Maria-Magdalena Yamanaka v Eternus Management Services Pty Ltd
[2024] FWC 1228
•14 JUNE 2024
| [2024] FWC 1228 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Maria-Magdalena Yamanaka
v
Eternus Management Services Pty Ltd
(U2024/1575)
| COMMISSIONER RIORDAN | SYDNEY, 14 JUNE 2024 |
Application for an unfair dismissal remedy – genuine redundancy
On 14 February 2024, Ms Maria-Magdalena Yamanaka (the Applicant) filed an application with the Fair Work Commission (the Commission) seeking a remedy for an alleged unfair dismissal pursuant to section 394 of the Fair Work Act 2009 (the FW Act).
In her Form F2 – Unfair Dismissal Application, the Applicant stated that she was dismissed by Eternus Management Services Pty Ltd (the Respondent) on 6 February 2024 without prior notice or any proper assessment of her work performance.
The Applicant attached to her application letters from the Respondent dated 6 February 2024 and 12 February 2024, which provided:
“6 February 2024
…
Dear Maria-Magdalena,
Re: Decision regarding your employment
The purpose of this letter is to confirm the outcome of a recent review by the Executive of Eternus Group and Eternus Management Services Pty Ltd ACN 667 812 204 (EMS).
As a result of the review, this is written notice that regretfully, your position of Accountant will no longer be required.
All options for redeployment and reducing the impact of this decision have now been considered and no suitable alternative is available.
Date your employment will end
Your employment will terminate by reason of redundancy on 6 February 2024.Your pay
You will be paid your accrued statutory leave entitlements and your accrued salary to the date of termination of your employment with Eternus Management Services.You will be provided with 2 week’s pay in lieu of remaining notice. Finally, as you have been deemed to have provided continuous service since 14 November 2022, you are also entitled to be paid 4 weeks redundancy pay.
These amounts will be subject to tax and the final amounts will be paid into your nominated bank account within one week after your date of termination.
Superannuation
Final superannuation payments will also be paid into your nominated superannuation fund.Additional support
Due to the challenging nature of this situation, we will extend the availability of the confidential Employee Assistance Program until 6 May 2024, accessible on the Helpline number [redacted].Your obligations
We would like to remind you of your post termination obligations, set out in your employment contract, including confidentiality obligations and requirements to return any company property that may be in your possession.We appreciate your contributions during your time with us.
Yours sincerely,Nicole Glazebrook
Chief Executive Officer”
“12 February 2024
…
Dear Maria-Magdalena,
Re: Redundancy and Notice Entitlements
I am writing to you in reference to the letter dated 6th February 2024, wherein a decision regarding your employment was communicated. Upon thorough review, it has come to our attention that an error was made in calculating your notice period.
We regret to inform you that your notice period was incorrectly determined in the aforementioned letter. Upon re-evaluation, it has been confirmed that you are entitled to four weeks' notice in lieu of notice, rather than the previously stated duration. Please accept our sincere apologies for any inconvenience this oversight may have caused you.
Furthermore, I would like to clarify that despite this correction, your redundancy payment remains unchanged. You are still entitled to receive the equivalent of four weeks' redundancy pay, consistent with our previous communication.
We understand the importance of clarity and accuracy in matters concerning employment, and we are committed to rectifying any errors promptly and transparently. Should you have any questions or require further clarification regarding this variation, please do not hesitate to reach out to me directly.
Once again, I apologise for any confusion or inconvenience this may have caused.
Thank you for your understanding and cooperation.
Yours sincerely,
Nikki Keith
Head of People & Culture”.
In its Form F3 – Employer response to the application, the Respondent raised a jurisdictional objection on the ground that the Applicant’s dismissal was a case of genuine redundancy.
The jurisdictional objection was heard by Video via Microsoft Teams on Friday, 10 May 2024. The Applicant appeared and gave evidence on her own behalf. The Respondent was granted leave pursuant to s.596 of the FW Act to be represented by Ms Anneliese Broadaway, Legal Counsel, Right Law.
The following persons gave evidence for the Respondent at the Jurisdictional Hearing:
· Ms Beth Turner, Senior People and Culture Business Partner; and
· Ms Ashleigh Stewart, Head of Talent Acquisition within the People and Culture Team.
A further Hearing was conducted on 4 June 2024 in Brisbane, to allow for Ms Catherine McCormack, Head of Finance, to give evidence.
Relevant Legislation
Section 385 of the FW Act provides that a person has been unfairly dismissed if the Commission is satisfied that:
“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.”
Section 396 of the FW Act sets out the following:
“396 Initial matters to be considered before merits
The FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:
(a) whether the application was made within the period required in subsection 394(2);
(b) whether the person was protected from unfair dismissal;
(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;
(d) whether the dismissal was a case of genuine redundancy.”
As set out above in s.396 of the Act, consideration as to whether the dismissal was harsh, unjust or unreasonable cannot occur if the dismissal was a case of genuine redundancy. If the Commission determines that the dismissal was a case of genuine redundancy, the application will be dismissed.
Section 389 of the FW Act defines genuine redundancy as follows:
“389 Meaning of genuine redundancy
(1) A person’s dismissal was a case of genuine redundancy if:
(a) the person’s employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; and
(b) the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.
(2) A person’s dismissal was not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within:
(a) the employer’s enterprise; or
(b) the enterprise of an associated entity of the employer.”
This decision determines the jurisdictional issue as to whether the Applicant’s dismissal was a genuine redundancy pursuant to s.389 of the FW Act.
Respondent’s Submissions
The Respondent submitted that the Applicant was employed in the position of Accountant from 4 December 2023 until her dismissal on 6 February 2024. The Applicant had previously been employed by a related entity, Ascend Accounting Pty Ltd, since 14 November 2022.
The Respondent submitted that the Applicant’s dismissal was a case of genuine redundancy due to a business restructure that resulted in:
“a. the Applicant’s position not being required to be undertaken by anyone; and
b. no other suitable vacant positions being available to redeploy the Applicant.”
The Respondent submitted that for these reasons, the Applicant’s application should be dismissed.
The Respondent submitted that even if its position is not accepted and the Commission finds that the Applicant’s dismissal was not a case of genuine redundancy, the Applicant has already been adequately compensated by the Respondent for loss arising from the dismissal and should not be awarded further compensation.
Eternus
The Respondent submitted that it is an “employee holding entity” which sits within a group of related entities known as ‘Eternus’. The Respondent submitted that its primary function is to engage employees and transfer these employees to related entities within Eternus.
Business Restructure and Change in Operational Requirements
The Respondent submitted that between September 2023 and January 2024, Eternus went through a business restructure which resulted in the downsizing and merging of business operations for commercial reasons throughout the group (the Restructure).
The Respondent submitted that as part of the Restructure, assessments were made by the Eternus executive team of the future operational requirements of Eternus’ operating entities (including the Respondent), resulting in:
“a. significant reduction in business streams; and
b. change in strategy and industry-focus from a diverse portfolio to a focus on property
and financial services.”
The Respondent submitted that, ultimately, Eternus’ operations were significantly scaled back from a group of over 20 related entities all operating as separate companies, to a consolidated business. It submitted that as a result, 9 roles within Eternus were determined to no longer be required, including the Applicant’s position with the Respondent. At the Hearing on 4 June 2024, the Respondent updated the number of employees who have now been made redundant to more than 70.
Genuine Redundancy
The Respondent submitted that its operations were restructured to improve efficiency and to suit business needs within Eternus. The Respondent submitted that as part of this restructure, the duties that had been performed by the Applicant were either re-distributed, or no longer required to be performed at all. The Respondent submitted that the Applicant’s job no longer exists.
The Respondent submitted the fact that some of the duties are still required to be performed is irrelevant, as far fewer roles of this level are required overall.[1]
Workplace Change Consultation
The Respondent submitted that between September 2023 and January 2024, it consulted with its employees about the Restructure through various methods including Teams meetings, emails, newsletters and video posts made available on the Eternus Intranet.
The Respondent submitted that the information provided during this consultation process included (among other things) information related to:
“a. the introduction of the Restructure – referred to as the “Eternus Effect” - its likely effect, and measures taken to avoid or reduce adverse effects of the changes on employees;
b. the needs and priorities underlying the Restructure, and the revised business strategy for Eternus;
c. information about the change in bonus policy, changes in work and job restructuring; and
d. updates on the progress of the Restructure, and information regarding earlier rounds of redundancies and the underlying reasons for the decisions made.”
The Respondent submitted that its employees were also invited to provide their views about the impact of the Restructure, and were provided with a direct communication tool to Eternus’ Acting Chief Executive Officer through the Eternus Intranet to ask any questions regarding the changes that were taking place.
The Respondent submitted that through providing this consultation, it met the obligations of any applicable Modern Award clause regarding consultation on major workplace change.
Redeployment considerations – s.389(2) of the Act
The Respondent submitted that despite its best efforts, the Applicant could not reasonably be redeployed within its business or an associated entity.
The Respondent submitted that the redeployment assessment and canvassing of available positions, including those with retraining, were considered by the Eternus People & Culture Team. The Respondent submitted that adequate steps were taken to identify other suitable work available for the Applicant within Eternus, including a cross-reference of the Applicant’s CV and any available or upcoming positions.
Further, the Respondent submitted that the Applicant was provided with the opportunity to apply for a more senior role within Eternus, that being a Senior Management Accountant role (SMA), but did not do so.
Applicant’s compensation on dismissal
For the above reasons, the Respondent maintained that the Applicant was made genuinely redundant and that her application should be dismissed. Further, and in the alternative, the Respondent maintained that the Applicant has been fairly compensated for her dismissal.
The Respondent noted that on dismissal of her employment, the Applicant received the following:
“a. four weeks’ pay in lieu of notice;
b. four weeks redundancy pay;
c. outstanding leave balances; and
d. any outstanding wages for work performed.”
The Respondent noted that the Applicant was also provided with extended access to Eternus’ Employee Assistance Program (EAP) for mental health support for three months following termination of the employment.
Applicant’s Submissions
The Applicant submitted that she was unfairly dismissed by the Respondent on 6 February 2024, without any consultation by her direct Supervisor or Manager.
The Applicant denied that her dismissal was a case of genuine redundancy, for the follow reasons:
“a. A job ad for my role was posted on Seek the day after my unfair dismissal, 8 February 2024; and
b. My work calendar was fully booked, as directed by my Supervisor, for the entire year ahead (Jan 2024- Jan 2025), as well as my work performance was spotless (confirmed also in the Respondent FWC Form F3, submitted on 22 February 2024: “1. The Applicant’s dismissal was not based on performance.”); and
c. There was no restructure whatsoever, but merely the Growth and the Shaping of the business that has been the reason I, the Applicant, was employed in the first place; and
d. No redeployment options have been offered even though there are opportunities within the group; and
e. No consultations with the Applicant by either the Supervisor (Catherine McCormack) or the Manager (Nicole Glazebrook) have taken place.”
Business Growth and Shaping of its Operational Function
The Applicant submitted that her initial engagement in November 2022 was as a result of the Respondent business being “in an incredibly exciting growth phase”. The Applicant relied here on Annexure 1 to Ms Beth Turner’s Witness Statement, being ‘Senior Management Accountant Job in Brisbane QLD - Peopling - SEEK (Eternus Management Services Pty Ltd)’. The Applicant specifically highlighted the following wording contained in that advertisement:
“Perhaps the most appealing aspect of this role is the opportunity to become part of a broader, larger family of culturally-aligned companies in an incredibly exciting growth phase.”
(Applicant’s emphasis)
The Applicant submitted that:
“There has been no restructure but only Growth and Shaping of the business from the day one of my employment with Eternus and I, the Applicant, have been directly involved in capturing this Growth and Shaping of Eternus group into the consolidated Management Reports produced regularly as part of my job (a top senior managerial accountant level duties), while reporting into the CFO directly when the CFO joined Eternus (July 2023), and then into the Head of Finance as this new role was created (15 November 2023), due to the fact that the CFO took over the acting CEO role alongside the CFO position.”
The Applicant relied on the ‘Eternus Effect’ as expressed by Mr Lee Rushton, Founder of Eternus, in an email to all staff dated 5 October 2023 and titled “Setting the Eternus Effect up for Success”. The Applicant highlighted the following wording contained in this correspondence:
“If we all make our best individual contribution, Eternus will become a contributor to society, by extending the capability of the customers we support. If we are successful, others will follow, and we call this the Eternus Effect – but it really is simply the collective effort of you all – our Team.”
(Applicant’s emphasis)
The Applicant submitted that she dedicated all of her efforts in contributing to the Respondent’s business, and performed with high professional standards and ethics at all times. The Applicant submitted that she had a spotless professional record, performing with senior level expertise and productivity. However, she submitted that as a result of a conflict raised with her Supervisor, she was dismissed. The Applicant submitted that her Supervisor abused the authority of her role, and harshly and abruptly dismissed the Applicant without any reason or consultation.
Applicant’s Professional Background
The Applicant submitted that her professional expertise in Finance/Accounting started 25 years ago. She outlined her formal academic qualifications as follows:
“a. Postgraduate Studies – Master of Commerce Advanced, major in Applied Finance – 2013 – 2014 – University of Queensland, St Lucia;
b. Postgraduate Degree – Master of International Accounting and IFRS – graduated in 2009 – Academy of Economic Studies, Bucharest;
c. MBA studies - University of Wales, 2006 - 2007;
d. Bachelor of International Business and Economics – major in Macroeconomics – graduated in 2005 – Academy of Economic Studies, Bucharest;
e. Bachelor of Business, Administration and Secretariat – Business Management degree – graduated in 2001 – University of Bucharest;
f. Internal Auditor Certificate – Quality Control of Policies and Procedures – TÜV THÜRINGEN - GERMANY,
g. IELTS Academic (International English Language Testing System) – band score 8 out of 9 - BRITISH COUNCIL;
doubled by my professional experience acquired in Europe and in Australia in a variety of industries comprising of business services, property development, global banking (ING Bank), project engineering, manufacturing, consultancy, financial advisory services (PriceWaterhouseCoopers), education, medical services, wholesale, agribusiness, global supply chain management, high-tech data companies, to mention just a few.”
The Respondent’s Claimed Genuine Redundancy
The Applicant submitted that the day after her dismissal, her role was advertised on Seek at $130,000 p.a. + super, which was “what the Applicant’s role is worth and should be paid”.
The Applicant submitted that the original advertisement on Seek was then amended on the day of the Fair Work Commission conciliation, being 14 March 2024, or another Senior Management Accountant role became available on Seek. The Applicant submitted that this further refutes the Respondent’s claim that her dismissal was a case of genuine redundancy.
The Lack of Workplace Consultation
The Applicant noted the Respondent’s submission that it consulted with its employees between September 2023 and January 2024. However, the Applicant queried that, if this was the relevant consultation period, “then the Applicant’s work calendar has been appointed and booked by the Supervisor in January 2024, therefore as a consequence and a conclusion of these new structural changes, then how come that the Applicant’s role become redundant when the duties for the entire year ahead (January 2024 – January 2025) have been organised and booked, as directed by the Supervisor in January 2024, at the very end of this claimed restructure period?”
The Applicant submitted that the Respondent’s submissions regarding the Restructure are contradictory and in opposition to the words of the Founder, Lee Rushton, as quoted above at paragraph [37].
The Applicant submitted that after she raised a conflict with her Supervisor, there was no consultation with her, rather the Applicant’s Supervisor unfairly and harshly dismissed her, “looking for the easy way out of the situation”.
Redeployment Considerations
The Applicant reiterated that there had been potentially two job advertisements put up by the Respondent for the Applicant’s role, posted on Seek following her dismissal. The Applicant relied on these advertisements in support of her argument that her dismissal was not a case of genuine redundancy. The Applicant submitted that reinstatement to the advertised role would be a potential remedy for her unfair dismissal application, along with compensation.
For all of the above reasons, the Applicant submitted that her dismissal was not a case of genuine redundancy, and therefore, the Respondent’s jurisdictional objection should be dismissed.
Respondent’s Submissions in Reply
The Respondent made submissions regarding inadmissible evidence filed by the Applicant, which have been addressed through a Confidentiality Order. Those submissions are, therefore, not repeated here.
Applicant’s Assertions
The Respondent submitted that it understood the Applicant’s main assertions in support of her position that the termination of her employment was not a genuine redundancy were:
“(a) her role was still required to be performed (Continuing Role Assertion); and/or
(b) the new Senior Management Accountant role advertised on Seek by the Respondent (the SMA Role) is the same role as the role that was made redundant (Same Role Assertion); and/or
(c) the Applicant could have been redeployed (Redeployment Assertion).”
The Respondent maintained its position that the termination of the Applicant’s employment was a genuine redundancy, however, it responded to each of the Applicant’s assertions as follows.
Continuing Role Assertion
The Respondent submitted that the Applicant’s Continuing Role Assertion appears to substantively rest on the assertion that her work calendar for the entirety of 2024 had been “appointed and booked” in January 2024 by her supervisor. The Respondent noted that in support of this assertion, the Applicant has attached to her statement what appear to be recurring monthly meeting invitations to discuss month-end accounting workflows. The Respondent submitted that it is unclear how meeting invitations are evidence that the Applicant’s role was definitively ongoing, and the Respondent maintained that the Applicant’s role was no longer required to be undertaken by anyone.
Same Role Assertion
The Respondent submitted that the SMA Role advertised on Seek is a materially different role to the Applicant’s redundant role with the Respondent, comprising of significantly different duties and requiring considerably higher qualifications and skills to perform. In particular, the Respondent submitted that the SMA Role requires that the candidate hold a CPA/CA certification in order to professionally and efficiently undertake the senior duties required of that role, which the Applicant does not possess.
The Respondent submitted that the two advertisements for the SMA Role referred to in the Applicant’s submissions are one and the same. The Respondent submitted that the original advertisement was posted on Seek on 8 February 2024 and expired on 8 March 2024. It submitted that the same advertisement was re-posted on 15 March 2024.
The Respondent submitted that the advertised salary for the SMA Role and the previous salary of the Applicant is not an indication that the SMA Role and the Applicant’s redundant role are the same or similar roles. The Respondent submitted that the advertised salary for the SMA Role is the market rate of a Senior Management Accountant with a CA/CPA qualification based on industry benchmarking now used by Eternus. It submitted that this benchmarking was not previously used for the Applicant’s redundant role.
At the first Hearing, the Respondent submitted that the SMA Role remains an unfilled position. However, Ms McCormack testified that she has now assumed the SMA functions into her role as Head of Finance.
Redeployment Assertion
The Respondent submitted that for the reasons specified at paragraph [50] above, the Applicant could not be reasonably redeployed to the SMA Role. The Respondent noted that it provided in its original Submissions a summary of its redeployment considerations for the Applicant, including that there were no reasonable redeployment opportunities available and the Applicant was invited to apply for the SMA Role.
The Respondent submitted that despite assertions by the Applicant that she has the skills and qualifications to undertake the SMA Role, the Applicant has not applied for the SMA Role.
Other Assertions
The Respondent submitted the Applicant’s assertion that there was “no restructure whatsoever but merely the growth and shaping of the business” is entirely incorrect. The Respondent submitted that Eternus went through a significant restructure in late 2023 to early 2024 which impacted several businesses and positions, including the Applicant’s redundant position.
The Respondent noted the Applicant has suggested that “conflict raised with [her] Supervisor” resulted in the dismissal of her employment. However, the Respondent submitted that regardless of whether a conflict existed (which is neither accepted nor denied), it is the Respondent’s position that:
“a. the existence of any conflict is irrelevant to the question of whether the Applicant’s position was made genuinely redundant; and
b. the Respondent maintains that the Applicant’s position was no longer required to be undertaken by anyone.”
Consideration
I have taken into account all of the evidence and submissions that have been posited in this matter. The fact that a submission or issue has not been repeated in this decision, does not mean that it has not been taken into account.
For the Applicant’s dismissal to be found to be a case of genuine redundancy, the Respondent must meet each of the criteria set out in s.389 of the FW Act. I now turn to a consideration of the relevant criteria.
s.389(1)(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
I was not satisfied that the relevant evidence was before the Commission at the conclusion of the Hearing on 10 May 2024. Neither Ms Turner or Ms Stewart were able to answer the relevant questions as to why the Applicant was transferred from Ascend Accounting to the Respondent or why the Applicant was made redundant. Further, the Applicant had requested a copy and transcript of her termination interview during the Hearing. For these reasons, I requested that the Respondent provide the Applicant’s termination interview record as well as the Manager who decided to make the Applicant redundant. Ms McCormack testified on 4 June 2024. I have taken her testimony into account.
The Applicant’s recorded and transcribed termination meeting was tabled and marked as Exhibit 5 on 4 June 2024. I have taken the transcript of this meeting into account.
It is not in dispute that Ms McCormack did not interview the Applicant prior to her decision to make the Applicant redundant. Ms McCormack had only been employed for approximately 5 weeks prior to her making this decision. Ms McCormack did not speak to the Applicant about her experience or her extensive qualifications. I have taken this into account.
It is not in dispute that neither the Applicant nor the Respondent have undertaken an assessment of the qualifications of the Applicant compared to the CPA qualification. I have taken this into account.
Relevantly, Ms McCormack testified that the Applicant did not have the necessary skill set to perform the SMA role on the basis that the Applicant required daily oversight of her work and her priorities. Further, Ms McCormack formed the view that the Applicant did not understand a number of the accounting processes which were required to be performed by the SMA role. I have taken this into account.
I accept that a SMA is required to have a broad yet specialised skill set. Good communication skills is an important criteria of any SMA role. I have taken this into account.
I have taken into account that the functions of the SMA have now been absorbed into the role of Ms McCormack. I am satisfied and find that the Applicant’s role has not been replaced.
s.389(1)(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
I note that the Applicant is not covered by a Modern Award or Enterprise Agreement. The Clerks–Private Sector Award identifies a small number of accounting functions and competencies. However, I am satisfied that these competencies are more in line with a Bookkeeper role rather than that of a Management Accountant. As a result, the strict obligations upon an employer to discuss the pending redundancy of an employee do not exist. However, the Applicant is obviously an intelligent individual with a number of tertiary qualifications, including a Masters degree in Accounting. I note that there have been no complaints made about the Applicant in any performance appraisal. As a matter of decency and best management practice, the Respondent should have had a discussion with the Applicant prior to the decision to terminate. I note that the Chief Financial Officer, to whom the Applicant previously reported, signed off on the decision to make the Applicant redundant. I have taken this into account.
s.389(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.
The Respondent made a decision to restructure its business in a dramatic fashion in an attempt to survive. More than 70 employees have been made redundant to achieve this ambition. In doing so, the Respondent decided to uplift its accountancy function from a Management Accountant to a Senior Management Accountant. The Respondent required the SMA to hold a CPA. Although eminently qualified, the Applicant does not possess this qualification. Whilst I am confident that the Applicant’s qualifications may have provided her with some exemptions towards her CPA qualification, neither party provided that information in the Hearing. Therefore, it is not possible to evaluate the quantum of study required by the Applicant to achieve her CPA.
Further, the Respondent has now withdrawn the SMA role from the organisational chart and the accountancy duties have been assumed into the role of Head of Finance.
I accept the evidence of the Respondent that it would not have been reasonable for the Applicant to be redeployed into a role within the Respondent or any of its entities. I have taken this into account.
Conclusion
The Applicant is quite clearly a well educated and competent accountant. Her performance with the Respondent was undertaken without criticism or negative performance appraisal. However, the Respondent had an absolute need to restructure in order to survive. Unfortunately, the Applicant was a casualty of this restructure.
Whilst I am critical of the lack of consultation afforded to the Applicant in the process, I am satisfied that a Management Accountant is not covered by a Modern Award. It is not in dispute that the Applicant was not covered by an Enterprise Agreement. However, dealing with a highly qualified and experienced professional in the manner afforded to the Applicant, shows a lack of decency and respect from the Respondent to the Applicant.
I am satisfied and find that the Applicant’s termination was as a result of a genuine redundancy.
The jurisdictional objection from the Respondent is upheld.
The substantive unfair dismissal application of the Applicant is therefore dismissed.
I so Order.
COMMISSIONER
[1] Ulan Coal Mines Ltd v Howarth[2010] FWAFB 3488.
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