Ms Natalie Alympic v Scaglione Holdings Pty Ltd
[2025] FWC 522
•21 FEBRUARY 2025
| [2025] FWC 522 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Ms Natalie Alympic
v
Scaglione Holdings Pty Ltd
(U2024/9324)
| COMMISSIONER THORNTON | ADELAIDE, 21 FEBRUARY 2025 |
Application for an unfair dismissal remedy – jurisdictional objection genuine redundancy – genuine redundancy not found – whether harsh, unjust or unreasonable – dismissal was not harsh, unjust or unreasonable – application dismissed
Ms Natalie Alympic (Ms Alympic or the Applicant) was employed as a chef by Scaglione Holdings Pty Ltd (the Respondent) at the Clare Hotel in South Australia’s mid-north, from 5 February 2017 until she was notified of the termination of her employment on account of redundancy on 24 July 2024. Ms Alympic last worked for the Respondent on 28 July 2024 and the termination of her employment took effect on 30 July 2024. Ms Alympic was a casual employee, working approximately 25 hours per week.
The Respondent sold the hotel and ceased operating their business effective of 30 July 2024. Ms Alympic was not offered employment with the purchaser of the hotel who became the employer of all but two of the employees who had worked for the Respondent at the Clare Hotel.[1] Her employment ended by way of redundancy on the date the Respondent ceased operating the hotel.
Ms Alympic’s complaint regarding the termination of her employment focused on what she says is the unfairness of the process used by both the Respondent and Clare Hotel Pty Ltd (the incoming employer) in considering whether she would be offered employment with the incoming employer.
Ms Alympic asserts that the Respondent, without her knowledge or consent, disclosed her past disciplinary history to the incoming employer. Ms Alympic complained that she did not have an opportunity to challenge or explain the matters contained in the Respondent’s records of disciplinary matters that pertained to her employment. Ms Alympic claims the decision of the incoming employer not to offer her employment and the Respondent’s subsequent termination of her employment was a result of this unreasonable process and is therefore unfair.
The Respondent raised an objection to the Commission’s jurisdiction to deal with the Applicant’s claim, asserting that the Applicant’s termination cannot be an unfair dismissal in accordance with section 385 of the Fair Work Act 2009 (Cth) (the Act) because it was a case of genuine redundancy.
Ms Alympic represented herself in this matter and gave evidence on her own behalf. Ms Bowley and Ms Peterkin, former co-workers of the Applicant, also gave evidence in support of her case. Mr Coppola of the Australian Hotels Association (AHA) represented the Respondent. Ms Aimee Wilson, manager of the Clare Hotel for both Scaglione Holdings and now Clare Hotel Pty Ltd, as well as being the daughter of the owners of the Respondent business, Mr and Mrs Scaglione, gave evidence on behalf of the Respondent.
For the reasons outlined below, I find that Ms Alympic’s dismissal is not a case of genuine redundancy because the Respondent did not consult with Ms Alympic as required by the terms of the Clare Hotel (Casual Employees) Enterprise Agreement 2014–2016 that applied to Ms Alympic’s employment.
However, I further find that Ms Alympic’s dismissal is not harsh, unjust or unreasonable. Ms Alympic’s dismissal would have inevitably occurred because of the change in the Respondent’s business and any defects in consultation would not have materially altered the outcome.
I accept that Ms Alympic is aggrieved about the process adopted by the Respondent and the incoming employer to determine not to offer her ongoing employment. I also note the context of Ms Alympic’s lengthy service to the Respondent and her selection as only one of two employees of the Respondent not to be offered employment with the incoming employer. However, the complaints raised by Ms Alympic relating to the fairness of her selection for redundancy are matters that arise from the decision of the incoming employer not to offer her employment and the Respondent’s disclosure of information that may have influenced that decision, rather than the unfairness of the termination itself.
Background facts from evidence
On 9 May 2024, Ms Alympic sent correspondence to the Respondent seeking the conversion of her employment from casual to part-time. At this time, the Applicant had been employed on a casual basis by the Respondent for over 7 years.
In late May 2024, likely 25 May 2024,[2] Ms Alympic was advised by Mrs Deb Scaglione, an owner of the Respondent business, that the Respondent had not accepted her application for casual conversion because the Clare Hotel had been sold[3] and the business was to change hands at the end of June 2024.[4] The sale of the business was then delayed and the Applicant accepts that she was later advised that the transfer of the business from the Respondent to the incoming employer would be delayed until the end of July 2024.[5]
Ms Alympic says that Mrs Scaglione advised her at the time she told her of the sale of the business that her job would be “safe and secure”[6] and her position would remain with the incoming employer. Mrs Scaglione did not give evidence in this matter to refute that assertion.
The Applicant was told that all the staff would be meeting with the new owner before the transfer of the business. There is some dispute between the parties as to whether it was an interview process as the Respondent described it, or a “meet and greet” as the Applicant described the process. It is of no consequence to the outcome of this matter as to whether there was a formal interview process. Ms Alympic accepts that she was advised she was to meet with the incoming owner, Mr Ben Kerslake of the incoming employer, before the transfer of the business occurred.[7]
Ms Alympic met with Mr Kerslake to discuss possible future employment with his business sometime between late June and 10 July 2024.[8]
Ms Alympic said that she expressed concerns to Mr Kerslake during the meeting about some of the practices in the kitchen in the previous six months.[9] Ms Alympic raised what she described as serious health and safety matters with Mr Kerslake that she felt needed to be understood by the incoming employer. Ms Alympic considered the issues serious because in her view, they could cause a risk to the health of customers.[10] She did not particularise the matters in the discussion, nor, according to Ms Alympic, did Mr Kerslake request particulars.
Ms Alympic denied in cross examination that instead of making a complaint about kitchen hygiene, that instead she complained generally about other staff.[11]
Ms Wilson gave evidence that Mr Kerslake approached her after the meeting with Ms Alympic and said words to the effect: “that did not go well, she did nothing but bitch about all the other staff. Is there anything I should know about her employment history?”[12]
Ms Wilson’s evidence was that she then showed Mr Kerslake what she refers to as her ‘note to files’. Ms Wilson explained in her evidence that ‘note to files’ are notes she keeps if an employee is late to work or has a dirty uniform, or matters of that nature, that she said “had nothing to do with disciplinary matters”.[13] Ms Wilson said that she kept the notes to file so that she had a note of the date the issue arose[14] rather than trying to later remember the date, should she need to refer to the matters again. Ms Wilson said that the files were kept on her personal laptop.
When asked by Mr Kerslake if there was anything he should know about Ms Alympic’s employment history, Ms Wilson showed Mr Kerslake the electronic folder containing the notes to file.[15] Ms Wilson said that she drew Mr Kerslake’s attention to the number of notes to file that she had recorded in relation to Ms Alympic but did not show him the contents of each note to file.[16] Ms Wilson’s evidence was that there were approximately 25 notes to file in the folder shown to Mr Kerslake, and 18 of those notes had Ms Alympic’s name in the title.[17]
Ms Wilson went on an interstate trip in July and returned to work on approximately 23 July 2024.
On 24 July 2024, Ms Wilson met with Ms Alympic. At this meeting Ms Wilson told Ms Alympic that she had been informed on 14 July 2024, while she was on leave, that Ms Alympic would not be offered employment with the incoming employer.[18]
The Applicant accepts that Ms Wilson told her in the meeting that Mr Kerslake had said to Ms Wilson that the meeting with Ms Alympic did not go well.[19] It was Ms Alympic’s evidence that Ms Wilson sat her down in the office for the meeting of 24 July 2024 and said to her: “As you know, the business is changing hands. … As a result of that, the interview didn’t go that well and due to the disciplinary history that the hotel had had on you, [Mr Kerslake] has chosen not to continue your employment in the hotel.”[20]
As Mr Kerslake did not give evidence about any views he formed after meeting with Ms Alympic, as it is arguably not relevant to the matter at hand, I can only accept that Ms Wilson told Ms Alympic that the meeting between her and Mr Kerslake did not go well and she was not going to be offered employment by the incoming employer because of a past disciplinary history, not that those were in fact the reasons. It is not necessary for me to make any further findings about the meeting with Mr Kerslake. It is not in dispute that Mr Kerslake ultimately determined that his company, as the incoming employer, would not offer employment to the Applicant.
The Applicant’s submissions
When asked in cross examination if she understood that not being offered employment with the incoming employer was beyond the control of the Respondent, the Applicant answered: “I believe [the Respondent] had some input into me not being employed with the new owner because I was told by [Ms Wilson] that due to the disciplinary history that she had had with me in the past was one of the terminating factors in me being not transferred.”[21]
This is the essence of Ms Alympic’s complaint about the unfairness in this matter – what she says is the role played by the Respondent as her employer in influencing the decision of the incoming employer not to offer her employment.
Ms Alympic also complains that she ought to have been told by Ms Wilson, on the day of Ms Wilson’s discussion with Mr Kerslake, that the meeting did not go well.[22] Ms Alympic argued that she ought to have been told earlier than 24 July 2024 that her employment would not likely be continued as Ms Wilson was aware on the day of her meeting with Mr Kerslake that it did not go well. Ms Alympic argued that Ms Wilson “would have had some instinct to believe that Mr Kerslake was not impressed with my meet and greet meeting” and that Ms Wilson should have said words to the effect: “hey Natalie [Ms Alympic], that didn’t go that well, I have got some concerns about you carrying on about your employment.”[23]
Ms Alympic submitted that the Respondent had a moral obligation to tell her about Mr Kerslake’s views and, after seven and a half years of service, “to let her know”[24] if she was unlikely to be offered employment with the incoming employer. Ms Alympic says that was especially so given that Ms Wilson had influenced the decision of the incoming employer not to offer her employment by showing Mr Kerslake a list of previous disciplinary matters.[25]
Ms Alympic argues that she did not know what the disciplinary issues were in any detail,[26] what information was contained in the files shown to Mr Kerslake or if there was information about previous alleged misconduct that she disputed. She had no right of challenge, reply or correction. This lack of transparency about the process of selection for employment with the incoming employer is the essence of Ms Alympic’s complaint of unfairness.
Ms Alympic accepted in cross examination that after the transfer of the business on 30 July 2024 the Respondent had no power to offer her employment[27] and that it was the incoming employer who made the decision not to offer her employment in their business.
The Respondent’s submissions
The Respondent made clear in written and oral submissions that this was a case of genuine redundancy because the Respondent was unable to provide employment to the Applicant on and from the date they settled on the sale of the hotel to the purchaser.[28] The Respondent says that the Applicant’s role of a casual chef was no longer required in their enterprise because it was no longer in the business of running the Clare Hotel. The Respondent says that it no longer employs anyone.[29]
The Respondent advised the Commission that the Applicant’s employment was covered by the Clare Hotel (Casual Employees) Enterprise Agreement 2024 – 2016 (the Agreement). A copy of the Agreement was provided to the Commission by the Respondent. The Agreement passed its nominal expiry date on 21 December 2016 but prior to when the business was sold, it had not been replaced with another Agreement.
Further, the Respondent contended that the Applicant’s redundancy was a genuine redundancy because it was not required to comply with the consultation clause in the Agreement. The Respondent argued that the consultation clause did not apply because the sale of the business was not ‘introduc[ing] a major change to production, program, organisation, structure or technology in relation to its enterprise’ as referred to in clause 13.1, setting the scope for the application of the clause.
Despite its argument that it was not obligated to consult Ms Alympic about her redundancy, the Respondent submits that it consulted with the Applicant when it advised her on 25 May 2024 that the hotel would be sold, and discussed with her the impact of the change on her employment when it told Ms Alympic that the incoming employer would interview all current employees for consideration of an offer of employment.[30]
In the alternative, the Respondent provided submissions that the dismissal was not harsh, unjust or unreasonable.
Considering the criteria for establishing a dismissal was harsh, unjust or unreasonable in section 387 of the Act, the Respondent submitted that there was a valid reason for the Applicant’s dismissal being redundancy, that Ms Alympic was notified of the reason for her dismissal, there was no requirement to give Ms Alympic an opportunity to respond to any reason related to her capacity or conduct because the dismissal was a redundancy and was not based on Ms Alympic’s capacity or conduct, and likewise the Applicant had not been warned about unsatisfactory performance because Ms Alympic was not dismissed for poor performance.[31]
Further, the Respondent notes that Ms Alympic did not request a support person in discussions about her redundancy and consequently, the Respondent did not unreasonably refuse her a support person. The Respondent also asserted that despite the business being small with no dedicated human resources expertise they followed appropriate procedure in notifying the Applicant of her redundancy.[32]
Consideration: whether this is a case of genuine redundancy
Section 385 of the Act sets out what constitutes an unfair dismissal:
385 What is an unfair dismissal
A person has been unfairly dismissed if the FWC is satisfied that:
(a)the person has been dismissed; and
(b)the dismissal was harsh, unjust or unreasonable; and
(c)the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d)the dismissal was not a case of genuine redundancy
Section 389 sets out the meaning of genuine redundancy:
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.
Did the Respondent no longer require the Applicant’s role to be performed by anyone because of changes in its operational requirements in their enterprise?
The Applicant’s witnesses Ms Peterkin and Ms Bowley provided evidence that Ms Alympic’s role continues to be undertaken in the business, conducted by the incoming employer, Clare Hotel Pty Ltd.
Whether Ms Alympic’s role is still required by the incoming employer is not the consideration here. To be a genuine redundancy, section 389(1)(a) sets out the first element as being the person’s employer no longer required the person’s job to be performed because of changes to operational requirements in the employer’s enterprise.
In this circumstance, the Respondent, Scaglione Holdings Pty Ltd, as Ms Alympic’s employer, no longer required her job to be performed by anyone in their enterprise because they are no longer operating their enterprise. The Respondent’s evidence is that it no longer employs any employees and no longer operates the hotel. Therefore, the Respondent as the employer, no longer requires Ms Alympic’s role to be performed by anyone because they have ceased operation of their enterprise. This element of a genuine redundancy is met.
Was there any obligation in a modern award or enterprise agreement to consult with the Applicant about her redundancy? Did the Respondent comply with the obligation, if any, to consult with the Applicant?
Section 389(1)(b) of the Act requires that for a redundancy to be genuine, the employer must have complied with any obligation to consult about the redundancy that is contained in a modern award or enterprise agreement that applied to the employment.
Whilst Ms Alympic confirmed that she was unaware she was covered by an enterprise agreement,[33] I accept the Respondent’s submission that the Agreement applied to Ms Alympic’s employment. The Respondent and casual employees employed by the Respondent are parties to the Agreement and various classifications of cooks are contained in the Agreement. The Agreement passed its nominal expiry date on 31 December 2016 but continued to operate because no other Agreement was approved to replace it.[34]
The Agreement includes a consultation clause, which relevantly provides:
“CLAUSE 13-CONSULTATION
13.1 This consultation clause applies if the employer:
(a)has made a definite decision to introduce a major change to production, program, organisation, structure or technology in relation to its enterprise that is likely to have a significant effect on the employees; or
(b)proposes to introduce a change to the regular roster or ordinary hours of work of employees.
Major change
13.2 For a major change referred to in subclause 13.1 (a):
(a) the employer must notify the relevant employees of the decision to introduce the major change; and
(b) subclauses 13.3 to 13.9 apply.
13.3 The relevant employees may appoint a representative for the purposes of the procedures in this consultation clause.
13.4 If:
(a) a relevant employee appoints, or relevant employees appoint, a representative for the purposes of consultation; and
(b) the employee or employees advise the employer of the identity of the representative; the employer must recognise the representative.
13.5As soon as practicable after making its decision, the employer must:
(a)discuss with the relevant employees:
(i)the introduction of the change; and
(ii)the effect the change is likely to have on the employees; and
(iii)measures the employer is taking to avert or mitigate the adverse effect of the change on the employees; and
(b)for the purposes of the discussion-provide, in writing, to the relevant employees:
(i)all relevant information about the change including the nature of the change proposed; and
(ii)information about the expected effects of the change on the employees; and
(iii)any other matters likely to affect the employees.
13.6 However, the employer is not required to disclose confidential or commercially sensitive information to the relevant employees.
13.7The employer must give prompt and genuine consideration to matters raised about the major change by the relevant employees.
13.8 If a term in this Agreement provides for a major change to production, program, organisation, structure or technology in relation to the enterprise of the employer, the requirements set out in subclause 13.2(a) and subclauses 13.3 and 13.5 are taken not to apply.
13.9 In this consultation clause, a major change is likely to have a significant effect on employees if it results in:
(a) the termination of the employment of employees; or
(b) major change to the composition, operation or size of the employer's workforce or to the skills required of employees; or
(c) the elimination or diminution of job opportunities (including opportunities for promotion or tenure); or
(d) the alteration of hours of work; or
(e) the need to retrain employees; or
(f) the need to relocate employees to another workplace; or
(g) the restructuring of jobs.”
The Respondent asserts that it had no obligation under the Agreement to consult the Applicant about the closure of the business and the impact it would likely have on her employment because “selling the business altogether is not “introducing a major change to production, program, organisation, structure or technology in relation to its enterprise.”[35]
Upon further consideration of the terms of the Agreement, I do not accept that submission as put by the Respondent. I find that the consultation clause in the Agreement and the obligations contained therein applied in these circumstances.
The principles relating to interpretation of enterprise agreements are well established in previous decisions of this Commission and other relevant Courts.[36] A Full Bench of the Commission recently noted, in respect to the interpretation of an enterprise agreement: “In summary, the starting point is the ordinary meaning of the words, read as a whole and in context”.[37]
A consideration of the ordinary meaning of the words in the consultation clause extracted above, leads me to conclude that:
(a)The consultation clause applies because the employer made a definite decision to introduce a major change to the organisation of its enterprise that was likely to have a significant effect on the employees (clause 13.1(a));
(b)The decision to cease operations is a major change that is likely to have a significant effect on the employees because it resulted in the termination of employment of employees, including Ms Alympic (clause 13.9(a));
(c)As the sale of the business was a major change, clauses 13.3 to 13.9 of the Agreement apply (clause 13.2);
(d)As soon as practicable after making its decision, the employer was required to discuss with the relevant employees matters including the introduction of the change, the likely effect on employees and measures to mitigate the effect on employees (clause 13.5(a)); and
(e)For the purposes of the discussion, the employer was required to provide in writing all relevant information about the change proposed, its expected effects on employees and any other matters likely to affect employees (clause 13.5(b)).
There is no evidence that Ms Alympic sought to appoint a representative for the purposes of the consultation regarding her redundancy in accordance with clause 13.3 and 13.4.
It appears on the evidence that the Respondent, in accordance with their obligations arising from clause 13.5, discussed with Ms Alympic the sale of the hotel, the likely date of the transfer and informed her that employees would be offered a meeting with the incoming employer to discuss employment with them. This discussion took place, according to the Applicant, in late May 2024.
Critically, however, there is no evidence before me that the Respondent provided any information to Ms Alympic in writing, for the purposes of the discussion, about the change, its effect and any mitigating steps being taken by the Respondent in accordance with clause 13.5(b) of the Agreement. Neither the Applicant nor the Respondent provided any documents to show that information was provided in writing to Ms Alympic for the purposes of the discussion.
The only reference to any communication in writing was in Ms Wilson’s evidence where she says that a delay to the date of the sale was communicated via ‘Facebook Messenger message’ sent to all staff.[38] This written communication was not suggested by the Respondent to be information for the purposes of the discussion, and in any event, does not meet the requirements of clause 13.5 of the Agreement.
I am not persuaded that the Respondent complied with their obligation under the Agreement to consult with Ms Alympic because they did not provide any information to Ms Alympic in writing for the purposes of the discussion.
I find that the Respondent did not comply with the obligation set out in the Agreement to consult Ms Alympic about her redundancy. Therefore, the Applicant’s redundancy is not a genuine redundancy for the purposes of section 389 of the Act and the Respondent’s jurisdictional objection is not upheld.
There is no requirement for me to consider section 389(2) of the Act because the Respondent has not made out their jurisdictional objection.
Consideration: Was the Applicant’s dismissal harsh, unjust or unreasonable?
Returning to the requirements of section 385 of the Act that sets out what constitutes an unfair dismissal, it is clear that there is no dispute that the Applicant was dismissed[39] and I have found that the dismissal was not a genuine redundancy.[40] There was no argument raised that the Small Business Fair Dismissal Code applies in this matter.[41] What remains to be determined is whether I am satisfied that the dismissal of Ms Alympic was an unfair dismissal because it was harsh, unjust or unreasonable.[42]
Section 387 sets out the matters I must take into account when making findings about whether the dismissal was harsh, unjust or unreasonable. Section 387 provides:
387Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:
(a)whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b)whether the person was notified of that reason; and
(c)whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d)any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e)if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f)the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g)the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h)any other matters that the FWC considers relevant.
In respect of this matter, sub-sections 387(a)-(c) are not relevant because Ms Alympic was not dismissed for reasons relating to her capacity and conduct. Sub-section (d) is not relevant because there is no evidence that Ms Alympic asked for, or was refused, a support person in the redundancy process.
With respect to paragraphs (f) and (g), I note the Respondent was represented in these proceedings by their employer association, the AHA. The Respondent, however, submitted that the business was a relatively small employer, with no internal, dedicated human resource expertise.[43] The Respondent asserted, however, that despite having no expertise, they followed the appropriate procedure[44] and by implication, that the absence of expertise did not impact the procedures followed. The Respondent clearly has access to assistance from the AHA. I therefore consider subclauses 387(f) and (g) as neutral in this matter.
Sub-clause 387(h) allows for consideration of any other matters the Commission considers relevant to determining whether the dismissal was harsh, unjust or unreasonable. The issue of whether a failure to consult in the context of a redundancy weighs in favour of a finding that the dismissal is harsh, unjust or unreasonable is a matter relevant to consider under subsection 387(h).[45]
In the recent matter of Kay v Fulton Hogan Construction Pty Ltd[46](Kay), Deputy President Butler found that the obligation to consult about a redundancy in accordance with the terms of the relevant agreement was only partially complied with[47] and noted:
“The employer’s failure to consult to the extent required under the Agreement weighs in favour of a finding that the dismissal was unfair, but not as strongly as would have been the case if there was no attempt at consultation whatsoever.”[48]
In the matter of Kay, the Respondent provided information in writing to the Applicant but failed to have a discussion with him in a way that could be considered consultation. In this matter, the Respondent failed to provide information in writing to Ms Alympic but did have a discussion with her during which she was advised of the sale of the business and notified of her option to discuss future employment with the incoming employer.
In Kay, the part compliance with the obligation to consult resulted in the Applicant losing the opportunity to meaningfully discuss mitigation of the effects of the redundancy on him, including whether he was able to relocate to take up ongoing employment with the Respondent,[49] weighing in favour of a finding that the dismissal was harsh, unjust or unreasonable.
In contrast, the failure of the Respondent in this matter to put information in writing to Ms Alympic before a discussion took place had no material effect on the overall outcome of Ms Alympic’s redundancy. Ms Alympic was aware that the business was to be sold from late May 2024, and was provided with an opportunity to meet the incoming employer and put herself forward for ongoing employment. Even if the consultation obligations were fully complied with in this matter, Ms Alympic would still have been made redundant because the Respondent sold their business and no longer employ any employees. The reason Ms Alympic is no longer working at the Clare Hotel is because the incoming employer did not offer her work and consequently her employment was not transferred to the incoming employer. This was a decision over which the Respondent had no control. When the decision was taken by the incoming employer not to offer Ms Alympic employment her redundancy was inevitable. The failure of the Respondent to put information in writing to Ms Alympic for the purposes of the discussion had no impact on that outcome.
I am not persuaded that the Respondent’s failure to provide information in writing to the Applicant for the purposes of the discussion, whilst leading to a finding that the redundancy was not genuine, weighs in favour of a finding that the dismissal was harsh, unjust or unreasonable.
I appreciate the concerns Ms Alympic raised about the process adopted by the Respondent and the incoming employer in determining who would be offered employment after the Respondent ceased to operate the business. I understand Ms Alympic’s aggrievement when she discovered that her employer showed records to the incoming employer relating to her performance and disciplinary history that she was unaware existed and which she could not defend. Ms Alympic could not, in the circumstances, advocate for herself to persuade the incoming employer to offer her employment.
I also accept that receiving 4 days’ notice of termination after more than 7 years of employment caused Ms Alympic financial and mental distress. I note that Ms Alympic had not converted her employment from casual status at the time of her termination and as a casual employee she has no entitlement to the notice provisions in section 117 of the Act.[50]
The matters with which Ms Alympic takes issue as being unfair are, in the main, not matters relevant to her dismissal from the Respondent. They are complaints about why she was not offered employment with the incoming employer. Whilst I understand Ms Alympic’s complaints, I do not consider them matters I should take into account as relevant to whether her dismissal from the Respondent was harsh, unjust or unreasonable.
Ms Alympic was dismissed by the Respondent because her job was not required to be done by anyone after the Respondent ceased operating the hotel. The dismissal followed some months’ notice from the Respondent of the sale of the hotel and Ms Alympic having the opportunity to be considered for employment with the incoming employer.
Having considered each of the matters in section 387 of the Act, I find that Ms Alympic’s dismissal was not harsh, unjust or unreasonable.
Conclusion
Ms Alympic’s dismissal does not meet the definition of genuine redundancy in the Act because of a failure of the Respondent to consult with Ms Alympic in the manner required by the Agreement. The Respondent’s jurisdictional objection is not upheld.
However, any deficiencies in consultation did not have a material effect on the decision to make Ms Alympic redundant. The decision to make her role redundant was an inevitable outcome of the Respondent ceasing their operation of the Clare Hotel. The termination of Ms Alympic’s employment was not otherwise harsh, unjust or unreasonable.
An order dismissing the application will be issued in conjunction with this decision.[51]
COMMISSIONER
Appearances:
N Alympic, the Applicant on her own behalf.
G Coppola of the Australian Hotels Association, on behalf of the Respondent.
Hearing details:
Adelaide
2024
21 November.
[1] Audio recording of the hearing – Part 1 at 1:35:09.
[2] Ibid – Part 1 at 22:32 – 23:17.
[3] Ibid at 38:52.
[4] Statement of the Applicant and Audio recording of the hearing – Part 1 at 23:29.
[5] Audio recording of the hearing – Part 1 at 23:39.
[6] Ibid at 39:16.
[7] Ibid at 25:00.
[8] Ibid at 27:48. Ms Wilson estimated in her evidence that the relevant date was 25 June 2024 – audio recording of the hearing – Part 1 at 1:26:58.
[9] Ibid at 45:45.
[10] Ibid at 54:05 onwards. Ms Wilson provided an explanation in her evidence that the Applicant had been mistaken as to the date of the food that she claimed was beyond its expiry date.
[11] Audio recording of the hearing – Part 1 at 59:13.
[12] Statement of Ms Wilson at paragraph 11 and audio recording of the hearing – Part 1 at 1:29:06.
[13] Audio recording of the hearing – Part 1 at 1:27:31.
[14] Ibid at 1:27:32.
[15] Ibid at 1:30:12.
[16] Ibid at 1:33:23.
[17] Statement of Ms Wilson at paragraph 11.
[18] Ibid at paragraph 12 and audio recording of the hearing – Part 1 at 29:20.
[19] Audio recording of the hearing – Part 1 at 30:00.
[20] Ibid at 35:53.
[21] Ibid at 29:35 – 29:52.
[22] Ibid at 30:02.
[23] Ibid at 30:58.
[24] Ibid at 31:24 – 31:30.
[25] Ibid at 32:58.
[26] Ibid at 36:18.
[27] Ibid at 34:10.
[28] Respondent’s outline of submissions at paragraph 13.
[29] Ibid at paragraph 17.
[30] Ibid at paragraphs 22 and 23.
[31] Ibid at paragraphs 37 – 40 and 42.
[32] Ibid at paragraphs 41 and 43 – 44.
[33] Audio Recording of the hearing – Part 1 at 1:19:49.
[34] Ibid at 1:21:48. A search of the Commission’s online Agreement database also did not reveal any later approved Enterprise Agreements.
[35] Respondent’s outline of submissions at paragraph 22.
[36] See Ridd v James Cook University (2021) 274 CLR 495 [17]; WorkPac Pty Ltd v Skene (2018) 264 FCR 536, [197]; Amcor Ltd v Construction, Forestry, Mining and Energy Union [2005] HCA 10; (2005) 222 CLR 241; Kucks v CSR Ltd (1996) 66 IR 182.
[37] Independent Education Union of Australia v Peregian Beach Community College Ltd T/A Peregian Beach College[2025] FWCFB 1 at [17].
[38] Statement of Ms Wilson at paragraph 9 and audio recording of the hearing – Part 1 at 1:26:18.
[39] Section 385(a)
[40] Section 385(d)
[41] Section 385(c)
[42] Section 385(b)
[43] Respondent’s outline of submissions at paragraphs 43 and 44.
[44] Ibid at 43.
[45] See UES (Int’l) Pty Ltd v Leevan Harvey[2012] FWAFB 5241 at [27].
[46] [2025] FWC 330.
[47] Ibid. In that case the obligation to provide information in writing was met, but not the obligation to discuss.
[48] Ibid at [85].
[49] Ibid at [86].
[50] See section 123(1)(c) of the Act.
[51] PR784609.
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