissed employee’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise;

(ii) whether there was any obligation in an applicable modern award or enterprise agreement to consult about the redundancy and whether the employer complied with that obligation; and

(iii) 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 employer.’

[81] At the outset, I make a number of observations of the applicant’s evidence and submissions as set out below.

[82] As I mentioned earlier, much of the applicant’s evidence and her detailed written and oral submissions (although read from a script) are not relevant to the discrete considerations under s 389 of the Act, and in large part dealt with historic matters (how she came to be employed by Clear Dynamics) and the merits of her unfair dismissal case.

[83] As was said in Adams v Blamey Community Group[2016] FWCFB 7202, a genuine redundancy objection is not a review of the merits of the matter. At [14], the Full Bench said:

‘[14] Insofar as Ms Adams’ appeal challenged the findings made by the Senior Deputy President in relation to s.389(1)(a), it is necessary to state at the outset that consideration of whether the employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the enterprise does not involve a merits review of the employer’s decision to make the person’s job redundant. It is not to the point that it may have been open to the employer to make a different operational decision which may have allowed the relevant employee’s job to be retained. As was stated in Low v Menzies Property Services Pty Ltd,

“Whether it was objectively fair or justifiable to decide to abolish a position is beside the point, as long as the employer acted as it did because of changes in its operational requirements.” 

What s.389(1)(a) requires is for findings of fact to be made as to whether, firstly, the employer has made the decision that the relevant employee’s job is no longer required to be performed by anyone and, secondly, whether that decision was made because of changes in the operational requirements of the enterprise. If there was an ulterior motive for the decision - that is, if the real reason for the decision did not genuinely relate to any change in operational requirements, whatever the ostensible reason may have been - then it will not be possible to make the second finding of fact. However once these findings of fact are made, the element of the genuine redundancy definition contained in s.389(1)(a) is satisfied and no further inquiry is necessary.’ (endnotes omitted)

[84] In some cases, as a matter of efficiency and with the consent of the parties, the Commission might take evidence as to ss 389, 387 and 392 of the Act in the same hearing. However, that will assume the jurisdictional hurdle is overcome. For reasons which I will now explain, it is unnecessary to travel beyond the ‘genuine redundancy’ question.

Was the applicant’s job no longer required to be performed by anyone?

[85] It was common ground that the applicant was the only employee engaged as a Senior Business and Technology Consultant. The fact the applicant worked three days a week in that role, demonstrates that it was not a role requiring full time hours. It cannot be seriously disputed that the COVID-19 pandemic has resulted in enormous challenges for businesses in responding to Government measures to reduce the spread of the virus in Australian workplaces. These challenges have been rapid, unknown and unpredictable, but ultimately have seen virtually every sector of industry, adversely impacted; albeit to varying degrees.

[86] It seems to me perfectly understandable that Clear Dynamics was, like so many other businesses, sailing into unchartered and unknown waters, with the risk of major impacts or even closure – an ever present and real threat. In these circumstances, the decision in Wilson v Monizumi Pty Ltd ATF The Takezawa Trust T/A Shoji Australia[2020] FWC 2713 and the passage at [65] has particular resonance:

‘[65] There is no requirement for a business to wait until a possible financial crisis has actually manifested itself before it takes action to protect its’ business interests.’

[87] In any event, I accept the respondent’s evidence that at the time of the applicant’s dismissal, the business had experienced over a million dollars’ loss and other contracts were seriously at risk. Measures were later introduced to cushion the business from financial stress and ensure its future survival. These measures are not disputed by the applicant.

[88] It was also not in contention that the business took a deliberate decision to focus on contract delivery and finalising sales opportunities, rather than business development, which was the core function of the applicant’s role. Given the unpredictable circumstances facing the business, this was a perfectly legitimate business strategy.

[89] While the applicant may have had some experience in work other than business development, including while working for Clear Dynamics, the fact was these tasks were being performed by others and were able to be absorbed into their roles – a classic redistribution of job functions which can be illustrative of redundancy; see: Hodgson v Amcor Ltd; Amcor Ltd & Ors v Barnes & Ors [2012] VSC 94. Such functions might also be absorbed into a newly created position; see: Ulan Coal. Further, in Ulan Coal, the Full Bench reaffirmed that ‘it does not matter if discrete duties or tasks survive the operational change or restructure and continue to be performed. The question to be determined in actuality does not call into question the genuineness of the redundancy’.

[90] It is also common ground that the applicant’s performance was not a factor in her dismissal. I accept this was the position. It will always be a difficult decision to let go an employee in these circumstances, and most employers take no comfort in doing so, particularly when the person whose role selected for redundancy, is very well qualified, has no performance or conduct issues and would otherwise continue to make a significant contribution to the business. These decisions are even harder in a small Company (as Ms Hames said, and I accept) when everyone knows each other and the redundant employees have major family and personal issues to contend with.

[91] Understandably, the applicant made much of the five new appointments made after her redundancy. While I accept that the savings made when three other employees had resigned, did not likely offset the salaries of the newly created positions; that is, with respect, not the point. As the authorities make plain the relevant test of the genuineness of the redundancy is, at the time it takes place; see: Ulan Coal at [28].

[92] These new positions were created as a direct result of the shift in business focus. The appointments occurred in May, June and July 2020. While I acknowledge this was a few months after her dismissal, Ms Hames’ evidence, as to the applicant’s unsuitability for the positions, is accepted.

[93] For these reasons, I am satisfied that the applicant’s job was no longer required to be performed by anyone because of changes in the operational requirements of the employer’s enterprise. Section 389(1)(a) has therefore been met.

Whether employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy (s 389(1)(b)) and whether if it would have been reasonable in all the circumstances for the applicant to be redeployed (s 389(2))

[94] I accept that there was a short timeframe between when the applicant was told of her likely redundancy on 18 March 2020 and its confirmation on 24 March 2020. However, throughout March 2020, the Company (indeed, the world) knew there was an unprecedented crisis looming, which would likely significantly and adversely impact all business, and every country’s economy. The steps required to be taken by the business were in the context of a rapidly changing, dynamic and unpredictable environment.

[95] That said, I do not accept the applicant’s contention that she was not properly consulted. The fact she put suggestions and alternatives obviously demonstrates that the consultation was not one way, perfunctory or mere lip service. I stress consultation does not mean agreement. I find that s 389(1)(b) to be satisfied.

[96] Having regard for the evidence of Ms Hames, I am satisfied the respondent properly considered the options proposed by the applicant. Given her role was the only one of its kind, it was reasonable to come to a conclusion that the applicant’s suggestions for redeployment, were not feasible or appropriate. In any event, as the Explanatory Memorandum makes clear, whether a dismissal is a genuine redundancy, does not go to the process of selecting employees for redundancy.

[97] For these reasons, I am satisfied it would not have been reasonable to redeploy the applicant to another position at the relevant time. Accordingly, s 389(2) of the Act is satisfied.

[98] With these findings, Clear Dynamics’ jurisdictional objection is upheld, and the applicant’s unfair dismissal application must be dismissed. I so order. Matter U2020/4713 is concluded.

DEPUTY PRESIDENT

Appearances:

The applicant appeared for herself.

Mr R Hassall, Partner, and Ms E Galvin, Lawyer,Sparke Helmore Lawyers, appeared for the respondent.

Hearing details:

2020.

Sydney (via Microsoft Teams):

28 July.

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