Natalie Sommer v Healthcare Australia Pty Ltd T/A Healthcare Australia

[2017] FWC 1564

[2017] FWC 1564

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Natalie Sommer
v
Healthcare Australia Pty Ltd T/A Healthcare Australia
(U2016/2825)

DEPUTY PRESIDENT ASBURY BRISBANE, 17 MARCH 2017

Application for relief from unfair dismissal – Jurisdictional objection on the ground of genuine redundancy – Finding that dismissal was for operational reasons – No relevant obligation to consult where dismissed employee not covered by modern award or enterprise agreement – Finding that it would have been reasonable to redeploy dismissed employee – Dismissal not a case of genuine redundancy – Interaction between genuine redundancy and unfair dismissal provisions of the Act – Finding that dismissal was for a valid reason but was unfair – Compensation awarded.

[1] Ms Natalie Sommer applies under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy with respect to her dismissal from her role as Sales and Business Development Manager at Healthcare Australia Pty Ltd T/A Healthcare Australia (HCA) where she was employed from 7 January 2013 until 25 May 2016.

[2] HCA raises a jurisdictional objection to the application asserting that Ms Sommer’s dismissal was a case of genuine redundancy within the meaning in s. 389 of the Act. The matter was listed for hearing in relation to both the jurisdictional objection and Ms Sommer’s substantive application and Directions for the parties to file and serve material were issued. In addition to its assertion that the dismissal was a case of genuine redundancy, HCA also made a number of allegations about Ms Sommer’s conduct and work performance in its filed material. Those allegations were not relevant to the genuine redundancy objection and were ultimately not relied on by HCA in the conduct of its case and were withdrawn at the hearing.

[3] Unfortunately the fact that the allegations were made at all, unnecessarily complicated the hearing of the application. Ms Sommer was upset by the allegations and felt the need to respond to them at length and structured her case accordingly. While the withdrawal of the allegations reduced the duration of the hearing, they caused distress and confusion to Ms Sommer and unnecessarily impacted on Ms Sommer’s ability to conduct her case.

[4] The matter was dealt with by way of a hearing, as it was considered that this was the appropriate course taking into account the views of the parties and the factual issues in dispute. At the hearing the Respondent sought permission to be legally represented by Counsel. Ms Sommer objected. Permission was granted on the basis of my view that it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter. This was borne out by the fact that Counsel withdrew the irrelevant assertions previously set out in the material filed by HCA and did not rely on those assertions at the hearing. Counsel for HCA also gave an undertaking that HCA would not seek costs if its jurisdictional objection was upheld and/or HCA succeeded on its merits case.

[5] The hearing was also complicated by a range of correspondence initiated by solicitors for HCA with Mr McCombes, who gave evidence for Ms Sommer pursuant to an attendance notice. Mr McCombes communicated with the Commission expressing concern that pressure was being placed on him in relation to giving evidence for Ms Sommer and that a redundancy payment that HCA had agreed to pay to him was not paid by an agreed date, because he had given evidence. Given the seriousness of the allegations made by Mr McCombes I conducted a preliminary hearing to deal with this matter, and it was also necessary to deal with a further issue related to redundancy payments to Mr McCombes during the hearing of Ms Sommer’s application. 1 While I ultimately decided that the allegations made by Mr McCombes did not warrant action on my part, the conduct on the part of Solicitors for HCA in their dealings with Mr McCombes and his involvement in Ms Sommer’s case was unnecessary and a case of complete overkill which further complicated the hearing of Ms Sommer’s application.

[6] If the jurisdictional objection is not upheld, it is not in dispute that Ms Sommer’s application was made within the time required in s. 394(2) of the Act; Ms Sommer was protected from unfair dismissal as defined in s. 382 of the Act; HCA was not a “small business employer” as defined in s. 23 of the Act and the Small Business Fair Dismissal Code was not applicable.

THE ISSUES IN DISPUTE

[7] HCA asserts that the dismissal is a genuine redundancy because the role previously performed by Ms Sommer was no longer required due to changes in the operational requirements of the business. HCA also asserts that there was no award or enterprise agreement applicable to Ms Sommer’s employment but that nonetheless it consulted with Ms Sommer about the redundancy despite having no obligation to do so. Further, HCA asserts that despite reasonable attempts it was unable to redeploy Ms Sommer to another role. If the Commission finds that the dismissal is not a case of genuine redundancy in accordance with the meaning in s. 389 of the Act, HCA submits in the alternative, that the dismissal of Ms Sommer is not unfair.

[8] Ms Sommer contends that her dismissal is not a case of genuine redundancy on the basis that there were a number of other positions available within HCA’s enterprise to which Ms Sommer could have been redeployed. Ms Sommer also contends that she was covered by the Clerks Private Sector Award – 2010 (the Award) and that in dismissing her on the grounds of redundancy HCA did not comply with the consultation requirements in that Award. Further Ms Sommer contends that the real reason for her dismissal was that the CEO of HCA disliked her. Ms Sommer submits that her dismissal was unfair and seeks compensation on the basis that the employment relationship has broken down to the extent that reinstatement would not be appropriate.

[9] It is necessary to consider whether Ms Sommer’s dismissal was a case of genuine redundancy within the meaning provided in s. 389 of the Act. If the dismissal is not a case of genuine redundancy within the meaning of that section it is then necessary to consider whether the dismissal was unfair, on the basis of the criteria in s. 387 of the Act.

LEGISLATION

[10] Section 389 of the Act provides 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.

(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.

[11] The Explanatory Memorandum to the Fair Work Bill 2008 (“the Explanatory Memorandum”) provides some insight into the scope of meaning of a genuine redundancy, as contemplated under the Act.

Clause 389 – Meaning of genuine redundancy

1546. This clause sets out what will and will not constitute a genuine redundancy. If a dismissal is a genuine redundancy it will not be an unfair dismissal.

1547. Paragraph 389(1)(a) provides that a person’s dismissal will be a case of genuine redundancy if his or her job was no longer required to be performed by anyone because of changes in the operational requirements of the employer’s enterprise. Enterprise is defined in clause 12 to mean a business, activity, project or undertaking.

1548. The following are possible examples of a change in the operational requirements of an enterprise:

• a machine is now available to do the job performed by the employee;

• the employer’s business is experiencing a downturn and therefore the employer only needs three people to do a particular task or duty instead of five; or

• the employer is restructuring their business to improve efficiency and the tasks done by a particular employee are distributed between several other employees and therefore the person’s job no longer exists.

1549. It is intended that a dismissal will be a case of genuine redundancy even if the changes in the employer’s operational requirements relate only to a part of the employer’s enterprise, as this will still constitute a change to the employer’s enterprise.

1550. Paragraph 389(1)(b) provides that it will not be a case of genuine redundancy if an employer does not comply with any relevant obligation in a modern award or enterprise agreement to consult about the redundancy. This does not impose an absolute obligation on an employer to consult about the redundancy but requires the employer to fulfil obligations under an award or agreement if the dismissal is to be considered a genuine redundancy.

1551. Subclause 389(2) provides that a dismissal is not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within the employer’s enterprise, or within the enterprise of an associated entity of the employer (as defined in clause 12).

1552. There may be many reasons why it would not be reasonable for a person to be redeployed. For instance, the employer could be a small business employer where there is no opportunity for redeployment or there may be no positions available for which the employee has suitable qualifications or experience.

1553. Whether a dismissal is a genuine redundancy does not go to the process for selecting individual employees for redundancy. However, if the reason a person is selected for redundancy is one of the prohibited reasons covered by the general protections in Part 3-1 then the person will be able to bring an action under that Part in relation to the dismissal.

[12] In Ulan Coal Mines Limited v Honeysett and Others 2(Honeysett) a Full Bench of the Commission observed in relation to s. 389 of the Act that if a dismissal is a case of genuine redundancy the employer has a complete defence to an unfair dismissal application and aspects such as the fairness of the selection procedure for redundancy cannot be challenged under the unfair dismissal provisions of the Act.
[13] An employer seeking to rely on the genuine redundancy exclusion would ordinarily be expected to adduce evidence as to the following matters:

● That the employer no longer required the dismissed employee’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise;

● Whether there was any obligation in an applicable modern award or enterprise agreement to consult about the redundancy and whether the employer complied with that obligation; and

● Whether there was a job or position or other work within the employer’s enterprise (or that of an associated entity) to which it would have been reasonable in all of the circumstances to redeploy the dismissed employee.  3

[14] These matters are generally within the knowledge of the employer seeking to establish the exclusion. Where an employee leads evidence that the dismissal is not a case of genuine redundancy, the employer’s evidence needs to be sufficient to rebut any evidence from the dismissed employee to the contrary.

[15] Turning to s. 389(1) of the Act, where the duties performed by a person in a particular role or position are no longer required to be performed by anyone because of changes in the employer’s operational requirements, the role or position is redundant within the meaning in that provision. In determining whether this is the case, it is necessary to draw a distinction between the employee’s job and the employee’s duties. 4 A dismissal may be a redundancy within the meaning in s. 389(1)(a) of the Act in a number of circumstances including where:

● the duties remain and operational changes result in fewer employees being required to perform those duties; 5

● all or some aspects of an employee’s duties are performed by someone else as a result of operational change; 6

● structural change has eliminated the need for specific duties or the employer has found another way to have those duties performed; 7

● there is a significant change to skills required or the accountabilities or autonomy of a position; 8 or

● termination of employment for a structural reason such as the employer has no suitable assignment for a person with particular qualifications and experience or because of the introduction of technological change. 9

[16] A dismissal for cause is not a redundancy. Where there is no change in operational requirements for example due to restructuring, reorganisation, change to a role, change to the composition of a workforce or a reduction in employees, and a dismissed employee can show that he or she was simply exited from the business and replaced with another person performing the same or substantially the same duties, a dismissal may not meet the definition in s. 389(1)(a).

[17] Consultation for the purposes of s. 389(1)(b) of the Act is required to be meaningful and not merely an afterthought. Consultation after an irrevocable decision has been made is not sufficient to meet the requirements of the provision, 10 and the employer is required to give the employee a bona fide opportunity to influence11 or persuade the decision maker.12

[18] If an employee whose position is said to be redundant is not covered by a modern award or enterprise agreement, then there are no consultation obligations for the purposes of s. 389(1)(b) of the Act and it is not necessary for the employer to establish that the employee was consulted about the redundancy in order to rely on the genuine redundancy defence to an unfair dismissal application.

[19] In relation to redeployment, s. 389(2) of the Act provides an exception to the circumstances in which a person’s dismissal will be a case of genuine redundancy within the meaning in s. 389(1) of the Act. 13 If s. 389(2)(a) is enlivened, a person’s dismissal will not be a case of genuine redundancy even if the person’s employer no longer requires the job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise and any relevant consultation obligations have been met.

[20] As a Full Bench of the Commission noted in Appeal by Technical and Further Education Commission T/A TAFE NSW 14 (Pykett) the circumstances that enliven the exception are that: “it would have been reasonable in all the circumstances for the person to be redeployed within… the employer’s enterprise.”15 The use of the past tense in s. 389(2) directs attention to the circumstances which pertained at the time the person was dismissed. The Full Bench in that case also held that the term “redeployed” should be given its ordinary meaning, including “transfer to another job, task or function.”16

[21] In Honeysett 17 a Full Bench of Fair Work Australia held that it was open to the Commissioner who dealt with the matter at first instance to find that it would have been reasonable in all of the circumstances to redeploy persons who had been dismissed on the basis of evidence that:

● entities associated with the employer had vacancies for jobs which were potentially suitable for the dismissed employees;

● there was no evidence that redeployment from Ulan to those mines would have any impact on operational efficiency; and

● there was no evidence that the dismissed employees would have been unwilling to be redeployed to another mine, notwithstanding that some of the employees had not followed up on vacancies at other mines which the Company brought to their attention. 18

[22] The Full Bench in Honeysett went on to state that:

“It may be appropriate to make some concluding remarks about the operation of s.389(2). It is an essential part of the concept of redeployment under s.389(2)(a) that a redundant employee be placed in another job in the employer’s enterprise as an alternative to termination of employment. Of course the job must be suitable, in the sense that the employee should have the skills and competence required to perform it to the required standard either immediately or with a reasonable period of retraining. Other considerations may be relevant such as the location of the job and the remuneration attaching to it. Where an employer decides that, rather than fill a vacancy by redeploying an employee into a suitable job in its own enterprise, it will advertise the vacancy and require the employee to compete with other applicants, it might subsequently be found that the resulting dismissal is not a case of genuine redundancy. This is because it would have been reasonable to redeploy the employee into the vacancy. In such a case the exception in s.385(d) would not apply and the dismissed employee would have the opportunity to have their application for a remedy heard. The outcome of that application would depend upon a number of other considerations.” 19

[23] In Pykett, the issue for determination was whether in deciding that redeployment was reasonable, the Commission was required to identify a specific position to which the employee should have been redeployed. The Full Bench in Pykett stated that Honeysett is authority for the proposition that for the purposes of s. 389(2)(b) it is sufficient that the Commission identifies a suitable job or position to which the employee could be redeployed and that the Commission must then determine whether redeployment would have been reasonable in all of the circumstances. The Full Bench in Pykett also stated that Honeysett is not authority for the proposition that it is always necessary to identify a particular job or position to which the dismissed employee could have been redeployed and went on to hold that:

“For the purposes of s. 389(2) the Commission must find, on the balance of probabilities, that there was a job or a position or other work within the employer’s enterprise (or that of an associated entity) to which it would have been reasonable in all of the circumstances to redeploy the dismissed employee. There must also be an appropriate evidentiary basis for such a finding.” 20 (my emphasis).

[24] The Bench further observed that the evidence in relation to whether there was a job or a position or other work to which it would have been reasonable to redeploy the dismissed employee would usually include canvassing the steps taken by the employer to identify other work which could be performed by the dismissed employee. In Pykett it was found that it is erroneous to focus on the inadequacy of the employer’s redeployment policy without making a finding that there was a job, a position or other work to which the dismissed employee could have been redeployed, and that such a finding is a necessary step in determining whether it would have been reasonable in all the circumstances for the dismissed employee to have been redeployed within the employer’s enterprise.

[25] In relation to the steps taken by an employer to identify a role for the purposes of considering whether redeployment would be reasonable, a Full Bench observed in MacLeod v Alcyone Resources Ltd T/A Alcyone 21that:

“To avoid doubt, we note as a matter of principle that the availability of a more junior role into which the employee could have been redeployed could provide a basis for a finding that a redundancy was not genuine or a dismissal was harsh, unjust or unreasonable.” 22

[26] It is clear from the cases that in order to enliven s. 389(2) of the Act it is not sufficient for the Commission to simply find that an employer failed to consider redeployment of the dismissed employee within its enterprise or the enterprise of an associated entity. It is also necessary for the Commission to be satisfied that there was a job, role, position or work that could have been performed by the dismissed employee and having made that finding to then determine that it would have been reasonable in the circumstances for the dismissed employee to be redeployed. It is not necessary that a specific job role or position is identified for the purpose of determining whether the person could have been redeployed. It is sufficient if there is work that the person could have done. Consideration of the next question of whether redeployment was reasonable involves questions of suitability including the skills and competence of the employee, the training that would be required and factors associated with the job such as remuneration and location. It may also involve an assessment of whether the dismissed employee would have been willing to accept redeployment.

[27] It is possible in a particular case that the Commission may be satisfied that a person’s job is redundant on the basis that the employer no longer requires the job to be performed by anyone because of changes in its operational requirements, but at the same time may not be satisfied that dismissal is a case of genuine redundancy within the meaning in s. 389 of the Act on the basis that the employer has not complied with a relevant obligation to consult or because the Commission finds that it would have been reasonable for the employer to have redeployed the dismissed employee. The result in such a case is that the employer does not have a complete defence to an unfair dismissal application in relation to the dismissal resulting from the redundancy. The dismissal then falls to be considered under the criteria in s. 387 of the Act which are in the following terms:

(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.”

[28] Considered against the criteria in s. 387(a) of the Act, a dismissal on the basis of operational requirements that meets the description in s. 389(1)(a) of the Act, may be found to be a dismissal for a valid reason. Failure to consult a dismissed employee may not render a dismissal unfair, if the dismissal is for a valid reason and it is found that consultation would not have negated the operational reasons for the dismissal or led to any other substantive change and the employee would have been dismissed in any event. 23 Even if failure to consult in such cases renders a dismissal unfair, the remedy may be limited to compensation for a reasonable period for consultation to have occurred.24 Similar considerations may arise in circumstances where s. 389(2) of the Act is enlivened, however, consideration of whether a dismissal is unfair on the basis of failure to redeploy may involve a fine balance, because of the way the provision is framed and the matters that are required to be assessed.

EVIDENCE

[29] In the present case, Ms Sommer gave evidence on her own behalf. 25 Evidence on behalf of Ms Sommer was also given by Mr Shane McCombes, formerly National Rural and Remote Manager for HCA and Ms Sommer’s line manager, who responded to an attendance notice issued at the request of Ms Sommer. Evidence for HCA was given by:

● Mr Richard Taylor – Chief Financial Officer, Director and Company Secretary; 26

● Mr Stewart Webster – General Manager (WA and NT) and National General Manager Rural and Remote business; 27

● Ms Cassandra McLean – Group Human Resources Manager; 28 and

● Mr Jason Cartwright – Chief Executive Officer. 29

[30] HCA operates a healthcare recruitment and personnel placement business in Australia. The Rural and Remote (R&R) business is responsible for recruiting and placing nurses and healthcare workers into regional, rural and remote areas in Australia. It is not in dispute that Ms Sommer was initially engaged as a Business Manager in the R&R business from on or around 7 January 2013 and that Ms Sommer reported to the General Manager of the R&R business, Mr McCombes.

[31] Ms Sommer’s evidence is that she was recruited to HCA by Mr McCombes. At the time, Ms Sommer was working for Queensland Health. Ms Sommer detailed her qualifications and experience including that she is a credentialed Change and Project Manager, with certification in Business Process Mapping Notation and Workplace Training and Assessing. Ms Sommer also holds the qualification of Bachelor of Education with majors in Adult and Vocational Education and Instruction Design. Upon commencing employment with HCA, Ms Sommer worked under the guidance of Mr McCombes initially focusing on the supply of nurses to Queensland public, private and “not for profit” hospitals and health services.

[32] Ms Sommer tendered an employment agreement stating that she was employed “…in accordance with the Clerks Private Sector Award – 2010” and that her “position is classified as Level 5 as per that Award…” and that: “[A]ny legislation or industrial instrument referred to in this agreement applies to you by operation of law and does not form part of this agreement.” 30

[33] Ms Sommer’s evidence is that she worked very hard to grow the rural and remote part of HCA’s business and increased its profit margin significantly. Ms Sommer asserted that notwithstanding this the CEO of the Company had a strong personal dislike for her, evidenced by his avoidance of her at corporate events, making negative comments about her to other staff and failing to acknowledge her success or that of her team. Ms Sommer further asserts that colleagues have reported that senior managers have spoken of the need to exit her from the business.

[34] In or around November 2015, the R&R business was restructured. Ms Louise Cerrafon was appointed to the position of Senior Manager of the Rural and Remote Division and Ms Sommer was appointed to the role of Client, Sales and Business Development Manager and held that position up until her dismissal on 25 May 2016. There is some dispute which is not material as to whether these changes were instigated by Mr McCombes or whether he simply implemented them under direction by the Board.

[35] Ms Sommer asserts that the November 2015 restructure was presented to her as a means of her focusing on business development and that she was offered a “transition bonus” of three months’ salary payable in October 2016 if she supported the new Senior Manager in her transition goal. This incentive was communicated to Ms Sommer by Mr McCombes who told her that it was an “off the record incentive that would not be put in writing.” The offer was not put in writing despite Ms Sommer’s requesting that this occur and the transition bonus was not paid to Ms Sommer.

[36] Ms Sommer states that she was not told at any time that she was not employed under the Awardand that she was not provided with a new employment contract in respect of the position of Client, Sales and Business Development Manager, which she was appointed to following the November restructure. At the time of her dismissal, Ms Sommer’s salary was $112,749.00 per annum.

[37] There was a further change in the R&R business in early 2016, when Mr McCombes was given responsibility for a contract bid for HCA to perform work as a second tier contractor for the Department of Defence under a contract with Medibank. Mr McCombes worked on that bid from around April 2016 and when HCA was awarded the contract on 1 May 2016, Mr McCombes took up the role of General Manager for a Defence business which was to be formed. Mr Webster assumed the position of Manager of the R&R business and Ms Sommer then reported to him.

[38] On 6 May 2016, all staff (including Ms Sommer) were sent an email from HCA’s HR department asking them to express interest in Defence roles. A copy of the email was tendered by Ms Sommer and Ms McLean. That email stated that the next four months would see the HCA Defence team focus on transitioning existing clinical staff and would direct focus to credentialing, processing and induction of staff to HCA. The email went on to state that there were positions for approximately 23 operational staff to be appointed over a five month transitional period commencing in June 2016, and invited expressions of interest in a range of positions including the following Queensland based positions:

● National Operational Manager;

● Regional Manager roles;

● Client Services with a 360 Recruitment component;

● Recruitment;

● Credentialing/securing roles with strong administrative requirements;

● Office Management/Administration;

● Coordination / Allocation / Rostering roles.

[39] The email went on to state that if staff were interested in a role with the Defence division they should take some time throughout the month of May preparing an expression of interest letter and discussing this with their managers. The roles were also to be advertised externally. It concluded by advising that if staff were interested in applying for one of the roles set out in the email they should prepare a short expression of interest letter setting out: current job title and division; length of tenure in current role; and key achievements in current role. These documents were to be emailed to Mr McCombes. 31 Ms Sommer informed Mr Webster by email dated 11 May 2016 that she intended to submit an expression of interest in a defence position and Mr Webster responded telling her to submit her expression of interest to Mr McCombes. Ms Sommer arranged to meet Mr McCombes on or around 26 May 2016 to discuss her interest in a defence position.

[40] Ms Sommer states that on 24 May 2016, Mr Webster came to her desk for what he referred to as a “catch-up.” According to Ms Summer, Mr Webster began the discussion by asking whether she knew that the business was being restructured, and asked her whether she thought that she could add value anywhere else in the business. Ms Sommer said that she replied by asking: “Why, don’t I have a role in Rural and Remote anymore?” Ms Sommer states that Mr Webster responded with non-verbal facial expressions by raising his eyebrows, widening his eyes and shaking his head to indicate “no”. Ms Sommer responded by indicating that she could assist in the start-up and transition of the defence contract or sell a managed solution known as Clarity or perform business development and client services in aged care. Ms Sommer further states that she said to Mr Webster: “but you and I know that there is no feasible way I could transition because my termination is the only outcome sought by the CEO” and that Mr Webster nodded his head in response.

[41] Ms Sommer said Mr Webster told her to think about the discussion overnight and respond at 8.00 am the following day. Ms Sommer also said that there had been a discussion about two weeks earlier during which Mr Webster mentioned that he was going to make some changes following his appointment but he had never used the words “redundancy” or “restructure’ in relation to her position. Ms Sommer also said that during the discussion on 24 May Mr Webster did not state that her position was to be made redundant or her employment terminated.

[42] On 25 May 2016, Ms Sommer arrived at work and was asked to attend a meeting in the board room with Mr Webster and the Ms MacLean. Ms Sommer asked to have a support person and Mr Webster agreed that she could bring a colleague to the meeting. During the meeting Ms Sommer was handed a termination letter and informed that her employment was to be terminated that day. The letter states:

“I refer to our meeting on 25 May 2016 with Cassandra McLean, HR Manager where we discussed the operational requirements for the RnR business moving forward.

We have been reviewing the structure and operational requirements of the RnR team to ensure that the team is well positioned within Healthcare Australia to achieve its operational objectives. As such, I have had to make some business decisions that impact on the Client and Sales Business Development Manager, RnR role. As a result, the role of Client and Sales Business Development Manager in the Brisbane RnR team is no longer required and will be made redundant, effective 25 May 2016.

I have considered redeployment opportunities with the current vacancies and although they are not comparable positions they are enclosed for your review.

The current vacancies across HCA are:

● NSW Business Manager (Nursing)
● NSW Recruitment Credentialing Assistant (LML)
● NSW Recruitment Consultant (LML)
● NSW Resourcer (Community Care)
● QLD Branch Manager (Community Care)
● NT Recruitment Consultant (RnR)
● SA Junior Developer (IT)

Your position will be made redundant effective 25 May 2016. Please see enclosed redundancy estimate:

● 4 weeks payment in lieu of notice;
● 7 weeks redundancy payment;
● Annual leave accrual.”

[43] Ms Sommer asserts that her redundancy was not genuine on the basis that none of the positions listed in the termination letter had ever been discussed with her. Ms Sommer also asserts that she could have undertaken any number of positions in the new HCA defence team based in Brisbane or the position of Brisbane-based Branch Manager Community Care as this area is going through legislative transitions, which is Ms Sommer’s field of experience and expertise.

[44] Ms Sommer further asserts that she had two discussions with Mr Webster prior to the catch-up and redundancy meetings on 24 and 25 May 2016, which focused on the management of the business by the new Senior Manager of the Rural and Remote Division and changes in processes relating to internal payroll and accounts services. During these discussions there was no mention of Ms Sommer’s position being made redundant or that any changes Mr Webster might make would result in her exit from the business, and at no time was Ms Sommer:

● advised about the outcome of her expression of interest regarding the defence positions;

● consulted about or otherwise advised that her position would or could be made redundant;

● given any real, reasonable or substantive opportunity to explain why her employment should be retained in (for example) any reconstituted role that incorporated her prior duties; or

● given any explanation about why she had been selected for dismissal as a result of redundancy while other employees were not selected.

[45] Ms Sommer gave evidence about other employees whose positions were made redundant on 25 May 2016. According to Ms Sommer, these employees were consulted and engaged with by their managers a week before the redundancy date and discussions were held with them about other potential positions within the Company. One of these employees was offered an alternative position as a recruitment consultant but voluntarily accepted redundancy. The other employee was made redundant.

[46] In a supplementary statement, Ms Sommer said that she could have assisted Mr McCombes in his new Defence Contract role and referred to appointments to a number of positions including Transition Manager (filled the week after her employment ceased) and Recruitment Consultants which she could have undertaken. Ms Sommer also said that in the weeks prior to the termination of her employment, she provided and credentialed more than 20 staff for one of Mr McCombes’ new Defence Partner suppliers and negotiated contracts with the client.

[47] Ms Sommer also said that business development was not the only role that she performed and that prior to her being handed the letter notifying her of redundancy, there was no discussion with her about any positions to which she may have been redeployed, other than a hypothetical discussion with Mr Webster on the previous day about where Ms Sommer might add value to the business. Further, Ms Sommer asserted that no matter what roles were available the CEO, Mr Cartwright, would never have been supportive of putting Ms Sommer into another role.

[48] Under cross-examination, Ms Sommer agreed that she is not asserting that HCA had employed anyone else to perform her role and that it is her understanding that her previous role had been assumed by other employees who remained in employment with HCA. Ms Sommer also agreed that her case - that her redundancy is not genuine - is based on an assertion that there were other available positions to which she could reasonably have been redeployed including the positions set out in her termination letter and those positions in the Defence contract area in which she had expressed an interest. Ms Sommer further agreed that her claim that the redundancy was not genuine, is also based on failure by HCA to consult with her as required by the Award or some other award that must protect her as an employee. Ms Sommer maintained that she performed clerical work, notwithstanding that her job required her to recruit nurses and to undertake business development for the Regional and Rural Division of HCA. Ms Sommer said that this involved a lot of paper work and administration and that she also undertook payroll duties.

[49] Ms Sommer was shown a second employment contract dated 1 January 2014 and signed by Ms Sommer. That contract does not contain a reference to the Award. In relation to her statement to the Commission that she was not provided with a new contract or advised that contrary to the stipulation in her contract that the Awarddid not apply to her, Ms Sommer said that when she made her statement, she had no recollection about the new contract or signing it. Ms Sommer also said that she did not read the new contract before signing it because she was told that it reflected changes to superannuation legislation and contained no other substantial changes to terms and conditions of employment.

[50] Ms Sommer agreed that Mr Webster spoke to her and the Senior Manager Ms Cerrafon in April 2016 (although she could not confirm the date) about Mr Webster taking over the General Manager role for the Rural and Remote Division and Mr McCombes moving to the Defence Division. Ms Sommer also agreed that during the conversation Mr Webster stated that the structure of the Rural and Remote Division was not working but maintained that she did not know that he was talking about her job. Further, Ms Sommer agreed that Mr Webster stated that there was too much management in the Rural and Remote Division and that reporting lines needed to be clearer. Ms Sommer did not agree that Mr Webster used the term “restructuring” in the April discussion and maintained that he did not use that term until their discussion on 24 May 2016. 32

[51] Ms Sommer agreed that in April and May 2016 the main part of her work for HCA included approaching clients and liaising with nurses and existing clients in relation to placements. Ms Sommer agreed that during the discussion on 26 April 2016, Mr Webster asked her how she saw the business going and how it could be better structured and said that she responded by stating that the Cairns team needed to get on board with established processes. Ms Sommer also agreed that she told Mr Webster that he should give her aged care in Queensland and she would prove that it could work but maintained that this was discussed on 24 May and not in April.

[52] Further, Ms Sommer agreed that she told Mr Webster that there were positions that would be available in defence and expressed interest in those positions in an email dated 11 May 2016. In response to the proposition that an email sent by her on 11 May 2016 was expressing interest in alternative positions, Ms Sommer said that she expressed an interest in the Defence roles because she did not feel that her skills were appreciated in her role with the R&R division and saw the Defence contract as a means to advance her career. Ms Sommer said that she knew that there were some 22 positions coming up but could not say when those positions would be available.

[53] In response to a question about whether Mr Webster told her on 24 May that he assumed that she did not have interest in a defence role because he had not heard anything from her, Ms Sommer said that Mr Webster knew that she had an appointment with Mr McCombes about her interest in a defence role and could not remember whether Mr Webster raised this issue with her. Ms Sommer agreed that she stated to Mr Webster that if he gave her the aged care division she would “smash it out of the park” but disputed that this was the second time she had made this comment. 33 Ms Sommer also agreed that she told Mr Webster that she is an expert in change management and would fix Rural and Remote. Ms Sommer further agreed that the aged care role was not available at the time she was made redundant.34

[54] In response to questions about whether she would have moved from Brisbane to take up another role with HCA, Ms Sommers agreed that she would not have moved because of her personal circumstances but said that she would have liked an opportunity to consider her options as she may have been able to put arrangements in place to take up a role outside Brisbane or to travel for the purposes of working in another role. In relation to her personal circumstances, Ms Sommer stated that she had gone through a separation in the year leading up to her redundancy and shares the care of her children with her former partner.

[55] In relation to the meeting on 25 May 2016 at which her employment was terminated, Ms Sommer agreed that she was allowed a support person. 35 Ms Sommer confirmed that during the meeting she was told that there was to be a restructure of the business and that her position was to be made redundant. Ms Sommer also said that the Company confirmed with her during the meeting that she did not want an interstate role and that the only Queensland vacancy at that time was Branch Manager Community Care. Ms Sommer maintained that none of the roles set out in the dismissal letter had been previously discussed with her but agreed that she had no experience working as a manager in community care and that the Company had told her that they were looking for someone with strong management skills to fill that job. Ms Sommer did not agree with the proposition that the job was not appropriate for her.

[56] Ms Sommer also agreed that as at 25 May 2016, there were no advertised positions in the Defence Division but maintained that she could have assisted with establishing the project during its transition notwithstanding that no such role had been established at that time. In response to her evidence that Mr Cartwright was not supportive or encouraging of her achievements or those of her team, Ms Sommer was shown a number of emails and internal publications in which Mr Cartwright made positive comments about the R&R team and Ms Sommer. Ms Sommer maintained that these comments were generated by Mr McCombes or by Ms Sommer asking Mr Cartwright to give positive feedback to her team rather than by Mr Cartwright.

[57] Mr McCombes said in his evidence that Ms Sommer had a number of attributes and key strengths which built rapport with clients and candidates and also had strengths in relation to processes for integrating databases. Mr McCombes said that Mr Cartwright did not like Ms Sommer and had expressed his dislike of Ms Sommer to Mr McCombes stating in operation and board meetings that he found Ms Sommer “repulsive”.

[58] Mr McCombes said that he had one discussion with Mr Webster about his restructuring plans for the R&R business. This discussion occurred after Mr McCombes started in the Defence role. Mr Webster told Mr McCombes that he would be making two positions redundant – the positions occupied by Ms Sommer and Ms Cerrafon. Mr McCombes said that his response to Mr Webster was that Mr Webster should form his own views about Ms Sommer and her ability and not rely on second or third hand information.

[59] In relation to turnover of staff in the Rural and Remote Division, Mr McCombes said that the Division was new, staff arrived in that Division not understanding the complexity of the work and a number of staff were moved into the Division as a last resort because they were not performing in other Divisions of the Company. Mr McCombes said that it is to be expected that it takes around four years to build a team. Mr McCombes also said that staff turnover is a general feature of the recruiting industry and that it was a matter that the managers of HCA discussed regularly.

[60] Mr McCombes said that he started in his new role in Defence in April or May 2016 but was involved in the tender and bid preparation for the contract prior to starting in the role. Mr McCombes also said that Ms Sommer could have filled a role in the Defence business undertaking process design, credentialing processes, transition and change management. Further, Mr McCombes said that he was travelling extensively and working long hours at this time, and could have used additional support in the Brisbane office. According to Mr McCombes, there were 14 – 20 roles in the Brisbane office relating to the Defence contract and Ms Sommer would have been qualified to fill any of those roles. Mr McCombes confirmed that Ms Sommer expressed interest in a defence role and that he had scheduled a meeting with Ms Sommer on 27 May 2016 to discuss her interest in such a role.

[61] Under cross-examination, Mr McCombes agreed that as at May 2016 there had been no decision made in relation to a final structure for the Defence contract. Mr McCombes also agreed that he had recruited several people for roles in the Defence team after he knew that Mr Webster was proposing to make Ms Sommer’s position redundant. Mr McCombes said that Ms Sommer was not considered for those roles as they were either specialised or short term. In response to the proposition that he had not communicated with Mr Cartwright to say that Ms Sommer should be given a particular position or proposed her for a role in the Defence business, Mr McCombes said that he had a discussion with Mr Cartwright about Ms Sommer’s background in change management during which Mr Cartwright said that Ms Sommer could be placed in an office where she did not have to manage people and could “knock out” process control flows that were required. Mr McCombes agreed that the way in which Ms Sommer managed staff meant that the team underneath her did not always bond well. 36

[62] In response to the proposition that he had not proposed Ms Sommer for the National Manager of Defence role or a HR role that was filled before Ms Sommer was dismissed, Mr McCombes said that he sent numerous emails to Mr Taylor and Mr Cartwright requesting staff to assist with his work load and life balance. In response to the proposition that he had not proposed employing Ms Sommer to assist him, Mr McCombes said that he had gotten into negative situations with Mr Cartwright by defending Ms Sommer in the past and did not want to jeopardise his own position by recommending that Ms Sommer be given such a role. 37

[63] Mr Taylor gave evidence of discussions with Mr Cartwright and Mr Webster about a transition bonus for Ms Sommer to help her overcome the disappointment of being moved from a line management role to the business development role in 2015. Mr Taylor said that it was decided that it was not necessary to pay Ms Sommer the bonus as discussed and he was surprised that Mr McCombes (who was not party to the discussion) told Ms Sommer about it given that it was only a proposal that did not eventuate.

[64] Mr Webster said in his evidence that prior to assuming responsibility for the R&R business, he held concerns about its structure and had expressed those concerns to Mr McCombes. Subsequently Mr Webster held discussions with Mr Cartwright in which he discussed the structure of the R&R business and the potential for redundancies. Mr Webster’s view was that there was a need to grow nurse pools rather than to win new business, and that it was a waste of resources to focus on business development when the Company already had contracts with every Government and major private clients around the country and needed to focus on attracting and retaining nurses. Mr Webster also wanted to transfer money allocated to managers and put it into more consultants to grow the nurse pool and increase the numbers of nurses out on contract. Further, Mr Webster’s view was that if the national business development role was removed, State managers would know what they were responsible for and clients would not be confused. In addition to removing the national business development role, Mr Webster wanted to review the viability of the National Senior Manager R&R role and give more responsibility to each of the team managers. Mr Webster also discussed Ms Sommer’s redundancy with Ms McLean who calculated redundancy entitlements for Ms Sommer.

[65] Mr Webster said that he commenced consultation discussions with Ms Sommer on 26 Aril 2016 when he met with Ms Sommer and Ms Cerrafon and informed them that in his view the structure of the R&R business was not working, because there was too much management in the organisation and that needed to be reduced to establish clear reporting lines for R&R consultants, team leaders and managers. Mr Webster said that he told Ms Sommer and Ms Cerrafon that there was going to be a change, restructuring would be examined and it could impact everyone in the business. Further, Mr Webster states that he told Ms Sommer and Ms Cerrafon that the same level of focus on business development was not required and that there was too much confusion and lack of accountability and clear management from the R&R Consultants.

[66] Mr Webster said that given that only Ms Sommer and Ms Cerrafon held management positions in the R&R division, the clear implication was that he was considering removing one or both of their positions from the structure. This was particularly so for Ms Sommer, having regard to Mr Webster’s comments about the future need for business development. Mr Webster states that he had a further one on one discussion with Ms Sommer shortly after the 26 April meeting in which he asked her what was working in her role in the current structure, where she saw the business going and how it could be better structured. Ms Sommer said she would come back to Mr Webster with a response and referred to her extensive change management training and experience.

[67] On 28 April 2016, Mr Webster had a further discussion with Ms Sommer and states that during that discussion he asked Ms Sommer to go away and think about other opportunities she may wish to consider in the R&R business or within HCA generally. Ms Sommer responded by stating that Mr Webster should give her aged care in Queensland and she would prove that she could make it work and that there were defence positions coming up. Mr Webster said that he responded by telling Ms Sommer that he did not think there were any aged care roles available and that management of the Company did not know what the defence roles would look like or where they would be based. Mr Webster later found out that there was no aged care managerial role available and said that if such a role had been available he would not think it an appropriate role for Ms Sommer on the basis that she did not have the required experience.

[68] Mr Webster tendered the email sent to him by Ms Sommer advising that she intended to express interest in a role in the defence start up. The email also states that Ms Sommer believes that her contributions to date have not been valued or recognised and that in any other company would have led to her promotion. The email concludes by stating that Ms Sommer would not lodge a formal expression of interest until she had spoken to Mr Webster on his return from leave. 38 Mr Webster responded to Ms Sommer’s email telling her that she should discuss her interest with Mr McCombes.39

[69] Mr Webster returned from leave on 23 May. Mr Webster’s evidence about the meeting with Ms Sommer on 24 May is that during the meeting he informed Ms Sommer that the Company needed to restructure and that this had implications for her. Mr Webster stated to Ms Sommer that as she had not expressed interest in a defence role he assumed that there was nothing of interest to her. Ms Sommer said: “Why don’t you give me the Aged Care Manager role and I’ll smash it.” Mr Webster states that he told Ms Sommer that this role was not available. Mr Webster also states that Ms Sommer told him that the business needed an Aged Care Manager or that she could fix R&R and had expertise in change management. When Mr Webster asked what was wrong with R&R and how she would fix it, Ms Sommer did not respond and became distressed and was crying.

[70] Mr Webster further states that during this discussion Ms Sommer told him that she had just bought a house and was not going anywhere and asked about defence roles. In response to Ms Sommer’s question, Mr Webster told her that the defence roles were only at expression of interest stage and that no-one knew what the roles or packages would be or when they would be signed off. Mr Webster said that given these remarks, it was clear to him that Ms Sommer was not interested in accepting any role outside Queensland or Brisbane. Mr Webster also confirmed with Ms McLean that defence roles were only expressions of interest at that stage and that there was still a lack of certainty about what the roles and the structure would be.

[71] Mr Webster met with Ms Sommer again on 25 May 2016 for what he described in his witness statement as “further consultation discussions…about the proposed changes to the R&R team.” 40 Mr Webster states that Ms Sommer was informed that the decision to make the role of Business Development Manager R&R redundant had been made and that there were a number of vacant roles in the business which had been considered and discussed with Ms Sommer over the past weeks, which were not suitable because Ms Sommer had indicated that she was not interested in roles in other States.41 Mr Webster also states that Ms Sommer again asked about defence roles and was told that those roles were not finalised and were unavailable.42 Ms Sommer was then handed the letter advising her that her employment was terminated on the ground of redundancy and setting out positions which are said to have been considered as unsuitable for Ms Sommer.43 According to Mr Webster, Ms Sommer responded by stating that this was not a true redundancy and she would be taking the matter further.

[72] Mr Webster also tendered an organisational chart representing the current structure of the R&R division indicating that the positions held by Ms Sommer and Ms Cerrafon had been removed. Ms Cerrafon resigned her employment effective 30 June 2016 and her role was not replaced.

[73] Under cross-examination, Mr Webster said that he started to lead the R&R division shortly after the defence contract was awarded, because Mr McCombes had already started having meetings with defence personnel before he was appointed to head the Defence division. Mr Webster agreed that Ms Sommer had worked over time to build up the R&R business but maintained that HCA was only filling 20-25% of the shifts and needed to increase those rates. This was because nurses were not being retained and there was a lot of staff turnover, which meant lack of continuity.

[74] Mr Webster agreed that Mr McCombes had asked him to hold off restructuring R&R and form his own opinion about team members, but maintained that he had been considering the structure for some time and had decided that it was not working. Mr Webster said he had now implemented a structure where four managers – one in each State – reported directly to him. As a result the R&R operation was more streamlined, clients had a better understanding of who to talk to and nurses were coming back. In relation to Ms Sommer’s expression of interest in defence positions, Mr Webster said that he was not aware that Ms Sommer had arranged a meeting with Mr McCombes on the day after she was dismissed, to discuss defence roles.

[75] In response to a question about whether Ms Sommer could have filled a defence role, Mr Webster said that this was Mr McCombe’s decision and as he had not come back to Mr Webster on trying to secure Ms Sommer, Mr Webster assumed that Mr McCombes did not think that Ms Sommer was suitable for a defence role. In response to the proposition that Ms Sommer could have eased some of the pressure on Mr McCombes by working with him in the Defence part of the business, Mr Webster said that this was a matter for Mr McCombes and that as General Manager it was Mr McCombes’ role to approach more senior management to recommend employing staff. 44

[76] Ms McLean confirmed that she had a discussion with Mr Webster about making Ms Sommer’s role redundant during which she told Mr Webster that although Ms Sommer was not covered by an award and there was no legal requirement to do so, it would not hurt to consult Ms Sommer about the restructuring and her redundancy. Ms McLean was responsible for preparing the email dated 11 May 2016 calling for expressions of interest in Defence division positions and pointed to the fact that the email includes a statement that “this is a preliminary structure and subject to change”. Ms McLean also said that at the time the email was sent as well as the time that Ms Sommer’s employment ended, there were no approved defence roles available and it was expected that this would be the situation for some time.

[77] Ms McLean set out in her witness statement a list of roles that were ultimately approved in the Defence division and the dates on which they were able to be offered. The Queensland positions were as follows:

● Regional Manager Queensland – 29 April;

● Transition Project Manager Queensland – 14 June;

● Recruitment Consultant Queensland (regional consultant) 12 July;

● Office Co-ordinator Queensland – 29 June;

● Quality Co-ordinator Queensland – 20 July 2016;

● Regional Manager Southern States (Queensland) – 11 August; and

● General Manager Defence (Queensland) – 10 August 2016.

[78] There were also roles for recruitment consultants in South Australia, Western Australia and the Northern Territory and a role for a Regional Manager in the Northern Territory, available from the end of June. Ms McLean also tendered a detailed list of internal vacancies that was emailed to staff on 14 July 2016 which set out some but not all of those vacancies.

[79] Ms McLean also gave evidence about the meeting with Ms Sommer on 25 May 2016 which Ms McLean attended to support Mr Webster. Ms McLean confirmed that Ms Sommer was told that her position was redundant and was handed the letter and was told that it included a list of vacant roles, which while not comparable were provided for Ms Sommer to “review” on the basis that it had been determined that these positions were not suitable for Ms Sommer. 45 In response to Ms Sommer’s evidence, Ms McLean said that the reference to the Award in Ms Sommer’s initial employment contract was an error, which was corrected in her later contract. While no new contract was given to Ms Sommer when her role changed in the November 2015 restructuring, the terms of her contract of employment covered a change of role. Ms Sommer was at all times employed in a managerial capacity and not covered by the Award. Ms McLean acknowledged that Ms Sommer had never been placed under a performance review program but contended that her behaviour was at times unprofessional and that she had ongoing problems with her management style, making her unsuitable for a people management role.

[80] Ms McLean disputed that Ms Sommer could have been transitioned into the Brisbane based Branch Manager role as her people management skills were lacking. According to Ms McLean, Ms Sommer was a very good business development manager but the Branch Manager role was vastly different and in particular, did not require someone who could deal with legislative change as this was the responsibility of the General Manager for Care and not the Branch Manager. Ms McLean denied that Ms Sommer was treated differently from two other employees whose positions were also made redundant at that time.

[81] Ms McLean confirmed that she travelled to Brisbane in November 2015 to discuss concerns from Ms Sommer’s team members about her behaviour including Ms Sommer’s lack of “presence” and her over-sharing of details of her personnel life and divorce. Ms McLean took this to mean that Ms Sommer had been distracted and had shared personal information at a level that was inappropriate. This was later communicated with Ms Sommer who agreed that she had not kept her personal life out of work and that this was a mistake, which she would try to change moving forward.

 14   [2014] FWCFB 714.

 15 Ibid at [23].

 16   Ibid at [24] – [25] and see Ulan Coal Mines Pty Ltd v Honeysett and Others [2010] FWAFB 7578.

 17   [2010] FWAFB 7578 at [31].

 18   Ibid at [31]-[32].[2010]

 19 Ibid at [34].

 20   [2014] FWCFB 714 at [36].

 21   [2014] FWCFB 1542.

 22 Ibid at [32].

 23   Maswan v Escada Textilvertrieb (t/as ESCADA) [2011] FWA 4239 at [39].

 24   UES (Int’l) Pty Ltd v Harvey (2012) 215 IR.

 25   Exhibit 1 – Statement of Natalie Ann Sommer; Exhibit – 2 Supplementary Statement of Natalie Ann Sommer.

 26   Exhibit 4 – Statement of Richard Taylor.

 27   Exhibit 5 – Statement of Stuart Webster; Exhibit 6 – Further Statement of Richard Webster.

 28   Exhibit 7 – Statement of Cassandra McLean; Exhibit 8 Further Statement of Cassandra McLean.

 29   Exhibit 9 – Statement of Jason Cartwright.

 30   Exhibit 1 – Annexure E.

 31   Exhibit 1 – Annexure F and Exhibit 5 – Annexure B.

 32   Transcript PN775 – 783.

 33   Transcript PN889 - 890.

 34   Transcript PN892.

 35   Transcript PN982.

 36   Transcript PN536-538.

 37   Transcript PN504 – 505.

 38   Exhibit 5 – Annexure C.

 39   Ibid.

 40   Exhibit 5 paragraph 45.

 41   Exhibit 5 paragraph 46.

 42   Ibid paragraph 46.

 43  Exhibit 1 – Annexure G.

 44   Transcript PN1564.

 45   Exhibit 7 paragraph 30.

 46   PN1749-1740.

 47   PN1752-1754.

 48   Exhibit 10.

 49   [2014] FWCFB 1542 at [32].

 50 (1998) 88 IR 21.

 51   [2013] FWCFB 431.

 52   [2014] FWCFB 8683.

 53   [2015] FWCFB 2267.

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