Ms Kerrie Jennings v The Trustee for Alsop Gordon & Best Unit Trust t/a AGB Training

[2019] FWC 638

[2019] FWC 638

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Ms Kerrie Jennings
v
The Trustee for Alsop Gordon & Best Unit Trust t/a AGB Training
(U2018/9893)

DEPUTY PRESIDENT COLMAN MELBOURNE, 4 FEBRUARY 2019

Application for an unfair dismissal remedy – genuine redundancy – whetehr unfair – measure of compensation

[1] This decision concerns an application made by Ms Kerrie Jennings for an unfair dismissal remedy under s 394 of the Fair Work Act 2009 (Act). Ms Jennings worked for The Trustee for Alsop Gordon & Best Unit Trust t/a AGB Training (AGB) as an enrolment coordinator on a full-time basis from 20 June 2017, based in Geelong. Her position was made redundant and her employment ended on 5 September 2018. Ms Jennings contends that her dismissal was harsh, unjust or unreasonable. She seeks compensation.

[2] AGB objects to the application on two jurisdictional grounds. It contends first that it did not dismiss Ms Jennings because she ‘accepted’ her redundancy, and secondly that her dismissal was a genuine redundancy for the purposes of s 389 of the Act. In the alternative, if the jurisdictional objections are dismissed, AGB contends that Ms Jennings’ dismissal was not unfair within the meaning of s 385 of the Act.

[3] I have concluded that the first jurisdictional objection is without substance. As I will explain below, Ms Jennings did not resign. She declined an alternative role at a lower level with reduced remuneration. She was dismissed for reason of redundancy.

[4] I have also concluded that Ms Jennings’ dismissal was not a case of genuine redundancy, because the company did not comply fully with its award obligation to consult with Ms Jennings about her redundancy.

[5] I note that the jurisdictional question of whether Ms Jennings’ dismissal was a case of genuine redundancy is one of the four matters that s 396 of the Act requires the Commission to decide before considering the merits of an unfair dismissal application. I will record here my conclusions on the other three preliminary matters in s 396, none of which were in dispute. First, Ms Jennings’ application was made within the 21 day period required by s 394(2) of the Act. Secondly, Ms Jennings was a person protected from unfair dismissal, as she earned less than the high income threshold (s 382). She was also covered by an award. Thirdly, no question of compliance with the Small Business Fair Dismissal Code arises, as AGB is not a small business employer.

[6] For the reasons explained below, I have concluded that Ms Jennings’ dismissal was unfair, and that she should be awarded compensation of one week’s pay, reflecting the period it would have taken the company to comply fully with its award consultation obligations.

Factual background

[7] Although much of the factual background is uncontroversial, there are several relevant matters in the chronology of events in respect of which there is a contest on the evidence, requiring factual findings to be made.

[8] It was common ground that late on the afternoon of Thursday, 23 August 2018, Ms Jennings was asked to attend a meeting with her manager, Mr Ian Naylor, and the chief executive officer of AGB, Mr Robert Dejanovic. The parties differ about what was said. Ms Jennings’ evidence was that Mr Naylor and Mr Dejanovic offered her a different role, effectively a demotion with a pay cut, and told her that if she did not accept the new role, there would be no job for her at AGB. She said that they told her that they believed her job was overwhelming her. Ms Jennings also said that she was not given the opportunity to have a support person present with her at this meeting.

[9] Mr Dejanovic’s evidence about the meeting on 23 August 2018 was that he told Ms Jennings that the company would be undergoing a restructure and that there was no longer a requirement to have two coordinators in the sales and marketing departments. He said that he and Mr Naylor discussed with Ms Jennings that she could either accept redundancy or undertake a new role that the company would create for her. The new role was at a lower grade, and did not entail supervision of staff. The remuneration attached to the role was $45,000, approximately $6,000 less that her current role. He said that Mr Naylor told Ms Jennings that the redundancy package would be nine weeks’ pay. Ms Jennings said that she would think about it, and get back to the company.

[10] The following day, 24 August 2018, there was another discussion between Ms Jennings and Mr Dejanovic. Ms Jennings said that she needed time to seek advice on her rights in relation to the proposed pay cut. Her evidence was that she received a ‘torrent of accusations’. During the proceedings, I asked Ms Jennings what these accusations were. She said that Mr Dejanovic told her that in the course of exit interviews, two former employees had complained about her being a bully. She did not identify any other accusations that had been raised by Mr Dejanovic. Ms Jennings also gave evidence that Mr Dejanovic said to her that going to the Fair Work Commission would be a breach of trust, or words to that effect, and that she felt threatened by that comment. Ms Jennings said that restructuring was mentioned in this discussion, but that she did not understand that she would be made redundant.

[11] Mr Dejanovic said that during the discussion on 24 August 2018, which was attended by Ms Mandy Hay, he again told Ms Jennings that her position was redundant, and that the company would offer her the alternative role. He said that in the course of discussing the alternative role, he told Ms Jennings that it might lead to other opportunities in the company, but that Ms Jennings would have to address certain issues with her performance. He said that it was in this context that he mentioned the complaints of the two former employees about Ms Jennings allegedly being a bully. Mr Dejanovic denied saying to Ms Jennings words to the effect that it would be a breach of trust if she went to the Fair Work Commission. He said that on the contrary he encouraged her to speak to the Fair Work Commission and seek advice. Mr Dejanovic also said that during his discussions with Ms Jennings on 23 and 24 August 2018 she was very upset.

[12] On Monday, 27 August 2018, Ms Jennings saw her doctor, who provided her with a medical certificate for one week of leave due to stress.

[13] On Monday, 3 September 2018 Ms Jennings returned to work. Late in the day she attended a meeting with Mr Naylor and Mr Adam Alsop. Ms Jennings said that she was provided with a letter from Mr Dejanovic and a new contract in respect of the alternative role. The letter, which was dated 27 August 2018, said that further to her recent discussions with Mr Dejanovic, Ms Jennings would be changing roles from enrolment coordinator to administration officer – business support, as of 27 August 2018, ‘due to unsatisfactory work performances.’ Ms Jennings gave evidence that she told Mr Naylor she did not agree that there had been problems with her performance and that when she asked him what the performance concerns were, he said that he had not prepared the letter. Ms Jennings also said that she was confused by a reference in the letter to her terms and conditions remaining the same, but that the salary would be reduced to the figure in the schedule. She also said she was not given an opportunity to have a support person accompany her to this meeting.

[14] Mr Dejanovic gave evidence that the reference to performance issues in the letter of 27 August 2018 was a mistake, and that the letter should have referred to her previous position no longer existing. He said that he had not checked or signed the letter.

[15] The events of the next day, 4 September 2018, are not contentious. Ms Jennings attended another meeting, this time with Mr Naylor and Ms Hay. Mr Naylor asked Ms Jennings if she had considered the contract for the alternative role. Ms Jennings replied that she did not agree to accept the new position. Mr Naylor and Ms Hay went to see Mr Dejanovic, and returned saying that he had not changed his position. Ms Hay told Ms Jennings that she would receive nine weeks’ redundancy pay. That evening Ms Jennings sent an email to Mr Naylor stating that she did not agree to accept the alternative position, and that she did not agree with being forced to take a redundancy in the event that she rejected the alternative role. She concluded by stating ‘as I won’t agree to sign the proposal, in the end I am being forced to take the redundancy as this has put me under so much stress. I will have my ID pass returned to you.’

[16] Mr Dejanovic said that he accepted Ms Jennings’ decision in her email of 4 September 2018, and that her employment ended the next day for reason of redundancy. He said that Ms Jennings did not notify the company that she would not be attending the workplace on 5 September 2018, and that the company considered that she had simply accepted the redundancy. He did not reply to Ms Jennings’ email of 4 September 2018. He said that Ms Jennings’ final payments were processed, and that she was paid nine weeks’ redundancy pay as well as accrued annual leave and payment in lieu of two weeks’ notice.

[17] Ms Jennings said that she was never formally told that her employment had ended for reason of redundancy, or provided with a separation certification. She said in her application that she only became aware that her position had officially become redundant after receiving an email from a colleague, in which he forwarded a message from Mr Dejanovic to staff dated 5 September 2018. This email to staff stated that Ms Jennings’ position was no longer required and she had been made redundant the same day.

[18] Mr Dejanovic’s evidence was that the company had experienced financial difficulties, that in October 2018 it entered voluntary administration and that a deed of company arrangement had subsequently been made. The company also submitted to the Commission a copy of a separation certificate dated 19 September 2018, showing a termination date of 5 September 2018, which it says was posted to Ms Jennings the same day. 1 Mr Dejanovic said that Ms Jennings never told the company that she had not received it.

[19] In relation to what was said at the meeting on 23 August 2018, I accept Mr Dejanovic’s evidence that he told Ms Jennings that the company would be undergoing a restructure, that there was no longer a requirement for two coordinators in the sales and marketing departments. I find that Mr Dejanovic and Mr Naylor discussed with Ms Jennings the new role on less pay as an alternative to being made redundant. I accept Mr Dejanovic’s evidence that the company created this new role for her in an effort to provide an alternative to redundancy. I also accept Ms Jennings’ evidence that during the meeting, Mr Dejanovic said that he believed her role was overwhelming her. Mr Dejanovic did not deny saying this. However, I do not see any basis to conclude that this comment formed part of his reasons for making the position redundant, as Ms Jennings suspected.

[20] I consider that the matters raised in the meeting of 23 August 2018 came as a shock to Ms Jennings; the prospect of losing her current job was upsetting, and the offer of an alternative role on substantially less pay and at a lower grade was not attractive to her. I also accept Ms Jennings’ evidence that she was confused about why her current role would cease, and that she believed her performance had contributed to the company’s decision to make her position redundant.

[21] As to the question of whether Ms Jennings was denied a support person at this meeting, I find that Ms Jennings did not have such a person present during the meeting. However, Ms Jennings confirmed, in response to a question from me, that the company had not refused to let her have such a person present at meetings.

[22] Concerning the conversation that took place on 24 August 2018, I find that Mr Dejanovic told Ms Jennings that her position was redundant and that the alternative role was discussed. I find that the ‘torrent of accusations’ referred to by Ms Jennings was in fact a single accusation relating to alleged bullying. I note that Ms Jennings does not accept the imputation of bullying. However, relevantly for present purposes, I find that this remark was not raised in connection with the reason for Ms Jennings’ role being made redundant. They were made in the context of the possibility of her accepting the alternative role, not as reasons for her current role ending. I consider it likely that Mr Dejanovic’s comment on 23 August 2018 about Ms Jennings being overwhelmed was made in a similar context.

[23] In relation to Ms Jennings’ claim that, during the meeting on 24 August 2018, Mr Dejanovic said to Ms Jennings words to the effect that for her to contact the Fair Work Commission would be a breach of trust, I accept Mr Dejanovic’s firm denial that he said this. In my view, there was a misunderstanding. As I will discuss further below, the explanation of the redundancy was not very clear, and Ms Jennings was confused about why her position was being made redundant. Ms Jennings was also upset. In my assessment, the situation was ripe for misunderstanding. I should say that I found both Ms Jennings and Mr Dejanovic gave evidence candidly and spontaneously, without an eye to forensic advantage. I do not consider the witnesses to have given anything other than truthful evidence to the best of their respective recollections.

[24] In addition, I find it difficult to see any apparent motive for Mr Dejanovic to have sought to discourage Ms Jennings from seeking advice about her workplace rights in the circumstances of this case. What the company had proposed was in my view perfectly legitimate. The company had determined that Ms Jennings’ position was no longer required, but in an effort to avoid redundancy, a different, albeit lower level position was identified for Ms Jennings as an option. Ms Jennings certainly did not have to take up the alternative role. She was within her rights to accept redundancy, and could have also claimed redundancy payments had they not been offered to her. But the company’s proposal was commonplace and prima facie lawful. It proposed to pay Ms Jennings her full entitlements if she declined the alternative offer. These are not matters that the company had any reason to keep quiet. The logical position of the company would be to encourage Ms Jennings to seek advice.

[25] As to the letter dated 27 August 2018, I accept Mr Dejanovic’s evidence that the reference to performance issues was a mistake. However, I find that this caused confusion and contributed to Ms Jennings’ belief that her performance was indeed at issue and a reason for the redundancy of her position. In this regard, when she asked her manager, Mr Naylor, about this reference, he did not correct the mistake: according to Ms Jennings’ evidence, which I accept, he said that he did not write the letter. I also accept that she found confusing the letter’s reference to the terms and conditions of the new role being the same as the old, but that the salary would be different. Evidently what was meant was that all conditions save for salary would be the same and that she would not be supervising staff, but this was not explained to her clearly.

[26] I accept Ms Jennings’ statement that she was not formally told that her position had ended for reason of redundancy. However, I find that she was told that her position was redundant and that she understood that if she did not accept the alternative role, her employment would end for reason of redundancy. In this regard, Mr Dejanovic told her in the meeting of 24 August 2018 that her role was redundant, Ms Hay told her on 4 September 2018 that she would receive nine weeks’ redundancy payment, and in Ms Jennings’ email to the company of 4 September 2018 she stated that she was being forced to take redundancy. I find that the company sent to Ms Jennings the separation certificate submitted in the proceedings, but also that it did not reach her because it was not sent to her current address. However, I also note that the company did not write to Ms Jennings to confirm the date of her termination and her final payments. Rather, it assumed she had left, accepting redundancy and returning her ID pass.

[27] Based on these findings, I proceed to consider the two jurisdictional objections and the merits of Ms Jennings’ unfair dismissal application.

Dismissal or resignation

[28] I reject the company’s contention that Ms Jennings resigned. The company appears to believe that Ms Jennings’ acceptance of her redundancy has the consequence that it did not dismiss her, and that she is to be considered as having ended her employment. This is not correct.

[29] A person who has been dismissed may, subject to various jurisdictional requirements, make an application seeking an unfair dismissal remedy. Section 386 of the Act states that a person has been ‘dismissed’ if the person’s employment with his or her employer has been ‘terminated on the employer’s initiative’, or the person has ‘resigned from his or her employment, but was forced to do so because of the conduct or a course of conduct engaged in by his or her employer.’ It is quite clear that Ms Jennings’ termination for redundancy was ‘on the initiative of the employer’. 2 It was the actions of the employer in deciding that it no longer needed Ms Jennings’ role that brought the employment relationship to an end. Had the company offered her equivalent employment on comparable conditions, and not terminated her employment, the company might have been able to contend that, although it terminated Ms Jennings’ contract of employment in respect of her previous role, it did not terminate the employment relationship. However, although I accept that the company was looking for a way to avoid making Ms Jennings redundant, the alternative role was on significantly less pay and at a substantially lower level. Offering Ms Jennings a choice between redundancy and an alternative role of this kind brought the employment relationship to an end. It was, to use the formulation of the Court in Mohazab, the principal contributing factor which led to the termination of the employment relationship.3

Genuine redundancy

[30] AGB contends that Ms Jennings dismissal was a case of genuine redundancy, and that the Commission has no jurisdiction to hear the merits of the application. Under s 385 of the Act, a dismissal cannot be unfair if it was a case of ‘genuine redundancy’, which is defined as follows by the Act at s 389:

“(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) (b) the enterprise of an associated entity of the employer.”

[31] I will deal first with the question of whether AGB no longer required Ms Jennings’ job to be performed by anyone because of changes in the operational requirements of its enterprise.

[32] Mr Dejanovic said that the company had experienced a business downturn. The company decided to restructure the organisation. Mr Dejanovic explained that the company was in financial difficulties and needed to make changes. He said that the company decided that it no longer needed to have two coordinators in the sales and marketing departments. The other coordinator was Ms Anika Alsop, who was the coordinator for marketing. Ms Alsop became the sole coordinator covering marketing and enrolments. Mr Dejanovic also gave evidence that the merged coordinator role assumed by Ms Alsop after Ms Jennings’ redundancy has itself now been abolished.

[33] On 17 October 2018 the company entered voluntary administration. The administrators were responsible for the management of the company until 30 November 2018 when a deed of company arrangement was made, and control of the company returned to its directors. This is clear evidence of the difficult financial situation confronting the company in the months following Ms Jennings’ dismissal, and consistent with Mr Dejanovic’s evidence that the business was confronting financial difficulties before the dismissal.

[34] It is also relevant to take note of what has occurred since Ms Jennings was dismissed. AGB has not replaced Ms Jennings. No one is performing the role of enrolment coordinator. That function was subsumed by another role, which itself has since ceased to exist.

[35] From the above I conclude that AGB no longer required Ms Jennings’ job to be performed by anyone because of changes in the operational requirements of its enterprise. Those changed operational requirements were its new assessment of those requirements, 4 and the business downturn that AGB was experiencing at the time.

[36] Next it is necessary to consider whether AGB complied with any obligation in a modern award or enterprise agreement that applied to Ms Jennings’ employment to consult about the redundancy.

[37] The company acknowledged that Ms Jennings’ employment was covered by the Educational Services (Post-Secondary Education) Award 2010 (Award). Clause 8 of the Award requires an employer to consult with employees about major workplace change. Clause 8.1 states that where an employer has made a definite decision to make major changes in organisation, structure, or various other matters, that are likely to have significant effects on employees, the employer must give notice of the changes to all employees who may be affected by them, and discuss the changes, their likely effect on employees, and measures to avoid or reduce the adverse effects of changes on employees. Clause 8.2(c) provides:

‘For the purposes of the discussion under clause 8.1(b), the employer must give in writing to the affected employees and their representatives (if any) all relevant information about the changes including:

(a) their nature; and

(b) their expected effect on employees; and

(c) any other matters likely to affect employees.’

[38] In his evidence, Mr Dejanovic acknowledged that he did not provide to Ms Jennings any information in writing on the proposed restructure and the expected effects of the changes on her. Although I consider that the company did notify Ms Jennings of, and did discuss with her, the redundancy of her position, the reasons for it and the alternative role, it is clear that the company did not comply with the requirement to provide all relevant information in writing, as required by clause 8.2(c) of the Award. Further, the company did not confirm with Ms Jennings the date on which her redundancy would become effective.

[39] The requirement of s 389(1)(b) has not been satisfied in this case. I therefore conclude that the dismissal was not a case of ‘genuine redundancy’.

Was the dismissal unfair?

[40] A finding that a dismissal was not a case of genuine redundancy does not necessarily lead to a conclusion that the dismissal was unfair. Rather, if the Commission rejects a contention that a dismissal was a case of genuine redundancy, as well as any other jurisdictional objections, the Commission proceeds to consider the unfair dismissal application on its merits.

[41] Section 387 states that in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account the matters in subsections 387(a) to (h).

[42] In circumstances of dismissal for reason of redundancy, no relevant finding can be made in relation to the consideration in s 387(a), namely whether there was a ‘valid reason for the dismissal related to the person’s capacity or conduct’. 5 AGB does not contend that there was any valid reason for dismissal related to Ms Jennings’ capacity or conduct. Rather, its reliance on redundancy as the reason for dismissal is to be considered in connection with s 387(h), ‘any other matters the Commission considers relevant’, to which I shall return.

[43] Similarly, the considerations in sections 387(b) and (c) are not material in the present case. They concern whether the employee was ‘notified of that reason’ (i.e. the valid reason in 387(a)), and whether the person was given an opportunity to respond to any reason related to capacity or conduct. 6

[44] The consideration in s 387(d) is whether there was ‘any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal.’ Ms Jennings claims the company did not afford her an opportunity to have a support person present at several meetings. But she does not say, and there was no evidence to suggest, that the company refused to allow her to have a support person present. If a dismissal relates to unsatisfactory performance, s 387(e) requires the Commission to consider whether the person has been warned about that performance prior to the dismissal. However, the present matter does not concern performance. Ms Jennings was dismissed for reason of redundancy.

[45] The Commission is required to consider the degree to which the size of the employer’s enterprise, and the degree to which the absence of dedicated human resources specialists or expertise in the enterprise, would be likely to impact on the procedures followed in effecting the dismissal (ss 387(f) and (g)). Neither party made any submissions in this regard. However, I note that AGB is not a small business employer. Further, the materials disclose that the company has a human resources manager. In my view, the considerations in sections 387(f) and (g) do not carry any weight in the analysis of whether Ms Jennings’ dismissal was unfair.

[46] I then come to s 387(h), ‘any other matters the Commission considers relevant’. My conclusions in relation to the first limb of the ‘genuine redundancy’ jurisdictional objection are relevant to the question of whether the dismissal was unfair. The company did not need Ms Jennings’ role to be undertaken by anyone, due to changes in operational requirements. Her role was merged with another position. That position itself no longer exists. This is not a case where the employer had an ulterior motive for the dismissal. Although the dismissal was not a ‘genuine redundancy’ for the purposes of the jurisdictional objection, this does not mean that the dismissal was not a real and bona fide redundancy. Although it could not be a valid reason related to capacity or conduct for the purposes of s 387(a), Ms Jennings’ dismissal for redundancy in the present circumstances occurred for a legitimate reason. I take this into account in my consideration of s 387(h). This tells against a finding that her dismissal was unfair.

[47] I note that, in the course of her oral evidence, Ms Jennings said that the alternative role that was offered to her was really the same as the old one, but with no controlling function, and on less pay. I do not accept that the alternative role was the same as the old one. It was plainly a different, less responsible role on lower pay. Ms Jennings was perfectly entitled to decline it. But that does not affect the legitimacy of the decision to abolish her previous role. Further, I take into account the fact that the company considered whether it was possible to redeploy Ms Jennings, and offered her another role, albeit at a lower level and on lower remuneration. The company’s consideration of alternatives to redundancy supports its contention that the dismissal was not unfair. I note that there was no suggestion that Ms Jennings could reasonably have been otherwise redeployed.

[48] On the other hand, I consider that the process leading to Ms Jennings’ dismissal was deficient, primarily because the company did not comply fully with the requirements of clause 8 of the Award. Whilst Ms Jennings was told that her position would no longer exist, and that she would receive nine weeks’ redundancy pay, I accept Ms Jennings’ evidence that she believed her performance had had something to do with the company’s decision. That was not the case. However, contributing to her confusion was the letter from the company dated 27 August 2018, mistakenly referring to ‘unsatisfactory work performances’. Further, when Ms Jennings asked about this, her manager did not investigate or clarify the matter. I also consider that the company should have confirmed with Ms Jennings her final day of employment and her total payments. These factors support Ms Jennings’ claim that her dismissal was unfair.

[49] The circumstances of this case illustrate the utility of an award requirement that information on major change, such as redundancy, be provided to employees in writing. Had the Award been fully complied with in this case, the confusion surrounding the end of Ms Jennings’ employment could well have been avoided. Ms Jennings could have taken the letter home, reflected on it, taken time to consider questions, perhaps put a response in writing. I would note that the requirement to provide written information on major change to employees is a common requirement of modern awards, but one that is regrettably often overlooked in a redundancy context.

[50] In my view, Ms Jennings’ dismissal was not unreasonable or unjust. However, I consider that, in the particular circumstance of this case, the company’s failure to comply fully with the consultation provision in the Award contributed to Ms Jennings’ confusion about her dismissal, and that her dismissal was in this respect harsh. Accordingly, I consider that Ms Jennings’ dismissal was unfair.

Remedy

[51] Ms Jennings seeks compensation rather than reinstatement. Section 390(3) of the Act provides that the Commission must not order the payment of compensation unless it is satisfied both that reinstatement of the person is inappropriate, and that it considers an order for the payment of compensation is appropriate in all the circumstances. In my view, reinstatement is inappropriate in this case. Ms Jennings’ role has ceased to exist, the position which subsumed her previous function has also ceased to exist, and Ms Jennings does not wish to return to AGB.

[52] I consider that an award of compensation is appropriate. Section 392(2) provides that in determining an amount of compensation, the Commission is to take into account all the circumstances of the case, including the matters identified in subsections 392(a) to (g). The principles that apply to the question of how compensation should be calculated are well-established. The method for calculating compensation under s 392 of the Act is informed by the decision of the Full Bench in Bowden v Ottrey Homes Cobram and District Retirement Villages Inc⁷.

[53] In relation to the question of what effect any compensation order would have on the viability of the employer’s enterprise (s 392(2)(a)), I note that the company has recently emerged from administration, and that it is operating under a deed of company arrangement. Any significant compensation order might affect its viability. As to Ms Jennings’ length of service (s 392(2)(b)), I note that she had worked for the company for just over a year and two months. I also note that Ms Jennings found a full time job on 29 October 2018 (s 392(2)(d)), and that this mitigates her loss.

[54] Section 392(2)(c) of the Act directs the Commission to take into account the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed. This requires the Commission to consider what would have occurred if the person was not dismissed, and in particular, how long the person would have remained employed. This is obviously a hypothetical situation which cannot be described with any certainty. However, given the company’s financial situation and the fact that it had decided Ms Jennings’ role was not required, I consider it likely that, had Ms Jennings not been dismissed on 5 September 2018, she would have been dismissed a very short time later, in my view within days.

[55] However, I assess this hypothetical situation from the standpoint that any subsequent dismissal of Ms Lindsay would have occurred according to law. If AGB had made Ms Jennings redundant in full compliance with the consultation provision in the Award, it would have provided her with information in writing about the proposed change, namely her redundancy and the reason for it, as well as the alternative position, in compliance with clause 8. Allowing time for Ms Jennings to respond and for further discussions, I consider that this would have taken not more than one additional week. There is no reason to think that the further consultation would have affected Ms Jennings’ decision about the alternative position. There was nothing that was said to have been unclear about this, and in my opinion she would still have rejected it.

[56] I also note that, given her length of service, Ms Jennings would have been entitled to two weeks’ notice of termination of employment in accordance with s 117 of the Act. I consider it likely that the company would have paid Ms Jennings in lieu of providing actual notice, as it did in September 2018. However, considering ‘the remuneration the person would have received if the person had not been dismissed’, it is clear that Ms Jennings would only have received one payment in lieu of notice, not two. Accordingly, the remuneration she would have been likely to receive if she had not been dismissed on 5 September 2018 is an additional one week’s pay. Looked at another way, I consider it to be a relevant matter for the purposes of s 392(2)(g) that the company has already paid Ms Jennings two weeks’ pay in lieu of notice, and that it is not appropriate to require it to make a second payment referable to the same notice period. I also note that Ms Jennings commenced receiving remuneration from her new job only after she obtained new employment in October 2018,which is after the time when her employment would in my view have ended, had she not been dismissed on 5 September 2018 (s 392(2)(e)). These earnings should not reduce the amount of compensation ordered.

[57] For the purposes of calculating one week’s pay, I note Ms Jennings’ statement, which was not contradicted by the company, that she worked 38 hours a week and was paid $25.8103 an hour. This equates to $980.79. To this I will add 9.5% superannuation, which is $93.18, resulting in a sum of $1073.97.

[58] I note Ms Jennings’ submission that she seeks compensation partly in respect of the shock and stress she suffered in connection with her dismissal; however s 392(4) specifically prevents the Commission from including in any order for compensation a component for shock, distress or other analogous hurt.

[59] I am satisfied that a remedy should be ordered in this matter. Reinstatement is inappropriate, but compensation is appropriate in the circumstances. I will order compensation to be paid to Ms Jennings in the amount of $1,073.97 with deduction of any taxation required by law. This amount is to be paid by the company to Ms Jennings within 28 days of the date of this decision.

[60] An order giving effect to this decision is separately issued in PR704485.

DEPUTY PRESIDENT

Appearances:

Ms K Jennings for herself

Mr R Dejanovic for himself

Hearing details:

2019

Melbourne

14 January

Printed by authority of the Commonwealth Government Printer

<PR704527>

 1   The address on the certificate differs from that given by Ms Jennings in her F2 unfair dismissal application.

 2   See generally Khayam vNavitas English Pty Ltd[2017] FWCFB 5162

 3   Mohazab v Dick Smith Electronics (No 2) 62 IR 200 at 205

 4   See Shachar v Electrical Home Aids Pty Ltd t/a Godfreys[2018] FWC 4892 at [27] – [30]

 5   Appeal by Ventyx Pty Ltd [2014] FWCFB 2143 at [142]

 6   Ibid at [143] and [144]

7 [2013] FWCFB 431. See also Sprigg v Paul’s Licensed Festival Supermarket (1998) 88 IR 21 and Ellawala v Australian Postal Corporation AIRCFB, Print S5109, 17 April 2000), [33]