Maureen Pritchard v Rev. Fr Victor Farrugia, St Augustine's Catholic Church Melbourne

[2017] FWC 5298

[2017] FWC 5298

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Maureen Pritchard
v
Rev. Fr Victor Farrugia, St Augustine’s Catholic Church Melbourne
(U2017/7815)

COMMISSIONER RYAN MELBOURNE, 19 OCTOBER 2017

Application for an unfair dismissal remedy - whether genuine redundancy.

[1] On 19 July 2017 Mrs Maureen Pritchard, filed an application under s.394 of the Fair Work Act 2009 (the Act) alleging that the termination of her employment by Fr Farrugia was an unfair dismissal.

[2] Mrs Pritchard was the sole employee of Fr Victor Farrugia and she commenced employment on 15 October 2012 and was, engaged in various parish secretary functions. Fr Farrugia was at all relevant times the appointed Parish Priest of the Roman Catholic parish known as the St Augustine’s Catholic Church Melbourne.

[3] The Employer’s Response filed by the Respondent on 24 July 2017 claimed that the reason for the dismissal was genuine redundancy and as such Mrs Pritchard was excluded from making the claim. On that basis, Fr Farrugia requested the jurisdictional objection be determined first prior to any conciliation. Subsequently the matter was programmed for a jurisdictional and merits hearing on 27 September 2017 and directions were issued to the parties.

[4] At the hearing Mrs Pritchard was represented by Mr G. Dircks and Fr Farrugia was represented by Mr L Connolly. Both Mrs Pritchard and Fr Farrugia gave evidence.

Preliminary matter

[5] Both Mrs Pritchard and Fr Farrugia identify the employer as being St Augustine’s Catholic Church Melbourne. It appears that this is an incorrect identification of the employer. I note that when the Catholic Church in Victoria made a multi-employer agreement with education sector employees pursuant to s.172 of the Act most of the employers are identified by name as the Parish Priest of the parish in which the school is located. 1 This reflects the fact that the Parish Priest and not the Parish is the legal employer of teachers in Parish schools. Similarly, in the present matter the Parish is not the legal employer but the Parish Priest is. I have amended the name of the Respondent from St Augustine’s Catholic Church Melbourne to Rev. Fr Victor Farrugia.

Legislative scheme

[6] Section 385 of the Act provides, inter alia, that a dismissal is not a case of unfair dismissal if it was a “genuine redundancy”.

[7] Section 396 of the Act also requires that before any consideration of the merits of an unfair dismissal application various matters are required to be determined. S.396 is as follows:

“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.”

[8] Accordingly, if it is determined that a dismissal is a case of genuine redundancy, as provided for by the Act, then there is no requirement (and no jurisdiction) to determine whether the dismissal was harsh, unjust or unreasonable and the application must be dismissed.

[9] Section 389 of the Act deals with the meaning of genuine redundancy. It provides:

“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.”

[10] As the language of s.389(1) makes absolutely clear, the requirements of both paras (a) and (b) must be met. If the requirement in para (a) is met but the requirement in para (b) is not met then the dismissal cannot be a case of a genuine redundancy.

[11] I turn first to the requirement in para 389(1)(b) including consideration of the matter raised by s.389(2).

s.389(1)(b) Whether The Employer Has Complied With The Obligation In The Relevant Modern Award To Consult About The Redundancy: and s.389(2) Whether Redeployment Was Reasonable:

[12] It was not in contest that Mrs Pritchard was covered by the Clerks – Private Sector Award 2010 and that clause 8 of the Award required that Fr Farrugia consult with Mrs Pritchard about the redundancy.

[13] What is required by the word “consult” has been considered on many occasions. In Consultation clause in modern awardsthe Full Bench said:

“[28] The obligation in s.145A(1)(a) is ‘to consult [with] employees’. In this context the word ‘consult’ is used as a verb and is defined in the Oxford Dictionary in these terms:

“Consult with. To take counsel with; to seek advice from.”

[29] The definition in the Macquarie Dictionary (5th Edition) is in similar terms:

“1. To seek counsel from; ask advice of. 2. to refer to for information. 3. to have regard for (a person’s interest, convenience, etc.) in making plans. - v.i 4. (sometimes fol. by with) to consider or deliberate; take counsel; confer [L. Deliberate, take counsel]”

[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.” 2 

[14] Whilst the Full Bench in Consultation clause in modern awards quoted a small extract from the decision of Logan J in the QR case, it bears quoting a lengthier extract from Logan J’s decision in that case:

“40. I commence first with the text of cl 36 and the ordinary meaning of the word “consult”.

41. The Oxford Dictionary gives the primary meaning of “consult” when, as the agreement does, used as a verb as, “[t]o take counsel together, deliberate, confer; also said of a person deliberating with himself” (Oxford English Dictionary, 2nd Edition, Online version). No different meaning for the word is supplied by Australian idiom, (q.v. the definition in Macquarie Dictionary Online). The word is plainly not used in cl 36 in the sense of deliberating with one’s self.

42. The imposition of a requirement for one party to consult with another is hardly unique to industrial instruments. I have already made passing reference to coincidental examples of requirements to “consult” in the course of setting out the history of legislative provision in Queensland with respect to railways. A search of current Commonwealth legislation discloses no less than 572 provisions imposing a requirement on a Minister or other official or agency to “consult”. In turn, as a study of reported cases discloses, these are but Australian exemplars of a requirement widely employed in a range of public administration applications by the parliaments of the United Kingdom and elsewhere in the Commonwealth of Nations.

43. Thus, in Port Louis Corporation v Attorney-General of Mauritius [1965] AC 1111 at 1124 the Judicial Committee observed of a consultation obligation in an ordinance in respect of measures to alter local government boundaries that: “[t]he nature and object of consultation must be related to the circumstances which call for it” and “The requirement of consultation is never to be treated perfunctorily or as a mere formality. The local authority must know what is proposed; they must be given a reasonably ample and sufficient opportunity to express their views or to point to problems or difficulties; they must be free to say what they think.” These observations as to what was entailed in a requirement to consult commended themselves, in the different context of their use in broadcasting legislation, to Toohey J when a judge of this Court in TVW Enterprises Ltd v Duffy (No 2) (1985) 7 FCR 172. His Honour pithily remarked (at 178), “Consultation is no empty term.” That same sentiment is evident in the following passage from the judgement of Sachs LJ in Sinfield v London Transport Executive [1970] 1 Ch 550 at 558 concerning a consultation obligation which attended a power to alter bus routes:

It is apposite first to mention that Mr Francis emphasised not once but several times that whatever be the true construction of section 22(3) [which contained the consultation requirement] and whatever order this court might make, it was in the end the executive and no one else who made the decision. If that was intended to intimate that the executive merely looked on consultations as being an opportunity for those consulted to make ineffective representations, it would represent an approach that, to put it mildly, cannot be supported. Consultations can be of very real value in enabling points of view to be put forward which can be met by modifications of a scheme and sometimes even by its withdrawal. I start form the viewpoint that any right to be consulted is something that is indeed valuable and should be implemented by giving those who have the right an opportunity to be heard at a formative stage of proposals – before the mind of the executive becomes unduly fixed.

44. Such cases have proved influential in the Australian Industrial Relations Commission (industrial commission) for the guidance they offer as to what a requirement to “consult” entails: Construction, Forestry, Mining and Energy Union v Newcastle Wallsend Coal Company Ltd (C2758 Dec 1533/98 S Print R0234) (Full Bench); Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Vodafone Network Pty Ltd (C2001/5770 PR911257) (Cmr Smith); Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Optus Administration Pty Ltd AW791910 Print L4596) (Cmr Smith). The apprehension in the industrial commission that these cases were of assistance was not, with respect, misplaced. They serve to confirm an impression as to the content of an obligation to “consult” evident from the dictionary meaning of the word. A key element of that content 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.

45. 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”.  3

[15] The facts of the present matter do not establish that Fr Farrugia consulted with Mrs Farrugia as the term “consult” is to be understood in light of the relevant authorities.

[16] It is important to put the evidence of Fr Farrugia into context. In his witness statement, Exhibit R1 Fr Farrugia identifies that a review of parish administration commenced in September 2016. Fr Farrugia then says:

“6. Whilst the general review and discussions over my Parish were being conducted, the Applicant went on personal leave and with workers compensation entitlements from around 14 January 2017. The Applicant came back to work on a gradual return to work program from around 29 March 2017.

7. It was specifically during that period and where I managed the Parish without a Parish Secretary that I was able to really understand and examine my administrative/secretarial needs and what work needed to be done in that role - which I discovered was not enough work to warrant the hours the Applicant was contracted for. From the review I also made a number of changes to how the Parish operated.

9. I created a document which set out in detail my review of the operational changes made and which guided me to the conclusion that I no longer needed the Applicant's position any longer. I attach this document as "FVF-1".

10. After making these changes and after seeing what really needed to be done administratively wise at the Parish during the Applicant's absence, it became my firm conclusion that I just didn't need a full time Parish Secretary any longer.

11. Once I determined that I no longer needed that job being done by the Applicant or anyone, I contacted the Human Resources department of the Archdiocese. Karen Horner is the Human
Resources Manager at the archdiocese and has assisted and guided me in HR matters where needed.

Consultation Process and Redeployment attempts

12. I wrote and then emailed a letter to Karen dated 26 June 2017, which set out my intention to start the redundancy process with the Applicant and why I had that intention, and to request Karen's assistance. I attach this document as "FVF-2". This letter also attached my review document (FVF-1).

13. Karen then assisted me by informing me of my obligations on consultation under the relevant industrial instrument and what needed to be done and she helpfully guided me through the process.

14. My first step was to arrange a meeting with the Applicant, which I set for 2pm on 28 June 2017. At that meeting Karen Horner was present.”

[17] In his oral evidence Fr Farrugia identified a further step in the process. The letter dated 26 June 2017 (FVF-2) was drafted by Fr Farrugia’s legal representative, Mr Connolly after Fr Farrugia had contacted him for advice. 4

[18] The witness statement of Fr Farrugia suggests that the findings of his review of parish administration occurred during the period 14 January 2017 to 29 March 2017 whilst Mrs Pritchard was on workers compensation leave. However, the document FVF-1 is dated 26 June 2017 the same day as the letter FVF-2. It is irresistible to draw the conclusion that as both FVF-1 and FVF-2 were dated on the same day that they were prepared together and that the review findings document was prepared for the purpose of bolstering the contents of the letter from Fr Farrugia to Ms Horner.

[19] The importance in identifying Mr Connolly’s involvement in drafting the letter FVF-2 is that he could only have drafted that letter on the basis of the instructions given to him by Fr Farrugia. Although the letter was dated 26 June 2017 it was in draft form before that date but when Fr Farrugia precisely gave instructions to Mr Connolly is unknown. When Fr Farrugia sought advice from Mr Connolly the decision to make Mrs Pritchard redundant had been made. The opening sentence of the letter makes this clear:

“I write to you to inform you of my decision to make the position of Parish Secretary redundant at my Parish and-to seek your guidance and assistance in implementing my decision.”

[20] It is also clear from the contents of the letter drafted by Mr Connolly for Fr Farrugia that Fr Farrugia was aware that there were consultation requirements in relation to making Mrs Pritchard redundant. However, the letter as drafted by Mr Connolly appears to do no more than create an appearance of wanting to consult rather than showing any commitment to consult.

[21] The consultation meeting which occurred on 28 June 2017 was conducted by Fr Farrugia and Ms Horner according to a script prepared by Ms Horner. The script, FVF-3, merely gives lip service to the concept of consultation. The decision to make Mrs Prichard redundant was going to be implemented regardless of anything that Mrs Pritchard might say.

[22] Fr Farrugia in giving evidence on a number of matters was vague and inconsistent. When Fr Farrugia says:

“I essentially followed a script put together for me by Karen, given I am not very experienced in such matters.”

[23] I accept that he simply followed what others advised.

[24] Fr Farrugia, as the employer, has neatly been left carrying the can. The efforts of Mr Connolly and Ms Horner were nothing more than an exercise in trying to create an impression of consultation when it was never going to meet the requirements of consultation.

[25] In the present matter the advice given by Mr Connolly and Ms Horner to Fr Farrugia led him into dealing with consultation as being nothing more than a mere formality to be gone through. It was perfunctory in the extreme. There was no sense of any genuine desire to seek the views of Mrs Pritchard before a firm decision was made. Rather the decision was made and was to be implemented unchanged.

[26] Not only was the consultation a mere formality in relation to the decision to make Mrs Pritchard’s job redundant, and then to terminate her employment, it is also clear that the consultation in relation to redeployment was illusory.

[27] The evidence of Fr Farrugia is very clear that he had no other paid employment available for Mrs Pritchard. The very essence of his decision to make Mrs Pritchard’s job redundant and to terminate her employment was to remove paid employment from the parish and to have volunteers do any necessary work that Fr Farrugia could not do himself. Even the script prepared by Ms Horner only refers to redeployment in the context of vacancies outside St Augustine’s parish and therefore employment with new employers. Redeployment was illusory. What was offered to Mrs Pritchard was the possibility that she could apply for positions which were advertised. Mr Connolly sought to argue that that was sufficient to satisfy the requirement to consider reasonable redeployment. 5

[28] Fr Farrugia’s evidence was clear that redeployment of Mrs Pritchard into any other parish simply could not occur because each parish priest decides who they will employ. Fr Farrugia had no capacity to direct any other parish priest to employ Mrs Pritchard and the Archbishop could do no more that make strong suggestions to parish priests about whom they employ. 6

[29] Pointing Mrs Pritchard to advertisements for other clerical/administrative positions within the broader Catholic community was never going to amount to an attempt by Fr Farrugia to reasonably redeploy Mrs Pritchard. The reality of this matter is that there were no possible redeployment opportunities and any suggestion to Mrs Pritchard otherwise was simply an exercise in misleading her and was also an exercise in trying to create an appearance of genuine consultation when there was no genuine consultation.

[30] As Fr Farrugia did not comply with the requirement to consult in accordance with clause 8 of the Clerks – Private Sector Award 2010 then the dismissal of Mrs Pritchard cannot be a case of genuine redundancy for the purpose of s.389 and for the purpose of s.396(d) of the Act.

Other Initial Matters – s.396

[31] I now turn to the remaining provisions of s.396.

[32] In the present matter the Commission is satisfied and so decides that the application was made within the period required in subsection 394(2).

[33] In the present matter the Commission is satisfied and so decides that Mrs Pritchard was protected from unfair dismissal in that she had served the minimum employment period and was covered by a modern award.

[34] In the present matter the Commission is satisfied and so decides that Fr Farrugia was not a small business and that the Small Business Fair Dismissal Code does not apply. I make this decision relying on the position put to the Commission by Mr Connolly.

Merits of the application

[35] Having decided the initial matters I now turn to considering the merits of the application. The relevant legislative provision is s.387 which is as follows:

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

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

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.”

Whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees) – s.387(a) and Whether the person was notified of that reason – s.387(b) and If the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal – s.387(e)

[36] In the present matter Fr Farrugia makes no contention and led no evidence that the reason for dismissal related to the capacity or conduct of Mrs Pritchard. Therefore the matters identified in s.387(a), (b), and (e) are not relevant.

Any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal: s.387(d)

[37] This criterion has neutral value in the present matter. It is clear from the evidence of both Fr Farrugia and Mrs Pritchard that no attempt was made by Fr Farrugia or Ms Horner to advise Mrs Pritchard that she could have a support person present at the meeting on 28 June 2017 or at the proposed meeting for 30 June 2017. It is clear that because Mrs Pritchard was not advised that she had an entitlement to have a support person present the absence of any support person for Mrs Pritchard could never have been because of any unreasonable refusal by Fr Farrugia.

The degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal and the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal: s.387(f) and (g)

[38] These two criteria are always relevant as they both require consideration of the degree of impact.

[39] In the present matter the fact that Fr Farrugia was the employer and apart from Mrs Pritchard there were no other employees and no HR or IR expertise within the employers enterprise does not weigh in favour of a finding that the dismissal was fair. In the present matter Fr Farrugia had access to professional legal advice and to professional HR advice. The efforts made by Fr Farrugia’s adviser to create an appearance of procedural fairness rather than the reality of it weighs against the a finding that the dismissal was fair.

Any other matters that the FWC considers relevant: s.387(h).

[40] In the present matter the Commission must take into account the reasons advanced by Fr Farrugia for the dismissal of Mrs Pritchard; namely that he did not want to have anyone employed to do the job that Mrs Pritchard had been doing. The Commission must also take into account the evidence of Mrs Pritchard concerning her working relationship with Fr Farrugia and her contentions that the dismissal was not a case of redundancy as much of her job still remained to done by someone. The contentions were put by Mr Dircks on behalf of Mrs Pritchard as follows:

“29. We submit that there is no evidence beyond assertions that the Respondent no longer required the Applicant’s job to be performed by anyone, and that there is also no evidence beyond assertions that the purported redundancy was due to changes in operational requirements.

32. We submit that similarly the redundancy claim in this matter is a sham.

47. We submit that the dismissal was not a logical response to any change in the employer's operational requirements.

48. We submit that the redundancy has been contrived to support Father Victor Farrugia dismissing the Applicant for the personal reasons, as set out in detail in the Applicant’s witness statement.” 7

[41] The oral evidence of Fr Farrugia rambled and was difficult to follow in relation to some of the matters he spoke about. However there was a strong and consistent part of his evidence and that related to the reason for dismissing Mrs Pritchard. Fr Farrugia was very clear and strong in his evidence that whilst Mrs Pritchard had been off work on workers compensation he had come to realise that he simply did not need a full time employee in the role of Parish Secretary and that he could not justify paying $60,000.00 a year out of parish funds for a full time parish secretary. Fr Farrugia gave evidence that he made some minor changes to some of the administrative functions and allocated some work to volunteers and that as a result the parish was able to be run without any need for a full time parish secretary to be employed. Fr Farrugia gave evidence that since Mrs Pritchard’s dismissal that the parish had been administered effectively without a full time parish secretary.

[42] The arrangements put in place by Fr Farrugia were relatively simple and minor in nature but they do constitute a change in the operational requirements of the parish and they did enable the parish to function without the need to employ a full time parish secretary.

[43] The Commission does not accept the contention advanced by Mrs Pritchard that the redundancy claim was a sham or that the redundancy was contrived to support a dismissal based upon personal reasons. In the circumstances of the present matter it is understandable that Mrs Pritchard formed the view that she did. It is very clear from the evidence of Mrs Pritchard that there had been significant conflict between Mrs Pritchard and Fr Farrugia. The evidence of both Mrs Pritchard and Fr Farrugia make clear that the dismissal took place two weeks after Mrs Pritchard had been cleared to return to full time employment. It was not unreasonable for Mrs Pritchard to contend that her dismissal was for personal reasons rather than for redundancy.

[44] However, having the benefit of the sworn evidence of both Mrs Pritchard and of Fr Farrugia including the evidence given under cross examination it is clear that the decision to make Mrs Pritchard’s job redundant and then to dismiss her was not because of “personal reasons”, or because of any conflict between Mrs Pritchard and Fr Farrugia or because Mrs Pritchard had sustained a workplace injury. It is clear that Fr Farrugia genuinely came to the concluded view that he did not need a full time parish secretary and that he could not justify the continued payment of over $60,000.00 per annum for a full time parish secretary.

[45] This weighs in favour of a finding that the dismissal was not harsh, unjust or unreasonable.

[46] Against this is the fact that Fr Farrugia did not meet his consultation obligations under the Award.

[47] I note a decision of Watson VP in Maswan v Escada Textilvertrieb GMBH T/as Escada, where he said:

“[39] In my view a decision to dismiss on account of redundancy will only be harsh, unjust or unreasonable if the rationale for the decision is seriously undermined or if there is a serious error in procedure such that renders the termination unfair in the circumstances. Here the decision appears open to the employer to make. The failure to consult is not a trivial matter. But as it is clear that consultation was highly unlikely to have negated the operational reasons for the dismissal or lead to any other substantive change, I do not believe that the failure to consult prior to the date of termination rendered the dismissal unfair. Given the evidence in relation to the operational need to restructure, I am of the view that it is likely that Mr Maswan would have been dismissed in any event, even if timely consultation had occurred.” 8

[48] I accept that in some circumstances the failure to meet the requirement to consult will not render a dismissal for redundancy unfair. But that will not always be the case.

[49] In the present matter given the history between Mrs Pritchard and Fr Farrugia it was imperative that the consultation required by cl 8 of the Award be genuine. In the present matter the absence of genuine consultation weighs very heavily in favour of a finding that the dismissal was unfair.

Conclusion as to fairness

[50] Having taken into account each of the relevant matters under s.387 the Commission determines that the dismissal of Mrs Pritchard was unjust. In this matter the failure of Fr Farrugia to consult as required by the Award outweighs the fact that his decision to make Mrs Pritchard’s job redundant was reasonable. The denial by Fr Farrugia (acting on advice from Mr Connolly and Ms Horner) of Mrs Pritchard’s right to be genuinely consulted renders her dismissal unjust.

Remedy

[51] The relevant provision to start any consideration as to remedy for an unfair dismissal is s.390 which is as follows:

“390 When the FWC may order remedy for unfair dismissal

(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if:

(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and

(b) the person has been unfairly dismissed (see Division 3).

(2) The FWC may make the order only if the person has made an application under section 394.

(3) The FWC must not order the payment of compensation to the person unless:

(a) the FWC is satisfied that reinstatement of the person is inappropriate; and

(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.

Note: Division 5 deals with procedural matters such as applications for remedies.”

[52] As the Full Bench said in Nguyen v Vietnamese Community in Australia t/as Vietnamese Community Ethnic School South Australia Chapter:

“[9] The question whether to order a remedy in a case where a dismissal has been found to be unfair remains a discretionary one.” 9

[53] In considering whether or not I should exercise that discretion I have had regard to the structure of the remedy provisions in the Act.

[54] As s.390 makes clear, if the Commission decides to exercise its discretion, the process for determining a remedy requires firstly that the Commission consider the appropriateness of the primary remedy: reinstatement. If the Commission considers that reinstatement is an appropriate remedy then the Commission must deal with reinstatement in accordance with s.391. If, and only if, the Commission considers that reinstatement is an inappropriate remedy then the Commission must separately consider the appropriateness of compensation as a remedy. If the Commission considers that compensation is an appropriate remedy then the Commission must determine an amount of compensation in accordance with s.392. 10

[55] I have applied a similar thought process to determining whether or not I should exercise the discretion to grant a remedy in this matter.

[56] Not only are the parties in agreement, but it is plainly evident from the evidence that reinstatement is not an appropriate remedy. Compensation prima facie appears to be appropriate as a remedy for a dismissal that is unjust. However, having regard to all of the circumstances of this case I see no utility in exercising a discretion to grant a remedy. The decision to make Mrs Pritchard’s job redundant was sound and termination on the grounds of redundancy was inevitable. Mrs Pritchard was paid the appropriate redundancy payment and payment in lieu of notice on termination. Compensation if it was to be given to Mrs Pritchard should be given to compensate her for the manner of her dismissal. However, this is the very type of compensation which cannot be given by the Commission. Parliament in including s.392(4) has made this point very clear. Finally the decision as to the unjustness of her dismissal provides Mrs Pritchard with a measure of relief.

[57] In all of the circumstances of this matter the Commission determines that it will not exercise its discretion to grant a remedy in this matter.

COMMISSIONER

Appearances:

G. Dircks for the Applicant.

L. Connolly for the Respondent

Hearing details:

2017.

Melbourne:

October 7.

 1   Victorian Catholic Education Multi Enterprise Agreement, [2013] FWCA 8918 at Appendix 10.

 2   [2013] FWCFB 10165 at [28] – [32].

 3   Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v QR Limited[2010] FCA 591.

 4   Transcript at PN351 – PN357.

 5   Ibid at PN800 –PN819 and PN833 – PN838.

 6   Ibid at PN334 – PN341.

 7   Applicant’s outline of submissions, 21 August 2017.

 8   [2011] FWA 4239 at[39].

 9   [2014] FWCFB 7198 at [9].

 10   Colson v Barwon Health, [2014] FWCFB 1949.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR596778>