Mrs Monika Banwait v Emergency Dentist Pty Ltd
[2022] FWC 2422
•7 OctoBER 2022
| [2022] FWC 2422 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mrs Monika Banwait
v
Emergency Dentist Pty Ltd
(U2022/5909)
| COMMISSIONER WILSON | MELBOURNE, 7 OctoBER 2022 |
Application for an unfair dismissal remedy – jurisdictional objection – Small Business Fair Dismissal Code - genuine redundancy
On 1 June 2022 Mrs Monika Banwait (the Applicant) made an application under s.394 of the Fair Work Act 2009 (the Act) alleging that her dismissal from Emergency Dentist Pty Ltd, trading as e-Dentist (e-Dentist or the Respondent) was an instance of unfair dismissal. The application was made within the 21-day time limit prescribed by the Act.
The Applicant was employed by e-Dentist from 2 November 2020 and Ms Banwait’s dismissal took effect on 6 May 2022.
Section 396 of the Act requires the determination of four initial matters before consideration of the merits of the application. Those matters are whether the application was made within the period required in s.394(2), whether the person was protected from unfair dismissal, whether the dismissal was consistent with the Small Business Fair Dismissal Code, and whether the dismissal was a case of genuine redundancy. Neither party put forward that either of the first two matters required consideration and in relation to those two matters, I find that Ms Banwait’s application was lodged with the Commission within the 21-day period for making applications required by s.394(2) and she was at the time of her dismissal protected from unfair dismissal.
On 21 June 2022, the Respondent filed a Form F3 – Employer Response to the application. The Respondent raised a jurisdictional objection to the application that that the Small Business Fair Dismissal Code had application and was applied. The Respondent is a small business under the Act, having, at the time of ending the Applicant’s employment, a total of nine employees, including four full-time, one part-time, and four regular casual employees.
However, the substance of the Respondent’s argument, as outlined in the Form F3, written outline of submissions, and oral evidence advanced over the course of the determinative conference held by me, was that Ms Banwait’s dismissal was a case of genuine redundancy with such being specifically stated in its outline of submissions.
Conciliation in the matter was unsuccessful. As no submissions were advanced by the Respondent’s legal representation as to why permission to appear should be granted to them, and the Applicant herself was unrepresented, I determined the matter should proceed via determinative conference and without lawyers and communicated as such to the parties on 8 September. Neither party objected to this course.
The determinative conference then took place by Microsoft Teams video on 12 September 2022. At the determinative conference, submissions and oral evidence were presented by Ms Banwait on her own behalf, and by Ms Bonnie Kelepouris (also Bonnie Edwards), the Practice Manager of Emergency Dentist Pty Ltd, on behalf of the Respondent. Short submissions were also made on behalf of the Respondent by Mr Dmitry Miller, the owner of Emergency Dentist Pty Ltd.
For the reasons expressed below I have determined that Ms Banwait’s termination of employment was a genuine redundancy and that her application must be dismissed. It is unnecessary in these circumstances for me to determine whether her dismissal was consistent with the Small Business Fair Dismissal Code or, failing that, with s.387 generally.
BACKGROUND
Having first been employed in November 2022 Ms Banwait’s employment underwent several changes. After working for a week as a casual employee she was made full-time on 9 November 2020, working as a Receptionist. In early December 2020 she became the Front Office Coordinator and on or around 12 April 2021 she moved to the fulltime role of Assistant Practice Manager/Front Office Coordinator, signing a contract for the position. The difference between those roles is not clear. The contract for the Assistant Practice Manager/Front Office Coordinator position does not include a job description however it states the position is classified as Support Services Level 3 under the Health Professionals and Support Services Award (the Award).
For most of her employment Ms Banwait reported to Dmitry Miller who owns the practice with his wife, Dr Lisa Miller and worked as its manager. The practice was started by the two in 2011. While a small practice, the owners have taken an entrepreneurial approach which includes purchasing another clinic in 2020 and adding dentists to the practice. In 2020 it had three dentists, with Dr Miller working fulltime and the other two working part-time. By the end of 2021 the practice had expanded to five dentists working and one hygienist. Mr Miller’s evidence was that by the end of 2021 he was both planning further expansion as well as recognising that changes may be needed to the clinic’s operations:
“Towards the end of 2021, I was becoming inundated with my duties as the practice manager. By this time, the practice had expanded with five dentists and one hygienist. I was planning on expanding the practice further so I was spending considerable time working on marketing research and strategising and liaising with suppliers for lower costs. I was also trying to make time for family commitments. It was all becoming too much for one person to manage so Lisa and I decided to advertise for a full-time practice manager role so I could focus on my family commitments and plans to expand the practice.”[1]
In February 2022 there were some discussions and other exchanges between Mr Miller and Ms Banwait about her employment. The first of the relevant conversations was on and before 6 February when Ms Banwait told Mr Miller she wanted to undertake study in 2022. She says she informed him she could do so while working either full-time or part-time, but never received a response from him on the subject. After the plans for study did not proceed Ms Banwait says she then spoke with Mr Miller and in the course of that discussion formed the view she would be out of a job:
“On or around 6 February 2022 (a Sunday) I had a phone conversation with Mr Miller. I told him my studies were not going ahead. Mr Miller told me he would call me back. A short time later, around 2.45pm, he telephoned me and said that I was not 'need[ed] anymore'. Around 6.00pm the same day we had a face-to-face meeting. During the meeting, among other things, Mr Miller told me I no longer had a job and that he was sorry, as he has already hired 2 staff, Kirill who was former employee just returned from Russia and the Practice manager who is going to take his position. I was distraught.”[2]
The next day the notification Mr Miller had given her, if that is what it was intended to be, was withdrawn in a communication from the practice’s human resources consultant and Ms Banwait continued to work at e-Dentist.
On 1 March 2022 a Practice Manager, Bonnie Kelepouris, was appointed and commenced work. Ms Kelepouris describes her role as “being the point of contact for all dentists, clinical staff and reception staff, managing all contracts, leave, scheduling, hiring, organising and implementing practice setups and making independent decisions on how things should look and run on a day-to-day basis”. Part of her brief was to review the operations of the practice and make recommendations to the owners. While seeing no need because of the scale of the practice to have an assistant practice manager, she saw there were other unaddressed needs which might require stronger front office coordination, forming the view there was a need for a Front Office Manager, giving this evidence on the subject:
“6. After I started my position as practice manager, I found that I could not fulfil this role due to the existing issues and stresses that I came across in my initial assessment of the practice. After a month of employment, I presented Lisa and Dmitry with my assessment and problem areas which shows the main issues to be the operations at the front office. The issues I came across were extensive: complaints ignored and escalated, accounts not reconciled, lab works not being followed up/returned in time for patient appointments, debtors not being followed up and recalls never being processed. These errors have cost consequences for the clinic and continue to cost the practice thousands of dollars in refunds, cancelled appointments, lost accounts and lost patients. I spent the first month of my employment at the clinic doing front office duties remotely for the front office staffs in a bid to try to train them up to run the basic operations properly, while I tried to rectify escalated issues with patients and accounts behind the scenes at the same time.
7. After a lot of stress as well as lack of cooperation and responsibility from the front office staff, I formed the view that if Lisa and Dmitry wanted me to fulfil their idea of a practice manager and be able to give my time to other staff such as dentists and clinical coordinators and attend to tasks, then we would need a Front Office Manager to solely run this area of the clinic. This person would need to work fulltime and be accountable for the training and implementation of everything related to the front office and be qualified to handle direct issues within the clinic daily, with strong knowledge of dental terminology, equipment, procedures and standards, hence the need for a Certificate III in Dental Assisting. This candidate would also need to be available on call after hours and on weekends to help when needed and be able to assist in the surgery as required. All front office staff would be directed to this person for help, training and management of this area.”[3]
Mr Miller accepted the advice, giving evidence that as a consequence it was clear to him “that with Bonnie as the full-time practice manager, the clinic no longer needed an assistant practice manager and that a full-time front office coordinator would not be suitable considering the size of the practice. What was needed for the clinic and improve its overall practice was a full-time front office manager who would be able to be on call after business hours, capable of managing the front office and any low level complaints and be qualified in dental assisting.”[4]
Ms Kelepouris and the practice’s human resources consultant, Ms Carly Amado met with Ms Banwait on 29 April 2022, having invited her to the meeting two days earlier. The meeting invitation had set out that the purpose of the meeting was discussions “in relation to a potential change”.[5] Ms Banwait’s evidence about the things discussed in the meeting includes this;
“(a) Ms Amado stated that:
(i) there were going to be some ‘drastic changes to the businesses.”
(ii) a new manager would be hired for the front office.
(iii) while no decision had been made at that stage, my role was likely to be made redundant; and
(iv) e-Dentist required a “manager” rather than a “coordinator”.
(b) Nothing was provided to me as to what would be the role difference between my role and that of the manager. I had to email Bonnie to know what roles were not performed by me that would be done by the Front office manager
(c) I replied that my role was as a front office manager and that I had been “managing” since April 2021.
(d) I also, after having read the position description, stated that the Front Office Manager role set out in the position description was the same as my current role.
(e) Ms Amado stated that it was not, and again expressed it was more of a managerial role.
(f) Ms Amado asked if I wanted to perform my role casually, to which I responded that I did not; and
(g) I was not invited to apply for the Front Office Manager role in this meeting.”[6]
Ms Banwait was absent from work on personal leave in the week that followed this discussion, however during that week on 3 May 2022 received a letter from Ms Kelepouris attaching a position description and qualifications statement for the proposed Front Office Manager position.[7] On 6 May 2022, also during the period of Ms Banwait’s personal leave, Ms Amado sent a letter to her advising her termination of employment for reason of redundancy. The correspondence gave Ms Banwait two weeks’ notice of termination and advised that as a small business employer e-Dentist was not required to pay her severance pay.
LEGISLATION
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
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
Section 396 requires consideration of a dismissal’s consistency with the Code and whether it was a case of genuine redundancy before considering the merits of the application.
It is not in dispute that the Respondent is a small business. The question is whether the Respondent can rely upon the provisions of the Small Business Fair Dismissal Code as a basis for contending that the Applicant was not unfairly dismissed. The Small Business Fair Dismissal Code is made by legislative instrument pursuant to s.388 and provides for circumstances of “summary dismissal” and “other dismissal”. It is well accepted the Code does not deal with matters of redundancy and in the absence of a termination of employment related to a person’s conduct or capacity it is not possible to form a view that their dismissal was consistent with the Code.[8]
In this case the Respondent does not say that Ms Banwait’s capacity or conduct was the reason for her dismissal. As the reason for termination of employment was given as there being no longer a requirement for the position held by Ms Banwait the Code does not readily apply. It follows I do not make a finding that her dismissal was consistent with the Code.
The Act defines a genuine redundancy in the way set out in s.389:
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.
If the Commission determines that the dismissal was not a case of genuine redundancy, it will be necessary to determine if the dismissal was unfair, having regard to the considerations in s.387 of the Act.
CONSIDERATION
e-Dentist object to the continuation of Ms Banwait’s unfair dismissal arguing both that her dismissal was subject to the Small Business Fair Dismissal Code, which has been dealt with by me above, and that it was a genuine redundancy.
Whether a dismissal was a genuine redundancy requires an assessment of the factors within s.389. With respect to s.389(1) e-Dentist argue that it no longer required Ms Banwait’s job to be performed by anyone because of changes in its operational requirements and that it complied with the consultation provisions in the Award. It also argues in relation to s.389(2) that it offered the position of casual receptionist to Ms Banwait which was refused by her.
e-Dentist put forward on the subject of its operational requirements that following the restructure advised by Ms Kelepouris there was no need “for an assistant for the new practice manager of the business and only causal front office coordinator is available (in particular, not working during regular business hours 9am to 5pm)”.[9] It also argued that the 29 April 2022 meeting between Ms Banwait, Ms Kelepouris and Ms Amado was for the purposes of consulting with Ms Banwait about a potential change.
The most significant of the changes, since it eventually led to other changes, was the practice’s decision for Mr Miller to step back from his Practice Manager duties and to engage Ms Kelepouris to perform those duties in his stead. There is little question that the duties the latter took on were being performed by Mr Miller and not Ms Banwait or any other staff member. Ms Kelepouris reviewed the practice’s operations and made recommendations for change to Mr Miller in the manner set out above.
Ms Banwait’s evidence was that having been briefly employed as a casual Receptionist she was then the Front Office Coordinator and then after about four months became Assistant Practice Manager/Front Office Coordinator in April 2021. The contract of employment she signed for the last-mentioned position does not detail its duties, although it does provide that her classification for the purposes of the Award is “Support Services Level 3”.[10] At my request e-Dentist provided after the determinative conference what it said was the job description for Ms Banwait’s position at the time she was dismissed, however Ms Banwait’s response was that she has not previously seen the document which was in turn conceded by e-Dentist as correct. Since I am not satisfied the document was known to Ms Banwait I have not taken its contents into account in making this decision.
The Front Office Manager position set out in considerable detail the duties required of the position listing 21 duties and six qualifications or skill attributes. Ms Kelepouris advised in response to a question from me that the position is classified under the Award at Level 6.[11] Ms Banwait contends that the duties of the Front Office Manager position were the same as those performed by her. However, Ms Kelepouris’ evidence is to the contrary, with the focus of her evidence being on the particular needs of the practice that lead to her recommendation of a restructure. Her oral evidence included that critical needs of the practice were going unmet through the existing structure and that Ms Banwait said she did not have enough training in some of those issues:
“MS KELEPOURIS: Well, I think I'm just going to obviously come from my angle and the process that I went through to obviously come to the decision where I thought that this redundancy was necessary for the business. I started with the business at the start of March. Lisa and Dmitry ratified my process to hire me. I know they really wanted a manager. They approached me and I eventually came across.
My first job obviously was to go through every single part of the practice, assess each area and see how it's running as obviously there were a lot of issues with patient complaints, the books were empty, they weren't happy with how things were running; so I went through and I did an assessment of every area of the practice. I did present them with a spreadsheet - that would have been the end of March, start of April – with all the problem areas that I did come across and the majority of those did fall on front office.
There were no recalls being sent out. There is always a system in dental software for recalls, but no one obviously knew how to use that system. There were $250,000 worth of outstanding accounts on the system. Debtors had never been followed up, which should be done at the end of every month. The bloods and things weren't back, patients would cancel - would be cancelled multiple times because their lab isn't back. We had patients complaining, wanting refunds.
It was costing the practice a lot of money. These were big issues and I did obviously speak with Monika in regard to these issues because she was the only full‑time front office coordinator and that is – a lot of these do fall under a front office coordinator job description. Monika had verbally said to me multiple times that she is not trained to do that; no one trained her to do that, 'I am not qualified to do that', so it was actually those discussions with Monika that made me step back and go, wow, we actually need some management in here.
It was never an intention for Monika not to be employed with us any longer, but it was the intention to have somebody come in who was capable of not only training Monika, but the other staff. I do know that Monika didn't want – or wasn't accountable for the weekend staff. When I would ask why something wasn't done she would say, 'That's not my problem. I wasn't working', so it did become very apparent to me that there was no structure. It was sort of everyone does their shifts, they go home, no one really cares what anyone else is doing and it was sort of falling apart a bit, and it was obviously the foundation of all of these big issues.”[12]
Ms Banwait saw things differently. In relation to patient recall she gave evidence that there was no recall system activated on the practice’s software, with her not having been asked to activate the system, and that instead she sent text messages and emails in a batch. In relation to the reduction of debtors she gave evidence first that she fulfilled the requirement of the Front Office Manager position description to “Run statements monthly and follow up debtors”, but also stated in later evidence that Mr Miller was responsible for running the debtors statement who then asked her to reconcile it.[13] Her evidence was also that she performed many if not all aspects of the Front Office Manager position description.
Ms Banwait also provided for scrutiny a large number of text messages between herself and others associated with e-Dentist, arguing that they showed she supervised staff members[14]; that she worked autonomously and with minimal guidance or supervision[15]; and that she managed a patient recall system.[16] Mr Miller listed the duties performed by Ms Banwait after April 2021 when she became Assistant Practice Manager/Front Office Coordinator as the following;
“(a) Attending to phone calls;
(b) Scheduling appointments for patients;
(c) Taking and following up payments;
(d) Ordering lab work;
(e) Reconciling accounts;
(f) Attending to correspondence such as emails and the mail; and
(g) Assisting the practice manager with respect to rostering timesheets, managing patient and staff enquiries and any complaints, processing recalls, maintaining and servicing clinic equipment.”[17]
Ms Banwait’s oral evidence takes this list further with her stating, relevant to the Front Office Manager Position Description and the elements especially highlighted by Mr Miller and Ms Kelepouris as important that she managed the recall and reactivation system, handled patient complaints, maintained patient satisfaction and ran monthly statements and followed up debtors.[18] The fact that Ms Banwait was actually performing some of these duties as described and was partially performing others to a basic level does not, of itself, prove her case. Her evidence does not support a finding that she performed these duties to a significant degree and does not displace Ms Kelepouris’ evidence that they were problem areas for the practice justifying the engagement of a higher classified person.
In her oral evidence Ms Kelepouris addressed the tension caused by the need for the existing duties of someone like Ms Banwait to be performed in tandem with other duties of a different nature, which she contested required the new position to not be entirely synonymous with that filled by Ms Banwait:
“I guess to me a front officer manager, yes, is required to do all of the jobs of a front officer coordinator. A front office coordinator is a glorified way to say a receptionist. A front officer manager does have a different level of expertise. So it was having someone come in and obviously train and be responsible for all of those staff members, which included Monika, but unfortunately being a small business when I did present this to Lisa and Dmitry, they made it very clear that they could not afford to have a front office coordinator in regular business hours and a front office manager who was to sit there and train somebody.”[19]
I am satisfied from the evidence of several important developments which ultimately impacted on the Ms Banwait’s job:
Mr Miller had been performing the Practice Manager role until the beginning of 2022, with Ms Banwait subordinate to him. While in that role he did not require Ms Banwait to undertake in full detail the tasks about which Ms Kelepouris was concerned to remedy and especially the tasks associated with reduction of outstanding debtors and implementation of a systematic patient recall system.
When Ms Kelepouris started work in the practice she examined the work being performed by Ms Banwait and formed the view that the duties performed were in the main those of a receptionist with some front-line supervision and training tasks as well. She took the view that performance of her own role would require greater attention to be paid to dentists and clinical coordinators. In turn this would mean restructuring to have a Front Office Manager to solely run that area of the clinic She also noticed and began to improve obvious problems associated with cash flow improvement through the reduction of outstanding debtors and increasing revenue through systematic patient recalls. After consulting with the practice’s human resources consultant, Ms Amado, she formed the view these were duties performed at a classification level above that of Ms Banwait.
Coupled with the engagement of a front office manager was the decision that the practice would no longer need a front office coordinator in the nature of the role performed by Ms Banwait. Ms Kelepouris’ reasoning in this regard included this:
“8. I presented this proposal to Lisa and Dmitry alongside an extensive spreadsheet of problems and monies lost in support and they agreed to hiring a front office manager. Unfortunately, as a small business, filling this area financially would result in changing workings hours of front office coordinator. Basically, having a full-time front office manager working from 9am to 5pm on weekdays means there is no need for the clinic to have any front office coordinator during regular working hours.
9. When I started my role with the clinic, the clinic had one full-time Assistant Practice Manager / Front Office Coordinator (Monika) and two casual receptionist / coordinators.”[20]
As a consequence of these matters, I accept e-Dentist’s submission there were changes in its operational requirements. Both Ms Kelepouris and Mr Miller gave evidence on the subject of the changes with their intention being to give greater emphasis to the reduction of outstanding accounts, establishing and maintaining a patient recall system and the better handling of patient complaints. I am satisfied that a consequence of the changes was that e-Dentist required a managerial role to be performed instead of a front-line supervision or coordination role. The responsibilities and accountabilities of the Front Office Manager position are demonstrably greater.
The product of the evidence is that, although Ms Banwait may have considered herself as having a capability to work in the areas about which Ms Kelepouris was concerned, the fact of the problems demonstrates that she was not actually working on those tasks to any great extent. I am satisfied that e-Dentist’s operational requirements changed in these key respects in the early part of 2022. It proposed a restructure that would subsume Ms Banwait’s job into an expanded Front Office Manager position which had greater responsibilities than the job she performed. The duties as being performed by Ms Banwait are distinguishable from those required to be performed under the Front Office Manager position description. Those critical differences lead to a finding that, following e-Dentist’s decision to incorporate those duties into a higher graded position, it no longer required Ms Banwait’s job to be done by anyone. Such finding satisfies the criterion in s.386(1)(a).
There is agreement between the parties that a meeting with Ms Banwait, Ms Kelepouris and Ms Amado took place on 29 April 2022 in which the latter two identified to Ms Banwait what was proposed to be done to her job.
Ms Banwait argues that what took place in the meeting was not a consultation, with her merely being informed of the decision and that her position was redundant. She contested in the meeting whether she already performed the work of the proposed position.[21] In particular:
“I was trying to explain to them that that is basically the role that I'm doing, with just the change in name from front office coordinator to front office manager. I have been managing the front office from April 2021 and I was told that it's not - in terms of the business, practically roles are going to be changed, but I wasn't given the job description at that time in the consultation on the 29th. I had to ask for it and I was given that on 3 May – to tell me that these are the descriptions.”[22]
The evidence supports that the e-Dentist representatives identified to Ms Banwait that a “definite decision” had been made to restructure the front office jobs, and, in particular, to appoint someone with the skills and qualifications of a Front Office Manager. Further, the evidence supports that Ms Banwait was informed of the implications for her, with her witness statement setting out her recollection of what she was told (quoted in full above), which included that “a new manager would be hired for the front office” and that “while no decision had been made at that stage, my role was likely to be made redundant” It was also explained to Ms Banwait that in e-Dentist’s view the proposed role was not the same as hers, with the new role being “more of a managerial role”. Ms Banwait accepts that she was asked “if I wanted to perform my role casually, to which I responded that I did not”.[23]
Such recollection is not inconsistent with that of Ms Kelepouris who stated she and Ms Amado explained the practice’s plans for restructuring and how they would affect Ms Banwait’s role, and:
“During the consultation meeting, Monika was offered a change in hours for if she had wanted to continue her employment and to be properly trained for front office coordinator duties. The new hours were less desirable compared to the roster she was on. There was no interest shown from Monika to accept this offer.”[24]
Section 389(1)(b) requires certain consultation with an employee for their dismissal to be accepted as a genuine redundancy. In particular it must be demonstrated that the employer “has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy”. Clause 34 casts several obligations on employers in relation to “a definite decision to make major changes in production, program, organisation, structure or technology that are likely to have significant effects on employees”. As set out above, there is no question Ms Banwait’s dismissal required application of the the clause’s obligations which, in summary, include:
Giving notice of the changes to all employees who may be affected by them and their representatives (if any) (Clause 34.1(a));
Discussing the changes with employees and their representatives and doing so as soon as practicable after a definite decision has been made. The discussion obligation extends to “measures to avoid or reduce the adverse effects of the changes on employees” (Clause 34.1(b));
For the purposes of discussion, providing “all relevant information” in writing about the changes to the affected employees and their representatives (Clause 34.2);
Promptly considering any matters raised by the employees or their representatives about the changes in the course of the discussion (Clause 34.4);
I am satisfied the actions of e-Dentist in discussing its decision with Ms Banwait and providing her with the Front Office Manager position description reasonably conformed with these obligations.
The e-Dentist representatives frankly discussed the proposed change with Ms Banwait and its implications for her. e-Dentist offered in the meeting a measure to avoid or reduce the adverse effects of the changes, namely for her to be considered for casual work or to change her hours of work. When Ms Banwait raised the subject of her ability to be employed as the Front Office Manager e-Dentist provided her with the position description.
The nature of consultation with affected employees and their representatives about intended major changes is explained in the Award’s Clause 34.1(1)(b) which makes reference to discussion about the introduction of the changes; their likely effect on employees; and “measures to avoid or reduce the adverse effects of the changes on employees”. Ms Banwait was plainly afforded those opportunities through the discussion on 29 April 2022 and the steps that followed.
It follows I am satisfied e-Dentist consulted with Ms Banwait about its proposed change and for her potential redundancy. Further, the fact that alternative employment for Ms Banwait was discussed in the 29 April meeting allows a finding that consideration was given by e-Dentist to her redeployment, which was then rejected by Ms Banwait.
Taken together, I am satisfied that Ms Banwait’s termination of employment by e-Dentist was a genuine redundancy within the meaning of s.386. As a result of this finding and for reason of the provisions of s.385, a finding is not available that Ms Banwait was unfairly dismissed.
It follows that I must dismiss Ms Banwait’s application for unfair dismissal remedy, and an order to that effect is issued by me at the same time as this decision.
COMMISSIONER
Hearing details:
2022.
Melbourne (by Video):
12 September.
[1] Exhibit R3, Witness Statement of Dimitry Miller, [7].
[2] Exhibit A3, Applicant’s Witness Statement, [8].
[3] Exhibit R2, Witness Statement of Bonnie Kelepouris.
[4] Exhibit R3, [11].
[5] Exhibit A3, [17].
[6] Ibid.
[7] Exhibit A3, Attachment MB 1 (a).
[8] See Iannello v Motor Solutions Australia Pty Ltd[2010] FWA 3125, [12] – [13]; and Ms Paula Groszek v Toyvision International Pty Ltd[2015] FWC 697, [33]-[39].
[9] Exhibit R1, Respondent’s Outline of Submissions, [20].
[10] Exhibit R4, Respondent’s Bundle of Documents, Annexure 1.
[11] Transcript, PN 405 – 406.
[12] Transcript, PN 159 – 163.
[13] Transcript, PN 113, 372 – 379.
[14] Transcript, PN 68 – 76.
[15] Transcript, PN 81 – 85.
[16] Transcript, PN 91 – 92.
[17] Exhibit R3, [6].
[18] Transcript, PN 95 – 114.
[19] Transcript, PN 164.
[20] Exhibit R2.
[21] Transcript, PN 131 – 132.
[22] Transcript, PN 136.
[23] Exhibit A3, [18].
[24] Exhibit R2, [15] – [16].
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