Mu Tian Zhang v Healthscope Operations Pty Ltd
[2023] FWC 195
•24 JANUARY 2023
| [2023] FWC 195 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mu Tian Zhang
v
Healthscope Operations Pty Ltd
(U2022/10253)
| DEPUTY PRESIDENT MASSON | MELBOURNE, 24 JANUARY 2023 |
Application for an unfair dismissal remedy – jurisdictional objection – genuine redundancy – whether consultation obligations met – whether reasonable in all the circumstances to redeploy – jurisdictional objection dismissed –dismissal not unfair – application dismissed.
Introduction
On 21 October 2022, Mr Mu Tian Zhang (the Applicant) lodged an application pursuant to s.394 of the Fair Work Act 2009 (the Act) in which he asserts that the termination of his employment with Healthscope Operations Pty Ltd (the Respondent) on 30 September 2022 was unfair. The Applicant seeks an order for compensation. The Respondent objects to the application on the basis that the dismissal was a case of genuine redundancy.
Conciliation of the matter before the Commission failed to achieve a resolution and consequently the matter was listed for hearing/conference before me on 16 & 17 January 2023. After hearing from the parties, I determined to conduct a hearing pursuant to s.399 of the Act.
At the hearing, the Applicant appeared on his own behalf, gave evidence and also obtained an order requiring Suhel Moria to give evidence. Mr Moria is employed by the Respondent as a Grade 3 Team Leader in the Allied Health Department at the Holmesglen Private Hospital (Holmesglen Hospital).
The Respondent was represented by Catherine Pase of Counsel who was granted permission to appear pursuant to s.596(2) of the Act. Ms Pase called the following witnesses for the Respondent to give evidence;
Keryn Hopkins – General Manager Holmesglen Hospital
Penny Byers-Tymms – Director of Nursing Holmesglen Hospital
Background and evidence
Applicant’s employment
The Applicant commenced employment on 26 July 2021 as the Allied Health Manager (AHM) at the Respondent’s Holmesglen Hospital[1], which is one of forty private hospitals run by the Respondent throughout Australia[2]. The Applicant reported to the Director of Nursing Ms Byers-Tymms who in turn reported to the General Manager of the Holmesglen Hospital, Ms Hopkins.
The role of AHM was according to Ms Byers-Tymms an administrative role responsible for a team of allied health professionals that provided both inpatient and outpatient treatment programs, and includes physiotherapists, occupational therapists, dieticians and speech therapists. The role of AHM had both clinical and non-clinical responsibilities depending on staffing levels at a particular time[3]. Ms Byers-Tymms did agree during cross-examination that the AHM was expected to fill in the “clinical gaps” and agreed that a high clinical case load at times required the AHM to fill in. She maintained however that that the AHM role was primarily that of an administrative role with clinical and non-clinical responsibilities.
The Applicant rejects the Respondent’s characterisation of his role as ‘administrative’ and highlighted the following areas of his responsibility which included; recruitment, performance management, appraisal, clinical escalation, triaging of other discipline escalation, quality improvement within the department, service delivery and reporting. In addition to the management of the allied health department the Applicant also pointed to his personal coverage of afterhours clinical work on weekends and public holidays and the need for him to act as a buffer to cover shortages of physiotherapists anywhere in the hospital. He also referred to the amount of overtime he worked[4].
In further challenging the Respondent’s claim that his role was administrative, he states that staff shortages prevented his participation in a national research project[5] during 2022 and also forced him to obtain a leave of absence in mid-2022 from completion of the final subject for his clinical masters qualification[6]. The Applicant claims that all of these matters point to his role having had significant clinical responsibilities, this being further reinforced by the Position Description (AHM PD) of the AHM[7] role. When the Applicant was taken to the AHM PD during cross-examination, he agreed that undertaking direct patient care was only one of six key responsibilities identified in the Position Summary section although he went to say that it did not mean the proportion of time spent on direct clinical duties was only one sixth of his time.
The Applicant in cross-examination estimated that he spent three 3 out of 5 days each week undertaking clinical work and the balance of his time on managerial tasks. Ms Byers-Tymms when questioned on the balance between administrative and clinical work was unable to state what the proportion of time was spent by the Applicant on clinical work as it fluctuated from day to day.
According to Ms Hopkins, employees in the allied health services team belong to one department, formerly managed by the Applicant, providing health care to patients through two streams of service delivery, acute (inpatient allied health) and sub-acute (inpatient and outpatient rehabilitation). Team members are allocated to one stream at a time but have the opportunity to rotate through both streams[8].
The Applicant was covered by the Healthscope – Victoria – Allied Health Professionals – Enterprise Agreement 2020 – 2022[9] (the Agreement) and was classified under the Agreement as the Chief Health Information Manager Grade 2, 2nd Year of Experience, which at the date of the Applicant’s redundancy, attracted a weekly wage rate of $2,271.30. The Applicant states that in addition to the base rate of pay he also received a qualification allowance of $2.6497 per hour, bringing his weekly all-purpose rate of pay to $2,371.99[10].
Applicant’s performance
Ms Byers-Tymms states that she met with the Applicant on 25 July 2022 and commenced a formal performance management process in accordance with a documented performance plan[11] (the Performance Plan). She states that she had three broad areas of concern with the Applicant’s performance which were;
leadership and presence in the department;
structure for engagement, growth and development with individual team members; and
understanding of workflow processes across the team.[12]
Ms Byers-Tymms further elaborated on her concerns with the Applicant’s performance and states that the Applicant often arrived late to work, performed unnecessary overtime without authorisation and often worked from home without notice or authorisation. She also cites high turnover amongst employees that reported to the Applicant with 32.4% turnover in the 2021 financial year and 35.7% in the 2022 financial year along with feedback from some departing employees that they were leaving because it was too difficult to work with the Applicant and/or they did not feel supported developmentally by him. She says the Applicant also missed important meetings that the AHM was required to attend and directed Mr Whitfield to conduct these in his absence[13]. Ms Hopkins was questioned on the high level of turnover in the Allied Health Department and stated that while historically the Respondent had experienced turnover at around 10%, the COVID pandemic had seen that increase but had more recently begun to stabilise across the Holmesglen Hospital, although the Allied Health Department rate of turnover remained high and was increasing.
Ms Byers-Tymms further states that at the start of the performance management process involving the Applicant, Eric Whitfield provided to her a copy of a document given to him by the Applicant titled Role 2nd in charge of Allied Health (2IC Tasks Document)[14] which purported to be a document setting out the responsibilities of Mr Whitfield who was a Grade 2 Occupational Therapist at the time (two grades below the Applicant). Of concern to Ms Byers-Tymms was that the tasks set out in the 2IC Tasks Document were tasks that should have been performed by the Applicant, suggesting to her that the Applicant was not properly performing his role[15].
Ms Byers-Tymms states that in accordance with the Performance Plan she met with the Applicant on 25 July, 4 August and 15 August 2022, some of which meetings she says Ms Hopkins attended with her. She states that she saw very little improvement in the Applicant’s performance during that time and that he resisted any suggestion that his performance was not satisfactory or that he needed to improve the way he was working. She also states that in the lead up to the 25 July performance meeting and through until the Applicant’s dismissal she also had a number of counselling sessions with the Applicant on his performance[16]. Ms Byers-Tymms conceded during cross-examination that attendance records[17] of the Applicant indicated some improvements after 25 July 2022.
Ms Hopkins confirmed the evidence of Ms Byers-Tymms regarding performance concerns in respect of the Applicant. In response to questioning during cross-examination she confirmed that her views on the Applicant’s performance were formed through feedback from Ms Byers-Tymms, staff exit interviews and conversations she held with senior staff members at Holmesglen Hospital. She states she attended formal performance management meetings involving the Applicant on 18 and 25 July 2022. She further states that the decision to initiate the formal performance management process occurred in the context of a number of informal discussions held between herself, Ms Byers-Tymms and the Applicant in the June-July 2022 period. Based on conversations she held with Ms Byers-Tymms it was apparent to Ms Hopkins that Ms Byers-Tymms held growing concerns about the Applicant’s performance and ability to achieve the objectives in the Performance Plan. She says she did not have confidence in the Applicant’s ability to manage the Allied Health Department at the Holmesglen Hospital[18].
Ms Hopkins conceded in cross-examination that following initiation of the Performance Plan, she was aware that the Applicant attempted to improve his performance and took small steps, as revealed in more timely attendance and his conduct of daily ‘huddle’ meetings with staff. She did however remain more concerned about the Applicant’s improvement in leadership and interpersonal behaviour of which she had not seen improvement. Ms Hopkins also agreed that the ‘milestone’ review meeting with the Applicant scheduled for 19 August 2022 was not conducted as the performance plan was overtaken by the restructure of the Allied Health Department. Ms Hopkins also agreed during cross-examination that while clinical competence of the Applicant was not raised in the Performance Plan, she had received feedback from staff that the Applicant was “out of his depth” clinically but she was unsure whether this feedback related to clinical competence or difficulty the Applicant may have had in juggling competing priorities.
For his part the Applicant agreed that a Performance Plan process had been initiated by the Respondent but rejects that there was any basis for the performance concerns referred to. He stated his belief that the Performance Plan was initiated by Ms Byers-Tymms in July 2022 because of concerns he had raised with Ms Hopkins in May 2022 regarding Ms Byers-Tymms poor handling of issues including the Applicant’s claims for outstanding overtime payments. He also stated in cross-examination that the Performance Plan was not signed by him, the absence of which he claimed meant the process could not be regarded as a formal Performance Plan. When challenged on this point, the Applicant conceded that a performance management process could proceed even where an employee refused to sign the relevant form. The Applicant also claimed that he was not given an opportunity to properly respond to the matters of concern raised in the Performance Plan, and stated that he was cut off from completing his response in a meeting on 25 July 2022. Ms Hopkins agreed in cross-examination that she had cut the Applicant short in his response as she states that his response was ‘long winded’ and that she wanted him to focus on the required areas for improvement.
Ms Byers-Tymms rejected that the Applicant was denied an opportunity to respond to the concerns that prompted the initiation of the Performance Plan. She stated in cross-examination that the Applicant was provided with 3 versions of the Performance Plan following each of the meetings. Updated version of the Performance Plan, dated 29 July 2022[19] and 4 August 2022[20] were produced on request of the Commission. Contrary to propositions put to her by the Applicant in cross-examination, Ms Byers-Tymms maintained that the Performance Plan did identify areas of performance concern which were consistent with the three broad areas of concern as set out above at [12].
Ms Byers-Tymms was pressed during cross-examination on whether the Applicant was subject to performance feedback at one month, three month and six months after commencement with the Respondent. She agreed that those discussions had not occurred, which she attributed to the competing priorities she faced arising from her focus on COVID-19 and other matters. She further stated that if performance issues had been identified in the first six months she would have held the formal discussions with the Applicant. She went on to concede that in respect of timekeeping, the Applicant had demonstrated improvement after 25 July 2022. As to clinical practice concerns, Ms Byers-Tymms agreed that no concerns were identified or raised with the Applicant as part of the Performance Plan.
On re-examination, Ms Byers-Tymms stated that some concerns were raised in exit interviews regarding the Applicant’s clinical knowledge but the overwhelming feedback was in respect of his managerial performance. She also confirmed that in respect of one area of concern, that of the Applicant having worked unnecessary weekend overtime, she stated that under the new structure weekend overtime was not being worked within the Allied Health Department.
Organisational restructure
Ms Hopkins states that in August 2022, the Respondent undertook a companywide review of its workforce and benchmarked resource allocation across the whole business. This review was undertaken in circumstances where the Respondent’s business had experienced financial hardship over the previous three years due to the effects of the COVID -19 pandemic[21]. Adverse financial impacts flowed from Victorian Government restrictions on elective surgery at the height of the COVID-19 pandemic, in circumstances where elective surgery was the Respondent’s main revenue stream. This resulted in a significant reduction in income at the Holmesglen Hospital[22] which has not yet recovered to pre-pandemic levels[23].
The reduced revenue experienced by the Respondent coupled with rising costs led to a need for cost savings to be made. A directive was issued by the Respondent to various hospitals across Australia including the Holmesglen Hospital which was required to restructure and reduce its workforce by a specific number of full time equivalent (FTE) positions[24]. Ms Hopkins states this led to her and Ms Byers-Tymms reviewing the hospitals existing resources in around early September 2022, resulting in the identification of a number of positions for potential redundancy including roles across the Allied Health Department, the Administration Department, the Environmental Services Department and the Nursing Administration Department[25]. According to Ms Hopkins, the restructure resulted in the reduction in the Holmesglen Hospital’s workforce of 15 FTE in September 2022[26].
Prior to the directive from the Respondent referred to above, Ms Hopkins states that the Holmesglen Hospital had been considering ways it could remodel the Allied Health Services Department due to it experiencing widespread shortages of qualified allied health staff and difficulty in filling vacant clinical positions. To address this Ms Hopkins states that in June 2022 she and Ms Byers-Tymms decided that the Allied Health team would be spilt into two distinct teams, with one team performing acute care and one team performing sub-acute care. Each team would report to two newly created Team Leader roles, being two Grade 3 Allied Health Team Leaders (the Grade 3 Roles). The Grade 3 Roles, which are at a lower classification level in the Agreement then the Applicant’s former role, were designed to take on a full clinical case load and initially report to the AHM[27]. Ms Hopkins steadfastly resisted in cross-examination that removal of the AHM role was being considered prior to the restructuring directions from the Respondent’s head office in August 2022.
Following the above-referred directive from the Respondent to the Holmesglen Hospital to restructure the workforce and the introduction of the two new Grade 3 Roles in the Allied Health team, Ms Hopkins states that she and Ms Byers-Tymms identified the AHM position as being no longer required. Ms Hopkins further states that she sent a list of roles identified by the Holmesglen Hospital as no longer required to the Respondent’s head office for approval[28]. Ms Byers-Tymms confirmed that the restructure of the Allied Health department through the removal of the AHM role reduced the FTE headcount by one, that role being the highest paid position in the team. The reduction resulted in the reallocation of managerial and admin tasks to the two Grade 3 team leader roles and to herself without significant loss of clinical capacity.
The Applicant states that prior to the decision to establish and recruit two Grade 3 roles, he had raised as early as September 2021 the need to establish a Grade 3 role because of the lack of career development prospects for staff which posed a staff retention risk[29]. He says that while the absence of a Grade 3 role continued to be raised as a risk in November 2021[30] and in April, May and June 2022[31], the proposal to create the role was rejected on all occasions until June 2022 at which point he claims that excessive staff turnover driven by a lack of career progression led to a decision to establish a Grade 3 role[32].
Ms Byers-Tymms agreed that she had resisted establishing the Grade 3 roles prior to June 2022. She stated under cross-examination that her agreement in June 2022 was motivated by concerns that the Applicant was unable to effectively perform his role and that the Grade 3 roles were approved to provide support to the AHM. She also referred to high staff turnover in the Allied Health Department of over 30% pa and feedback from several departed staff members that the key reason they left was the Applicant’s management. She stated that these matters of concern were a factor in the decision to change the structure of the Allied Health team by creating two Grade 3 roles.
Ms Hopkins was also pressed during cross-examination on the reasons for her agreeing to establish the two Grade 3 roles in June 2022 despite her also having resisted the proposal previously. She gave the following responses;
she had resisted the proposal for some time because the Holmesglen Hospital’s allied health service was not growing and in the previous five years there had been no need for Grade 3 roles under the structure of the department being led by an AHM;
at the time she agreed to establish the two Grade 3 positions in June 2022, she observed that the Applicant was struggling to provide the required service;
she agreed in the circumstances that something needed to be done to turn things around;
her thinking on the appropriate structure with the two Grade 3 roles reporting to the AHM was ‘challenged’ by the Respondent’s organisational restructure decision in August 2022;
in these circumstances she felt the best model was to establish the two Garde 3 roles leading separate acute and sub-acute teams reporting to the Director of Nursing as it would have been inefficient to retain the AHM role.
The Applicant states that the recruitment/appointment of the two Grade 3 therapists, one acute and one sub-acute role, occurred according in a timeline that does not square with the Respondent’s narrative on the decision making and timing of the appointment of the two roles. He states that requisitions for two Grade 3 roles were approved on 26 July 2022. By interview stage in August 2022, the acute Grade 3 role had generated only one candidate, who subsequently withdrew. There were at the same time two candidates for the sub-acute Grade 3 role, one internal candidate Mr Whitfield and an external candidate Mr Moria. Interviews of the two candidates, in which the Applicant participated along with Ms Byers-Tymms, took place on 16 August 2022[33].
The Applicant claims that following the interviews on 16 August 2022, Ms Byers-Tymms made clear her views that Mr Moria was the successful candidate for the sub-acute Grade 3 role. He further states that he advised Ms Byers-Tymms that Mr Whitfield needed to be offered something as he was an experienced internal candidate and the outcome was likely to affect his decision on whether to leave the organisation[34]. The Applicant states that he followed up with Ms Byers-Tymms on 31 August 2022 via email regarding reference checking on Mr Moria and on whether a counteroffer would be made to Mr Whitfield, to which email he says he received no response[35].
The Applicant had no further role in the appointment of the candidates to the two Grade 3 roles but says that he spoke with Mr Whitfield on 20 September 2022 who confirmed that he had received a verbal offer for the sub-acute Grade 3 role in mid-September and was waiting on a written offer which was subsequently received on 29 September 2022. The Applicant says he was not advised of the successful candidates for the two Grade 3 roles until his redundancy meeting on 26 September 2022[36]. The Applicant opines in his evidence that Mr Moria who was the successful candidate for the acute Grade 3 role was not sufficiently qualified or experienced for that role. The Applicant also submits that the appointment of Mr Moria to the acute Grade 3 role, which Mr Moria did not apply for, was in direct response to the timeline of the Applicant’s redundancy[37]. The Applicant claimed that the timeline supported a conclusion that the selection of his role of AHM for redundancy was based on the Respondent’s view of his performance. He nonetheless conceded that his role of AHM ceased to exist following his redundancy.
Ms Byers-Tymms deals in her second witness statement with various evidence of the Applicant on the recruitment/appointment of the two Grade 3 roles and specifically rejects that Mr Moria was not sufficiently qualified or experienced to perform the acute Grade 3 role. She confirms that there were few applicants for the two Grade 3 roles, that she participated in the interviews of both Mr Moria and Mr Whitfield and that both were “very impressive”[38].
Ms Byers-Tymms specifically deals in her evidence with the suitability of Mr Moria for the acute Grade 3 role. She says that Mr Moria possesses post-graduate qualifications, which was noted as “desirable” for the Grade 3 role[39] with qualifications in both physiotherapy and exercise physiology which according to Ms Byers-Tymms is very rare[40]. Prior to Mr Moria’s recruitment, Ms Byers-Tymms states that the Respondent only had one allied health professional working at Holmesglen Hospital with exercise physiology experience which compromised the Respondent’s delivery of services if that staff member was absent from work. Having the additional resource available in Mr Moria would assist the Respondent generate additional revenue. Ms Byers-Tymms notes that she understood the Applicant did not possess such expertise[41].
Ms Byers-Tymms states that shortly after the interview on 16 August 2022 she decided that the Respondent would benefit from the employment of Mr Moria and Mr Whitfield in the Grade 3 roles, subject to reference checks on Mr Moria. She also confirmed that Mr Whitfield as an OT was only able to be considered for the sub-acute role whereas Mr Moria as a Physiotherapist could be considered for both roles. Formal offers to both Mr Moria and Mr Whitfield were delayed until late September 2022 because of a protracted process of reference checks on Mr Moria and the preparation of formal documentation[42]. She further stated in cross examination that she was unable to offer Mr Whitfield the sub-acute Grade 3 role until Mr Moria was confirmed to take the acute Grade 3 role. The letter of offer to Mr Moria, which was produced in response to a request from the Commission, identified that the formal offer to Mr Moria of the Acute Physiotherapist - Grade 3 Clinical Lead role was made on 6 October 2022[43]
Mr Moria was called to give evidence and in response to questions gave the following evidence;
he originally applied for the sub-acute Grade 3 role that was advertised and was aware in doing so that the sub-acute role was open to candidates from across broad allied therapy disciplines, whereas the acute Grade 3 role was physiotherapist discipline specific;
the recruitment process took a long time after the interview on 16 August 2022 and at one point he assumed he had been unsuccessful;
while his preference was for the sub-acute role, he was offered and accepted the acute Grade 3 role having had some acute experience and worked in a Grade 3 senior clinical role;
he conceded that the role he accepted was not the role he applied for and that he was advised the AHM role was being removed as part of a restructure;
he commenced in the Grade 3 role on 5 December 2022 but could not state with certainty when he was formally offered the role;
he stated that his main focus in the Grade 3 role was on acute ward treatment and agreed that acute wards did not normally require exercise physiology services which he was also able to provide;
when taken to a Grade 3 Position Description (PD) attached to Ms Byers-Tymms second witness statement, he stated that he believed the PD he received referred to a sub-acute role and was not the generic PD; and
stated that possession of exercise physiology qualifications and experience in addition to his qualification of a physiotherapist was unusual.
Applicant’s redundancy
On 6 September 2022, Ms Byers-Tymms sent an email to the Applicant requesting his availability to meet on the “Thursday or Friday” in regard to the restructure. The Applicant replied on 7 September 2022 advising as to his availability on either of the proposed days[44]. A Zoom meeting invite was subsequently sent by Ms Byers-Tymms on 8 September 2022[45]. The meeting invite for the 9 September 2022 and subsequent meetings did not indicate that the Applicant was able to bring a support person, although Ms Hopkins stated in cross-examination that she had offered to delay the 9 September 2022 meeting to a later date if the Applicant wished to arrange a support person. She stated that the Applicant declined to postpone the meeting. The Applicant agreed that he did not request to bring a support person to the 9 September 2022 meeting or any subsequent meeting.
On 9 September 2022, Ms Hopkins and Ms Byers-Tymms met with the Applicant via Zoom. Ms Byers-Tymms states that the Applicant was advised of the restructure of the Holmesglen Hospital staffing due to financial hardship across the Respondent’s business. The Applicant was advised during the meeting that the Applicant’s role of AHM had been identified as a role that was no longer required[46]. Following the meeting, Ms Hopkins sent an email[47] to the Applicant at 1.55pm on 9 September 2022, to which were attached a number of documents, a letter from Ms Hopkins dated 9 September 2022[48] regarding the Applicants proposed redundancy and a Change Impact Statement[49]. Additional information regarding a support program for career transition[50] was also included in the material provided to the Applicant. The Applicant clarifies in his evidence that at the meeting he was told that his role “will be made redundant on September 30”[51]. The Applicant also agreed in cross-examination that he did not raise during the 9 September 2022 meeting the possibility of his taking one of the Grade 3 roles as he was not aware of the status of the recruitment process that was then underway.
Ms Hopkins stated in cross-examination that the Applicant was told that his role of AHM would be removed at the end of September 2022, that decision having been made. She also confirmed that the decision to remove the AHM role would not have been changed by the presence of a support person or involvement of the relevant union in the meeting/s. She also recalled that the Applicant had asked during the course of the 9 September 2022 meeting whether his performance was a factor in his redundancy to which she responded it was not a factor.
On 9 September 2022 at 2.07pm the Applicant responded via email to Ms Hopkin’s earlier email and the meeting held that day. In the email the Applicant requested advice on whether there was anything he needed or should do during the “consultation period.” He went on to say in the email that “it currently does not feel like consultation at all, seeing as what has been advised to me is a directive from head office…” Ms Hopkins replied at 2.14pm that same day stating “The next step is for us to meet to talk through anything you would like to share with us per the letter. We will do this next week either face to face once you return or via zoom”[52].
On 11 September 2022, the Applicant sent an email to Ms Hopkins and Ms Byers-Tymms at 10.40pm advising that he was still symptomatic with illness and would be unlikely to be in at work the following day. He also advised that he had still not received the redundancy offer and would like to receive that first before any further meeting[53]. The ‘Redundancy Quote’ was subsequently sent by email to the Applicant by Ms Hopkins at 7.46pm on 13 September 2022[54].
On 13 September 2022, the Applicant sent an email[55] to Ms Hopkins and Ms Byers-Tymms at 8.46pm and advised that he was still coughing and unlikely to come in the following day. He expressed a desire in the email to get things “sorted for an orderly transition” and supported the communication of the change to staff when he said as follows, “….it may be better if the executive team were to give an announcement to my department in my absence. I would like to know how the staff will be told of the matters, as I am keen not to let staff feel as if I am abandoning them during this time of need.” A zoom meeting invite was subsequently sent to the Applicant for a meeting to be held at 2.00pm on 14 September 2022[56].
On 14 September 2022, Ms Hopkins and Ms Byers -Tymms met with the Applicant via Zoom during which meeting Ms Byers-Tymms states the following matters were discussed with the Applicant;
· changes to the Holmesglen Hospital’s operations and Allied Health Services team as a result of the restructure;
· opportunities there may be for the Applicant’s redeployment; and
· the need to share information about the redundancy of the Applicant’s role with the Allied Health Services team.[57]
Ms Hopkins states that during the meeting on 14 September 2022, the Applicant stated that he would not consider any lesser roles or a position outside of Victoria[58]. Ms Byers-Tymms confirmed Ms Hopkin’s evidence on this point and also stated during cross-examination that while she held concerns over the Applicant’s leadership and interpersonal skills, the Applicant had the necessary clinical qualifications and experience to perform the acute Grade 3 role. That position was not, according to both Ms Byers-Tymms and Ms Hopkins, offered to the Applicant because he had stated he would not take a lesser role than the AHM role he was then in. Ms Byers-Tymms also agreed that at no stage had she put to the Applicant that he should consider the acute Grade 3 role or any other specific role in the organisation.
The Applicant states that the following matters were also discussed in the 14 September 2022 meeting;
the 0.8 FTE Occupational Therapist role which had been advertised and offered to an external candidate would be made redundant;
his position was to be made redundant and was not up for negotiation;
it was confirmed that the decision to make his role redundant was taken at the local level and was not due to a directive from the Respondent’s head office;
in considering redeployment options, the Respondent would go away and identify physiotherapist roles that may interest the Applicant and set him up for conversations with the relevant managers;
the Applicant was advised in response to a question on whether he could stay on in a casual Grade 3 role to assist handover that this would have taxation implications;
the Applicant asked for information on tax liabilities to assist his decision making;
the matter of alleged unpaid overtime was raised by the Applicant; and
it was confirmed that the two Grade 3 roles would take over the duties of the AHM role.[59]
The Applicant stated during cross-examination that while there was some discussion during the 14 September 2022 meeting about potential redeployment, no specific roles were raised or offered. He agreed that he knew at the date of the meeting on 14 September 2022 that the Grade 3 roles had not been filled and that the vacant OT role that was in the process of being recruited for had been cancelled because of the Holmesglen Hospital restructure underway, with the result being that a verbal offer to the preferred candidate for the OT role had to be withdrawn. The Applicant could not explain why he had not then raised the vacant Grade 3 roles with Ms Hopkins and Ms Byers-Tymms and whether he could be considered for it rather than the Respondent proceeding with an external recruitment.
While not expressing interest in either of the two Grade 3 roles that were not filled as of 14 September 2022, the Applicant did raise whether he could move into a Grade 3 role on a casual or part-time basis, that being on the basis that he would receive a redundancy payment or an equivalent ex-gratia payment prior to moving into such role. While no part-time or casual Grade 3 role was available at the time he says he made the inquiry on the basis that the Respondent routinely keeps casual therapists “on the books” to call on even if there were no vacancies at the time.
The Applicant confirmed in cross-examination that had a Grade 3 role been offered to him, he would have accepted such role. He pointed to the minimal difference in base rate of pay between his base rate of AHM of $2,271.30 (excluding qualifications allowance) versus the rate he would have received at Grade 3, 4th Year of Experience of $2,217.90 (also excluding qualification allowance). He rejected that he stated he would not take a lesser role and clarified that the comment he made about not being interested in certain roles was in the context of discussion about a Grade 2 role. He also agreed that in response to a question during the meeting, he indicated that he preferred to stay in Victoria and was not open to interstate roles.
The Applicant also complained that the Respondent failed to respond in a timely manner to his question raised in the 16 September 2022 meeting regarding the tax implications of returning as a casual employee with the Respondent. He claimed that the lack of response impacted on his decision making regarding his redundancy. For her part, Ms Hopkins acknowledged that a response was not provided but that it was a matter for the Applicant to obtain tax advice. In any case, she was not interested in bringing the Applicant back on a casual basis in a Grade 3 role as the Respondent was already moving to introduce a structure of having two permanent full-time Grade 3 roles in the Allied Health Department at Holmesglen Hospital.
Following the meeting on 14 September 2022, Ms Hopkins sent an email to the Applicant at 7.12pm in which she invited his comments on the proposed message to staff regarding changes to the Allied Health structure and the redundancy of the AHM role. Later that evening at 8.53pm, the Applicant responded by proposing amendments to the message expressing hope that his suggested edits may be considered but was otherwise happy for the email to be “sent straight out to the staff”[60]. According to Ms Hopkins, the message to staff including suggested edits of the Applicant was subsequently sent to all staff on or about the 15 September 2022[61].
On 16 September 2022, Ms Hopkins sent an email to the Applicant at 3.40pm in which she attached a link to available roles being advertised within the Respondent’s operations[62]. Ms Hopkins states that she understood there were no roles available at the Applicant’s level and that he chose not to apply for any roles at a lower level that were available[63].
The Applicant confirms that he received the email from Ms Hopkins on 16 September 2022. He observes that he was required to “apply” for any position he was interested in, states there were no allied health roles in Victoria and that the acute Grade 3 role was not advertised at that time which he says was due to an unrelated centralisation of HR functions that was occurring[64]. Ms Byers-Tymms clarified that the Grade 3 roles were “closed” following the 16 August 2022 interviews, which meant they were removed from the electronic jobs board that showed current vacancies, even though formal offers had not yet been made at that stage[65]. In cross-examination Ms Hopkins agreed that as part of a HR centralisation process, open requisitions for job vacancies were closed before they were transferred to corporate HR and then reopened.
On 26 September 2022, Ms Hopkins and Ms Byers-Tymms met with the Applicant in person and advised him that no suitable redeployment roles had been identified and that his employment with the Respondent would cease, effective from 30 September 2022[66]. In their initial witness statements Ms Hopkins and Ms Byers-Tymms state that a letter confirming the Applicant’s redundancy (the Redundancy Letter)[67] was provided to the Applicant during the meeting. Both witnesses subsequently confirmed that the Redundancy Letter was not in fact provided to the Applicant until a later date, the reason for the delay being that Ms Hopkins was waiting on approval of the letter and for calculation and confirmation of the Applicant’s final redundancy quote[68].
The Applicant elaborated in his evidence on the meeting of 26 September 2022 and variously states that;
he only received the meeting notification at 4.39pm the previous day which he claims was unreasonably short notice;
contrary to the initial evidence of the Respondent, he did not receive the Redundancy Letter during the meeting;
he was advised that the consultation regarding his redundancy was now over;
he confirmed receipt of the 16 September 2022 email regarding vacant roles but that there were no roles in the links at all;
he raised various concerns regarding unpaid overtime and additional allowances he believes he was entitled to but had not received, that of on-call and meal allowances for overtime;
he advised that he had not received any paperwork yet confirming his redundancy or providing an updated redundancy quote; and
raised some miscellaneous matters including an additional weeks’ annual leave, time in lieu and annual leave not accounted for in the original redundancy quote.[69]
On 30 September 2022, the Applicant sent an email[70] to Ms Hopkins and Ms Byers-Tymms in relation to a number of “matters that are still outstanding” from previous discussions. While acknowledging some of the matters were out of Ms Hopkins and Ms Byers-Tymms’ hands, the matters raised by the Applicant included the following;
written references which were needed relatively quickly;
overtime claim payment, on which a decision was pending;
on-call allowance claim for weekend work, on which a decision was pending;
updated redundancy quote;
an additional week of annual leave, while confirmed to be added, needs to be included in update redundancy quote; and
casual employment tax implications.
On 5 October 2022, the Applicant sent a further email to Ms Hopkins at 12.56pm and referred to his earlier email of 30 September[71]. After further various correspondence from the Applicant on 5 & 6 October 2022 Ms Hopkins responded to the Applicant at 6.42pm on 6 October 2022 and dealt with some but not all of the matters raised in the Applicant’s 30 September 2022 email[72].
The gross termination payment the Applicant received of $34,955 included payment of four weeks redundancy of $9,085.19 and four weeks pay in lieu of notice of $9,085.19, in accordance with clause 59.1 of the Agreement[73]. The Applicant challenged the calculation of the redundancy payment on the basis that it was calculated on his base rate of pay rather than his average earnings. The Respondent rejected the Applicant’s claim that the calculation was incorrect.
Ms Hopkins and Ms Byers-Tymms were both pressed during cross-examination on whether the Applicant’s performance was a factor in their decision to make the AHM role redundant and not offer the Applicant one of the Grade 3 roles then being filled. Both were consistent in their responses that the Applicant’s performance in the AHM role played no part in the decision to restructure the Allied Health Department and remove the AHM role. In respect to the Grade 3 roles not being offered to the Applicant, they both agreed they held concerns at the Applicant’s ability to perform the Grade 3 roles but the decision not to offer a role was because he had clearly indicated that he would not take a lesser role. Both Ms Hopkins and Ms Byers-Tymms also agreed that the performance management process was incomplete and was overtaken by the restructuring that was forced on the Holmesglen Hospital by the Respondent’s corporate decision to cut costs across its operations.
Agreement consultation obligations
As earlier stated, the Applicant was covered in his employment with the Respondent by the Agreement. The Agreement sets out the Respondent’s consultation obligations in respect of major workplace change. Clause 9 relevantly states as follows;
“9. CONSULTATION REGARDING MAJOR WORKPLACE CHANGE
9.1. Employer to notify
9.1.1. Where Healthscope has made a definite decision to introduce major change in its programme, organisation, structure or technology that is likely to have significant effects on Employees, Healthscope must notify the Employees who may be affected by the proposed changes and the Union. For the avoidance of doubt, any change that may result in the termination of employment of an Employee or Employees is a major change that requires Healthscope to consult under this clause 9.
9.1.2.Significant effects include termination of employment; major changes in the composition, operation or size of Healthscope’s workforce or in the skills required; the elimination or diminution of job opportunities, promotion opportunities or job tenure; the alteration of hours of work; the need for retraining or transfer of Employees to other work or locations; and the restructuring of jobs. Provided that where Agreement makes provision for alteration of any of these matters an alteration is deemed not to have significant effect.
9.2. Employer to discuss change
9.2.1. Healthscope must discuss with the Employees affected and the Union, the introduction of the changes referred to in clause 9.1, the effects the changes are likely to have on Employees and measures to avert or mitigate the adverse effects of such changes on Employees and must give prompt consideration to matters raised by the Employees and/or their representatives in relation to the changes.
9.2.2. The discussions must commence as early as practicable after a definite decision has been made by Healthscope to make the changes referred to in clause 9.1.
9.2.3. For the purposes of such discussion, Healthscope must provide in writing to the Employees concerned and their representatives, if any, all relevant information about the changes including the nature of the changes proposed, the expected effects of the changes on Employees and any other matters likely to affect Employees provided that Healthscope is not required to disclose confidential information the disclosure of which would be contrary to Healthscope’s interests.
9.2.4Redeployment
(a)Where surplus positions are identified, opportunities for redeployment will be investigated and offered.
(b) Suitability for being offered a redeployment opportunity will be determined on the basis of appropriate competencies, skills and qualifications, and the capacity of the Employee to acquire the required skills within a reasonable timeframe to effectively fulfil the position. Where reasonable additional suitable training is required by the Employee, it will be provided by Healthscope.
(c) Assessment of the suitability of the candidate and their capacity to undertake such training will be made in consultation with the Employee.
(d) Wages maintenance will apply for a period of six months following redeployment. This includes base wage plus penalties. Employees with more than five years continuous service will be eligible for maintenance of the base wage for a further period of six months.
(e) Consideration will be given to Employees who wish to return to their original site when future positions become vacant for which they may apply.
……………”
In complying with the obligations set out in clause 9 of the Agreement, Ms Hopkins and Ms Byers Tymms refer to the various correspondence sent to and meetings held with the Applicant during September 2022. Further to that evidence, Ms Hopkins also states that;
· at no stage during the redundancy process did the Applicant express any concern or query the involvement of the relevant union in the process[74];
· the process by which notification of the ‘major changes’ to the relevant unions occurred was managed centrally by the Respondent’s head office, and that she was not involved in that process[75];
· she understands that Mark Nelson, General Manager at Healthscope, notified the Victorian Allied Health Professionals Association (VAHPA) on 6 September 2022 via email[76] and that he subsequently met with the union via Zoom to discuss the changes on 8 September 2022[77].
The email referred to above from Mr Nelson to officers of the VAHPA relevantly stated as follows;
“……………..
This email is to notify you that Healthscope Operations has made a definite decision to make major change to its structure at various hospitals/clinics in Victoria and this will impact employees covered by the Victorian Allied Health Professionals Enterprise Agreement 2020-2022.
Our hospitals were busy during COVID peaks because we supported the public health system. However, activity has not returned to pre-pandemic business-as-usual as initially expected.
Healthscope needs to adapt to these circumstances and ensure we have the right people in the right places at the right time, reflecting the numbers of patients requiring care in our hospitals at any specific time. We are also reducing avoidable expense and corporate costs, pausing non-urgent projects and revising schedules.
We have commenced the consultation process with employees in the impacted departments. We have identified all current vacancies and will discuss reasonable redeployment opportunities with our impacted team members. I have attached Change Impact Statements for the change occurring. In addition, there will be changes to our outreach program at the Melbourne Clinic with a proposed reduction in outreach clinicians of 4.0 FTEs.
…………
We invite you to provide your response to this decision. Healthscope will promptly consider any matter you raise or any matter raised by our employees. We are also happy to meet with you to provide further explanation of the change, its impact on our employees and the measures Healthscope is taking to avert or mitigate the adverse effects of this changes on our employees.
……………..”
Attached to the above-referred email were a series of Change Impact Statements which set out proposed changes that would affect the following sites and services of the Respondent; Northpark Allied Health Department, North Eastern Rehabilitation Centre & Dorset Rehabilitation Centre Allied Health Department, North Eastern Rehabilitation Centre Outpatients Department and Dorset Rehabilitation Centre Outpatients Department.[78]
The Applicant agreed that he was unable to obtain assistance from or representation by VAHPA as he had been advised that he was not a member at the time of seeking its assistance. Consequently, he was unable to be represented by VAPHA during the consultation process.
Applicant evidence going to contended harshness of dismissal and remedy
The Applicant states there a number of matters that weigh in favour of a finding of a harshness in his dismissal. Those matters are set out below.
The Applicant states that he disclosed to the Respondent in August 2022 that his wife was expecting their second child due in late March 2023. Both Ms Hopkins and Ms Byers-Tymms confirmed that they were aware of the Applicant’s wife’s pregnancy. The Applicant states that as he had completed twelve months service with the Respondent the Applicant says he would have been entitled to access benefits under the Clause 37 - Parental Leave of the Agreement which includes two weeks paid leave as well as unpaid leave. He further states that he intended to take parental leave and was denied these benefits by reason of his dismissal. He also claimed that the impending birth of his second child, and the likelihood that he would need to take some time off to support his wife, would discourage prospective employers from employing him.
The Applicant further states that he will have “thrown away” costs incurred in undertaking his Clinical Masters study by reason of his dismissal. That is because he will be prevented from completing his final subject within the period the course must be completed, which he says is July 2023. Because the Clinical Masters coursework has a time limit for completion, he states he must complete the course or take an alternate exit degree. He further states that he has currently completed 125 study units which is short of the 150 he requires for the Clinical Masters but would give him enough points to obtain a Graduate Diploma of Rehabilitation Science which requires 100 study units, meaning he will have wasted 25 study units at an estimated cost of $7,287.33 based on an overall course cost of $43,724[79].
When cross-examined on the Clinical Masters costs he claims to have “thrown away” the Applicant confirmed that he commenced the course in 2018, had already had two deferrals of the course approved by Melbourne University and that he has been advised he must complete the course by July 2023. At the Commission’s request the Applicant provided correspondence received from the University of Melbourne on 16 November 2022[80] in relation to the consequences of not completing the Clinical Masters course within the required timeframe. While the email identified the course completion date of July 2023 it went on to set out options available to the Applicant which included taking an “Early Exit” and then later resuming the Master of Clinical Rehabilitation. The email also stated that in exiting and then later resuming course study, previous completed subject credits would be available for up to five years from the time of unit completion. The Applicant was also encouraged to speak with the course coordinator as soon as possible.
The Applicant also claims that he will suffer loss through the likely delayed completion of a professional development course described as “Titling – Highly Developed Milestone Level 3” (the Titling Course). The Titling Course commenced in August 2022 on a pilot basis, for which the Applicant volunteered, and for which course participants incurred no course fees so long as the coursework and exam are completed by August 2023. The Applicant says his dismissal means that he is presently unable to complete an important building block of the course, that of video assessment of clinical patient interaction, which means he will be unable to complete the course by August 2023. He states he would in those circumstances bear the cost of additional course fees of $4,000 to extend the course completion deadline beyond August 2023. A copy of the Information Booklet[81] for the Titling Course provided in evidence confirmed that if the clinical examination was not completed within 12 months of commencement the fee for the examination will need to be paid by the participant.
The Applicant states that he has been unsuccessful in securing alternate employment since his dismissal despite multiple job applications made since 9 September 2022, copies of which applications were provided in evidence. He notes that these applications were only those made prior to 24 November 2022[82]. He confirmed in cross-examination that upon advice of his redundancy on 9 September 2022 he immediately commenced applying for roles outside the organisation and agreed that he had been initially optimistic about his prospects of securing a comparable role to that of the AHM. He conceded that his optimism may have been misplaced.
Has the Applicant been dismissed?
A threshold issue to determine is whether the Applicant has been dismissed from his employment. Section 386(1) of the Act provides that the Applicant has been dismissed if:
(a) the Applicant’s employment with the Respondent has been terminated on the Respondent’s initiative; or
(b) the Applicant has resigned from their employment but was forced to do so because of conduct, or a course of conduct, engaged in by the Respondent.
Section 386(2) of the Act sets out circumstances where an employee has not been dismissed, none of which are presently relevant. There was no dispute and I find that the Applicant’s employment with the Respondent terminated at the initiative of the Respondent.
Initial matters
Under section 396 of the Act, the Commission is obliged to decide the following matters before considering the merits of the application:
(a) whether the application was made within the period required in subsection 394(2);
(b) whether the person was protected from unfair dismissal;
(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code; and
(d) whether the dismissal was a case of genuine redundancy.
Relevant to the determination of the preliminary matters I am satisfied that;
· the Applicant was dismissed on 30 September 2022 and filed his unfair dismissal application on 21 October 2022, that latter date being within 21 days of the date of his dismissal;
· at the time of the Applicant’s dismissal the Respondent employed approximately 20,000 employees[83] and is therefore not a small business employer within the meaning of s.23 of the Act;
· the Applicant commenced employment with the Respondent on 26 July 2021 and at the time of his dismissal had been employed for a period of approximately 15 months, that period being in excess of the minimum employment period of 6 months; and
· the Applicant was covered in his employment by the Healthscope – Victoria – Allied Health Professionals – Enterprise Agreement 2020-2022.
Was the dismissal a case of genuine redundancy?
Section 389(1) of the Act sets out the meaning of genuine redundancy and relevantly states as follows:
“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.”
Section 389(2) of the Act provides for an exclusion to that which would otherwise fall within the definition of genuine redundancy and relevantly states as follows:
“(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.”
Was the Applicant’s job no longer required – s.389(1)(a)?
In determining whether the Applicant’s dismissal was a genuine redundancy I turn firstly to consider whether the Respondent no longer required the Applicant’s job to be performed by anyone because of the operational requirements of the Respondent.
A Full bench considered the meaning of the term genuine redundancy in Ulan Coal Mines Limited v Henry John Howarth and others[84] (Ulan) and relevantly stated as follows:
“[17] It is noted that the reference in the statutory expression is to a person’s “job” no longer being required to be performed. As Ryan J observed in Jones v Department of Energy and Minerals (1995) 60 IR 304 a job involves “a collection of functions, duties and responsibilities entrusted, as part of the scheme of the employees’ organisation, to a particular employee” (at p. 308). His Honour in that case considered a set of circumstances where an employer might rearrange the organisational structure by breaking up the collection of functions, duties and responsibilities attached to a single position and distributing them among the holders of other positions, including newly created positions. In these circumstances, it was said that:
“What is critical for the purpose of identifying a redundancy is whether the holder of the former position has, after the re-organisation, any duties left to discharge. If there is no longer any function or duty to be performed by that person, his or her position becomes redundant…” (at p.308)
This does not mean that if any aspect of the employee’s duties is still to be performed by somebody, he or she cannot be redundant (see Dibb v Commissioner of Taxation (2004) FCR 388 at 404-405). The examples given in the Explanatory Memorandum illustrate circumstances where tasks and duties of a particular employee continue to be performed by other employees but nevertheless the “job” of that employee no longer exists.
[18] In Kekeris v A. Hartrodt Australia Pty Ltd Hamberger SDP considered whether a dismissal resulting from the restructure of a supervisory team was a case of genuine redundancy. As a result of the restructure, four supervisory team leader positions were replaced by three team leader positions. The Senior Deputy President said:
“When one looks at the specific duties performed by the applicant prior to her termination they have much in common with those of two of the new positions in the new structure. The test is not however whether the duties survive. Paragraph 1548 of the explanatory memorandum makes clear that it can still be a ‘genuine redundancy’ where the duties of a previous job persist but are redistributed to other positions. The test is whether the job previously performed by the applicant still exists.”[85] (references omitted)
It follows from the Full Bench’s reasoning in Ulan and the summary of relevant cases cited in their decision that:
(i)A job is a collection of functions, duties and responsibilities assigned to a particular employee within an organisation;
(ii)The functions, duties and responsibilities may cease to be part of an employee’s job through a reorganisation or redistribution of duties;
(iii)Should there no longer be any functions or duties to be performed by a particular employee, then his or her job ceases to exist;
(iv)The fact that the tasks and duties previously performed by an employee may have survived and been reallocated to other employees through a restructure does not mean the job is still required; and
(v)An employee’s dismissal may be a genuine redundancy even though particular functions, duties and responsibilities previously performed by that employee are being performed by other employees.
It is factually uncontroversial that the Allied Health Manager role formerly held by the Applicant ceased to exist as a consequence of the Respondent’s restructure of the Allied Health Department at the Holmesglen Hospital. The evidence of the Respondent’s witnesses confirm that the former duties of the AHM role were absorbed into the two newly established Grade 3 roles held by Mr Moria and Mr Whitfield and Ms Byers-Tymms’ role of Director of Nursing. The restructure of the Allied Health Department did not occur in isolation and occurred as part of a broader restructure within Holmesglen Hospital which saw a reduction of 15 positions and across the Respondent’s business more generally.
The Applicant conceded that the role of Allied Health Manager no longer exists and the various duties of that role are now discharged by other staff. Consistent with the authorities I have set out above, the fact that the tasks and duties previously performed by the Applicant have survived and been reallocated to other staff does not mean the job is still required.
It follows from the above, and I am satisfied that, the role of Allied Health Manager previously held by the Applicant is no longer required by the Respondent due to changes in the Respondent’s operational requirements. I now turn to consider whether the Respondent complied with any consultation obligations that were required to be observed by it.
Did the Respondent comply with any consultation obligations - s 389(1)(b)?
Whether the Respondent was required to comply with particular consultation obligations turns on whether the Applicant was covered in his employment by a modern award or an enterprise agreement and whether such applicable modern award and/or enterprise agreement contains consultation provisions. It is not in dispute that the Applicant was covered by an enterprise agreement (the Agreement) which includes a clause dealing with consultation obligations at ‘Clause 9 - Consultation Regarding Major Workplace’ of the Agreement which is set out above at [58].
The Applicant submits that the Respondent failed to comply with the consultation obligations under the Agreement, which he says must lead to a conclusion that his dismissal was not a genuine redundancy by reason of the requirements of s 389(1)(b) not being met. He relies on the following points in support of that contention. Firstly, there was a lack of genuine consultation as the decision to remove the AHM role was already made and irreversible at the point of the first meeting with him on 9 September 2022. Secondly, the relevant union (VAHPA) were not notified of the ‘major change’ as required by clause 9.1.1 of the Agreement. Finally, he was not offered redeployment where it would have been reasonable to do so in circumstances where he had the skills and qualifications to perform the Grade 3 roles that were being created.
Before turning to whether the Respondent complied with the relevant consultation obligations it is necessary for me to make factual findings as to what steps the Respondent did take to consult with the Applicant and the relevant union. I am satisfied that the followings steps were taken;
The Respondent issued directions to a number of its hospitals during August 2022 following which Ms Hopkins and Ms Byers-Tymms reviewed the Holmesglen Hospital structure to determine the best means of achieving the required FTE reductions, that plan being finalised and approved in the second half of August 2022;
the Applicant was notified in a meeting on 9 September 2022 with Ms Byers-Tymms and Ms Hopkins of the definite decision made by the Respondent to restructure the Allied Health Department and remove the AHM role;
the Applicant was provided with details of the restructure in writing by way of a Change Impact Statement and other documents following the 9 September 2022 meeting;
the relevant union (VAHPA) was notified by email by the Respondent’s General Manager Workplace Relations, Mark Nelson, on 6 September 2022 of the Respondent’s definite decision to make major changes to its organisational structure at various hospitals, the details of which were included in four Change Impact Statements attached to the email, although those supplied Change Impact Statements did not include the Holmesglen Hospital changes;
Mr Nelson offered to meet with and subsequently met with VAHPA officials on 8 September 2022 to discuss the changes, although the substance of what was discussed in that meeting was not in evidence before me as Mr Nelson was not called to give evidence;
meetings were also held with the Applicant on 14 and 26 September 2022 during which various matters were discussed, and relevantly included a discussion on the potential for redeployment, although no specific roles were identified or offered to the Applicant; and
the Applicant was sent a link to the Respondent’s internal vacant positions database on 16 September 2022 and was invited to interrogate and advise of any roles he was interested in applying for.
Returning to Clause 9 of the Agreement I will now turn to the various obligations and whether they have been complied with by the Respondent.
Clause 9.1.1 requires the Respondent to advise affected employees following a definite decision having been made to introduce major change that is likely to have significant effects, which relevantly includes termination of employment (clause 9.1.1). It is not contested that the Respondent had made a definite decision to restructure the Allied Health Department and remove the AHM role, that meeting the definition of ‘major change.’ As I have found above, the Applicant who was affected by the definite decision and was notified of the ‘major change’ on 9 September 2022.
The Applicant submits that the consultation was not genuine as the decision had already been taken to make his position redundant by the time he was notified on 9 September 2022 and that such decision was irreversible, as confirmed by the evidence of both Ms Byers-Tymms and Ms Hopkins. The Applicant’s submission on this point must be rejected. The fact that a ‘definite decision’ had been made by the Respondent to remove the AHM role following which it notified the Applicant is entirely consistent with its obligations. The Applicant may feel aggrieved that he was not engaged by the Respondent and consulted over other means to achieve the necessary FTE reductions in the Allied Health Department prior to a decision being made. The decision however of the Respondent not to engage with the Applicant in the circumstances was clearly within the remit of the Respondent and it was under no obligation to ‘negotiate’ with the Applicant over the removal of the AHM role. I am satisfied the Respondent has complied with the employee notification requirement pursuant to clause 9.1.1.
Clause 9.2.1 requires that the Respondent must discuss with the Employees affected and the Union, the introduction of the change, the effects those changes are likely to have on the employees and measures to avert or mitigate the adverse effects of the changes. The Applicant was the only affected employee in the Allied Health Department and the changes were discussed with him initially in the 9 September 2022 meeting and then in further meetings on 14 & 26 September 2022. He also received a Change Impact Statement on 9 September 2022. The potential for redeployment was discussed in the 14 September 2022 meeting with the Applicant responding in that discussion by seeking to obtain a casual Grade 3 role following his redundancy.
Following the 14 September 2022 meeting, a link to the Respondent’s vacant jobs list was then provided to the Applicant. A number of other matters were also discussed in the three meetings held with the Applicant and/or subject to various email communication in the period. Issues included the provision of a requested reference, the timing and content of the announcement of his redundancy, the calculation of the Applicant’s redundancy payment, outstanding overtime and allowance entitlement claims, issues the Applicant was anxious to resolve prior to his departure from the organisation. I am satisfied based on the steps taken by the Respondent that it discussed the change, the likely effects on the Applicant and measures to mitigate the adverse effects of the change.
I am not however satisfied that the Respondent has complied with its obligation to discuss the changes with the Union. While I accept that Mr Nelson wrote to VAHPA on 6 September 2022 advising that it had made a definite decision to introduce major changes across its hospitals, it did not include any Change Impact Statement for the Holmesglen Hospital. I further accept that Mr Nelson met with VAHPA officials on 8 September 2022 although there is no evidence as to what was discussed in that meeting. In the absence of evidence from Mr Nelson as to what was discussed in the 8 September 2022 meeting, I am not satisfied that the Holmesglen restructure, including changes to the Allied Health Department, were discussed with VAHPA as required by clause 9.2.1. My view on this is fortified by the lack of inclusion of a Change Impact Statement for Holmesglen Hospital changes in the attachments to Mr Nelson’s 6 September 2022 email to VAHPA officials. For the sake of completion on this point I do not accept that restructuring information provided by the Respondent to VAHPA by way of Change Impact Statements for other hospitals meets the requirement to discuss the changes as they impacted the Holmesglen Hospital.
It follows from the foregoing that while I am satisfied that the Respondent discussed the change with the Applicant it did not do so with the Union, meaning that it has failed to comply with clause 9.2.1 of the Agreement.
Turning now to clause 9.2.2, discussions referred to above in respect of clause 9.2.1 (with affected employees and the Union) are required to commence as early as practicable after a definite decision has been made by the Respondent. Insofar as discussions occurred with the Applicant, I am satisfied they occurred as early as practicable given the decision to proceed with the restructure of the Allied Health Department as proposed by Ms Hopkins and Ms Byers-Tymms was approved in the second half of August 2022.
Clause 9.2.3 requires that for the purpose of discussions with affected employees, the Respondent is required to provide in writing to affected employees and their representative all relevant information about the changes, the nature of the changes, expected effects and any other matters likely to affect the employees. The obligation to provide the information to ‘representatives’ in writing only arises in circumstances where an employee has a representative. In the present case the Applicant gave evidence that he was not a union member and that VAHPA declined to represent him, a point I will return to later in this decision. Nor did the Applicant seek any other representation. In these circumstances the Respondent was only required to provide the information in writing to the Applicant, which they did on 9 September 2022 by way of a letter from Ms Hopkins, a Change Impact Statement and information on career transition support services. I am comfortably satisfied the Respondent complied with Clause 9.2.3 of the Agreement.
Clause 9.2.4 requires that where surplus positions are identified, opportunities for redeployment will be investigated and offered. For the purpose of establishing whether the Respondent complied with its consultation obligations under clause 9 of the Agreement it is not necessary for me to determine whether it would have been reasonable in the circumstances to redeploy the Applicant, as that is a further matter to be considered pursuant to s 389(2) of the Act which I will shortly turn to. Rather, it is necessary for me to establish if surplus positions were identified and whether the Respondent investigated and offered such position/s to the Applicant.
It is not disputed that at the time of the Applicant’s dismissal there were no comparable roles available in Victoria to that of the AHM role held by the Applicant at Holmesglen Hospital. This was confirmed when the Applicant was sent a link to vacant positions on 16 September 2022, which on the Applicant’s evidence, contained no vacant Allied Health positions in Victoria. While this is unsurprising in circumstances where the Respondent was in the midst of an organisational restructure there were in fact however two vacant positions at the time of the Applicant’s redundancy, those being the two Grade 3 roles in the Allied Health Department at Holmesglen Hospital.
The Respondent had commenced a process to fill those two Grade 3 positions in July 2022, had conducted interviews on 16 August 2022 and had identified two preferred candidates, Mr Whitfield who was an internal candidate for the sub-acute Grade 3 role and Mr Moria who was an external candidate for the acute Grade 3 role. Formal offers to the two candidates were not however made until early October 2022. As the process for filling the two Grade 3 roles had not been completed those two roles were ‘surplus’, which the Applicant was aware of at the time of the 14 September 2022 meeting. No steps were taken by the Respondent to identify those positions as surplus for the purpose of discussions with the Applicant, nor investigate whether there was an opportunity to redeploy the Applicant into one of those roles or offer one of the roles to the Applicant. That is said to be because the Applicant stated that he would not consider a ‘lesser role’ during the meeting on 14 September 2022, a statement the Applicant claims was taken out of context.
While the Respondent submits there were no suitable alternate roles I do not accept that submission even though there were no comparable AHM roles available at the time. The Respondent concedes the Grade 3 roles were not filled until early October 2022 and therefore remained open. I note that while the Grade 3 roles were at a lower classification level than the AHM role, the actual difference in weekly rate of pay for the Applicant based on his experience was approximately $53.00.
Significantly, at or about the same time as the Applicant was notified of his redundancy, the Respondent halted the near complete recruitment for a vacant OT role in the Allied Health Department at the Holmesglen Hospital as a consequence of the required restructure. This indicates that while the Respondent had identified the two preferred candidates for the Grade 3 roles, the Applicant could have been considered for one of those ‘surplus’ roles and been offered a Grade 3 role as an alternative to the Respondent proceeding with an external recruitment. That did not occur for the previously stated reason that the Applicant is said by the Respondent to have stated he had no interest in a lesser role.
Having regard to the above and notwithstanding the Respondent’s witness evidence that the Applicant was not interested in a ‘lesser role’ to that of the AHM role which I will deal further with below, I am not satisfied that the Respondent took steps to comply with the requirements of clause 9.2.4 of the Agreement.
Turning to clause 9.2.5, the Applicant contends that his redundancy payment was not calculated on the correct basis in that he claims it ought to have been calculated on his average earnings rather than his base rate of pay, a claim refuted by the Respondent. The Applicant also complains that the final calculation quote for his redundancy payment was delayed until 6 October 2022, several days after his termination of employment took effect. The latter complaint is conceded by the Respondent with the reason for the delay attributed to delays in head office processing. In any case there is no dispute that the Applicant received a redundancy payment of 4 weeks pay and pay in lieu of notice of 4 weeks, those entitlements being consistent with the requirements of clause 9.2.5. While clause 9.2.5 of the Agreement does not appear to be a ‘consultation’ step, I am nonetheless satisfied the Respondent has complied with the requirements of clause 9.2.5 of the Agreement
For the sake of completion, I make no finding, and nor am I required to, on whether the calculation of the Applicant’s redundancy payment was on the correct base as it is irrelevant to the matter before me. The claimed underpayment may be pursued by the Applicant in a court of competent jurisdiction if necessary.
For the reasons set out above, I am not satisfied that the Respondent has complied with its consultation obligations set out in clause 9 of the Agreement. Specifically, it failed to discuss the ‘major change’ of the restructure of the Allied Health Department at Holmesglen Hospital with VAHPA as required by clause 9.2.1 of the Agreement. The Respondent also failed to investigate and offer the surplus positions of the vacant Grade 3 roles to the Applicant as required by clause 9.2.4 of the Agreement.
Would it have been reasonable to re-deploy the Applicant?
I now turn to consider whether it would have been reasonable in all the circumstances for the Applicant to have been redeployed within the Respondent’s operations or an associated entity.
The Applicant contends that it would have been reasonable to redeploy him into one of the Grade 3 roles that was ‘open’ at the time of his redundancy. He further contends that the Respondent should not be permitted to rely on the Performance Plan that was initiated in July 2022 to argue it would not have been reasonable to redeploy him into one of the Grade 3 roles. He also argues that contrary to evidence of Ms Byers-Tymms and Ms Hopkins, he did not state he was unwilling to take a lesser role than the AHM role and that the statement attributed to him was made in the context of a discussion about Grade 2 roles. He also relies on his evidence that, had a Grade 3 role been offered to him, he would have accepted it.
It is well established on the authorities that whether a redeployment of an employee is considered reasonable will depend on all of the circumstances that existed at the time of the dismissal[86]. The following list of matters may be relevant in determining whether redeployment was reasonable;
- whether there exists a job or a position or other work to which the employee can be redeployed[87];
- the nature of any available position;
- the qualifications required to perform the job;
- the employee’s skills, qualifications and experience; and
- the location of the job in relation to the employee’s residence and the remuneration (pay and entitlements) which is offered[88].
While the considerations set out above are not an exhaustive list of matters that may be relevant, they are a useful starting point in determining whether it would have been reasonable in the circumstances of the present matter for the Applicant to have been redeployed.
A number of factors weigh in favour of a finding that it would have been reasonable in the circumstances to redeploy the Applicant. Those matters are that the Applicant had the skills, qualifications and experience to perform the clinical requirements of two Grade 3 roles that were available in the Allied Health Department at the Holmesglen Hospital, those being the two Grade 3 team leader roles that were being recruited for concurrently with the Applicant’s redundancy. While the remuneration was less, the reduction would not have been significant. In the AHM role, the Applicant was in receipt of a base weekly rate of pay of $2,271.30 whereas, had he been redeployed to one of the Grade 3 roles, he would have been entitled to receive a base weekly rate of pay of $2,217.90 based on his years of experience. I also note that under clause 9.2.4(d) of the Agreement the Applicant would also have been entitled to maintenance of earnings for a period of six months in circumstances of re-deployment.
A number of matters tell against a finding that it would have been reasonable to redeploy the Applicant. They include that the Applicant had indicated he was not interested in an interstate role and there were no other available comparable roles in Victoria to that of the Holmesglen Hospital AHM role at the date of the Applicant’s redundancy. Further, the Grade 3 roles discussed above represented a ‘demotion’ with reduced managerial role scope and authority.
The Respondent also held concerns over the Applicant’s performance as AHM and in particular his ability to discharge the required leadership responsibilities of the Grade 3 roles. Both Ms Hopkins and Ms Byers-Tymms acknowledged the limited improvement the Applicant had made following initiation of the Performance Plan in July 2022 and also agreed that the Performance Plan had not run its course. They both observed that the Applicant’s improvement was in relation to timekeeping and not the fundamental deficiencies in the Applicant’s performance, that of his interpersonal and leadership skills. For his part, the Applicant contended that the Performance Plan was only partially implemented, that he was committed to improving all areas of his performance and the milestone review meeting set down for 19 August did not proceed as the Performance Plan process was overtaken by the restructure of the Holmesglen Hospital Allied Health Department.
In relation to the concerns held by the Respondent regarding the Applicant’s performance, I accept those concerns may be legitimate. However, the Applicant’s Performance Plan was only introduced in late July 2022 and had been effectively superseded by the restructure of the Allied Health Department by mid-August 2022. That in my view was an insufficient period to form a concluded view that the Applicant was unsuitable for the Grade 3 roles. In any case, both Ms Byers-Tymms and Ms Hopkins were adamant that the decision to not offer either of the Grade 3 roles was not based on the Applicant’s performance. In these circumstances I am not satisfied that the Applicant’s performance or leadership skills weigh against a finding that it would have been reasonable to redeploy the Applicant.
Turning now to the main factor that the Respondent relied on in submitting that it would not in the circumstances have been reasonable to redeploy the Applicant. The Respondent submits that the evidence reveals the Applicant was not interested in a ‘lesser role.’ The Applicant states that while he made a comment to that effect it was in the context of Grade 2 roles that were being discussed. For the reasons set out below I do not accept that the Applicant’s comment was confined to Grade 2 roles.
Turning to the contended disinterest of the Applicant in ‘lesser roles,’ he was aware as of the meeting on 14 September 2022 when redeployment was discussed that the two Grade 3 roles remained unfilled. He was also aware that the recruitment for a vacant OT position was halted notwithstanding a verbal offer had been made to an external candidate. This would have indicated to the Applicant that the recruitment of the two Grade 3 roles were still ‘open’. He expressed no interest in the permanent Grade 3 roles although he did seek to be considered for a casual Grade 3 role after he was made redundant. He had also commenced applying for positions externally as early as 9 September 2022 and on his own evidence was confident of securing a comparable role externally at that point.
Both Ms Byers-Tymms and Ms Hopkins were consistent and credible in their evidence that the Applicant had made clear in the 14 September 2022 that he would not accept a ‘lesser role’ to that of the AHM. I found the Applicant less credible in his evidence as while conceding he may have made comments to the effect of not being interested in a lesser role he claims that the comment was made in the context of a discussion about Grade 2 roles, a claim rejected by both Ms Hopkins and Ms Byers-Tymms. It is also significant that there is no reference in the Applicant’s notes of the 14 September 2022 meeting[89] to Grade 2 roles being discussed although the notes do refer to his request for a Grade 3 casual role.
I find the Applicant’s claim that he did not state he would not take a lesser role as inherently implausible having regard to the matters set out above. I also do not accept his evidence that had he been offered a Grade 3 role he would have accepted it. In short, he knew on 14 September 2022 that the Grade 3 roles were ‘open’, he expressed no interest in the full-time permanent Grade 3 roles but sought a casual Grade 3 role after he was made redundant. Finally, he was confident of securing a comparable role externally at the time of his redundancy. Taking all of these factors into account I accept the evidence of Ms Byers-Tymms and Ms Hopkins that the Applicant did in fact state he was not interested in a lesser role and the Respondent unsurprisingly proceeded on that basis. This tells strongly against a finding that it would have been reasonable in the circumstances at the time of the Applicant’s redundancy to redeploy him into a Grade 3 role at Holmesglen Hospital.
While some matters tell in favour of a finding it would have been reasonable to redeploy the Applicant at the time of his redundancy, other factors weigh strongly against such a finding, the most significant being the Applicant simply did not want to move into a ‘lesser role’ which he made clear at the 14 September 2022 meeting. There were no other comparable positions to that of the AHM role in Victoria available at the time of the Applicant’s redundancy and he was not interested in an interstate role. Weighing each of the relevant factors, I am not satisfied that it would have been reasonable in all the circumstances to redeploy the Applicant at the date of his termination of employment.
Conclusion on whether dismissal was a genuine redundancy
For the forgoing reasons I am satisfied that the Applicant’s dismissal was not a case of genuine redundancy because as of 30 September 2022;
while the Respondent no longer required the Applicant’s job to be performed by anyone because of changes in the operational requirements of its enterprise;
(ii)the Applicant was covered in his employment by an enterprise agreement and the consultation obligations under the Agreement were not complied with; and
it would not have been reasonable in all the circumstances for the Applicant to have been redeployed within the Respondent’s enterprise.
Having considered each of the initial matters, I am satisfied that the application was made within the required period in subsection 394(2), the Applicant was a person protected from unfair dismissal, the small business fair dismissal code does not apply, and the dismissal was not a genuine redundancy. I am now required to consider the merits of the application.
Was the dismissal harsh, unjust, or unreasonable?
Section 387 of the Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust, or unreasonable, the Commission 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.
Was there a valid reason for the dismissal related to the Applicant’s capacity or conduct – s.387(a)?
In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded”[90] and should not be “capricious, fanciful, spiteful or prejudiced[91].” However, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it were in the position of the employer[92].
I am satisfied that the Applicant’s dismissals was due to redundancy, albeit I have already found that it was not a genuine redundancy. The Applicant was not dismissed for reasons related to his capacity or conduct. In the circumstances of the case before me the absence of a valid reason related to capacity or conduct is a neutral consideration.
Notification of the valid reason – s.387(b)
Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made to terminate their employment,[93] and in explicit[94], plain and clear terms[95].
While the Applicant was notified of the reasons for his dismissal, that of redundancy, it was not a “valid reason” related to his capacity or conduct. It follows that he was not notified of a “valid reason.” In the circumstances of the present case, however, where the dismissal was due to redundancy, it is a neutral consideration.
Opportunity to respond to any reason related to capacity or conduct – s.387(c)
An employee protected from unfair dismissal should be provided with an opportunity to respond to any reason for their dismissal relating to their conduct or capacity. An opportunity to respond is to be provided before a decision is taken to terminate the employee’s employment.[96]
The opportunity to respond does not require formality and the factor is to be applied in a common-sense way to ensure the employee is treated fairly.[97] Where the employee is aware of the precise nature of the employer’s concern about his or her conduct or performance and has a full opportunity to respond to the concern, this is enough to satisfy the requirements.[98]
The Applicant was self-evidently not given an opportunity to respond to the reasons for dismissal relating to conduct or capacity. In the circumstances of the present case, however, where the dismissal was due to redundancy, it is a neutral consideration.
Support person – s.387(d)
Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, an employer should not unreasonably refuse that person being present. The Applicant was not offered, nor did he request to be accompanied by a support person in the meetings held on 9, 14 & 26 September 2022. This criteria is a neutral consideration in the circumstances.
Impact of the size of the Respondent on procedures followed – s.387(f)
The Respondent’s Form F3 - Employer Response indicates that at the time of the Applicant’s dismissal it employed 20,000 employees. There is no evidence before me, and nor did either party contend, that the Respondent organisation’s size impacted on the procedures followed by it in dismissing the Applicant. This factor weighs neutrally in my consideration.
Impact of absence of dedicated human resources management specialist/expertise on procedures followed – s.387(g)
The evidence in this matter indicates that the Respondent did have access to the services of an in-house human resources specialist. This factor weighs neutrally in my consideration.
Other relevant matters – s.387(h)
Section 387(h) calls for the Commission to take into account any other matters that the Commission considers relevant. The relevant factors going to unfairness of the dismissal in this case fall for consideration of various matters under this category. As set out above, the Applicant’s dismissal arose from a restructure of the Respondent’s operations across several of its hospitals. Specifically, the AHM role in the Allied Health Department at Holmesglen Hospital was removed as part of a broader restructuring of the Holmesglen Hospital resulting in a reduction of 15 FTE.
It was not contested that the removal of the Applicant’s position arose from an operational decision of the Respondent. As I have earlier found however, the Respondent failed to consult the Applicant regarding his redundancy as it was required to under clause 9 of the Agreement. In this context I refer to the comments of Watson VP in Mr Jamil Maswan v Escada Textilvertrieb T/A ESCADA[99] (Maswan) where in a case also involving consideration of whether the dismissal of an employee on the basis of a redundancy was unfair, the Vice President was considering s.387(h) of the Act when he stated as follows;
“[39] In my view a decision to dismiss on account of redundancy will only be harsh, unjust or unreasonable if the rationale for the decision is seriously undermined or if there is a serious error in procedure such that renders the termination unfair in the circumstances. Here the decision appears open to the employer to make. The failure to consult is not a trivial matter. But as it is clear that consultation was highly unlikely to have negated the operational reasons for the dismissal or lead to any other substantive change, I do not believe that the failure to consult prior to the date of termination rendered the dismissal unfair. Given the evidence in relation to the operational need to restructure, I am of the view that it is likely that Mr Maswan would have been dismissed in any event, even if timely consultation had occurred.”[100] (my emphasis added)
I agree with the Vice President’s comments to which I have added emphasis above. The Vice President in determining that the dismissal in Maswan was not unfair, found that while there were deficiencies in the consultation process, they were not so significant as to have been likely to alter the outcome for Mr Maswan of dismissal on the grounds of redundancy. I have reached a similar conclusion in the matter before me for the reasons that follow.
The failure of the Respondent to discuss the restructure of the Allied Health Department at the Holmesglen Hospital with VAPHA is in the circumstances of the matter not a significant failure. By the Applicant’s own admission, he contacted VAPHA seeking assistance after he was notified of his redundancy but as he was not a member, VAPHA declined to provide assistance. It is clear then that VAPHA were made aware of the restructure through the Applicant contacting them. That VAPHA declined to provide support to the Applicant is unsurprising given the Applicant was not a member and suggests that even had the Respondent’s General Manager Workplace Relations discussed the Holmesglen Hospital Allied Health Department restructure in his meeting with VAPHA on 8 September 2022, it is unlikely that the outcome for the Applicant would have been any different. Ms Hopkins and Ms Byers-Tymms also confirmed that the presence of a support person in the discussions with the Applicant, whether that was in the form of union or other appointed representatives would not have altered the decision to remove the AHM role.
Turning to the Respondent’s failure to comply with the requirement of clause 9.3.2 of the Agreement to consider and offer any identified surplus positions, the failure to do so was not a minor matter. However, the fact that there were no comparable AHM roles available in Victoria and that the Applicant was not interested in a ‘lesser role’ or roles outside Victoria leads me to conclude that the Respondent’s omission did not materially impact the outcome. Nor does that failure undermine the sound operational reasons advanced by the Respondent for the removal of the AHM role.
It follows from the above that the Respondent’s consultation failures do not weigh in favour of a finding that the dismissal was unfair. I now turn to other matters relevant to my consideration of s 387(h)
The Applicant also submits that other factors weigh in favour of a finding that the dismissal was unfair. Those matters are set out above at [64]-[67] and include the advanced stage of his wife’s pregnancy and the paid and unpaid parental leave benefit he says was denied to him by reason of the timing of his dismissal. He also suggested that the impending birth of his second child at the end of March 2023 and his need to take time off to support his wife was likely to discourage prospective employers. The Applicant also referred to “thrown away” costs of his Clinical Masters course and the additional costs he will incur in the deferral of completion of the Titling Course he has commenced.
Turning firstly to the parental leave entitlement the Applicant states has been lost, I agree that had the Applicant not been dismissed he would have been entitled to 2 weeks’ paid parental leave under the terms of the Agreement as he had been employed by the Respondent for approximately 15 months, thus meeting the 12 month qualifying period. I accept that this is a foregone benefit by reason of the timing of the dismissal and weighs in favour of a finding of harshness in the circumstances, albeit not heavily. I do not however accept the Applicant’s submission that the impending birth of his second child will act as a disincentive for employers to offer him employment as there is no evidence to support such a submission and is merely the Applicant’s subjective opinion.
Turning to the ‘thrown away’ costs of the Clinical Masters course which the Applicant estimates in the order of $7,287.33, that being the cost of twenty-five study units he states he will lose if he exits early from the course and takes the lesser qualification of a Graduate Diploma of Rehabilitation Science. The following may be said in respect of this claimed cost of his redundancy. Firstly, the Applicant commenced the course in 2018 long before he commenced employment with the Respondent and his earlier decision to defer the course because of the birth of his first child was not a matter within the control of the Respondent. As to the claim that he will have thrown away several thousand dollars in costs for twenty-five study units he will lose the benefit of if he takes the lesser qualification of a Graduate Diploma of Rehabilitation Science, that is not certain. That is because of his ability to discuss his situation with the course coordinator and the options available to him including taking an early exit from the course, obtaining a credit for up to 5 years for completed units and then resuming the course. I am consequently not persuaded that the Clinical Masters Course completion is a matter that weighs in favour of a finding of harshness.
With respect to the Titling Course costs I accept that the Course Information Booklet indicates that participants will bear the costs of the exam if it is not taken within the 12 month timeframe, that being by August 2023. I note that the course participation by the Applicant was voluntary and at no cost to him due to the course being a pilot. It is also apparent that the course commenced in August 2022 which was just prior to his dismissal in September 2022 which suggests the Applicant’s ‘investment’ in the course prior to his dismissal was limited. While it is regrettable for the Applicant that he may have foregone the benefit of a free personal development opportunity, I do not regard it as a matter to be weighed in circumstances where he has borne no cost (other than time) and where he is not compelled to complete the course.
Other matters I regard as relevant to my consideration of s 387(h) is that the Applicant is young, highly qualified and while he has been unsuccessful in securing employment to date, the labour market is at an historically buoyant level. I also note from his termination payslip that the gross separation payment made to him on termination was that of $34,955 which included accrued leave entitlements, a redundancy payment, payment in lieu of notice and payment for claimed overtime. These factors weigh against a finding that the dismissal was harsh.
While I have found that the foregone paid parental leave entitlement weighs in favour of a finding of harshness in the circumstances, no other factors weigh in favour of such a finding. Balanced against that factor are those matters weighing against a finding of harshness including the sound operational reasons for the dismissal of the Applicant. His dismissal formed part of a broader organisational restructure implemented by the Respondent both at the Holmesglen Hospital and other hospital within its business. The rational for the organisational restructure was not seriously challenged although the Applicant was aggrieved that other means of achieving cost savings in the Allied Health Department at the Holmesglen Hospital were not pursued. The operational reasons for the Applicant’s dismissal weigh heavily in favour of a finding that the dismissal was not harsh, unjust or unreasonable.
As I have also found above, there were consultation failures on the part of the Respondent. They did not in all likelihood impact on the outcome, that being the redundancy of the Applicant in circumstances where the AHM role was removed, where there were no alternate roles available at a comparable level to the AHM role and where the Applicant did not wish to perform a ‘lesser role.’
Is the Commission satisfied that the dismissal of the Applicant was harsh, unjust, or unreasonable?
I have made findings in relation to each matter specified in s.387 of the Act as relevant. I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust, or unreasonable.[101]
While I have found that the ss.387(a)-(f) factors were either neutral or not relevant in my consideration, I have found that the matters considered under s 387(h) weigh in favour of a finding that the dismissal was not unfair. Having considered each of the matters specified in s.387 of the Act, I am consequently satisfied that the dismissal was neither unjust, unreasonable nor harsh, and thereby was not unfair.
Conclusion
The Applicant’s dismissal by the Respondent on 30 September 2022 was not a case of genuine redundancy within the meaning of s.389 of the Act. Having been satisfied in respect of the other initial matters, I have considered and determined that the Applicant’s dismissal was not unfair. Consequently, his application for an unfair dismissal remedy must therefore be dismissed.
An order giving effect to the decision will be separately issued.
DEPUTY PRESIDENT
Appearances:
M Zhang, Applicant.
C Pase for the Respondent.
Hearing details:
2023.
Melbourne:
January 16 and 17.
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[1] Exhibit R1, Witness Statement of Penny Byers-Tymms, at [5]
[2] Exhibit R5, Witness Statement of Keryn Hopkins, dated 8 December 2022, at [2]
[3] Exhibit R1 at [6]
[4] Exhibit A1, Witness Statement of Mu Tian Zhang, at [3]-[5], [10]-[15]
[5] Ibid, Attachment MZ-04b, Email to Meg Morris “RE: webex project update”, dated 19 May 2022
[6] Exhibit A1, Attachment MZ-05, Letter from Keryn Hopkins, “Re: Mutian Zhang – Masters Rehabilitation Science, University of Melbourne”, dated 15 July 2022
[7] Exhibit A1, Attachment MZ-01, Position Description for Allied Health Manager role
[8] Exhibit R5 at [14]
[9] Exhibit R1, Attachment PBT-1, Healthscope – Victoria – Allied Health Professionals – Enterprise Agreement 2020 – 2022
[10] Exhibit A1 at [7], Exhibit A, Attachment MZ-02, Payslip for pay period ending10 July 2022
[11] Exhibit R2, Second Witness Statement of Penny Byers-Tymms, dated 10 January 2023, at [3], Attachment PBT-13, Performance Plan
[12] Ibid at [4]
[13] Ibid at [5]
[14] Ibid, Attachment PBT-14, Document titled “Role 2nd in charge of Allied Health”
[15] Exhibit R2 at [6]-[7]
[16] Ibid at [8]-[10]
[17] Exhibit R5, Attachment KH-12, Time & Attendance Record for period 20/3/22-1/9/22
[18] Exhibit R6, Second Witness Statement of Keryn Hopkins, dated 10 January 2023, dated at [3]-[8]
[19] Exhibit R7, Performance Plan as at 29 July 2022
[20] Exhibit R8, Performance Plan as at 4 August 2022
[21] Exhibit R5 at [7]
[22] Ibid at [8]
[23] Ibid at [9]
[24] Ibid at [10]
[25] Ibid at [11]
[26] Ibid at [12]
[27] Ibid at[17]-[18]
[28] Ibid at [20]-[21]
[29] Exhibit A1 at [20], Attachment MZ-06a, Notes of Meeting September 2021
[30] Ibid, Attachment MZ-06b, Notes of Meeting, November 2021
[31] Ibid, Attachment MZ-06c, Notes of Meeting, May 2022
[32] Exhibit A1 at [21]-[22], Attachment MZ-07
[33] Exhibit A1 at [23]-[24]
[34] Ibid at [25]
[35] Ibid at [27], Attachment MZ-10, Email titled “Grade 3 Followup”, dated 31 August 2022
[36] Exhibit A1 at [28]-[29]
[37] Ibid at [30]-[31]
[38] Exhibit R2 at [13]-[14]
[39] Ibid, Attachment PB-15, Position Description for Health Professional Grade 3
[40] Exhibit R2 at [15]-[16]
[41] Ibid at [17]-[19]
[42] Ibid at [20]-[21]
[43] Exhibit R3, Suhel Moria Letter of Offer, dated 6 October 2022
[44] Exhibit A1, Attachment PBT-2, Email exchange between Applicant and Ms Byers-Tymms dated 6-7 September 2022
[45] Exhibit R1, Attachment PBT-3, Zoom meeting invite re Rehab Structure
[46] Exhibit R1 at [18]
[47] Exhibit R5, Attachment KH-2, Email dated 9 September 2022, titled ‘Holmesglen Private Hospital’
[48] Exhibit R5, Attachment KH-3, Letter dated 9 September 2022, titled ‘PROPOSED REDUNDANCY OF YOUR ROLE’
[49] Exhibit R5, Attachment KH-4, ‘Change Impact Statement’
[50] Exhibit R5, Attachment KH-5, ‘Career Transition Support – 1 Month Program’
[51] Exhibit A1 at [33]
[52] Exhibit R5, Attachment KH-6, Email exchange between Applicant and Ms Hopkins, dated 9 September 2022
[53] Exhibit R1, Attachment PBT-6. Email from Applicant dated 11 September 2022, titled ‘sep 12 still off + redundancy meeting’
[54] Exhibit R5, Attachment KH-7, Email dated 13 September 2022, titled ‘Redundancy Quote’
[55] Exhibit R1, Exhibit PBT-7, email from Applicant, dated 13 September 2022, titled ‘sep 14 – still off’
[56] Exhibit R5, Attachment KH-8, Zoom meeting invite for meeting on 14 September 2022
[57] Exhibit R1 at [24]
[58] Exhibit R5 at [10]-[11]
[59] Exhibit A1 at [34]
[60] Exhibit R5, Attachment KH-9, Email exchange between Applicant and Ms Hopkins, dated 14 September 2022, titled ‘Re: Team Message”
[61] Exhibit R5 at [30]
[62] Exhibit R1, Exhibit PBT- 10, email from Ms Hopkins to Applicant, dated 16 September 2022, titled ‘Redeployment Opportunities – Physiotherapist’
[63] Exhibit R5 at [31]
[64] Exhibit A1 at [35]
[65] Exhibit R2 at [22]-[24]
[66] Exhibit R5 at [32]
[67] Ibid, Attachment KH-11, Letter to Applicant dated 27 September 2022, titled ‘REDUNDANCY OF YOUR ROLE’
[68] Exhibit R6 at [2]
[69] Exhibit A1 at [37]
[70] Exhibit A1, Attachment MZ-15, Email titled “Mu’s last day followup”, dated 30 September 2022
[71] Exhibit A1, Attachment MZ-16, Email titled “Re: Mu’s last day followup”, dated 5 October 2022
[72] Exhibit R1, Attachment KH-12, Email exchange between Applicant and Ms Hopkins, dated 6 October 2022, titled ‘ RE: Mu’s last day followup’
[73] Exhibit A6, Payslip for pay period 19 September – 2 October 2022
[74] Exhibit R6 at [18]
[75] Ibid at [19]
[76] Ibid, Attachment KH-15, Email from Mark Nelson to VAHPA titled “FW: Notification of proposed major change”, dated 6 September 2022
[77] Exhibit R6 at [20]
[78] Ibid, Attachment KH-15
[79] Exhibit A1, Attachment MZ-26, Fees & scholarships
[80] Exhibit A7, Email from University of Melbourne, dated 16 November 2022 titled “Early Exit into multiple awards/Maximum Course Length - Master of Clinical Rehab”
[81] Exhibit A8, Titling-Highly Developed Milestone Level 3 Information Booklet
[82] Exhibit A1 at [79], Attachment MZ-33, Job applications
[83] Form F3 at question 1.7
[84] [2010] FWAFB 3488.
[85] Ibid at [17]-[18]
[86] Ulan Coal Mines Limited v Honeysett [2010] FWAFB 7578 (Giudice J, Hamberger SDP, Cambridge C,
12 November 2010) at para. 26, [(2010) 199 IR 363].
[87] Technical and Further Education Commission T/A TAFE NSW v Pykett [2014] FWCFB 714 (Ross J, Booth DP, Bissett C, 29 January 2014) at para. 36, [(2014) 240 IR 130].
[88] Ulan Coal Mines Limited v Honeysett[2010] FWAFB 7578 (Giudice J, Hamberger SDP, Cambridge C,
12 November 2010) at para. 28, [(2010) 199 IR 363].
[89] Exhibit MZ-12, Meeting noters 16 September 2022
[90] Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.
[91] Ibid.
[92] Walton v Mermaid Dry Cleaners Pty Ltd(1996) 142 ALR 681, 685.
[93] Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.
[94] Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998).
[95] Ibid.
[96] Crozier v Palazzo Corporation Pty Ltd t/a Noble Park Storage and Transport Print S5897 (AIRCFB, Ross VP, Acton SDP, Cribb C, 11 May 2000), [75].
[97] RMIT v Asher (2010) 194 IR 1, 14-15.
[98] Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7.
[99] [2011] FWA 4239.
[100] Ibid at [47].
[101] ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357, [51]. See also Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [92]; Edwards v Justice Giudice [1999] FCA 1836, [6]–[7].
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