Samantha Bartolo v Little Wings Limited

[2020] FWC 5509

[2020] FWC 5509

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s 394—Unfair dismissal

Samantha Bartolo
v
Little Wings Limited
(U2020/6588)

DEPUTY PRESIDENT SAMS SYDNEY, 19 OCTOBER 2020

Termination of employment - application for an unfair dismissal remedy - Marketing and Communications Manager for a charity - impact of COVID-19 pandemic on the charity - all sources of funds lost - dramatic steps taken to minimise adverse effects - redundancy of the applicant - whether applicant’s dismissal a case of genuine redundancy - jurisdictional objection - options proposed by applicant not relevant to s 389 of the Act - applicant’s position no longer required to be performed by anyone - consultation as to the applicant’s options - redeployment not reasonable in all the circumstances - jurisdictional objection upheld - applicant’s dismissal a case of genuine redundancy - no unfair dismissal - Commission has no jurisdiction - application dismissed.

[1] Ms Samantha Bartolo was employed by Little Wings Limited (‘Little Wings’) as Marketing and Communications Manager, from 13 August 2018 until 31 March 2020. She was employed part time (3 days a week) on an hourly rate of $35.00 per hour. Little Wings is a registered charity which provides transport services (flights and ground transport) for seriously ill children and their families who live in rural and regional New South Wales, to ensure their access to specialised medical treatment in city-based children’s hospitals.

[2] On 27 March 2020, Ms Bartolo was advised of her likely redundancy as a result of the significant impact of the COVID-19 pandemic on the organisation. A remote meeting was arranged that day to discuss the matter, and on 30 March 2020, Ms Bartolo was advised of her redundancy as follows:

‘Dear Sam,

Following our discussions on Friday 27 March 2020, please find attached the redundancy calculations. As outlined in the attachment, the payment will be processed tomorrow in line with the standard payroll system. Of course, if you have any queries, please let me know and I will ensure a response is provided promptly.

Further, as discussed we will await the return of the following items as part of your redundancy:

•  Phone

•  Office keys

•  Uniforms

•  Any outstanding paperwork or documents

•  Any Little Wings equipment that you may hold

Of course, I am very sorry that this situation has arisen. However, due to the sudden and unexpected funding circumstances as a direct result of COVIR-19 (sic), we have had no choice but to make hard decisions in the interests of the organisation. I realise that this is a difficult time for all.

Kind regards,
Clare’

[3] On 13 May 2020, Ms Bartolo (hereafter the ‘applicant’) filed an application in the Fair Work Commission (the ‘Commission’) seeking compensation for her alleged dismissal by Little Wings (or the ‘respondent’). As the application was filed 22 days outside the 21-day time period in s 394(2) of the Act, the applicant sought an extension of time to allow her late application to be accepted. On 12 June 2020, pursuant to s 394(3) of the Act, I published a decision in which I was satisfied that ‘exceptional circumstances’ had been established to allow the application to be filed ‘out of time’; see: Bartolo v Little Wings Limited[2020] FWC 3095. I continued to retain superintendence of the matter and issued directions for a hearing of the respondent’s jurisdictional objection based on the definition of ‘genuine redundancy’, which is found at s 389 of the Fair Work Act 2009 (the ‘Act’) 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.

[4] The matter was listed for hearing on 11 August 2020. The applicant represented herself and Ms F Edwards, Partner, and Ms E Galvin, Lawyer, Sparke Helmore Lawyers, appeared for respondent, with permission having been granted for the respondent to be represented by a lawyer, pursuant to s 596 of the Act.

THE EVIDENCE

[5] The following persons provided written and oral evidence in the proceeding:

•  the applicant;

•  Mr Michael Bartolo, the applicant’s partner;

•  Ms Clare Pearson, Chief Executive Office; and

•  Ms Katie Price, Finance and Administrative Manager.

The respondent’s evidence

Ms Clare Pearson

[6] Ms Pearson set out the sources of funding that Little Wings receives, being from:

(a) events hosted by the organisation on its behalf;

(b) Cash Housie – a bingo run in clubs; and

(c) Government grants.

Prior to COVID-19, the respondent employed 25 staff.

[7] Ms Pearson said that from 22 February to 22 March 2020, the applicant took a period of annual leave and the next day she commenced an agreed period of 6 months’ maternity leave. Another person had been employed on a fixed term basis to assist with the applicant’s position while she was on leave.

[8] Ms Pearson described the impact on Little Wings’ operations as a result of COVID-19, and by 23 March 2020, the organisation had no committed funding for the foreseeable future because:

‘(a) All events for 2020 had been cancelled or postponed without a rescheduled date.

(b) All existing partners had issued deeds of variation to either freeze funding to Little Wings for 12 months or cancel the partnership altogether due to the long-term financial impacts of COVID-19.

(c) All Cash Housie sessions had been cancelled for the foreseeable future as clubs were closed.

(d) All individual donations had ceased over recent weeks.

(e) Little Wings was continuing to apply for grants but had been advised that grants would either be cancelled or postponed.’

[9] In addition, by this time there was a reduction of Little Wings flights from an average of 15-18 a week to 2 a week.

[10] Ms Pearson said the Board of Directors met on 27 March 2020, to discuss the loss of all funding and the reduction of flights. It was decided to operate on the bare minimum and focus on remaining flight services. Three positions were determined to be non-essential and would be made redundant:

•  Grants Manager;

•  Operations Manager; and

•  the applicant’s role.

[11] Ms Pearson said that marketing was considered a luxury that Little Wings could not afford, as no events could be scheduled, no partnership reporting was required and there was no funding for content development. Marketing duties were to be absorbed into her duties.

[12] Further cost saving steps were taking and included:

•  Ms Pearson working two unpaid days a week;

•  the Finance Manager would work two days a week;

•  the Events and Cash Housie staff would be stood down; and

•  the Flight Coordinator would be stood down.

It was Ms Pearson’s understanding that it was unclear at this time whether Little Wings was eligible for JobKeeper.

[13] It was also Ms Pearson’s evidence that the applicant agreed to meet with her and Ms Price at 5pm that day (27 March 2020) where the situation and her possible redundancy were discussed. Ms Pearson told her no final decision had been made. The applicant asked if she could extend her maternity leave to 12 months as she was not getting paid at the moment anyway. Ms Pearson said that she had doubts the charity would be in existence in around 12 months and at least now, Little Wings could pay her redundancy. Ms Pearson claimed the applicant replied:

‘That’s okay, I understand and will accept the redundancy.’

[14] The following day, Ms Pearson had a further phone call with the applicant in which they had the following conversation:

‘Ms Bartolo: “I’ve heard about JobKeeper and believe that I’m eligible to receive it.”

Ms Pearson: “We don’t have any solid information on it yet because the legislation has not been passed. I’ll have a look into it but at the moment, the Board is still in the same position and plans to go ahead with the redundancy.”

Ms Bartolo: “Can you delay paying the redundancy? I would rather receive JobKeeper instead then get my redundancy payment when JobKeeper ends.”

Ms Pearson: “I don’t think that is an option but will consider this some more and let you know.”’

[15] It was Ms Pearson’s belief that it would be inappropriate to delay the applicant’s redundancy, given her position was no longer required. On 30 March 2020, she sent the applicant the email at [2] above. The same day, the applicant called her and their conversation was to the following effect:

Ms Bartolo: “I believe I’m entitled to both the government’s paid maternity and JobKeeper schemes. I need to be paid for both and I also want my redundancy delayed until October. What you’re doing is really unfair, you’re trying to take money from my family and rip me off. Just pay me both and I’ll sign something to say that I’ll accept JobKeeper but I won’t keep accruing any entitlements then I’ll take the redundancy after JobKeeper stops.”

Ms Pearson: “We can’t withhold your redundancy payment, what you’re asking us to do is not legal. We do not believe that you are entitled to both schemes, but I will investigate further and let you know in writing. However at this point, we will still be proceeding with the redundancy.”

Ms Bartolo: “I’ve also got some questions about the redundancy payment.”

Ms Pearson: “You’re best to speak to Katie about that.”

[16] Ms Pearson confirmed her understanding in an email of 31 March 2020 as follows:

‘Hi Sam,

Thanks for your call today and querying the JobKeeper payment. At this point, it does not look like you are eligible for the payment for the following reasons:

•  The maternity cover contract overrides your position at this point, meaning that the JobKeeper payment is designated for the maternity leave contract for the 6 month period as agreed by all parties;

•  Your maternity leave has been registered and processed by Centrelink, the same government department that is processing the JobKeeper payment. Therefore, unless you were to return to work at this point, you are not eligible;

•  Delaying the redundancy process has other financial implications for Little Wings longer term which I need to consider also.

I understand that this is difficult and people are trying to leverage the best outcome for their families, however, we need to ensure that we follow the legislation in place to avoid being penalised at a later date. Therefore, Katie will process the redundancy and [Centrelink] payments today as planned.

Of course, if you have further queries, please let me know, happy to double check but for now, this is the information as it stands according to the ATO and [Centrelink] websites.

Clare’

[17] Ms Pearson said the applicant continued to insist she was eligible for JobKeeper and maternity leave, and further inquiries were made. Ms Pearson sent her this advice on 31 March 2020 which said, inter alia:

‘Fair Work Ombudsmen (sic):

•  As discussed on Friday the 27th and again Saturday 28th March, your role has been made redundant as a direct result of COVIR-19 (sic)and the complete cease of funds to Little Wings. With funds ceasing immediately, we have had to make hard decisions and as a result issue a number of redundancies. This situation has impacted the entire team with all remaining employees stepping back in their duties and hours of employment. Therefore, this is deemed a genuine redundancy and not a case for unfair dismissal.

Centrelink:

•  Centrelink today advised that under the current COVIR-19 (sic)circumstances, employers will no longer be issuing the paid parent leave; instead, we have been instructed to pay the sum issued to Little Wings

•  31.03.20 in full. The remaining payments will be paid directly by Centrelink. You will need to contact them to discuss this and suitable payment channels going forward.

•  Further, they advised that as per the standard maternity leave policy, Jobkeeper allowances only apply to those engaged in and receiving payment for ‘work’. When on maternity leave, the paid parental leave payment is substituted. Therefore, they were clear to advise that a dual payment cannot be received.

•  At this point in time, your eligibility for Jobkeeper payment cannot be confirmed, Centrelink advised that you should call and speak with them directly about your individual case. With the legislation pending, limited information is available at this point in time; it is expected that further information will be available over the coming week.

•  Centrelink confirmed that you will be eligible for Jobseeker allowance once the paid parental leave payments cease.

NSW Government COVIR-19 (sic)hotline:

•  They confirmed that the legislation is currently underway and limited information is available at this point. The finer details of eligibility will only be made clear once the bill is passed over the coming week.

•  In the event that you are indeed eligible, we will reassess the situation and honour any government directives.’

[18] The same day, the applicant was paid:

•  parental leave at 10 weeks with Centrelink paying any outstanding balance to her directly;

•  2 weeks’ notice;

•  4 weeks’ redundancy; and

•  accrued annual leave.

[19] Ms Pearson said the person originally employed to perform the applicant’s role temporarily while she was on maternity leave, was dismissed the same day, as the role was no longer required.

[20] Ms Pearson was only asked one question in cross examination – what financial gain did the organisation achieve by making her position redundant, when she was on paid leave? Ms Pearson replied that the organisation had no funding after 18 March 2020, but even if she had been stood down, employees would continue to accrue entitlements such as annual and long service leave.

Ms Katie Price

[21] Ms Price’s statement was largely corroborative of Ms Pearson’s evidence as to the impact of COVID-19 on Little Wings, and the conversation she participated in with her and the applicant on 27 March 2020. As the applicant does not dispute these matters, this evidence is accepted.

[22] In addition, Ms Price was asked by Ms Pearson to inquire with the authorities as to Little Wings’ eligibility for JobKeeper, but confirmation could not be given because the relevant legislation had not yet been passed by Parliament. However, she was told that an employee could not receive paid parental leave and JobKeeper at the same time. Ms Pearson asked her to phone the applicant to discuss it. It was Ms Price’s evidence that the applicant was upset and yelled at her at times, insisting she should be entitled to both payments, and alleging she was being discriminated against because of her pregnancy. Ms Price denied discriminating against the applicant. The applicant proposed pausing her redundancy for six months while she received JobKeeper in the meantime. Ms Price claimed this was not possible and further, the issue was not about her entitlements, but the fact her position was no longer required at the time.

[23] After the phone call, Ms Price checked again with the Department of Human Services and confirmed her original advice was correct and that Little Wings had to pay the applicant all of the parental leave payments they had received, and from then on, further payments would be made directly to the applicant due to COVID-19.

[24] Ms Price denied telling the applicant that her redundancy at that time was because she would need to be paid more if it was actioned later. She further denied saying to her that she was lucky to be on maternity leave (when other people had lost their jobs). I note Ms Pearson was not required for cross examination.

The applicant’s evidence

[25] After setting out her employment history and the chronology of events, which is largely undisputed, the applicant described the meeting she had on 27 March 2020 by phone with Ms Pearson and Ms Price. Her husband also attended on speakerphone.

[26] It was the applicant’s evidence that Ms Pearson had said she expected Little Wings’ funding would be impacted for 6-12 months. This prompted her to suggest extending her maternity leave to 12 months. Ms Pearson did not respond to her proposal, and said ‘marketing is a luxury which the organisation cannot afford’. The applicant pointed out that her leave was unpaid, so it would not cost the organisation anything to keep her position open, and Ms Pearson responded as she did earlier.

[27] That Sunday (29 March 2020), the Prime Minister announced the JobKeeper program. She rang Ms Pearson to discuss the announcement. The next day, she proposed to utilise JobKeeper in order to keep her job, but was told her redundancy would proceed the next day. She also spoke to Ms Price who told her that she could not receive paid parental leave and JobKeeper at the same time. In response, she proposed going on JobKeeper when her paid parental leave ceased. Ms Price implied this was not an option.

[28] It was the applicant’s evidence that Ms Price told her that by actioning her redundancy later and not now, they would have to pay her more. The applicant proposed pausing any accrued entitlements until she was made redundant later. Ms Price dismissed this proposal. The applicant claimed Ms Price made discriminatory comments about her by being lucky she was on maternity leave, while others had lost their jobs.

[29] Mr Bartolo’s short statement supported his wife’s version of events, and I need not repeat it here.

[30] In a reply statement, the applicant denied Ms Pearson’s evidence that she had accepted her redundancy in the meeting on 28 March 2020. She also claimed Ms Pearson’s evidence that she had heard about JobKeeper and believed she was ineligible to receive it was false, and must be false because the Australian Government did not announce JobKeeper until the next day. The applicant further denied she had said ‘you’re trying to take money from my family and rip me off’.

[31] The applicant stated that after the announcement of JobKeeper, she spoke to the Fair Work Ombudsman and was told that her eligibility was unclear but ‘there was a chance I could be eligible’. The applicant claimed she did not yell at Ms Price and did not make reference to being discriminated against; rather, Ms Price left out her discriminatory comments to her.

[32] In cross examination, the applicant denied that she had a conversation with Ms Pearson about JobKeeper on 28 March 2020 (because the scheme had not been announced), notwithstanding there were media comments about the scheme at the time.

[33] The applicant accepted that her original intention was to take maternity leave for six months, although part of this period would be unpaid due to the time limits on the Government’s paid maternity leave scheme. She agreed that she was paid for an additional six weeks when her notice and redundancy pay were taken into account. Nevertheless, the applicant sought compensation of 18 weeks for unfair dismissal.

SUBMISSIONS

[34] Both parties filed written submissions which I have taken into account. The submissions largely reflect the evidence which was adduced from the witnesses which was not, in substance, in dispute; save for the conflict of evidence between the applicant, Ms Pearson and Ms Price. This evidence was set out earlier.

For the respondent

[35] Ms Edwards dealt with the relevant legislative provisions in s 389 of the Act and the adverse impact on Little Wings as a result of COVID-19 and the Government’s responses to minimise the health and employment consequences of the pandemic. In respect to s 389(1)(a), Ms Edwards referred to the evidence that Little Wings had basically lost all its funding sources and was required to limit its flights from 15-18 a week to 2. These impacts required drastic action which Ms Pearson had identified and which the applicant does not appear to dispute.

[36] Ms Edwards submitted that the applicant’s marketing role was a luxury Little Wings could not afford, as it was not essential to its core business. Many of the applicant’s functions were either not required or could not be funded. These included:

‘(a) developing and implementing the organisation’s media and communication strategy;

(b) managing communications including social media, website, promotional material and merchandise;

(c) managing the redevelopment of the organisation’s website;

(d) writing and distributing media releases;

(e) developing promotional material for fundraisers and events;

(f) briefing, reviewing and delivering creative content;

(g) assisting with the implementation of large scale fundraising promotional campaigns; and

(h) assisting with the management of promotional and fundraising events.’

[37] Ms Edwards put that as some of the applicant’s duties had been absorbed by Ms Pearson as the CEO and even if some functions survived, this does not mean the case was not one of ‘genuine redundancy’. Further, the applicant’s position was not replaced, and there are no plans to do so in the foreseeable future. Ms Edwards said that the applicant did not appear to contest these matters. Accordingly, Ms Edwards submitted that s 389(1)(a) had been satisfied.

[38] As to s 389(1)(b) in respect to consultation, Ms Edwards put that the applicant did not appear to assert that there was any failure to consult in accordance with an Award or enterprise agreement. Although the respondent maintains there was no obligation to consult the applicant about her redundancy, Ms Pearson did so, in any event, in phone meetings and conversation where alternatives were considered, but ultimately found to be unacceptable.

[39] As to redeployment options (s 389(2)), Ms Edwards noted the applicant did not assert there were any alternative positions she could have been redeployed to. In fact, no employee retained their pre-COVID-19 position or hours of work, and Little Wings had no guarantee of future funding. Accordingly, s 389(2) of the Act was also satisfied, and the application should be dismissed. Nevertheless, Ms Edwards addressed the applicant’s claim that her dismissal was unfair because she was on paid maternity leave at the time, and therefore her position was not costing Little Wings anything.

[40] Firstly, Ms Edwards submitted that there were costs associated with the applicant’s leave, including administrating payroll and the Government paid parental leave. In any event, the claim was irrelevant to the consideration under s 389 of the Act.

[41] Secondly, the applicant claimed that her dismissal was unfair, because there was no consideration of suggestions she extend her unpaid leave or participate in JobKeeper. These suggestions did not impact on the fact the applicant’s position no longer existed and there was no work for her to perform from 27 March 2020; see: McClelland v Kamori Australia Pty Ltd T/A Lone Pine Koala Sanctuary[2020] FWC 3707 (‘McClelland’).

[42] Ms Edwards then dealt with alternative submissions if the Commission was against her as to the jurisdictional objection. For the reasons to be shortly stated, it is unnecessary to summarise these submissions going to s 387 of the Act; noting that Ms Edwards observed that the applicant had suffered no financial loss, and is, in fact, better off than she would have otherwise been at that point in time.

For the applicant

[43] As the applicant relied on her written submissions which were relatively succinct and captured her position in respect to her dismissal, I set the submissions out in full.

‘On 31st March 2020, I Samantha Bartolo was made redundant by Little Wings, my employer at the time. I served 20 months employment including approximately 2 weeks unpaid maternity leave (maternity leave commenced from 16th March 2020 – 31st March 2020) before I was made redundant from the organisation. I had intended on serving a minimum of 6 months unpaid maternity leave from 16th March 2020 with a return date of 16th September 2020.

The reason given for my redundancy was due to lack of funding for an expected 6-12 months caused by the effects of COVID-19. Taking into account the effects of COVID-19 on Little Wings and preferring to keep my role rather than take redundancy, I offered to extend my unpaid maternity leave for a further 6 months, bringing the unpaid leave period to a total of 12 months to suit the organisation’s position at the time. This offer was dismissed with no reasonable consideration. I was told “marketing is a luxury which the organisation cannot afford”.

In discussions with the organisation, I also requested as another option to take part in the Jobkeeper program that was announced on Sunday 30th March 2020, in the time between myself being notified of the redundancy (27th March 2020) and the redundancy taking affect (31st March 2020). This was also dismissed with no reasonable consideration at the time.

I believe that my case is that of an unfair dismissal and I refer to the Fair Work Act s.387 in which in this case, my view is that the reason given for my redundancy was both harsh and unreasonable. The reason for my redundancy was harsh in that I was on unpaid maternity leave at the time of dismissal and not adding to the organisations costs therefore going against Ms Pearson’s reason of lack of funding due to COVID-19. I believe my redundancy was also unreasonable in that my offer to work with the organisation and extend my unpaid leave to suit the organisation’s position was dismissed without reasonable consideration.

The reason for my redundancy specifically stated by Ms Pearson (refer to my witness statement, point 7) was lack of funding due to COVID-19 for 6-12 months. I was on unpaid maternity leave at the time and therefore not adding to the organisations costs as I was not accruing annual leave, sick leave or being paid entitlements such as superannuation. My offer as referenced in my witness statement (points 8 & 11) of extending my unpaid maternity leave to 12 months total, would have covered the 6-12 months specifically stated by Ms Pearson. I believe the reason for my redundancy to be both harsh and unreasonable and therefore an unfair dismissal.’ (emphasis in original)

CONSIDERATION

[44] The issue before the Commission is whether the applicant’s dismissal was a case of ‘genuine redundancy’, pursuant to the Act’s definition of that term; see: [3] above. Section 389 of the Act is to read in conjunction with s 385 of the Act, which provides that a person can only be unfairly dismissed if the Commission is satisfied that each of the matters in s 385 have been established. Section 385 reads:

385 What is an unfair dismissal

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

(a) the person has been dismissed; and

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

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

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

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.

[45] By use of the conjunction ‘and’ joining all four matters above, it must be stressed that a finding must be made on whether the applicant’s dismissal was not a case of genuine redundancy. If that criterion is met, there is no requirement to have regard to the other three subsections ((a)-(c)).

[46] As mentioned earlier, the parties have addressed sub-s (b) of s 385 as to whether the dismissal was ‘harsh, unjust or unreasonable’, although I note the applicant simply described the circumstances of her dismissal (and presumably its consequence as harsh) as unfair. The respondent correctly addressed the matters in s 387 of the Act which the Commission must take into account when determining whether the dismissal was unfair. For the reasons which follow, it will be unnecessary for me to travel beyond the matters to be considered under s 389 of the Act.

[47] As mentioned earlier, the section expressly defines genuine redundancy. The Explanatory Memorandum to the Fair Work Bill 2008 gives further guidance as to the meaning of ‘genuine redundancy’, as follows:

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 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.

[48] I do not apprehend that the applicant contends her role was no longer required to be performed by anyone at the time. There could be no serious suggestion that COVID-19, and the Government’s response measures to the pandemic, have caused enormous challenges for Australian workplaces. The applicant does not dispute the impact of the pandemic on Little Wings, as set out in the evidence of Ms Pearson, who was not challenged in cross examination. The fact the person originally engaged on a temporary basis to fill the applicant’s role while she was on maternity leave, was terminated on 31 March 2020, plainly demonstrates that the applicant’s role was no longer required to be performed by anyone.

[49] Although Ms Pearson’s comment that marketing was a luxury Little Wings could not afford may have been a little insensitive, there can be no doubt that the functions the applicant performed in a marketing role had largely disappeared, with little medium to long-term prospects of being required in the foreseeable future. These circumstances were obviously entirely beyond the respondent’s control.

[50] It must be emphasised that the fact the applicant was on paid maternity leave at the time, and therefore there was no cost in delaying her redundancy by 6-12 months, is really not the point. In any event, it is difficult to reconcile the applicant’s claim of economic loss during the six months she had proposed to be on paid and unpaid maternity leave, and then accept redundancy, with the fact that her payments on redundancy at 30 March 2020 in conjunction with her paid maternity leave, exceeded the six months of pay she actually received by some six weeks.

[51] It is necessary to address the applicant’s proposition that she was eligible for JobKeeper and Little Wings would keep her employed, and then make her redundant after six months. My own inquiries reveal that the JobKeeper Rules and the Fair Work Ombudsman’s advice is that an employee cannot claim JobKeeper and paid maternity leave at the same time; that is, in a nominated JobKeeper fortnight. I note the applicant referred to JobKeeper having been extended by the Federal Government until March 2021, presumably meaning she expected to be kept ‘on the books’ for a further 6 months and then made redundant, when her position was no longer required 12 months earlier. That was not realistic or comprehended by s 389 of the Act.

[52] It seems to me that the uncontested evidence leads to an unassailable conclusion that s 389(1)(a) of the Act has been satisfied, in that the applicant’s job was no longer required to be performed by anyone because of changes in the operational requirements of the respondent’s enterprise.

Consultation

[53] The applicant did not take issue with the respondent’s submission that her employment was not covered by a Modern Award or an enterprise agreement. The only reference to redundancy is at Cl 10.6 of the applicant’s contract of employment which reads:

‘10.6 In the event your position with us becomes redundant and your employment is terminated, you will only be entitled to severance pay if required by an Award or the Fair Work Act.’

[54] The respondent argued that the respondent, was not required to consult with the applicant about her redundancy, but did so anyway. While I have some doubts as to whether the applicant’s position was not covered by an Award (the Clerks – Private Sector Award or the Miscellaneous Award, for example), I accept that the applicant was consulted about her redundancy and had proposed alternatives which were not redeployment alternatives, but options in which the respondent would keep her in her substantive role, albeit on paid leave, JobKeeper or both. I do not accept that these proposals constituted alternative measures to minimise the adverse consequences of her redundancy; rather, these were options that simply deferred her redundancy, which was necessary and justified at that time.

[55] When viewed in this way, the options were not reasonable or practical, and did not meet the operational imperatives on a charity such as Little Wings. That said, and in any event, I am reminded of what Simpson C said in McClelland at [73] in a not dissimilar case to here:

‘[73] In any event, as I indicated in the course of the hearing, for the purposes of the jurisdictional objection the Commission is concerned with whether the job was still required because of changes the employer has decided to make, and not with whether the employer’s decision to make certain operational changes is a good or bad decision.’

[56] Plainly, the applicant believed the decision was a bad one, but again, with respect, that is not the point. I am satisfied that s 389(1)(b), to the extent it was required to be complied with, has been satisfied.

Redeployment

[57] Similarly, I do not apprehend that the applicant asserts there was an alternative position to which she could be redeployed. This must be self-evident, given that:

(a) The applicant’s role was the only one which was a full marketing position, and as funding had dried up and flights dramatically reduced to two a week, there was no comparable role to which she could have been redeployed.

(b) All employees had either lost their jobs or had their hours reduced, so no alternative position could accommodate the applicant’s concerns about maintaining her income.

(c) There was no associated entity of Little Wings to which the applicant could have been redeployed to.

(d) In Ulan Coal Mines Limited v Howarth and others [2010] FWAFB 3488, a Full Bench of Fair Work Australia (as the Commission was then styled) said at [28]:

‘[28] Thirdly, the question posed by s 389(2), whether redeployment would have been reasonable, is to be applied at the time of dismissal’. (my emphasis)

[58] For these reasons, it would not have been reasonable, in all the circumstances, for the applicant to be redeployed within the respondent’s enterprise at the relevant time. Accordingly, s 389(2) has been satisfied.

[59] Lastly, s 381(2) of the Act provides:

381 Object of this Part

(1) The object of this Part is:

(a) to establish a framework for dealing with unfair dismissal that balances:

(i) the needs of business (including small business); and

(ii) the needs of employees; and

(b) to establish procedures for dealing with unfair dismissal that:

(i) are quick, flexible and informal; and

(ii) address the needs of employers and employees; and

(c) to provide remedies if a dismissal is found to be unfair, with an emphasis on reinstatement.

(2) The procedures and remedies referred to in paragraphs (1)(b) and (c), and the manner of deciding on and working out such remedies, are intended to ensure that a “fair go all round” is accorded to both the employer and employee concerned.

Note: The expression “fair go all round” was used by Sheldon J in Re Loty and Holloway v Australian Workers’ Union [1971] AR (NSW) 95.

[60] In my judgment, the outcome in this case is consistent with the object of Part 3-2 of the Act of providing a ‘fair go all round’ to both the applicant and the employer.

[61] For the aforementioned reasons, I am satisfied that the requirements set out in s 389 of the Act have been met. It follows that the respondent’s jurisdictional objection is upheld, and the applicant’s unfair dismissal application must be dismissed. Matter U2020/6588 is dismissed. I so order.

DEPUTY PRESIDENT

Appearances:

The applicant appeared for herself.

Ms F Edwards, Partner, and Ms E Galvin, Lawyer, Sparke Helmore Lawyers, appeared for the respondent.

Hearing details:

2020.

Sydney (via Microsoft Teams):

11 August.

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