[2020] FWC 6357

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Paul Diemar
v
Voice Print Data
(U2020/3771)

COMMISSIONER HUNT

BRISBANE, 26 NOVEMBER 2020

Application for an unfair dismissal remedy – jurisdictional objection - dismissal case of genuine redundancy – jurisdictional objection upheld – application dismissed.

[1] On 28 March 2020, Mr Paul Diemar made an application pursuant to s.394 of the Fair Work Act 2009 (the Act) alleging that his dismissal from Voice Print Data (the Respondent) was harsh, unjust or unreasonable.

[2] In his Form F2 – Unfair Dismissal Application, Mr Diemar stated he believed his redundancy due to economic downturn was a fiction, and that the Respondent had terminated his position due to his pre-existing mental illness.

[3] On 16 April 2020, the Respondent filed its Form F3 – Employer Response to Unfair Dismissal Application, raising a jurisdictional objection to the application, on the grounds that the dismissal was a case of genuine redundancy. The Respondent stated that due to the effects of the COVID-19 pandemic, it had suffered a significant downturn in business and a slowdown in sales opportunities. Mr Diemar’s role was sales focused. Following a review of the organisation, the Respondent stated that particular roles were affected and employees occupying those roles had their employment terminated; Service Delivery Manager; Customer Service Coordinator; and Corporate Business Development Manager Qld (Mr Diemar’s role). The Respondent stated that Mr Diemar’s role was not covered by a modern award or enterprise agreement, and accordingly there was no legal obligation for a consultation process.

Legislation

[4] Section 385 of the Act provides that a person has been unfairly dismissed if the Commission is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(d) the dismissal was not a case of genuine redundancy.

[5] As set out above in s.385 of the Act, a person can only be found to have been unfairly dismissed if the Commission is satisfied the dismissal was not a case of genuine redundancy.

[6] Section 389 of the Act provides the meaning of genuine redundancy as follows:

“(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.”

[7] This decision determines the jurisdictional issue as to whether the dismissal was a case of genuine redundancy pursuant to s.389 of the Act. It does not traverse merit issues.

Background

[8] The Respondent is an information technology company that provides support to businesses through a range of voice, print and data services including, among other things, online backup services, cloud technology, data security, internet networks, and infrastructure design. 1

[9] Mr Diemar commenced employment with the Respondent on 29 July 2019 as Corporate Business Development Manager (CBDM).

[10] As CBDM, Mr Diemar was responsible for managing and generating revenue from the Respondent’s clients and dealer channel, and sourcing new clients. While the Respondent states that he remained in this role until his dismissal by way of redundancy on 25 March 2020, Mr Diemar disputes this, stating that he was offered and accepted the position of National Channel Manager on 3 October 2019.

[11] In late-January 2020, Mr Diemar commenced an extended period of leave due to a medical condition. He did not return to the office prior to his redundancy, and during this period of leave Mr Luke Briggs, National Sales Director and Mr Diemar’s direct manager, assumed most of the duties associated with the CBDM role. 2 I have satisfied myself that Mr Diemar’s period of continuous service is at least six months, even taking into account a lengthy period of unpaid leave which does not count towards the minimum period of six months.

[12] Around mid-March 2020, Mr Jason Wade, Chief Executive Officer (CEO), undertook a review of the Respondent’s business. At this time the COVID-19 pandemic began to impact the business market, with the Respondent’s sales opportunities, income and cashflow affected. It was determined that the majority of duties associated with the CBDM role were not being performed and had not been required during Mr Diemar’s absence. The remaining duties had been absorbed by other roles, including by Mr Briggs.

[13] The Respondent submitted that as part of this review, three roles, including the CBDM role were made redundant. As a result of downsizing, no other suitable alternative roles were available for Mr Diemar to be redeployed to.

[14] On 25 March 2020, Mr Wade contacted Mr Diemar by phone to advise that his employment was being terminated due to redundancy, effective immediately. A letter confirming this was received by Mr Diemar as follows:

“Wednesday, March 25, 2020

Private and confidential

Paul Diemar
[redacted]

Dear Paul,

Termination of your employment by reason of redundancy

The purpose of this letter is to confirm the outcome of a recent review by Voice Print & Data Australia Pty Ltd (the employer) of its operational requirements and what this means for you.

As a result of the current economic downturn, your position of Corporate Business Development Manager is no longer needed. Regrettably, this means your employment will terminate. This decision is not a reflection on your performance.

The employer has made attempts to find you an alternative position within the business and any associated entities however we have not been successful in identifying a suitable role.

Your employment will end immediately. Based on your length of service, your notice period is one week. In lieu of receiving that notice, you will be paid your one weeks’ notice, along with your accrued entitlements and any outstanding pay up to and including your last day of employment.

…

We thank you for your valuable contribution during your employment with us. Please contact me if you wish to obtain a reference in the future.

Yours sincerely,

Jason Wade
CEO & Managing Director”

[15] Mr Diemar disputes his notice period, stating he was contractually entitled to 2 weeks’ notice.

[16] The question to be determined by the Commission is whether Mr Diemar’s dismissal was a case of genuine redundancy, having regard to whether the position is no longer required to be filled by anyone, whether any requirements for consultation have been met, and whether Mr Diemar could have been reasonably redeployed.

Hearing

[17] I convened a telephone hearing of the parties on 15 July 2020. Mr Diemar appeared and gave evidence on his own behalf. Ms Annalise Thompson, Senior Lawyer of O’Reilly Workplace Law was granted permission to appear for the Respondent.

[18] Mr Ben Spratt, Solutions Consultant at Onehub Business appeared and gave evidence for Mr Diemar. Mr Jason Wade, CEO, and Mr Luke Briggs, National Sales Director appeared and gave evidence for the Respondent.

Evidence of the Respondent

Evidence of Luke Briggs

[19] Mr Briggs made two witness statements 3 and appeared and gave evidence at the hearing of this matter. Mr Briggs is a Director of the Respondent, having held this position since 24 November 2010. He has also held the position of National Sales Director since 2009.

[20] Mr Briggs was Mr Diemar’s direct manager throughout his employment with the Respondent. Mr Diemar’s duties centred around managing and sourcing sales from both existing and new clients; the role was comprised almost entirely of sales duties. 4

[21] Mr Briggs gave evidence that on or around 28 January 2020, Mr Diemar informed him that an incident had occurred over the weekend of 26 January 2020, and that he would require an extended period of leave from work due to a medical condition. Mr Briggs stated he was supportive of this.

[22] Mr Briggs contacted Mr Wade to inform him that Mr Diemar would require an extended period of leave from work due to a medical condition. It was agreed that Mr Briggs would assume the duties of the CBDM role, until such time as Mr Diemar was fit to return to work. Mr Briggs’s evidence was that he took on all sales functions and sales forecasts of the CBDM role, including managing client relationships and prospecting for new clients.

[23] Mr Briggs stated he also delegated some of the CBDM duties, including re-signing existing clients and administrative paperwork tasks to other members of the sales team.

[24] Mr Diemar provided the Respondent with medical certificates for 28 January, 29 January and 3 February to 17 February 2020, and provided regular updates about needing more time away from work. Mr Briggs was supportive of these requests.

[25] Mr Briggs stated that from February to March 2020, the Respondent noticed a decline in sales from both existing and new clients, due to the COVID-19 pandemic and related government restrictions. Mr Briggs noticed a steady decrease in the duties he was performing in association with the CBDM role.

[26] Mr Wade consulted him about a review of the Respondent, with Mr Wade concluding that the Respondent had an excess capacity in the corporate sales team. 5 Mr Wade had determined that the Service Delivery Manager, Customer Service Coordinator and CBDM roles were no longer required, to which Mr Briggs agreed. Mr Briggs confirmed with Mr Wade that he was only performing minimal duties associated with the CBDM role. Mr Wade decided those duties could be permanently redistributed to Mr Briggs, and the balance of any remaining duties associated with the CBDM role would continue to be performed by sales administration and sales support.

[27] Mr Briggs understood that Mr Wade decided that the CBDM role would be made redundant.

[28] Mr Briggs stated that he did not expect the Respondent’s sales levels to return to pre-pandemic numbers until around September 2021, and accordingly the Respondent could not justify maintaining the CBDM role. Mr Briggs stated the Respondent does not plan to increase the size of the corporate sales team or to engage a CBDM or similar role. 6

Second Statement of Luke Briggs

[29] Mr Briggs filed a further witness statement in response to Mr Diemar’s evidence. Mr Briggs stated that he did not, at any point offer to Mr Diemar the role of National Channel Manager. He denied that Mr Diemar was ever appointed to that role. He restated that Mr Diemar had held the position of CBDM. 7

[30] He gave evidence that during a meeting on or about 3 October 2019, he asked Mr Diemar, along with the rest of the team, to assist with some of the duties of the Dealer Channel Support Team. Mr Adam McManus, National Channel Manager, had given one months’ notice of his resignation. Mr Briggs’ evidence was that during the meeting it was made clear to the team, including Mr Diemar that they would be assisting with the additional duties on a temporary basis. 8

[31] Mr Briggs stated it was never discussed that Mr Diemar would assume the role of National Channel Manager or leave his CBDM role. Following the departure of Mr McManus, Mr Keith O’Connell, Channel Manager, assumed “most, if not all” of the National Channel Manager duties. 9

[32] Mr Briggs stated that in the event Mr Diemar had been provided a new position, which the Respondent strongly denied, Mr Diemar would have been provided with an updated contract and this did not occur. Mr Briggs stated that Mr Diemar did not have the skills nor the experience to obtain the position of National Channel Manager, which is a very different role to the role of CBDM. The role requires a minimum of two years’ employment with the Respondent; at the time Mr Diemar had only been employed for three months.

[33] Mr Briggs denied that there was any email sent congratulating Mr Diemar on being appointed the role of National Channel Manager. Mr Briggs stated that he issued a newsletter titled ‘Welcome to the VPD Newsletter- October 19 Edition’ where an update was provided to other colleagues about Mr McManus’ departure stating:

“In other news, you may have heard that Adam McManus has decided to move on from VPD, we wish him well and thank him for his effort and hard work with the channels over the last number of years.

While we are losing a member of our channel support team, we are growing our resources with the following:

• Paul Diemar is stepping from VPD Direct Corporate Sales into the Deal Channel Support Team to assist with quoting and general/technical presales questions.

• We have Andrew Cooper our Senior Systems Administrator & Michael Brennan one of our Senior Systems Engineers, both available to the Dealer Channel for high end and complex solutions design. (SQ as normal, will be escalated internally when requested or required.)

• Myself, Keith & Jordan will continue our support and we look forward to an increase of SQ’s and submitted sales as we hit the home straight for the calendar year.”

[emphasis by Mr Briggs].

[34] Mr Briggs stated this announcement meant that Mr Diemar was to continue in his CBDM role but would assist in the Dealer Channel Support Team. Mr Diemar did not vacate his CBDM role, nor receive a pay increase for taking on the additional duties as they were considered minor. 10

[35] Mr Briggs gave evidence that Mr O’Connell informed him that Mr Diemar had changed his title on LinkedIn to ‘National Channel Manager’. Mr Briggs called Mr Diemar several times seeking removal of the title as it was not correct; however, Mr Diemar did not comply with the direction. 11

Oral evidence of Mr Briggs during the hearing

[36] During the hearing Mr Briggs denied that Mr Diemar had performed the duties of a National Channel Manager. He stated, “He did perform duties where … quoting and/or answering questions around technical aspects of the solutions we provide. But as far as … dealer principles and meeting with them … vendors, and providing overall strategy and direction, no.” He stated there was never a substantial change to Mr Diemar’s duties or role.

[37] In cross-examination, Mr Briggs was asked when it was that he directed Mr Diemar to change his LinkedIn title. Mr Briggs stated these requests were made via text and by phone. In answering a question from me, Mr Briggs responded:

“Paul would frequently put things up there that weren’t in line with what the ICT policies and what we want to put out to the market. So from time to time I’d ask him to take that down…. Keith who was effectively the Channel Manager at the time came to me and said Paul had put up that he was the Channel Manager … conversation ensued around not having that on there and changing it, but that was never complied with. Post that everyone went on holidays, and then Paul had some medical issues he had to attend to, and basically from there we never really got a chance to address it…”

[38] His evidence was that he asked Mr Diemar around three or four times to remove his incorrect title from LinkedIn. In cross-examination, Mr Diemar put to Mr Briggs that he had never been asked to take down his title from LinkedIn. Mr Briggs responded that he informed him in person, around November 2019 in his office to do so.

[39] Mr Diemar put to Mr Briggs that there had been a meeting after the group meeting, attended only by Mr Diemar, Mr Briggs and Mr O’Connell, and that his regular quoting demonstrated that he was performing the role. Mr Briggs denied that he had been offered the role at this time. He responded as follows:

“Well I’m not sure what he’s referring to … Mr McManus still worked for us at that point, why would I even talk to him about that? And I also say on LB-2, that its pretty clear that he stepped in to help, basically assist was the word I used, with quoting … and general technical presales (?) questions/ Yes, in our team people have various levels of expertise…that’s not to say that Paul didn’t do a quote…”

[40] Mr Diemar put to Mr Briggs that he offered for him to take over ‘cloud’. Mr Diemar stated that focus teams were created, and he was cloud manager. Mr Briggs responded:

“We all do all products…that is the business of what we do. When we put working groups together, we will select certain people from certain teams to get the best outcome…I selected certain people that I felt suited certain roles…in order to get the best outcome.”

[41] I questioned Mr Briggs if Mr O’Connell had, from October 2019 informed him that Mr Diemar was “telling the world he’s National Channel Manager”, and Mr O’Connell was upset by that? Mr Briggs answered, “That’s correct.”

Evidence of Jason Wade

[42] Mr Wade made two witness statements 12 and appeared and gave evidence at the hearing in this matter. Mr Wade is Director and CEO of the Respondent.

[43] Mr Wade’s evidence confirmed that Mr Diemar’s role as CBDM was sales-oriented, responsible for managing the Respondent’s direct clients, assisting in the dealer channel, sourcing new clients, and generating revenue and sales from the dealer channel and new clients. His evidence was that the role was “nearly entirely comprised of sale duties”. 13

[44] Mr Wade stated the Mr Diemar was subject to a six-month probationary period, and that his employment was not covered by a modern award or enterprise agreement.

[45] Mr Wade gave evidence that around late October 2019, approximately three months after Mr Diemar had started employment with the Respondent, Mr Diemar had approached him requesting a pay rise and promotion. Mr Wade informed him: 14

• it was not the company’s practice to offer promotions or pay increases to employees who were still within their probationary period;

• in any event, it was part of Mr Diemar’s usual responsibilities to source and obtain new clients for the company, for which he was remunerated and was entitled to receive ongoing commissions; and

• if Mr Diemar continued to perform well in his role, he may be considered for a promotion and/or pay increase in future.

[46] Mr Wade’s evidence was that from 29 July 2019 to 25 March 2020, Mr Diemar always held and performed the role of CBDM. He stated there was no change to his position title or remuneration.

[47] On or about 28 January 2020, Mr Briggs informed him that Mr Diemar needed to take an extended period of leave from work which Mr Wade supported. Mr Wade did not know the nature of Mr Diemar’s medical condition.

[48] The last day Mr Diemar attended work was 24 January 2020. Mr Diemar accessed his accrued paid personal leave and annual leave for his period of absence, and once exhausted, took unpaid leave. From around 28 January 2020, Mr Briggs assumed most of Mr Diemar’s duties on a temporary basis.

[49] Mr Wade gave evidence that from late January 2020 onwards, the COVID-19 pandemic increasingly impacted the Respondent. Several existing clients put their plans on hold and paused spending, due to fear of the global economic decline. Further, due to government restrictions, the sales team was unable to travel or meet with potential new clients to source new business, therefore jeopardising the Respondent’s primary revenue source.

[50] Due to the COVID-19 pandemic, there was an increase in demand for support for existing clients to whom the Respondent provided internet networks and cloud technologies. This did not increase sales, only the demand for administrative support. Approximately 2 March 2020, Mr Wade hired an employee in the role of Inside Sales Support to take on these additional administrative support tasks. This role required a very different skillset to that of the CBDM role and was substantially less senior with a lower salary. 15

[51] Following the government’s implementation of business closures from 23 March 2020, Mr Wade gave evidence that the Respondent noticed an immediate and significant toll on its sales as many of its largest clients were restaurants, bars and pubs which pay on a “per seat” basis. He gave evidence that at this time, a single client caused approximately $30,000 immediate reduction in monthly revenue. 16 Over the next week, the Respondent lost a further approximate $10,000 in recurring monthly revenue.17

[52] Due to these impacts of the COVID-19 pandemic, Mr Wade determined that immediate measures needed to be taken to ensure the Respondent’s financial viability. This was a decision made before the announcement of the JobKeeper programme.

[53] Wage costs were one of the largest expenses for the Respondent, therefore Mr Wade’s initial focus was to reduce that cost on an ongoing basis over the coming months and coming year. He stated:

“• we needed to retain staff in roles that provided support to clients and were revenue generating (for example staff assisting clients with remote work arrangements, technical support staff, and projects delivery engineers) and we needed to reduce numbers in areas where we would have a decline in work demand and or who were not revenue generating;

• sales and sales related work had already rapidly declined and were likely to continue to decline for the foreseeable future. As a business we needed to focus on protecting our remaining revenue streams and minimising costs wherever we could;

• because of the reduced sales related work, I needed to significantly reduce the size of the corporate sales team, as that would be the area that would have the least work and where we already had excess capacity; and

• of the 3 of sales focused roles in the sales team, we could manage that function by reducing the number to just 2, with some duties being redistributed to Mr Briggs who had a background in sales. The roles that I decided we no longer required in the business were the Service Delivery Manager, Customer Service Coordinator and also the CBDM role.” 18

[54] Having considered the long-term effects of the COVID-19 pandemic, Mr Wade concluded the Respondent no longer required the role of the CBDM. He stated that no one has been hired in that position since Mr Diemar’s dismissal, nor have any sales employees been recruited.

[55] After consulting Mr Briggs, Mr Wade decided to permanently redistribute the CBDM duties that were temporarily being performed by Mr Briggs to Mr Briggs on a permanent basis, with the remaining duties to be performed by Mr O’Connell. 19 He stated that on this basis alone, he made the decision to make the CBDM role redundant. His evidence was that he also had made the decision to terminate the roles of Service Delivery Manager and Customer Service Coordinator, which were terminated prior to Mr Diemar’s role being made redundant.

[56] Mr Wade’s evidence is that he did not fill the role of Customer Service Coordinator, a role which had been offered to Mr Stalker. He decided to require members of the cloud provisioning team to perform some of those roles which had been performed by the Customer Service Coordinator. 20

[57] Mr Wade gave evidence that he could not see the Respondent’s sales returning to what they were before the pandemic, until at least mid-2021, and he does not intend on replacing the CBDM role.

[58] Mr Wade’s evidence is that he chose to make the CBDM role redundant, not Mr Diemar. He stated that the decision had nothing to do with Mr Diemar’s medical condition; rather it was a decision made in the interests of the Respondent.

[59] In considering redeployment, Mr Wade stated that there were no available roles to which Mr Diemar could be redeployed. While Mr Wade wished to consult with Mr Diemar prior to making his decision, in Mr Diemar’s absence it was difficult to effect communication, and he needed to give effect to his decision quickly. 21

[60] Mr Wade contacted Mr Diemar on 25 March 2020 to advise that his position was being made redundant; and he sent the letter confirming the termination of his employment that same day.

[61] Mr Diemar’s final pay included commission for sales for the period of February/March 2020, even though Mr Diemar did not have a contractual entitlement to those commissions due to his absence on unpaid leave at the time. He stated this was a gesture of goodwill.

[62] On 30 March 2020, the Federal Government announced the JobKeeper subsidy; this was after Mr Diemar’s termination on 25 March 2020. The Respondent’s accountant informed Mr Wade around 10 May 2020 that the Respondent had experienced an approximate 30% downturn and therefore qualified for the JobKeeper subsidy.

Second Statement of Jason Wade

[63] Mr Wade filed a further witness statement in response to Mr Diemar’s evidence. He stated that Mr Diemar was never offered or appointed to the role of National Channel Manager. Such a decision would have required his approval, and the issuing of a new employment contract to Mr Diemar, neither of which occurred. He stated that Mr Diemar lacked the skills and experience required of a National Channel Manager; and that at all times Mr Diemar remained in the position of CBDM. 22

[64] In relation to Mr Diemar’s medical condition, Mr Wade repeated that he was unaware of the nature of Mr Diemar’s medical condition during his employment with the Respondent. Mr Wade was only informed that Mr Diemar would be away for a period due a medical condition. He was not aware that Mr Diemar had been admitted to hospital during his absence. Further, he stated his understanding was that Mr Diemar had failed to submit medical certificates after February 2020, and did not remain in contact with his supervisor, Mr Briggs.

[65] Mr Wade stated that the decision-making process to remove the roles began prior to Mr Diemar’s suggestion that he was ready to return to work. His decision to make Mr Diemar’s role redundant was a commercial one, in response to the economic impact of the COVID-19 pandemic. He confirmed the role was no longer required, and Mr Diemar’s medical condition and possible return to work did not form part of the decision-making process. 23

[66] Mr Wade stated that when an employee takes personal leave, it is not customary for him to contact them directly. In his opinion, when employees take personal leave they should be resting and not thinking about work or answering calls from work. His evidence was that as he did not know the nature of Mr Diemar’s medical condition, he also did not feel it appropriate to contact him. He stated, “In any event however, I was aware that Mr Briggs had not received any contact from the Applicant from about February 2020 onward”. 24

[67] Mr Wade denied an allegation by Mr Diemar that he yelled at Mr Diemar during a phone conversation on 25 March 2020, where Mr Wade informed Mr Diemar of the redundancy. He denied saying the words, “Are you threatening me?”, and denied that he was hostile or abusive during this conversation. 25 Mr Wade stated that he had tried to calmly explain the situation and reasons for the decision, including that Mr Diemar’s role was not the only role affected. His evidence was that Mr Diemar yelled and screamed and eventually hung up the phone. Mr Wade attempted to call Mr Diemar back but there was no answer.26

[68] Mr Wade stated that the roles of Service Delivery Manager and the Customer Service Coordinator were terminated during their probationary periods. He corrected his first statement by confirming that those two roles ended on 20 March 2020.

[69] Relevant to the dismissal of Mr David Stalker, Service Delivery Manager, Mr Wade gave evidence that on 20 March 2020 he had a meeting with Mr Stalker. At that time, Mr Stalker was within his six-month probationary period, and Mr Wade considered that he had not been performing well. Mr Wade informed Mr Stalker at this meeting that his employment was being terminated. He gave evidence that separately, he had also decided that the Respondent no longer required a Service Delivery Manager and the role would not be replaced, given the downturn in business. 27

[70] Mr Wade stated that he informed Mr Stalker that he had, in practice, been performing the requirements of a Customer Service Coordinator, a role that was going to become vacant. He offered this role to Mr Stalker, although it paid less than his role, and had less responsibility. Mr Stalker chose not to accept this offer, and instead tendered his resignation, despite having been advised that his employment in the role of Service Delivery Manager would be terminated.

[71] Mr Wade gave evidence that Mr Stalker did not perform two roles; he was only employed and performed as the Service Delivery Manager. He gave evidence that Mr Stalker was paid his entitlements on termination of his employment, and any additional pay he may have received is confidential. 28 He conceded that on occasions he has offered departing employees a nominal additional payment as a gesture, to assist them moving on to gain new employment. His evidence was that he intended to offer Mr Diemar an additional payment on termination, however due to his aggressive and inappropriate tone during the call on 25 March 2020, he did not make this offer. He stated the nominal additional payment, being less than $5,000, would not have significantly impacted the Company.29

[72] In disputing Mr Diemar’s claim that he was the highest revenue-generating employee, Mr Wade stated that Mr Diemar did not have access to information regarding the performance of other employees. He stated that it was Mr Diemar’s responsibility to bring in new business for the Respondent, and it was not uncommon for employees to bring in highly valuable clients.

[73] Mr Wade conceded that on termination Mr Diemar had been paid one weeks’ notice on account of his length of service, instead of the required two weeks’ notice within the common law employment agreement. This was rectified on or about 10 July 2020.

[74] Mr Wade gave evidence that a Project Manager/Team Leader role is one the Respondent maycreate in the future, however it did not exist at the time of making his second statement, and certainly did not exist at the time of Mr Diemar’s dismissal. It was not a role that Mr Diemar could have been redeployed into.

[75] A sale of the company occurred in late June 2020. Mr Wade gave evidence he and Mr Briggs began talking with potential buyers of the company around March 2020. The sale that eventuated in June 2020 was not ‘in the works or imminent’ at the time Mr Diemar’s employment was terminated. However, Mr Wade’s evidence was that as they were trying to attract buyers, this increased the need to mitigate the Respondent’s COVID-19 related revenue losses. He noted the Respondent’s current financial position (as at the time of his further witness statement) is not indicative of what it was ‘3 or 4 months ago’.

[76] Mr Wade gave evidence the National Channel Manager position was not replaced after Mr McManus resigned; those duties were redistributed to various team members, primarily Mr O’Connell. He concluded that it was not a role available for redeployment at the time of Mr Diemar’s dismissal.

[77] As to the effects of the pandemic and the timeline leading to Mr Diemar’s dismissal, Mr Wade gave evidence that while the effects of the pandemic became apparent from late January 2020, it was not until the announcement of venue closures from 23 March 2020 that the Respondent saw significant losses occurring. This was further impacted by the various states and federal government advice from around early March 2020 for people to stay home if possible, which caused prospective clients to decline new meetings. 30

[78] Mr Wade also noted it was not until 10 May 2020 that he became aware the Respondent would qualify for the JobKeeper subsidy; however his evidence was that even if the Respondent had qualified earlier, this would not have justified continuing to employ the CBDM role which was no longer required and will not be required for the foreseeable future. 31

[79] Mr Wade’s further evidence also confirmed that Mr Diemar’s role has not been filled by anyone, rather most of the duties of the CBDM role have been absorbed by Mr Briggs. He stated a role can be genuinely redundant even when some of the duties associated with the role have been redistributed among other employees.

Oral evidence of Mr Wade during the hearing

[80] During the hearing Mr Wade stated that the Respondent had never been a “cash rich” business, and confirmed that the COVID-19 pandemic had a clear effect on its financial viability, including that customers put plans on hold, or looked at payment plans.

[81] In cross-examination, Mr Wade conceded that JobKeeper payments were not offered to Mr Diemar, however he noted that the dismissal occurred on 25 March 2020, and the JobKeeper announcement was not made until 30 March 2020. Mr Wade agreed that approximately 25 employees of the Respondent’s business were in receipt of JobKeeper payments.

[82] As to Mr Stalker being offered the role of Customer Service Coordinator, Mr Wade stated that as Mr Stalker was working within that team, he considered it sensible to offer him that role as a form of continuity; however Mr Stalker did not accept that offer. Mr Diemar was not offered the role due to the training required and Mr Wade did not consider it to be an effective alternative.

[83] Mr Wade agreed in cross-examination that no other employees were made redundant at the time, and in fact the dismissals of two other employees were by way of termination during a probationary period and a resignation.

[84] Mr Wade denied that Mr Diemar had been singled out. He stated that he made the best decision he could with the circumstances that existed at the time and the cost-cutting measures necessary to ensure the Respondent’s financial viability.

Respondent’s Submissions

[85] The Respondent submitted that the Commission does not have jurisdiction to deal with the application filed by Mr Diemar because the dismissal was a case of genuine redundancy.

[86] The Respondent submitted that Mr Diemar’s role was a purely sales-focused role, responsible for managing and generating revenue from the Respondent’s clients and dealer channel and sourcing new clients. The Respondent submitted that Mr Diemar did not perform any other role during his employment with the Respondent, nor was his role covered by a modern award or enterprise agreement. Accordingly, no consultation obligations existed, and the Respondent needed to make a decision quickly. It was submitted that Mr Diemar’s absence due to illness made it difficult to communicate with him prior to the decision being made.

[87] As to the elements of genuine redundancy under s.389 of the Act, the Respondent’s submissions are summarised as follows:

• (i) job lost due to operational requirements: The Respondent submitted that a job involves “a collection of functions, duties and responsibilities entrusted, as part of the scheme of the employer’s organisation, to a particular employee”. 32 It submitted that when an employer undergoes a restructure, the relevant test is whether the job in question has survived the restructure, rather than whether the duties have survived in some form.33 It stated, therefore, an employee’s role may be genuinely made redundant even where aspects of the employee’s duties are still being performed by other employees.34 The Respondent submitted that due to the decline in sales as a result of the COVID-19 pandemic, it no longer required the purely sales-focussed role of CBDM to be performed by anyone. It stated some minor duties of the role are being performed by Mr Briggs and other employees, however the role of CBDM was no longer being filled by any employee and no longer exists. It submitted that for the foreseeable future, the Respondent will not require this purely sales-oriented role to be performed. It cited the decision in Steven Lakhani v Westpac Banking Corporation,35 noting there is no evidence to support Mr Diemar’s allegation that the restructure was implemented as a means to remove him from his employment with the Respondent. The Respondent submitted the role was made redundant only as a means for ensuring the financial viability of the business, and not for any other reason. The Respondent submitted Mr Diemar’s role is no longer required to be performed by anyone because of changes in the operational requirements of its enterprise, and therefore the first element of s.389 is met.

• (ii) consultation obligations: It submitted this element does not apply, as the parties agree that Mr Diemar’s employment was not covered by a modern award or enterprise agreement.

• (iii) reasonable redeployment: The Respondent submitted the question of whether redeployment would have been reasonable is to be applied at the time of the dismissal, 36 being 25 March 2020. It stated the test for reasonableness of redeployment is assessed on a case by case basis, having regard to the approach to redeployment adopted by both the employer and the employee.37 It stated additional factors include the nature of any available role, the qualifications required to perform the job, the remuneration offered, and the employee’s skills, qualifications and experience.38 The Respondent submitted that due to a downsizing of its business, there were no roles available at the time of Mr Diemar’s dismissal, to which he could be redeployed. It stated all current roles were occupied by other employees, and the Respondent did not have plans to employ or create any new positions; and further, the Respondent was not obliged to create a new role for Mr Diemar. It conceded that around 2 March 2020, it engaged an employee in the role of Inside Sales Support, however this role is primarily an administrative role, requiring a different skill set than that of Mr Diemar’s, and was substantially less senior and with a salary less than Mr Diemar’s contracted annual remuneration. The Respondent noted, this role was also filled several weeks before Mr Diemar’s role was made redundant, and before the “true impact of the pandemic had become apparent”. It submitted it does not have any related entities. Accordingly, the third element of s.389 has been reasonable met, and Mr Diemar’s role was genuinely made redundant on 25 March 2020.

Evidence of Mr Paul Diemar

Statement of Evidence

[88] Mr Diemar began employment with the Respondent on 29 July 2019 as a CBDM. Within this role he was to promote the Respondent’s products and services to the corporate and enterprise market. 39 He gave evidence that after a highly successful first three months, he had generated substantial new business revenue for the Respondent.40

[89] In October 2019, Mr Adam McManus, National Channel Manager resigned from his role. Mr Diemar stated that on 3 October 2019, during a meeting with Mr Briggs and Mr O’Connell, he was offered and accepted the vacant position of National Channel Manager. Mr Diemar stated a group email was sent on 15 October 2019, advising of his appointment to the role. 41

[90] Neither party produced in evidence any such email of 15 October 2019, however I understand it to be the same as the attachment to Mr Briggs’ statement where Mr O’Connell prepared a VPD Newsletter for Mr Briggs on 10 October 2020. Mr Briggs’ evidence is that he circulated it on 10 October 2020, with the relevant part cited above at [33].

[91] Mr Diemar’s evidence is that after a month in this new position he asked Mr Briggs about the pay rise associated with the new role. Mr Briggs directed him to speak with Mr Wade. His evidence is that when he asked Mr Wade for the pay increase, Mr Wade stated he wasn’t prepared to apply the salary to the position that is associated with the role. 42 Mr Diemar’s evidence is that while he was unhappy with Mr Wade’s response, he was still on probation and was unwilling to press the issue further.43

[92] His evidence was that from this time he worked in the National Channel Manager role, and Mr Briggs was performing all duties associated with Mr Diemar’s earlier CBDM role. 44

[93] He gave evidence that in late January 2020, he became hospitalised after a major mental illness issue. 45 He stated that upon returning to work he was informed by Mr Wade that his position was redundant effective immediately due to economic downturn. His evidence is that the paperwork for his redundancy noted it was his CBDM role being made redundant.46

Oral evidence of Mr Diemar during the hearing

[94] In cross-examination Mr Diemar conceded that on accepting employment with the Respondent he signed an employment contract for the role of CBDM and did not receive any other employment contract or position description during his employment with the Respondent. He confirmed that he was provided an email address by the Respondent, and he had an email signature stating his role as CBDM. When asked whether his email signature changed during the employment, Mr Diemar responded that it did.

[95] When questioned about an email sent by Mr Diemar on 20 December 2019, some two months after he stated that he was appointed to the National Channel Manager role, he conceded this email included the email signature with his name and position title as CBDM for Queensland. The following was put and answered in cross-examination:

Ms Thompson:	So it’s not true that your email signature changed, is it?
Mr Diemar:	My email signature did change. My email signature was originally ‘SMB channel manager’.
Ms Thompson:	Did your email signature ever change from CBDM?
Mr Diemar:	It never changed from CBDM.

[96] As to Mr Diemar’s experience immediately prior to being employed by the Respondent, he agreed that he previously worked in a CBDM role for another company. He agreed his role with the Respondent was “sales-focussed” for direct clients.

[97] As to a ‘Channel Manager’ role, when questioned whether he would agree that a Channel Manager would require channel partner experience, Mr Diemar disputed this, stating that Channel Managers often come from sales backgrounds. Mr Diemar stated that he did have experience dealing with channel partners prior to his employment with the Respondent.

[98] When questioned about the October 2019 newsletter for which Mr Diemar relies on as announcing his appointment to National Channel Manager, where it states that he will “assist with quoting and general/technical presales questions”, he submits that it meant he would be assisting the dealers as opposed to assisting the other team members.

[99] Mr Diemar referred to an email in Annexure M of his witness statement, suggesting he was the main recipient regarding emails with channel partners. I note the majority of these emails were sent to both Mr O’Connell and Mr Diemar and largely within February 2020 when Mr Diemar was not at work. Mr Diemar stated that if he had the opportunity to provide evidence of emails sent from October 2019 it would demonstrate he was performing the Channel Manager role, but he was now locked out of emails and could not provide them.

[100] Mr Diemar conceded that during his three months’ absence from the Respondent his duties would have been reallocated to others to perform.

Witness Statement of Ben Spratt

[101] Mr Ben Spratt provided a witness statement in support of Mr Diemar. Mr Spratt was a Solutions Consultant at Onehub Business, a reseller of the Respondent’s products and services; a Channel Partner. 47

[102] Mr Spratt stated he was aware Mr Diemar commenced employment with the Respondent on 29 July 2019 in the role of CBDM. He stated that Mr Diemar was selling direct to market, and not via Channel Partners, therefore Mr Spratt had very little interaction with him at that time; the majority of Mr Spratt’s dealing were through the Channel Managers, Mr McManus and Mr O’Connell. 48

[103] Mr Spratt’s evidence was that on 15 October 2019 he had received a group email from Mr Briggs advising that Mr Diemar had now been appointed the position of National Channel Manager. Mr Spratt stated he was happy for Mr Diemar and the following text messages were sent between them:

Mr Spratt: Mate!!! Stepping up into the channel support team aye.

Applicant: Yeah how did you know?

Mr Spratt: Saw the vpd news letter haha

Applicant: Link me up? I don’t see that shit

Applicant: [redacted – work email address]

Mr Spratt: It’s literally nothing special, I’ll flick it through to you. I wouldn’t even call it a news letter. More like an email from luke to everyone.” 49

[104] Mr Spratt stated from that date onwards, he directed his channel partner enquiries to Mr Diemar, who provided him with the service and expertise he required. He stated that when he left Onehub in December 2019, Mr Diemar was still working in the National Channel Manager role. He could not speak to Mr Diemar’s duties beyond December 2019.

[105] The Respondent objected to Mr Spratt’s evidence and denied that he was a Solutions Consultant at Onehub Business. The Respondent stated that Mr Spratt was a Solutions Consultant for Vodafone and Optus, neither of which are channel partners. Email signature blocks from Mr Spratt were submitted by the Respondent as follows:

(a) Email from 9 September 2019:

Ben Spratt
Solutions Consultant / Optus Business Centre Brisbane South

(b) Email from 21 November 2019:

Ben Spratt
Business Specialist
Vodafone Business Centre

[106] The Respondent submitted that Mr Spratt did not interact with Mr Diemar as a channel partner during Mr Diemar’s employment with the Respondent, and having reviewed the email correspondence between the two men, it submitted that only one business-related email was within approximately 50 emails which were personal/friendly emails.

[107] In cross-examination during the hearing Mr Spratt stated that in mid-to-late 2019 he attended two meetings at the Respondent’s business in his capacity as Sales Rep/Solutions Consultant for Onehub Business. He gave evidence that, at that time, Onehub Business was a channel partner of the Respondent, and Optus. He stated that at the time of sending the 9 September 2019 email, the Optus email address/signature block was used by all Onehub employees.

[108] As to the appointment of Mr Diemar in the role of National Channel Manager, in cross-examination Mr Spratt conceded that the wording of the newsletter circulated 15 October 2019 did not announce Mr Diemar as National Channel Manager.

Mr Diemar’s Submissions

[109] Mr Diemar submitted that he does not believe the Respondent no longer requires his job to be performed by anyone. He noted that the Respondent had repeatedly stated that the majority of the duties carried out by the CBDM role were now being performed by Mr Briggs and the balance of duties by other sales employees. He submitted that ‘majority’, by definition, means “a significant quantity of more than half and up to an amount of almost all”.

[110] As to the majority of the CBDM duties being absorbed into the Sales Director/Co-Founder role, Mr Diemar asserted that during a telephone conference on 27 May 2020 with the parties I had inferred that the Respondent would not have a case to establish a genuine redundancy.

[111] He then submitted that the Respondent, in its latest submissions to the Commission deviated from its earlier position. He suggested the Respondent’s deviation was akin to a “poorly executed magic track with a blatantly obvious method. Everyone can clearly see the coin being hidden behind your thumb, so please….stop waving your hands around pretending its disappeared, we are not gullible children here, I assure you… nobody is being fooled.”

[112] Mr Diemar submitted he did not believe there had been changes in the operational requirements of the Respondent’s business. He submitted that the Respondent’s allegations in this regard have been proven to be false in a number of areas.

[113] Where the Respondent had stated that it made three positions redundant, he submitted that the evidence demonstrates that only his role was made redundant, as Mr Heath was dismissed during his probationary period, and Mr Stalker resigned his employment.

[114] Mr Diemar submitted that he had been working in the Channel Manager position and this role was not redundant. He submitted that the operational changes relied upon by the Respondent are false, and could have been handled in a different manner, using proper procedures and process. 50

[115] Mr Diemar suggested that he had never been advised that the role that he says he was performing, the Channel Manager role, was made redundant. He submitted that he was shocked to see that it was the CBDM role that had been made redundant.

[116] Mr Diemar submitted that as a result of the conference before me, the Respondent changed its evidence for the hearing. He submitted that what he had disclosed in the conference, and what I said during the conference allowed for the Respondent to have been “coached” into changing its evidence in preparation for the hearing. He further stated:

“The truth is a thing of beauty, it is solid, it never waivers. Its consistency is easily recalled and those who honour it, deserve the freedom it provides. I trust that the procedural fairness of this Commission to provide this”. 51

[117] Mr Diemar agreed that his employment was not covered by an enterprise agreement or modern award. Accordingly, there was no requirement for consultation about the redundancy.

[118] Mr Diemar submitted the following in relation to whether it would have been reasonable to have been redeployed into an alternative role:

“Although there became issues with my base salary increase after accepting this role, this was intended to be addressed on my return to work as prior to me becoming ill I was still on probation and not prepared to push the issue while in a [vulnerable] position”. 52

[119] Mr Diemar further contended that he could have been redeployed into the role of Project Manager, which at the time of his dismissal had not been filled. He submitted that he has a wealth of project management experience, and that in Mr Wade’s review of the business and any suitable positions to which Mr Diemar could be redeployed, Mr Wade overlooked this position.

[120] Mr Diemar made a large number of written submissions dealing with merit issues, which I have not had regard to.

[121] Mr Diemar further submitted that the lockdown had only come into effect one day before his redundancy. His submission was that a proper review of all positions could not reasonably have occurred as a result of the COVID-19 lockdown. He submitted that the Respondent’s timeline did not make sense, and further that he believed the two other dismissals were used to disguise the reality that only one person was targeted and dismissed. 53 He stated the other two employees were terminated or otherwise resigned on 20 March 2020, and that his employment was only terminated on informing the Respondent that he was fit to return to work.

[122] Mr Diemar submitted that Mr Briggs closely monitored LinkedIn. He stated that after he informed Mr Briggs he was fit to return to work, he posted on LinkedIn how the Respondent could assist with remote worker facilitation, a key market for new business during that period of change. Mr Diemar’s evidence is that “within minutes” Mr Briggs text him to take the post down. He stated Mr Briggs did not provide reasons for this request. Mr Diemar submitted this made it immediately clear he was not welcome or wanted by the Respondent and he sought an immediate call from Mr Briggs, however Mr Briggs did not contact him by phone until around lunchtime the next day after he was informed of the termination of his employment.

[123] Mr Diemar submitted that if he was employed as the CBDM at the time of dismissal, “as is being falsely presented”, then that would mean the position of National Channel Manager was vacant which had not been made redundant. Mr Diemar questioned why he was not offered this position. He submitted the only outcome desired by the Respondent was to “rid themselves of the perceived risk of an employee with mental illness”. 54

[124] Mr Diemar submitted that the CBDM role was being performed by another employee following his dismissal, and therefore it was not a case of genuine redundancy. In his submissions, Mr Diemar again questioned the reliability of the Respondent’s evidence and submissions regarding his redundancy.

Consideration

[125] I turn now to a consideration of the criteria set out in s.389 of the Act. For Mr Diemar’s dismissal to be a case of genuine redundancy, the Respondent must meet each of the criteria set out in s.389 of the Act.

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

[126] The test to be considered where there has been a reorganisation or redistribution of duties is whether the employee has any duties left to discharge. 55 Where there is no longer any function or duty to be performed by an employee, his or her position becomes redundant even where aspects of that employee’s duties are still being performed by other employees.56

[127] The decision in Kekeris v A. Hartrodt Australia Pty Ltd T/A a.hartrodt 57 considered this point and established that the test is whether the previous job has survived the restructure or downsizing, rather than a question as to whether the duties have survived in some form. The Full Bench in Ulan Coal Mines Limited v Howarth and others [2010] FWAFB 3488 considered and applied the decision of Ryan J in Jones v Department of Energy and Minerals (1995) 60 IR 304 and said:

“[17] 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 p. 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:

“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 p.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.”

[128] Mr Diemar contends that his role from October 2019 until the dismissal was that of National Channel Manager. The Respondent denies this, stating that his role was, at all times, that of CBDM.

[129] Where Mr Diemar has relied on an email of either 10 October 2019 or 15 October 2019 (reproduced at [33]) to assist his argument that he was promoted to National Channel Manager, I do not find that this email assists him at all. The email simply declares that Mr Diemar is to step into the Dealer Channel Support Team to assist with quoting and general/technical presales questions. It does not declare that Mr Diemar is now the National Channel Manager.

[130] When Mr Spratt sent a text message to Mr Diemar on 15 October 2019 he congratulated him on “stepping up into the channel support team.” He did not suggest that he was under the impression that he had been promoted to National Channel Manager because quite simply, the newsletter never stated so.

[131] Mr Diemar’s text to Mr Spratt of 15 October 2019 stating, “I get more base too which is good” could not possibly be true based on his evidence that even if he thought he was promoted, he had not been informed of any salary increase. Mr Diemar’s evidence at [91] was that he waited one month after fulfilling the National Channel Manager role before he requested a pay increase and was refused.

[132] On the evidence before me, I do not accept that Mr Diemar was offered or promised or performed the role of National Channel Manager. Mr O’Connell was an existing Channel Manager, as is evident from the organisational chart within Mr Diemar’s evidence. I accept Mr Briggs’ evidence that when Mr McManus resigned his employment with the Respondent, Mr O’Connell absorbed his peer’s duties into his role and some assistance was given by several team members, including Mr Diemar.

[133] To support the findings that Mr Diemar was not performing the role of National Channel Manager, I have taken the following into consideration:

• The newsletter makes no such declaration;

• No pay rise was given to Mr Diemar;

• No fresh contract was issued to Mr Diemar;

• On Mr Diemar’s evidence, when he later asked for a pay increase it was refused;

• His email signature continued to state CBDM; and

• Receiving emails also sent to Mr O’Connell does not correlate to a finding that he was the National Channel Manager.

[134] I have been unable to satisfy myself that Mr Briggs requested on a number of occasions Mr Diemar alter his LinkedIn title. Likewise, I am unable to ascertain when exactly Mr Diemar altered his title on LinkedIn to National Channel Manager. Whilst it reflects that this has been his (self-proclaimed) title since October 2019, Annexure C of Mr Diemar’s material includes a post made by Mr Diemar titled “Where is your data?” published on 20 September 2019. It reflects his title as National Channel Manager, which I suspect is how it would now appear, but of course it would not have stated so in September 2019 on account of Mr McManus being in the role.

[135] I conclude, without doubt, that the role being performed in title and in substance from October 2019, and on the date of the dismissal was that of CBDM. Mr Diemar provided some assistance to the Dealer Channel Support Team but did not perform the role of National Channel Manager, or of Channel Manager.

[136] Mr Wade had a significant number of decisions to make in the first three months of 2020. His business was experiencing the first taste of COVID-19 fallout, and he was looking to make changes to his business. He dismissed Mr Heath within his probationary period, and in discussions with Mr Stalker, offered an alternative role to him of Customer Service Coordinator which Mr Stalker declined and ultimately resigned. Mr Wade then looked to Mr Diemar’s role and concluded that he could do without the role; Mr Briggs could absorb the duties as he had been doing for approximately two months.

[137] Mr Heath and Mr Stalker finished with the business on 20 March 2020 and 23 March 2020 respectively, and Mr Diemar was dismissed on 25 March 2020. The Federal Government JobKeeper programme was not announced until 30 March 2020. There can be no criticism of the Respondent for the decisions it made with the information it had before it on 25 March 2020.

[138] The evidence before the Commission is that since late March 2020 nobody has been employed or engaged to perform the role of CBDM. Nor has anybody been employed to perform the role previously performed by Mr Heath, Mr Stalker or Mr McManus. Significant changes were made at the time. Mr Briggs has absorbed some of the duties previously performed by Mr Diemar into his workload. Despite Mr Diemar’s erroneous assertions that during the telephone conference on 27 May 2020 I stated that this demonstrated that the dismissal could not be a genuine redundancy, in fact I find that the Respondent is quite entitled to require Mr Briggs to absorb some of the remaining functions of the CBDM into his duties.

[139] I am satisfied that following the changes in the operational requirements of the Respondent’s enterprise, the Respondent did not have any duties left for Mr Diemar to discharge, and accordingly, his position as CBDM has become redundant.

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

[140] It is not disputed that Mr Diemar was not employed under an enterprise agreement or modern award. I have satisfied myself that Mr Diemar’s employment was not covered by a modern award taking into account the industry in which he worked, and the work performed by him. I am further satisfied that his employment was not covered by an enterprise agreement. Accordingly, there is no consultation obligation for the Respondent to have satisfied.

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.

[141] In Hallam v Sodexo Remote Sites Australia Pty Ltd 58a Full Bench of the Commission stated the following:

“…..Subsection 389(2) states that a person’s dismissal was not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed. Subsection 389(2) places no obligation on an employer to redeploy, or to do everything possible to achieve a redeployment outcome. The exception is applied at the time of dismissal. It operates so that a dismissal that would otherwise be a case of genuine redundancy under subsection 389(1) will not be so if it would have been reasonable in all the circumstances for the person to be redeployed within the employer’s enterprise, or with an enterprise of an associated entity of the employer.” [references omitted]

[142] As the Full Bench observed in TAFE NSW v Pykett, 59 to show that it would have been reasonable for the Respondent to redeploy Mr Diemar, it is not necessary to identify a particular job or position in which Mr Diemar could have been redeployed. However, the Commission must be satisfied on the balance of probabilities, and based on the evidence, that there was a ‘job or a position or other work’ to which it would have been reasonable to redeploy Mr Diemar.

[143] On the evidence before the Commission, it appears that the only job available was that of Customer Service Coordinator. Mr Heath had recently been dismissed from the role and it had been offered to Mr Stalker who declined it. Mr Stalker suggested to Mr Diemar that the role was paying $70,000 per annum.

[144] In submissions at [119], Mr Diemar suggested that the role he could have been redeployed into was the Project Manager role, which on the evidence before the Commission, was not filled. Mr Wade’s evidence is that Mr Diemar was not redeployed into the role of Customer Service Coordinator because of the training required. Mr Diemar’s only reference to his willingness to be redeployed into that role is in his post-dismissal exchange with Mr Stalker where he suggested that he could do that job “half asleep”.

[145] I have had regard to the timing of events:

20 March 2020:	Mr Heath is dismissed within his probationary period;
22 March 2020:	Prime Minister Scott Morrison announces significant restrictions agreed to by state and territory leaders invoking a “lock down”;
23 March 2020:	Mr Stalker declines the role of Customer Service Coordinator (including a pay reduction) and resigns his employment with immediate effect;
23 March 2020:	Mr Diemar sends a text message to Mr Briggs in the afternoon, “Can you arrange return to work appt for later this week so I can be cleared to resume next Monday?”
24 March 2020:	Mr Wade concludes that he can do without the CBDM role and the Customer Service Representative role. Mr Wade send a text message to Mr Diemar, “I hope all is well. I’m just between meetings at present and Luke has advised that you have been in touch with him regards to retuning to work. I would like to schedule a meeting with you via a phone call tomorrow morning at 9:30am. Can you please confirm that this time suits.”
25 March 2020:	Mr Wade informs Mr Diemar his role has been made redundant.

[146] Whilst it cannot be discounted that the Respondent held concerns that Mr Diemar wished to return to work after a lengthy absence due to treatment for mental illness, the consideration I have before me is whether it would have been reasonable in all the circumstances for Mr Diemar to have been redeployed within the Respondent’s enterprise.

[147] I am satisfied that the only role the Respondent appeared to have available at or around 23 March 2020 was that of Customer Service Coordinator, as it had been offered to Mr Stalker and declined. The evidence is that it was offered to Mr Stalker on the basis that he had worked within the team. I accept Mr Wade’s evidence that he did not consider it appropriate to offer the role to Mr Diemar at the time because of the necessary training involved, and he did not consider it would be effective.

[148] There can be no dispute that 23 March 2020 was a shocking and startling day for the residents of Australia. On the back of the announcements made by the Prime Minister the evening before, news coverage of thousands of people lined outside offices of Centrelink across the nation was an extraordinary and no doubt sorrowful sight.

[149] The evidence before the Commission is that the Respondent suffered an immediate loss of $30,000 per month on account of the specialised services it provides to establishments on a pay per seat basis. It is not surprising, with the shock announcement on 22 March 2020 that from the next day, restaurants, cafes and other establishments would be shut down for dining in would cause Mr Ward to look at all relevant roles and make appropriate decisions. While it was available to the Respondent to consider standing Mr Diemar down without pay pursuant to s.524 of the Act, this is not a relevant consideration before the Commission. No doubt that would have been preferred by Mr Diemar as opposed to being dismissed.

[150] The last limb that needs to be satisfied in order to conclude that the dismissal was a genuine redundancy is whether it was reasonable in the circumstances to offer to Mr Diemar the only apparently available role of Customer Service Representative. The termination letter to Mr Diemar states that attempts to find an alternative position within the business have not been successful. I am satisfied that the Respondent knew of its obligations to consider all reasonable attempts to redeploy Mr Diemar.

[151] With all of the machinations of 23 March 2020 through to 25 March 2020 and the considerations Mr Wade had in determining if Mr Diemar could or should be redeployed within the Respondent’s business, I am satisfied that Mr Wade concluded on or around 24 March 2020 not to employ anybody in the role of Customer Service Representative, and he decided that existing members of the cloud provisioning team would perform some of those duties.

[152] Accordingly, there was no role available to Mr Diemar, and I am satisfied that it would not have been reasonable in all the circumstances for Mr Diemar to have been redeployed within the Respondent’s business.

[153] There are no associated entities of the Respondent.

Conclusion

[154] For all of the reasons set out above I am satisfied that Mr Diemar’s dismissal was a case of genuine redundancy because as at 25 March 2020:

(a) the Respondent no longer required Mr Diemar’s job to be performed by anyone because of changes in the operational requirements of its enterprise;

(b) there was no obligation to consult as Mr Diemar’s employment was not covered by a modern award or enterprise agreement; and

(c) it would not have been reasonable in all the circumstances for Mr Diemar to be redeployed within the Respondent’s enterprise or the enterprise of an associated entity of the Respondent.

[155] Mr Diemar’s dismissal by the Respondent on 25 March 2020 was a case of genuine redundancy within the meaning of s.389 of the Act. Consequently, he has not been unfairly dismissed.

[156] The application is dismissed.

COMMISSIONER

Appearances:

Diemar P, the Applicant
Thompson A, O’Reilly Work Law, for the Respondent

Hearing details:

15 July 2020, Brisbane (By telephone)

Printed by authority of the Commonwealth Government Printer

1 Respondent’s Outline of Submissions, at [5].

2 Ibid at [10].

3 Witness Statement of Mr Luke Briggs dated 10 June 2020; Second Witness Statement of Mr Luke Briggs dated 8 July 2020.

4 Ibid at [8].

5 Ibid at [15].

6 Ibid at [16].

7 Ibid at [4].

8 Ibid at [5].

9 Ibid at [5].

10 Ibid at [8].

11 Ibid at [10].

12 Witness statement of Mr Jason Wade dated 10 June 2020; Second Witness Statement of Jason Wade dated 8 July 2020.

13 Ibid at [7].

14 Ibid at [12].

15 Ibid at [19].

16 Ibid at [20].

17 Ibid at [20].

18 Ibid at [24].

19 Ibid at [25].

20 Ibid at [29].

21 Ibid at [30].

22 Ibid at [4].

23 Ibid at [6].

24 Ibid at [10].

25 Ibid at [13].

26 Ibid at [13].

27 Ibid at [16].

28 Ibid at [17].

29 Ibid at [17].

30 Ibid at [28].

31 Ibid at [30].

32 Jones v Department of Energy and Minerals [1995] IRCA 292, p. 308.

33 Kekeris v A. Hartrodt Australia Pty Ltd T/A a.hartrodt[2010] FWA 674, [27].

34 Dibb v Commissioner of Taxation [2004] FCAFC 126, [43] – [44].

35 [2019] FWC 3505.

36 Ulan Coal Mines Limited v Honeysett and others[2010] FWAFB 7578, [28].

37 Steven Lakhani v Westpac Banking Corporation[2019] FWC 3505, [65].

38 Ulan Coal Mines Limited v Honeysett and others[2010] FWAFB 7578, [28].

39 Applicant’s Statement of Evidence at [3].

40 Ibid at [4].

41 Ibid at [7].

42 Ibid at [9].

43 Ibid at [10].

44 Ibid at [11].

45 Ibid at [12].

46 Ibid at [14].

47 Witness Statement of Ben Spratt dated 26 June 2020.

48 Ibid.

49 Ibid.

50 Applicant’s Outline of Argument (Objections) at 4c.

51 Ibid at 4d.

52 Ibid at 4g.

53 Ibid at 6d.

54 Ibid at 6d.

55 Jones v Department of Energy and Minerals [1995] IRCA 292 (16 June 1995), [(1995) 60 IR 304 at p. 308 (Ryan J)]; cited with approval in Ulan Coal Mines Limited v Howarth and others [2010] FWAFB 3488 (Boulton J, Drake SDP, McKenna C, 10 May 2010) at para. 17, [(2010) 196 IR 32]

56 Ibid.

57 [2010] FWA 674.

58 Hallam v Sodexo Remote Sites Australia Pty Ltd [2017] FWCFB 6847 at [20].

59 [2014] FWCFB 714, (2014) 240 IR 130 at [36].

Mr Paul Diemar v Voice Print Data

[2020] FWC 6357

26 NOVEMBER 2020

DECISION

Background

Mr Diemar’s Submissions