Nathan Bice v Yarra Advantage Pty Ltd T/A Yarra Services

[2015] FWC 3326

[2015] FWC 3326

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Nathan Bice
v
Yarra Advantage Pty Ltd T/A Yarra Services
(U2014/12765)

COMMISSIONER GREGORY MELBOURNE, 21 MAY 2015

Application for relief from unfair dismissal.

Introduction

[1] Mr Nathan Bice commenced working with Yarra Advantage Pty Ltd (“Yarra Advantage”) as its Business Development Manager for the Dandenong region in August 2013. He was subsequently promoted to the position of National Sales Manager. However, his employment was terminated on 30 August 2014. A number of other employees were dismissed from the business at the same time.

[2] Mr Bice submits he was unfairly dismissed. However, Yarra Advantage submits his dismissal was a case of “genuine redundancy” as defined in the Fair Work Act 2009 (Cth) (“the Act”), and therefore he has not been unfairly dismissed. It also submits, in the alternative, that even if the Commission finds his termination was not a “genuine redundancy” then it was not harsh, unjust or unreasonable in any case.

[3] Mr Bice appeared on his own behalf. Mr B. Charles was granted leave to appear on behalf of Yarra Advantage under s.596(2)(a) of the Act.

The Issue to be Decided

[4] Section 385 of the Fair Work Act provides:

“A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.” 1

[5] Section 389 continues to state:

“(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.” 2

[6] Therefore –

• was Mr Bice’s dismissal a case of “genuine redundancy” as defined in the Act, and therefore not a case of unfair dismissal?



• secondly, if his dismissal was not a case of “genuine redundancy” was it harsh, unjust or unreasonable?

The Evidence and Submissions

[7] Yarra Advantage submits it no longer required the job Mr Bice had been performing to be performed by anyone because of changes to its operational requirements. It submits these changes were the result of a decision by a registered training organisation it had contracted with to provide training, Vocation Limited (“Vocation”), to withhold payment of an invoiced amount of $400,000, which Yarra Advantage believed was owed to it and expected to receive.

[8] In its original written submission Yarra Advantage also indicated Mr Bice was not employed under the terms of a modern award or enterprise agreement, and therefore it was not bound by any obligation to consult with him about its decision to make him redundant. However, in its oral submissions it conceded that an award could have coverage of his employment and, if so, the likely applicable award was the Education Services (Post Secondary Education) Award 2010 (“the Award”), with the applicable classification being the General Staff, Level 7 classification.

[9] However, Yarra Advantage also submits if the Award did have coverage it has complied with the consultation provisions in the Award, given all the circumstances involved in this matter. In this context it submits the Directors of the business made a definite decision on 28 August 2014 to drastically restructure the business in the face of the decision by Vocation to withhold payment of the amount of $400,000.

[10] It submits that later the same day the employees were advised that staff meetings would be held the following day at both the Melbourne CBD and Dandenong locations. One of the Directors, Mr Schubert, attended both meetings and informed the employees that because of the magnitude of the issues impacting on the business the majority of its operations were to be closed down immediately, and most of its employees would be made redundant. He also indicated a small core group would continue to be employed in order to conclude some ongoing activities, and to explore other possible business opportunities.

[11] Yarra Advantage acknowledges in its submissions that there was a limited time period between the decision made by the Directors, and it being communicated to and discussed with the affected employees, including Mr Bice. It also acknowledges that limited time was provided for any discussion or consultation about what was being proposed. However, it submits this can be explained by the magnitude of the issues confronting the business, and the imperative to immediately minimise its outgoings including, in particular, one of its major outgoings being salary payments. This situation was made critical by the fact the next pay run commenced on the following day.

[12] Mr George Petrovski is a Director and the Chief Executive Officer of Yarra Advantage, and has been in that role since August 2013. He indicated the business was primarily involved in providing vocational training and employment opportunities to students enrolled in courses it conducted. In June last year it employed a total of 41 employees across its sales, training and administration business units.

[13] Mr Petrovski said Mr Bice commenced in August 2013 as the Business Development Manager for the Dandenong region and his principal role was to promote the business and its services in order to attract students to undertake the training courses it offered. In January 2014 Mr Bice was promoted to a management position in the sales business unit, and in June he was again promoted to the position of National Sales Manager on a salary of $90,000 plus superannuation.

[14] Mr Petrovski said Yarra Advantage conducted training as a result of the arrangements entered into with two Registered Training Organisations (RTO’s), who outsourced the provision of training to it. However, Yarra Advantage was not an RTO and once the training had been successfully completed the enrolled students would obtain their qualifications from the RTO’s. He said these arrangements with the RTO’s, who subsequently merged in late 2013 to form Vocation Ltd, accounted for approximately 98% of Yarra Advantage’s total annual revenue.

[15] Mr Petrovski said he commenced a period of annual leave in late July 2014 and intended to be overseas on leave for 2 months. On 12 August he received an email from another Director, Mr Kim Schubert, advising that Vocation was withholding payment of an amount of approximately $400,000 from the most recent invoice Yarra Advantage had provided to it. Vocation also indicated it would not be making any further payments in the future to Yarra Advantage. His evidence indicated that no blame or responsibility should be attributed to Yarra Advantage for the fact Vocation was now in this position. It was instead due to various compliance and regulatory issues Vocation was endeavouring to deal with. However, Mr Petrovski said it meant Yarra Advantage’s primary source of revenue had been removed and the business was no longer in a viable position. He said he remained in contact with Mr Schubert in the following days as he endeavoured to respond and deal with the situation now confronting the business. This included the possibility of it closing and/or entering into voluntary administration.

[16] Mr Petrovski also indicated in cross examination that the Directors decided, if at all possible, that the business would not be placed in the hands of a liquidator because that outcome would require them to be declared bankrupt and no longer able to act in the business. At this stage they still remained hopeful they may be able to explore other possible new business opportunities, and to continue some of the ongoing business operations. However, ultimately neither of these outcomes eventuated.

[17] Mr Petrovski said he had a further discussion with Mr Schubert on 28 August in which it was decided, given the circumstances confronting the business, that drastic changes were required and, as a consequence, the business would effectively bring to an end what had been, up to that point, the principal part of its business activities. As a result the majority of employees would be made redundant. It was also agreed a small number of staff would continue to be employed in order to deal with some ongoing operational requirements, and to explore whether other business opportunities could be developed. He said it was agreed in his discussions with Mr Schubert that 4 employees would be retained after 29 August for these purposes.

[18] He said that there were no realistic options for redeployment given the magnitude of the changes and the number of employees to be made redundant. He also said the 4 employees retained after 29 August were eventually terminated on 31 October 2014, after they failed to generate any additional revenue or other viable business opportunities.

[19] Mr Petrovski said Mr Bice was not one of the employees retained after 29 August because his role was primarily involved with that part of the business that was now to be dramatically scaled back. He also refuted suggestions from Mr Bice that a number of additional employees had been retained over and above the 4 employees referred to.

[20] He also indicated that Yarra Advantage had been working closely with an organisation known as “Kids off the Kerb” in an endeavour to establish a viable work for the dole scheme. However, it had only generated limited income by the latter part of 2014 and was not in a position to be able to take on any of the employees made redundant as a result of the decisions made by Yarra Advantage.

[21] Mr Kim Schubert said he commenced employment with Yarra Advantage in January 2013 in the position of Director of Learning and Development. He said he was first advised in July 2014 by representatives from Vocation that there was likely to be a delay in the payments invoiced by Yarra Advantage to Vocation. This was subsequently confirmed in an email received from Vocation on 12 August. He said as a result of this advice an initial decision was made in the early part of August, in consultation with Mr Bice, that 15 employees working as sales consultants in his team would be made redundant immediately.

[22] He said further discussions then continued in August with various parties until it was confirmed by Vocation on 25 August that no further payments would be provided by it to Yarra Advantage, including the outstanding amount of $400,000. Mr Schubert said at this point he sought advice about the options open to the business, including the possibility of it being placed into voluntary administration. He also sought advice about its obligations to existing students and employees. Some agreement was subsequently reached with Vocation about trainers employed by Yarra Advantage being able to complete the delivery of existing training courses.

[23] Mr Schubert also confirmed the discussions and email exchanges with Mr Petrovski on 28 August, and the subsequent agreement between the Directors to close down a substantial part of its business operations, and the consequent decision for a large proportion of the employees to be made redundant. After providing a notice to staff about meetings to be held on the following day, Mr Schubert said he then met with staff at the Melbourne office on the next morning, when it was confirmed most would be made redundant at the end of the day. He said a similar discussion then took place on the same day at the Dandenong premises. He said the response generally from employees, including Mr Bice, was that the situation confronting the business was not the fault of Yarra Advantage, and it had no other realistic option, in all the circumstances, but to implement the decisions it proposed.

[24] Mr Schubert said he then arranged for letters confirming the redundancies to be sent to each employee. He said Mr Bice was not singled out in any way, and the business had no other options given the circumstances it was confronting. He also said he was not aware at the time of any other opportunities, either within the business or within any related entities, that had the potential to provide redeployment opportunities for the redundant employees. He said Mr Petrovski continued to work in the business with a skeleton staff, however, he no longer had an active role in the business from that point.

[25] Yarra Advantage submits, in conclusion, that Mr Bice’s dismissal was a case of genuine redundancy because it no longer required his job to be done by anyone because of changes to its operational requirements. This occurred in circumstances where the overwhelming majority of employees in the business were made redundant at the same time. The business did continue to operate beyond this point, but on a much smaller scale, and then ceased to operate entirely on 31 October 2014.

[26] It also submits that if Mr Bice’s employment was covered by an award it has complied with any obligations in that award to consult. In this context it points to the discussions held on 29 August 2014 after a definite decision had been made that the business could no longer sustain the existing number of employees. It submits that in these discussions the issues confronting the business were detailed to the staff and they were invited in response to provide any comments or views, or to raise any questions or points of clarification. It submits the limited timeframe involved in these processes reflected the urgency of the situation confronting the business, and the need to minimise outgoings as soon as possible, particularly those to do with salary payments, given the next pay run was due to commence the following day.

[27] It also submits there was no realistic opportunity for redeployment and this is emphasised by the fact that of a total of approximately 40 employees only 4 remained in employment after 29 August, and by the end of October those employees had also been made redundant. It submits Mr Bice was included in the redundancies on 29 August because the work that he was primarily involved in related to that part of the business operation now being closed down.

[28] Mr Bice said he was employed by Yarra Advantage as a Business Development Manager and commenced in August 2013. He was subsequently promoted in June in the following year to the position of National Sales Manager. He said this role offered significant autonomy and required him to manage the sales and marketing operations, various retail sites, and a call centre in the Dandenong office. There were also responsibilities associated with a call centre in Nepal, as well as management of the administrative and training activities at the Dandenong campus.

[29] Mr Bice confirmed Mr Schubert came to the Dandenong office on 29 August after indicating on the previous day that a staff meeting would be held the next day. He said the staff were given little notice of the meeting after Mr Schubert arrived at the Dandenong office, but were then told the business would be closing from that day and all staff, with the exception of one person, would be required to finish work immediately. He indicated letters confirming the redundancies and outlining the employees’ entitlements would be forwarded to each employee, however, Mr Bice said he had not to date received any such correspondence. He also acknowledged in cross-examination that Yarra Advantage was entitled to make the decisions it believed appropriate for the business, however, this did not mean the decisions it actually made were necessarily right in all the circumstances.

[30] Mr Bice said he did not believe the processes involved in informing the employees represented genuine consultation and he felt embarrassed and mistreated by what had occurred. He also said the fact some employees continued to be employed after 29 August meant the announcement made by Mr Schubert on the previous day that the business would be closing down was not correct. He also took issue with the number of employees who actually continued to work in the business from this point.

[31] Mr Bice said he understood the Dandenong campus was still in operation after 29 August and a number of different activities continued to be performed at the site. He also said he did not receive the promised redundancy letter, and the redundancy payments due to him were still outstanding. He said he was also contacted by various employees who were still working in the business who wanted information about different aspects of the business operation. He also understood the business continued to receive income from the not-for-profit agency, “Kids off the Kerb.”

[32] Mr Bice said he believed he had been singled out and harassed in the period of time immediately prior to the announcements by Mr Schubert on 29 August, and believed he wanted him out of the business because of some personal issues involving Mr Schubert that Mr Bice was aware of.

[33] Mr Bice also stated there was no indication provided prior to the meetings on 29 August about what was to be discussed, and no opportunity provided for employees to have a witness or support person present in those discussions. He contrasted the consultation that took place in this process with the processes involved in the redundancies that occurred earlier in the month. The employees impacted by those decisions were part of his responsibility, and he held individual discussions with each, as well as providing the opportunity to talk about the impact upon them, and to ask any questions in response. He submits these processes and opportunities were not followed or provided in the meetings on 29 August convened by Mr Schubert.

[34] He also stated that it was difficult in a group forum for individual employees to be able to discuss or raise issues related to their own personal circumstances. It was also significant that outstanding payments were still due to the employees, including the various redundancy entitlements. The ability to access any government funded payments had also been made more difficult by the fact Yarra Advantage had not been formally closed down or declared insolvent.

Consideration

[35] Nathan Bice is clearly upset and disappointed by the circumstances surrounding his termination from Yarra Advantage. His evidence indicates he was, for the most part, enjoying the work and his role in the organisation. It also indicates he was successful during his time with the business, having been promoted on two occasions in a period of just over twelve months. The evidence also indicates he was upset and distressed by the way in which he, and a number of other employees, were informed about the fact they were about to be made redundant. In addition, Yarra Advantage has not been able to pay Mr Bice his redundancy entitlements, a situation which has exacerbated his plight.

[36] His reaction in these circumstances is entirely understandable. He has obviously been through a difficult time, and his career has been impacted by circumstances over which he had little or no control. As a consequence he claims to have been unfairly dismissed. However, the Fair Work Act provides that a person has not been unfairly dismissed if their dismissal is a case of “genuine redundancy.” What constitutes “genuine redundancy” under s.389 of the Act has already been set out in [5] of this decision and those provisions are not restated in full detail now.

[37] The initial requirement in s.389 is that “...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.” The meaning of genuine redundancy in this context has been considered by a Full Bench of this tribunal in Ulan Coal Mines Limited v Henry Jon Howarth 3. It considered the meaning and application of the relevant statutory provisions, including the words “....the person’s employer no longer requires the person’s job to be performed by anyone.”

[38] The Full Bench noted those words have long been used and applied as a practical definition of redundancy. It also made reference to the Explanatory Memorandum that accompanied the Fair Work Bill 2008, and the examples provided about when a dismissal will be a case of genuine redundancy, set out in the following terms:

“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.” 4

[39] I am satisfied this requirement has been met. The evidence of Mr Petrovski and Mr Schubert highlight the circumstances confronting Yarra Advantage which emerged without warning and in a limited timeframe. They were also circumstances it had little or no control over. They involved the decision by Vocation to withhold payment of an amount of $400,000 in respect of an invoice provided to it by Yarra Advantage. Vocation also indicated it was not going to be in a position to make payments at any time in the immediate future to Yarra Advantage. As the evidence of Mr Petrovski indicates this meant Yarra Advantage’s primary source of revenue had been removed, and the business was no longer in a viable position. This situation led, in turn, to a decision by the Directors that around 90% of the employees of the business would be made redundant.

[40] Mr Bice submits that other options were open to the business in these circumstances. He believes it should have explored other potential opportunities in order to try and maintain a viable and ongoing business. I have no reason to doubt his views. However, at the same time it is not the Commission’s role to be “second guessing” or calling into question the management decisions made by the Directors of the business.

[41] Mr Bice also takes issue with the decisions made about which employees were to remain employed by the business post August 2014. He also questions the evidence about the numbers of employees that remained employed after this time. However, notwithstanding these issues I am satisfied the evidence indicates the overwhelming majority of employees employed by Yarra Advantage were made redundant on 29 August, including Mr Bice. By the end of October the small number of employees who remained had also been made redundant. As a consequence I am satisfied the requirements contained in s.389(1)(a) have been met in respect of the decision by the Yarra Advantage to make Mr Bice, and a significant number of other employees, redundant.

[42] Section 389(1) also requires that “the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.” Yarra Advantage initially submitted no modern award or enterprise agreement applied to Mr Bice’s employment. However, in its oral submissions it acknowledged the Educational Services (Post Secondary Education) Award 2010 could have coverage, with the likely classification level being the General Staff, Level 7 classification. However, it continues to submit that even if the Commission found the Award did have coverage it has complied with the consultation obligations in that Award.

[43] Mr Bice did not make submissions about the application of the Educational Services (Post Secondary Education) Award 2010 5. However, it does appear the Award had coverage of his employment. In clause 4 “Coverage” the Award is indicated to cover “employers throughout Australia in the post-secondary educational services industry (other than trades, cleaning or maintenance staff) employed in the classifications listed”6 in the Award. The clause continues to indicate that the Award does not apply to “any employer whose principal function is the provision of labour market assistance programs”7, but that the post secondary educational services industry does include “vocational education and training (VET) teaching leading to qualifications recognised within the AQF.”8

[44] The definitions contained in clause 3 of the Award also indicate, firstly, that the “post-secondary educational services industry means the provision of education and training to persons over the age of 16 years who have exited the school education system.” 9 It also indicates that a “general staff member means an employee employed in a capacity other than as an academic teacher, a teacher or tutor/instructor and includes employees engaged in clerical, administrative, professional and technical work.”10

[45] Without going to the classification descriptions in any detail it also appears the classification definitions contained in “Schedule D – General Staff” of the Award contain classifications that encompass the work being performed by Mr Bice. Yarra Advantage submits General Staff, Level 6 may be the appropriate classification level, although it also appears the General Staff, Level 7 classification could also be applicable when the typical activities associated with work at that level are considered. However, without coming to a concluded view about the appropriate classification level it does appear the Award has coverage and contains classifications encompassing the work performed by Mr Bice.

[46] One factor which mitigates against this conclusion is the level of Mr Bice’s salary. At the time he was made redundant the evidence indicates he was on a salary of $90,000 plus superannuation. The highest salary level currently provided for in the Award in the General Staff classifications is $68,155, and at Level 7 the annual salary provided for is $60,654. It could be argued that given Mr Bice was on a salary that was more than $20,000 above that provided for in the Award, he was not a person covered by the Award. However, it has long been established that awards generally provide minimum rates only, and the fact an employee is paid in excess of those minimum rates does not, of itself, preclude the Award from having coverage. I am satisfied on balance, against the background of these considerations, that the Educational Services (Post Secondary Education) Award 2010 did have coverage of Mr Bice’s employment.

[47] The Commission is therefore required to consider whether Yarra Advantage complied with the obligations in the Award to consult about redundancy. Clause 8 “Consultation” contains the Consultation clause that is replicated in many awards and enterprise agreements. It clearly applies in the circumstances of this matter. It, firstly, requires the employer to notify the employees who may be affected by the proposed changes. It also requires the employer to discuss the changes with the employees in terms of the effects they are likely to have on them, and any measures to avert or mitigate the adverse effect of those changes. It also requires the employer to give prompt consideration to any matters raised by the employees in relation to those changes. Those discussions must commence as early as practicable after a definite decision has been made by the employer, and for the purposes of the discussions the employer must provide in writing all relevant information about the changes.

[48] Mr Bice takes issue with the processes of consultation that occurred. He submits the employees were notified that staff meetings would be held at the separate business locations on the following day, without any indication being given about what was to be raised and discussed in those meetings. Employees were not provided with the opportunity to have a representative or support person present. He said the meetings then took place with all staff involved in a format that made it difficult for individual employees to raise particular issues of concern to them. He contrasted this process with the discussions he had been involved in earlier in the month when he was required to advise a number of his sales team that their positions were being made redundant.

[49] Yarra Advantage acknowledges, in response, that the meetings were convened at short notice because of the pressing issues confronting the business. It submits Mr Schubert outlined the decisions that had been taken to make employees redundant in separate discussions that took place in the Melbourne CBD and Dandenong meetings. His evidence is that the employees were generally understanding of the position the business was in, and did not raise significant issues in response, or proposed alternatives that might act to avert or mitigate the impact of the decisions about to be implemented. Those decisions took effect at the end of that working day.

[50] The evidence also indicates the directors, Mr Petrovski and Mr Schubert, made the decision that the overwhelming majority of Yarra Advantage’s employees would have to be made redundant in a telephone discussion on 28 August 2014. Staff meetings at both the City and Dandenong locations were promptly organised for the next day. Mr Schubert’s evidence indicates he informed the employees in those meetings of the decisions that had been made and the reasons why. It also indicates that while the employees were clearly not happy about those decisions, there was a significant degree of acceptance and understanding about what was happening and why.

[51] Mr Schubert’s evidence also indicates that no suggestions about other alternatives to what was being proposed were raised or put to him in those discussions. Mr Bice submits, in response, that this can be explained by the way in which the information was conveyed and the limited timeframe involved in terms of the implementation of those decisions.

[52] The impact of what was announced in the meetings on 29 August for Mr Bice, and presumably for all of the employees involved, is not underestimated in terms of its significance. Previous decisions of the Commission have also emphasised that the consultation obligations in awards and enterprise agreements should be complied with in a genuine way, and not in a way in which “lip service” is simply provided. However, I am also satisfied that what occurred in this matter needs to be viewed in terms of what the business was dealing with. Yarra Advantage was informed of a decision that it believed would bring to an end its principal business activity. As an organisation primarily involved in providing vocational training it was no longer going to be paid for the provision of that training. The bulk of its revenue was about to disappear. It decided it needed to slash its outgoings to try and discharge its existing obligations. At the same time its next pay run, representing its major outgoing, was about to be processed.

[53] I am satisfied that, as a consequence, Yarra Advantage, did not have the capacity or ability to engage in a protracted process of consultation. It was instead required to act promptly within a limited timeframe to advise employees of the decisions that had been made, and to consider any measures to avert or mitigate the impact of those decisions. The employees were provided with the opportunity to provide views or suggestions in response within that limited timeframe, however, the evidence of Mr Schubert indicates they were generally accepting of what was discussed and provided little, if anything, by way of suggestions in response.

[54] I am accordingly satisfied in all the circumstances that Yarra Advantage has complied with the consultation obligations contained in the Award. This includes any obligation to provide relevant details in writing. The nature of the decisions being conveyed to employees in this matter were not ones that required precise details to be reduced to writing and delivered in that way.

[55] Section 389 finally states that an employee’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 the employer’s enterprise, or the enterprise of an associated entity. I am satisfied in response that it was not reasonable in all the circumstances for Mr Bice to be redeployed in either of these ways. The evidence indicates his role was primarily associated with the core business of the organisation that was effectively brought to an end in August 2014. The evidence indicates only a handful of employees remained beyond that point. Mr Bice submits it would be sensible to retain a person in a National Sales Manager role if the business was going to be able to build new business opportunities and market its ongoing services. However, as indicated already the Commission’s role is not to be providing advice to management about how to structure or conduct its business operations. In any case the evidence appears to indicate the business had little to sell or market at the end of August 2014. The small group of employees that remained were either involved in tiding up loose ends in terms of the remaining students, or investigating other possible business opportunities. Nothing appears to have come from this latter activity and this remaining group of employees were also made redundant at the end of October.

[56] There is also no evidence that other viable redeployment options existed in any associated entities. Yarra Advantage indicated Avant Services Pty Ltd was a related business that provided recruitment services to its students. However, the evidence of Mr Petrovski also indicated that Avant employed only 5 employees, and there is no evidence pointing to redeployment opportunities in that business that might have been a realistic or reasonable redeployment option for Mr Bice. It appears instead that if he was to be retained in any capacity after August 2014, a consequence of that decision would have been another employee being made redundant.

[57] I have considered all of the evidence and submissions I believe are relevant to the issue of whether Mr Bice’s dismissal was a case of “genuine redundancy.” I have also had regard to the relevant provisions of the Fair Work Act 2009. I am satisfied in all the circumstances that Mr Bice’s dismissal was a case of “genuine redundancy” as defined in the Act. It therefore follows that he is not a person who has been “unfairly dismissed” under s.385 of the Act.” The application is accordingly dismissed.

COMMISSIONER

Appearances:

The Applicant appeared on his own behalf.

Mr B Charles was granted leave to appear on behalf of the Respondent

Hearing details:

2015.

Melbourne:

3 March.

 1   Fair Work Act 2009 (Cth) at s.385

 2 Ibid at s.389

 3   [2010] FWAFB 3488

 4   Ibid at paragraph 16

 5   MA000075

 6   Ibid at cl.4.1

 7   Ibid at cl.4.2(c)

 8   Ibid at 4.3(a)

 9   Ibid at cl.3

 10   Ibid

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