Soca v Iqvia Solutions Australia Pty Ltd
[2024] NSWPIC 640
•15 November 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Soca v Iqvia Solutions Australia Pty Ltd [2024] NSWPIC 640 |
| APPLICANT: | Analie Soca |
| RESPONDENT: | Iqvia Solutions Australia Pty Ltd |
| MEMBER: | Mitchell Strachan |
| DATE OF DECISION: | 15 November 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987; section 11A; whether redundancy reasonable; manner in which redundancy decision made; manner in which redundancy decision communicated; satisfaction of onus by respondent; Irwin v Director-General of Education; Pirie v Franklins Ltd; Department of Education and Training v Sinclair; Commissioner of Police v Minahan; Ritchie v Department of Community Services; Temelkov v Kemblawarra Portuguese Sports & Social Club Ltd; Held – respondent failed to meet onus in establishing redundancy was reasonable; the manner in which the redundancy process was undertaken and communicated was not reasonable. |
| DETERMINATIONS MADE: | The Commission determines: Findings 1. The applicant sustained a psychological injury arising out of her employment with the respondent as a result of redundancy. 2. The redundancy process was not reasonable. 3. The applicant has been totally incapacitated for work from 18 December 2024. Orders 4. The respondent to pay the applicant weekly compensation as follows: (a) from 19 February 2024 to 31 March 2024 at the rate of $2,423.60 per week pursuant to s 36 of the Workers Compensation Act 1987; (b) from 1 April 2024 to 19 May 2024 at the rate of $2,497.70 per week pursuant to s 36 of the Workers Compensation Act 1987; (c) from 20 May 2024 to 30 September 2024 at the rate of $2,176 per week pursuant to s 37 of the Workers Compensation Act 1987, and (d) from 1 October 2024 to date and continuing at the rate of $2,216 per week pursuant to s 37 of the Workers Compensation Act 1987. 5. The parties are at liberty to apply to the Commission with respect to the indexation applied in order 4 above within 14 days. |
Correction 22 November 2024: The Certificate of Determination and Statement of Reasons have been amended to correct references to 2024 to 2023 as appropriate.
AMENDED STATEMENT OF REASONS
BACKGROUND
Analie Soca (the applicant) commenced employment with Iqvia Solutions Australia Pty Ltd (the respondent) on 13 February 2023 as a key account manager. She predominately worked from home but from time to time worked from the respondent’s offices in North Sydney.
The applicant participated in regular fortnightly meetings with her supervisor Nadia Wright, normally by Teams as the applicant worked remotely however on occasion the applicant would attend the North Sydney office to meet with Ms Wright.
A regular meeting between the applicant was scheduled for 15 December 2023 at 1:00pm on Teams. At 12.47pm the applicant received a Teams chat message from Ms Wright advising that a human resources representative would be attending the meeting at 1:00pm that day.
During the course of the meeting on 15 December 2023 the applicant was advised that her role had been made redundant effective from the following Monday, 18 December 2023.
The applicant was in the later stages of pregnancy at this time and subsequently attended on her obstetrician, Dr Huynh who found the applicant was suffering from severe anxiety as a result of the redundancy and certificated her unfit for work. A Certificate of capacity was issued to this effect by Dr Huynh on 27 December 2023.
The applicant made a claim for workers compensation benefits on the respondent’s insurer. The insurer issued a dispute notice pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) on 25 March 2024.
The notice put in issue a defence under s 11A of the Workers Compensation Act 1987 (1987 Act) on the basis that the applicant’s injury was wholly or predominately caused by reasonably action taken by the respondent with respect to retrenchment and/or dismissal.
The notice also put in issue liability for weekly payments and medical expenses.
The applicant has now commenced proceedings in the Personal Injury Commission (Commission).
ISSUES FOR DETERMINATION
The parties agree that the following issues remain in dispute:
(a) respondent’s defence pursuant to s 11A of the 1987 Act with respect to retrenchment and/or dismissal, and
(b) quantification of applicant’s entitlement to weekly compensation.
Further, the parties agree that the applicant’s pre-injury average weekly earnings at the date of her injury were $2,673.07.
PROCEDURE BEFORE THE COMMISSION
The parties attended a conciliation conference and arbitration hearing before me on 30 October 2024.
The applicant was represented by Mr McManamey of counsel, instructed by Ms Panju of Turner Freeman Lawyers. Mr Stockley of counsel appeared for the respondent instructed by Ms Thorne of Lee Legal Group. A representative of the respondent’s insurer, EML, was also in attendance.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
The arbitration hearing was recorded.
EVIDENCE
Oral evidence
Neither party sought leave to adduce any oral evidence or cross-examine any witness.
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) Application to Resolve a Dispute and attached documents, and
(b) Reply and paginated attachments with page numbers 1 to 20 and 116.
During the conciliation conference, objection was taken to the balance of the documents attached to the Reply on the basis that these were available to the respondent and had not been disclosed when the dispute notice was issued on 25 March 2024. The respondent agreed that these documents were not admissible in proceedings with respect to the dispute before the Commission and as such they were not admitted nor considered by me in determining the dispute.
FINDINGS AND REASONS
A brief statement is required for the reasons for determination.[1]
[1] Section 294(2) of the 1998 Act.
The submissions of the parties have been recorded and the recording can be made available to the parties on request. It is convenient however to summarise briefly the submissions of the applicant and respondent.
Was the applicant’s injury wholly or predominately caused by reasonably action taken by the respondent with respect to retrenchment and/or dismissal?
Respondent’s submissions
The respondent submitted that injury was not in issue and there was no suggestion that anything, but the action taken by the respondent with respect to redundancy, was relevant to the cause of the applicant’s psychological condition. The real issue is whether the respondent’s conduct constitutes reasonable action for the purpose of s 11A of the 1987 Act. The question of reasonableness is an objective test.
The respondent submitted that the applicant’s evidence including the history taken by doctors who had assessed her advanced subjective reasons why the applicant suggests the action was unreasonable (including lack for forewarning, agenda or option to attend with a support person). The respondent submits however that none of these matters could constitute anything that diminishes the reasonableness of the relevant action by the employer.
The respondent submits not being told what the meeting was about ahead of time was not unreasonable because to do so would have otherwise foreshadowed the news in any event. Similarly, being invited to bring a support person would have been a warning and anxiety inducing in any event.
The respondent referred to the clinical records of Lina Al Zabin and submitted that statements made by an applicant, outside of litigation, can provide insightful and transparent information as to what is troubling a patient at a particular time. The respondent refers to notes of 29 April 2024 which set out a history of two prior redundancies and the redundancy the subject of these proceedings. The further respondent refers to a history provided and recorded in the notes that she was told she was the last to join the Australian team and that the decision was made based on tenure.
The respondent also refers to a record in the notes that the applicant “experienced bias and discrimination getting work with her second child. Fear of pregnancy affecting her future roles”. The respondent submits this may explain her distress but does not go to the reasonableness or otherwise of the employer’s action.
The respondent referred to the report of Ms Al Zabin of 7 June 2024 which recorded a similar history to the clinical notes and provided insight into why the redundancy was so distressing for the applicant.
The respondent referred to the redundancy letter from the respondent to the applicant dated 15 December 2023 as the only evidence explaining the reasons for the redundancy which it said reflected a genuine redundancy following a review and the position was no longer required. Attempts had been made to find alternative positions and none were identified.
The respondent submits that the termination was appropriate by way of redundancy for operational reasons. While the applicant raises a number of subjective factors there remains no easy way of telling an employee that their job no longer exists, and these subjective factors do not diminish the respondent’s defence. It was reasonable because it was based on operational requirements.
The respondent acknowledged that there would be circumstances where the method of a termination may not be reasonable, particularly where it was undertaken in a way that may cause public humiliation to the worker, but that was not the situation here.
Applicant’s submissions
The applicant submits that it is for the respondent to establish that the injury was wholly or predominantly caused by reasonable action with respect to the redundancy. The applicant does not challenge that the applicant’s psychological condition was predominately caused by action with respect to redundancy.
The issue is whether the actions were reasonable. The applicant submits this requires an examination of not just the manner in which the redundancy was implemented but also an examination of all of the action with respect to the redundancy including whether the redundancy itself was reasonable. It is a matter about which the respondent bears the onus.
The applicant submits that the only evidence available, which might go to explaining the redundancy, is the letter of 15 December 2023.
The applicant observes that the letter does not disclose any information about the process which would be needed to assess whether the decision was reasonable. The respondent notes that the letter says that attempts were made to find suitable employment but there is no explanation before the Commission as to what those attempts were. There is no explanation as to why the applicant was selected for redundancy over colleagues in like roles (the applicant submits there were four identical positions, the other three had not been made redundant).
The letter notes that the redundancy is not a reflection on the applicant’s performance. The applicant submits that her statement supports this and that she was meeting all her key performance indicators. If there is some deficiency in the team, it is not a deficiency for which the applicant was responsible. There is no explanation why, if there are deficiencies in the team for which the applicant is not responsible, it would be the applicant who is made redundant.
The applicant submits that these are all issues that the respondent needs to adduce evidence on and additionally are all matters that the respondent needs to satisfy the Commission of in order to establish that that the action was reasonable.
The applicant submits that the letter of 15 December 2023 cannot be taken at face value as an explanation and more information is required for the respondent to establish its defence.
The applicant refers to the clinical notes of Ms Al Zabin. The applicant notes the records of 29 April 2024. The applicant gives Ms Al Zabin a history of having met 100% of targets while her colleagues didn’t and Ms Al Zabin then records:
“You were last to join the Australian team made based on tenure, someone in nz, still on probation. She wasn’t the last to join. Tried to rationalise the reason for the redundancy. Promoted people after she left. Didn’t believe that she had to lose her job”.
The applicant submits again that none of the reasons behind these decisions have been explained by the respondent and as such, the Commission could not be satisfied that the decision taken by the respondent was a reasonable one.
The applicant then refers to the manner in which the news of the redundancy was delivered.
The applicant was informed of the redundancy as part of a regular scheduled meeting on 15 December 2023. These were regular fortnightly meetings to discuss the applicant’s work scheduled for 1:00pm. It was a Teams meeting with the applicant at home. The applicant was advised at 12.47pm that a human resources representative would be attending the meeting on 15 December 2023. That is, 13 minutes before the meeting was scheduled to begin.
The applicant submits it is unlikely the entire process took place on 15 December 2023. The applicant submits that in the normal course of events, an employer would set out for employees that a process was being undertaken and what that process would be, they may then seek voluntary redundancies before moving to forced redundancies. The applicant submits that for the respondent to just leap to the point where they advise the applicant “we have decided it is you” is not demonstrative of a genuine redundancy.
The applicant submits she was simply told “you have been made redundant”, 10 days before Christmas, while pregnant and due to go on maternity leave imminently. The applicant further submits that Ms Wright and Ms O’Loughlin, who delivered the news during the teams meeting, were aware of the position with the pregnancy and the applicant’s previous history of miscarriage.
The applicant refers to this history of prior redundancies recorded by Ms Al Zabin recorded on 29 April 2024:
“1st – with company for 8.5 years. Got 24-hour notice, had a support person, there was no bad blood, they were respectful
2nd one – she wasn’t singled out – everyone with the same title had the role redundant, she didn’t reapply because they would ask more from her with the same pay,3rd time – hr joining, in the call and within minutes she has been told by Dianna the HR person which she spoke to the week before regarding the commission query, she found out that her role was made redundant, as she is hearing this she is messaging her husband, the hardest bit about this period and conversation, she was 32.5 weeks pregnant, 8th pregnancy, manager and hr had known, open to them about previous miscarriages, last year she had two before her little boy.”
The applicant submits that the comparison between the first two redundancies and the third is instructive as to how the process should be undertaken. This includes the provision of proper notice, with the decency of an in-person meeting. There was no indication or explanation as to why the applicant was made redundant over those who had not been meeting targets.
Respondent in reply
In reply, the respondent submits that it does not resile away from the fact that the applicant was pregnant, but it has nothing to do with the redundancy. It may have heightened her sensitivity but it does not go to whether the conduct of the respondent was reasonable.
The respondent submits that it is not for the respondent to explain its policy positions to the applicant. It simply said that her role was excess to requirements. Similarly, there is no real evidence as to what other employees were doing in terms of performance or their roles.
The respondent submits that the fact the applicant was “last on, first off” (as described to Ms Al Zabin) is not an uncommon method that is chosen by employers. The respondent acknowledges it is arbitrary, but in the absence of performance issues, any redundancy decision is going to be arbitrary. It does not make the method unreasonable. Further, the respondent does not need to explain its decision making or the options that it considered.
The respondent submits the Commission is entitled to accept at face value the respondent’s decision that it did not maintain the applicant’s employment.
Finally, the respondent submits there is no evidence of some sinister or inappropriate motivation on the part of the respondent and it is impermissible to suggest that a finding could be made. The respondent does not have to dismiss every possible negative explanation for a redundancy and such a task would be endless.
Consideration
Section 11A(1) of the 1987 Act provides:
“No compensation is payable under this Act in respect of an injury that is a psychological injury if the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers.”
The respondent does not dispute that the applicant sustained a psychological injury arising out of her employment with the respondent. Further, the applicant conceded in submissions that the injury was predominantly caused by the redundancy which the applicant was notified of on 15 December 2023.
As such, the only real issue in dispute between the parties is whether the respondent’s action with respect to the redundancy was reasonable.
The respondent, in seeking to make out a defence under s 11A of the 1987 Act carries the onus of establishing the defence.[2]
[2] Pirie v Franklins Ltd [2001] NSWCC 167; (2001) 22 NSWCCR 346 (Pirie); and Department of Education and Training v Sinclair [2005] NSWCA 465; (2005) 4 DDCR 206 (Sinclair). It was otherwise prior to amendment of s 11A from 12 January 1997; Ritchie v Department of Community Services [1998] NSWCC 40; (1998) 16 NSWCCR 727.
The meaning of “reasonable” was considered by Geraghty J in Irwin v Director-General of Education:
“…the question of reasonableness is one of fact, weighing all the relevant factors. That test is less demanding than the test of necessity, but more demanding than the test of convenience. The test of ‘reasonableness’ is objective and must weigh the rights of employees against the object of the employment. Whether an action is reasonable should be attended, in all the circumstances, by questions of fairness.”[3]
[3] NSWCC 14068/97, 18 June 1998 (Irwin):
In Ivanisevic v Laudet Pty Ltd,[4] Truss CCJ said:
“In my view when considering the concept of reasonable action the Court is required to have regard not only to the end result but to the manner in which it was effected.”
[4] (unreported, 24 November 1998).
The Court of Appeal (Foster AJA (Sheller and Santow JJA agreeing) quoted the above passage with approval in Commissioner of Police v Minahan[5] where his Honour said:
“I prefer the construction which has been accorded to it in the decisions in the Compensation Court referred to in this judgment and in his Honour’s judgment. The words ‘reasonable action’, in a statute dealing with Workers Compensation rights of employees should be given a broad construction, unfettered by considerations as to whether the employee can or cannot also bring an action at common law against the employer, founded upon breach of a duty of care.”
[5] [2003] NSWCA 239 at [42].
In Ritchie v Department of Community Services,[6] Armitage J, said:
“It is apparent that the test in this case is an objective one where one must weigh the consequences of the Respondent’s conduct against the reasons given for it. It follows of course from the objective nature of the test that the evidence given by the Applicant as to the perceived unreasonableness of the Respondent’s conduct or from the Respondent as to the reasonableness of its conduct from its perspective will not be determinative of this issue.”
[6] [1998] 16 NSWCCR 727.
Whether the applicant’s redundancy was reasonable needs to be judged with respect to the fairness appropriate to the circumstances including what went on before and after the applicant was notified that her role was being made redundant.[7]
[7] Burke J in Melder v Ausbowl Pty Ltd [1997] 15 NSWCCR 454 at [454]; Sinclair.
Deputy President Roche in Temelkov v Kemblawarra Portuguese Sports & Social Club Ltd[8] considered a number of issues as relevant when assessing whether the conduct of an employer with respect to a redundancy was reasonable. These include whether the employer gave the employee notice that their position was under review and that doing so would give an employee time to consider their position, seek advice or propose an alternative solution. Further, the manner in which the decision is communicated including the location, timing and language used noting that the courtesy of a face to face meeting would allow other options to be discussed is a relevant factor.
[8] [2008] NSWWCCPD 96 at [125].
In Pirie v Franklin,[9] which dealt with very similar facts, Neilson J found the following relevant when considering a process of retrenchment:
(a) consultation about the proposed retrenchment before taking action to allow the employee to have some input;
(b) provision of adequate notice of the proposed retrenchment;
(c) provision of counselling services, and
(d) provision of help finding alternative employment.
[9] (2001) NSWCCR 346.
In seeking to rely on the defence, the respondent carries the onus of establishing that its conduct was reasonable.
While the applicant’s statement may suppose a motivation behind the redundancy, I accept the respondent’s submission that, that there is no evidence for me to entertain a finding of any sinister or inappropriate motivation on the part of the respondent and I do not do so.
There is however no evidence before the Commission with respect to the redundancy and the process taken, other than:
(a) the statement evidence of the applicant (and what is recorded by treatment providers as to what she told them), and
(b) a letter from the respondent to the applicant dated 15 December 2023 confirming the termination of the applicant’s employment by reason of redundancy.
The applicant details the circumstances leading up to the notification of the redundancy in her statements of 22 January 2024 and 15 July 2024.
The applicant’s statement details an interaction with Ms Wright on 2 November 2023 where she asserts Ms Wright made a comment about her pregnancy and emotional state which she found offensive.
She states that on 7 November 2023 Ms Wright asked her to come into the office for their fortnightly chat which would usually occur by Teams. The applicant states this was because Ms Wright thought it would be beneficial to have her support on hand if she had any questions. They discussed who “drove” their one-on-one meetings and the applicant raised the 2 November 2023 comment.
On 5 December 2023 the claimant had a meeting with Diana O’Loughlin, the respondent’s human resources director about an incentive policy. The applicant wanted to discuss options for consideration of incentive payments for sales made that would fall due while she was on maternity leave.
The applicant sets out the events of 15 December 2023. In the morning she spoke with Ms Wright via Teams regarding a client contact. She was to have a regular one-on-one meeting with Ms Wright at 1.00pm. Immediately prior to the meeting at 12.47pm the applicant received a Teams message from Ms Wright advising that Human Resources (HR) would also be attending the 1.00pm meeting.
The applicant messaged her husband about HR attending the meeting which she thought was odd or potentially relating to her query regarding incentive payments.
She states that she joined the meeting and was told she was being made redundant. At the time she was at home alone and 33 weeks pregnant. She began to cry and was told her job was being made redundant the following Monday (being in three days time).
During the meeting she enquired why she was being made redundant and was told that the team was not meeting targets but it was not based on her individual performance. She asked in the redundancy related to her pregnancy and she was told no it was not.
Subsequent to the meeting she emailed Mr Wright asking for the selection criteria used to select her for redundancy. She did not receive a response to her email but on Monday, 18 December 2023 she had a phone conversation with Ms Wright where Ms Wright said “To minimise the impact the selection was made based on the last person to join the Australian team”.
The correspondence of 15 December 2023 records:
“The purpose of this letter is to confirm the outcome of a recent review by IQVIA of its operational requirements, and what this means for you.
As a result of this review your position, Key Account Manager, is no longer required, and regrettably this means your employment with IQVIA will cease. It is important to note that this decision is not a reflection on your performance. IQVIA has attempted to find alternative placements over the past weeks however unfortunately we have not been able to identify a suitable placement for you. Your employment is IQVIA will end on the 18th December 2023…”
The letter then sets out the applicant’s redundancy entitlements.
The applicant relies upon a report of Dr Kumagaya, consultant physiatrist dated 16 July 2024. Dr Kumagaya takes a history from the applicant with respect to the events of 15 December 2023 and notes that the applicant reflected on the fact that she had not been provided any forewarning about the nature of the meeting, an agenda or the opportunity to attend with a support person. Dr Kumagaya expressed the opinion that rather than the news of the redundancy itself, it was the manner in which is was broached that caused the psychological injury and that the applicant found it most unreasonable.
The applicant has also attended on Ms Al Zabin, psychologist and her clinical notes are in evidence. I have referred to these in discussing the parties submissions.
As I have already referred to, the respondent, in seeking to rely on a defence available to it under s 11A of the 1987 Act, carries the onus of establishing that its conduct was reasonable.
I accept that the applicant’s subjective view as to whether the redundancy and associated process was reasonable or not is determinative, even where she is able to contrast her experience with prior redundancies. It is the respondent however who carries the onus.
It may be so, as submitted by the respondent, that the respondent did not need to detail in full the process that it went through to reach the decision that it did to terminate her employment by way of redundancy.
However, for the respondent to rely on a defence under s 11A of the 1987 Act it must adduce sufficient evidence that I can be satisfied, on the balance of probabilities, that the action taken was reasonable. This requires a decision maker to feel an actual persuasion or comfortable satisfaction of a fact in issue.[10] As the authorities discussed at 54 to 60 above outline, both the redundancy itself and the manner in which it was affected must be objectively reasonable in order for the defence to succeed.
[10] Nguyen v Cosmopolitain Homes [2008] NSWCA 246 at [55].
The only evidence proffered by the respondent to explain the redundancy was the letter of 15 December 2023 addressed to the applicant and confirming the decision had been made to terminate her employment by way of redundancy.
I accept that whether the action of the employer was reasonable is an objective test and the applicant’s perception of the conduct and the way it was affected are not determinative of the issue.[11] I must weigh the consequences of the respondent’s reasons for it. The difficulty this presents is that other then the letter of 15 December 2023 there is no evidence before the Commission which seeks to explain the reasons for it.
[11] Ritchie.
The history provided by the applicant to Ms Al Zabin, that the applicant had been told that she was “last in, first out” and the decision was based on tenure. It may be that this represented a reasonable basis to select an employee for a redundancy. This is merely an explanation as to why the applicant was selected. There is no evidence before me of the process that the respondent went through that would allow me to be satisfied that it was in fact a reasonable process.
I accept the respondent’s submission that the applicant’s prior experience of bias and discrimination in finding work following the birth of her second child may explain her distress but does not mean that the respondent’s actions in making the applicant redundant were inherently unreasonable. The applicant’s pregnancy does however become a factor of vulnerability for consideration in assessing the manner in which the redundancy was carried out by the respondent.
Turning to the letter of 15 December 2023, the respondent accepted in submissions that this was the only evidence explaining the reasons for the redundancy, reflecting a genuine redundancy following a review. The letter does not however further explain the process behind that decision nor the steps taken for example to find a suitable alternative role.
I find that the respondent has not discharged its onus of proof in establishing that its action in making the applicant redundant was reasonable.
There is no evidence before the Commission explaining the reasons behind the redundancy such that I could be satisfied that the decision itself was reasonable. It may be, as it has been suggested, that an arbitrary “last in, first out” method was determined to be the only way to make such a decision, but I have no evidence with respect to why such an approach may have been adopted by the respondent and I do not consider it is open to me, to make a finding on the balance of probabilities, that such a method was reasonable.
The respondent’s defence therefore cannot be made out.
If I am wrong in this respect, and the decision to make the applicant redundant was reasonable, I must also consider the way the decision was communicated to the applicant.
In accordance with the authorities, in assessing whether the redundancy process was reasonable I need to consider, within the factual context of these proceedings:
(a) whether the applicant was given notice that her position was under review such that she would have the opportunity to consider their position, seek advice or propose an alternative solution;
(b) the manner in which the decision was communicated, including the location, timing and language used (including whether the meeting was conducted face to face);
(c) provision of counselling services, and
(d) assistance in finding alternative employment.
Having considered the evidence before the Commission and the submissions of the parties I am able to make the following findings of fact with respect to the communication of the decision:
(a) the respondent had been aware it intended to make the applicant redundant for a number of weeks prior to doing so. This is evident from the letter of 15 December 2023 which confirms “[the respondent] has attempted to find alternative placements over the past weeks however unfortunately…”.
(b) The applicant was advised that her role would be made redundant during a regular recurring scheduled meeting on 15 December 2023 with Ms Wright and Ms O’Loughlin. I accept the applicant’s undisputed evidence in this regard, supported by the letter of 15 December 2023.
(c) The applicant was advised that a Ms O’Loughlin, a human resources representative, would be joining the meeting 13 minutes before it was due to commence. Again I accept the applicant’s undisputed evidence in this regard, noting it is supported by the Teams message.
(d) Ms Wright and Ms O’Loughlin were aware that the applicant was pregnant and had a history of recurrent miscarriages. I accept the applicant’s undisputed evidence in this regard.
(e) On 15 December 2015 the applicant was working from home which was her usual practice. Ms Wright had previously asked the applicant to attend the regular recurring meetings in person at the respondent’s offices and she did so when asked. I accept the applicant’s undisputed evidence in this regard.
Considering the issues to be taken into account in assessing whether the redundancy process was reasonable and the findings of fact I have made above, I cannot find that the redundancy process was reasonable. I make this finding for the following reason.
Firstly, there is no evidence that the applicant was given any prior warning that her position was under review prior to being advised on 15 December 2023 that the decision had already been taken. She was not provided with any opportunity prior to the decision being taken to seek advice or propose an alternative solution. She was simply told that the decision had been made and would be effective from 18 December 2023.
Secondly, the applicant had previously attended the respondent’s offices for meetings with Ms Wright. She was known to Ms Wright and Ms O’Loughlin to be pregnant with a history of miscarriage. In this regard they were aware of the applicant’s particular vulnerabilities. She was working from home and it would be reasonable to expect that she would be doing so alone. In the absence of an explanation from the respondent, these factors all weigh against it being reasonable to deliver the news of the redundancy by Teams rather than in person.
I note that the respondent did make counselling available to the applicant through an employee assistance program. There is no evidence that any assistance with finding alternative employment was provided.
The respondent submits that there is never a good way to advise an employee that their employment is being terminated and that any steps taken to provide notice would have still caused the applicant stress and anxiety. That may be so. There are however better ways to do so.
A consultation process prior to the decision being made, even if unfavourable to the applicant, would have left her alive to the possibility. Further, where the applicant had particular vulnerabilities and was known to be working from home, conducting the meeting in person where appropriate support could have been provided or providing warning so the applicant could have a support person.
In both regards and consistent with what was said in Ritchie, Temelkov and Pirie, the respondent’s conduct with respect to the redundancy was unreasonable.
For the reasons above and having considered the evidence before the Commission and the parties submissions, I am not satisfied that the respondent has met its onus in establishing that the redundancy itself was reasonable. Further, I find that the manner in which the redundancy process was undertaken and communicated was not reasonable. The respondent’s defence under s 11A of the 1987 Act must fail.
Incapacity
The applicant brings a claim for weekly compensation from 18 February 2024. This is on the basis she was paid out in lieu of her notice period for a two month period from 18 December 2023, with that payment amounting to wages.
Respondent’s submissions
The respondent refers to the opinion of Ms Al Zabin dated 7 June 2024 where the psychologist expressed the view that the applicant met the criteria for a diagnosis of adjustment disorder with mixed anxiety and depressed mood and that she was unfit for work at the time of the report in June 2024.
The respondent also refers to the opinion of Dr Eftekar dated 29 January 2024 and acknowledges that it is at odds with respect to incapacity to that of Dr Kumagaya and
Ms Al Zabin.Dr Eftekar expressed the opinion that the applicant was hoping to find similar employment when she was medically fit (given her pregnancy) and from a purely psychiatric position she would be able to start two hours twice per week increasing to full time over three to six months while receiving regular treatment.
Dr Kumagaya and Ms Al Zabin expressed the opinion that the applicant was totally unfit for work.
The respondent submits that Dr Kumagaya and Dr Eftekar had different views and it is an application it is an issue on which the applicant bears the onus.
Applicant’s submissions
The applicant submits that the highest that Dr Eftekar opinion can be taken is that at some point in the future she could start doing two hours per week and increasing gradually to full time while receiving regular psychological treatment. The applicant submits this cannot have occurred as of yet as she hasn’t received the treatment she needs because the claim has been declined by the respondent’s insurer.
Further, the applicant submits that even if she was fit for work two hours twice per week in accordance with the opinion of Dr Eftekar then that capacity would not allow her to obtain any meaningful employment and that capacity must represent capacity in a real job.[12]
[12] Wollongong Nursing Home Pty Ltd v Dewar [2014] NSWWCCPD 55.
The applicant submits that the opinion of Dr Eftekar needs to be compared with the opinions of Dr Kumagaya, Ms Al Zabin and the certificates of the general practitioner, all of which support a finding that the applicant has no capacity.
The applicant refers to the statement of the applicant’s husband setting out his observations of the applicant’s condition and I should accept that the applicant’s condition is serious.
Consideration
There is largely a conformity of opinion with respect to the applicant’s capacity between her general practitioner, Dr Evelyn Banares, her treating psychologist, Ms Al Zabin and the independent assessment of Dr Kumagaya.
As I understand Dr Eftekar’s opinion, he is of the view that but for her pregnancy, at the time of his assessment in January 2024, the applicant was fit for two hours per day, twice per week. Essentially four hours per week.
This is at odds with the balance of the medical evidence. I prefer the opinions of Ms Al Zabin and Dr Banares who both have seen the applicant on multiple occasions and have the benefit of an ongoing treatment relationship with her. Due to this, I consider they are best placed to assess her capacity for work. Their opinions are further supported by the expert psychiatric opinion of Dr Kumagaya who has consulted the applicant more recently than Dr Eftekar and I would accept his opinion as better reflecting the applicant’s current functioning and capacity.
Further, even if I was to accept Dr Eftekar’s opinion that the applicant could work in a similar role two hours per day twice per week I accept the applicant’s submission that in the absence of any labour market analysis or specific evidence, I cannot be satisfied that the notional capacity represents a current work capacity in suitable employment for the purpose of s 32A of the 1987 Act as it inconceivable that a real job exists which can be undertaken in two, two hour shifts each week.[13]
[13] Dewar.
Having considered the submissions of the parties and the evidence referred to in those submissions, I find that the applicant has had no current work capacity since 15 December 2023 and that that incapacity is continuing. The parties agreed that the applicant had been paid up to 17 February 2024 and any award for weekly compensation would not commence before 18 February 2024.
SUMMARY
I am not satisfied that the respondent has met its onus in establishing that the redundancy itself was reasonable.
I find that the manner in which the redundancy process was undertaken and communicated was not reasonable.
The respondent’s defence under s 11A of the 1987 Act must fail and there will be an award for the applicant.
I find that the applicant has had no current work capacity since 15 December 2023 and that that incapacity is continuing. The applicant is entitled to weekly compensation in accordance with the orders in the Certificate of Determination.
Correction 22 November 2024: The Certificate of Determination and Statement of Reasons have been amended to correct references to 2024 to 2023 as appropriate.
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