[2021] FWC 5365

The attached document replaces the document previously issued with the above code on 31 August 2021.

Typographical amendment made.

Associate to Deputy President Mansini.

Dated 1 September 2021.

[2021] FWC 5365

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Svetlana Meizhensuowa
v
MA Services Group
(U2021/2601)

DEPUTY PRESIDENT MANSINI

MELBOURNE, 31 AUGUST 2021

Application for relief from unfair dismissal.

[1] This decision concerns an application by Ms Svetlana Meizhensuowa (Applicant) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Cth) (Act).

[2] I have determined that the Applicant’s dismissal was not a case of genuine redundancy within the meaning of s.389 of the Act and, pursuant to s.385 of the Act, the Applicant was unfairly dismissed. The reasons for this decision follow, arranged as:

PART A
• Procedural context	[3]-[5]
• The evidence	[6]-[34]
• Findings	[35]-[54]
PART B
• Initial matters to be considered	[55]-[57]
• Was the Applicant’s dismissal a case of genuine redundancy?	[58]-[69]
PART C
• Was the Applicant unfairly dismissed?	[70]-[71]
• Was the dismissal harsh, unjust or unreasonable?	[72]-[95]
• Conclusion	[96]-[99]
PART D
• Remedy	[100]-[125]
• Conclusion on compensation	[126]-[127]

PART A

Procedural context

[3] On 29 March 2021, the Applicant filed this application alleging unfair dismissal. On 6 April 2021, MA Services Group (Respondent) filed an initial response which objected to the Commission’s jurisdiction on the basis that the Applicant’s dismissal was a case of genuine redundancy.

[4] As the matter did not resolve after an attempt at conciliation, a program was set for determination and the exchange of materials in advance. The Respondent filed a witness statement of a Mr Greg Lind (General Manager HR of the Respondent) with various supporting documents, the Applicant filed her own witness statement with various supporting documents and both parties filed submissions. Those materials did not address all relevant issues, which was discussed with the parties in a further mention and an extended program for filing of evidence was allowed.

[5] I decided that it was appropriate to hold a determinative conference, by video (Microsoft Teams) rather than a hearing as the most effective and efficient way to resolve this matter. Mr Lind and the Applicant gave evidence at the determinative conference. Following this, further evidence was produced by direction of the Commission and brief written submissions regarding this further evidence received.

The evidence

[6] The evidence before the Commission is summarised in the following paragraphs and is not contentious except where indicated.

[7] The Respondent is a contracting entity that provides security and related services to its clients. It described its business as, primarily, the provision of “manpower” for various roles (eg. security, concierge, customer service) working from client premises or work location. The Respondent’s personnel (other than management and administration) are engaged solely for the purposes of placement or assignment to a client.

[8] The Respondent produced a service agreement for “Security Services” at 367 Collins Street, Melbourne, made between the Respondent and Mirvac Real Estate Pty Ltd (the Client) (the Service Agreement). 1 The Respondent is defined therein as “Supplier”, contracted to provide the “Services” on the terms and conditions of the Service Agreement, and the Client is defined as “Manager”, appointed to provide certain management and administration services for the site. The “Services” are defined to include the supply of services specified at Schedule 2 which includes a scope of work that specifies “CONCIERGE/SECURITY GUARD – FRONT OF HOUSE” and “LOADING DOCK GUARD” (among other roles). Schedule 2 also specifies the duties and essential attributes required of those roles.

[9] In March 2020, the Applicant was offered employment with the Respondent commencing in the role of “Concierge” based in the lobby of the Client’s premises at 367 Collins Street. The Applicant said that she was approached by a Mr Amjad Khan (Client Delivery Manager, of the Respondent) who was aware that she had no prior concierge experience but said training would be provided. She also said that, after initially declining to leave her previous job in security for this role, she was offered a higher salary and then decided to accept the role which she considered presented opportunity for career development. The Respondent broadly opposed the Applicant’s evidence of pre-employment negotiations including on grounds of “hearsay” and relevance.

[10] The terms of the Applicant’s employment were recorded in a contract which the Applicant signed on 20 March 2020, in stated acknowledgement of her acceptance and that she had read, understood and accepted the conditions of employment set out therein including the incorporated appendices (Employment Contract). The Employment Contract extends to 20 pages and includes, most pertinently:

(a) Appendix A, expressed as “incorporated as an integral part of this Contract” (cl.3.2):

APPENDIX A TO MASG CONTRACT OF EMPLOYMENT

[…]
Clause 7	Position	Concierge
Clause 7	Manager Name and contact details	Amjad Khan Client Delivery Manager
Clause 11	Initial location of employment	367 Collins St, Melbourne or as required by MA Services Group
Clause 8	Basis of employment	Full Time
Clause 9	Ordinary hours of work	The ordinary hours of work for Full-time employees are 40 hours per week (and such reasonable hours as necessary to fulfill your duties).
Clause 15	Remuneration Package (exclusive of Superannuation)	Base Salary: $68,000 per annum plus superannuation
[…]

(b) The Applicant’s “initial duties and responsibilities are outlined in the current position description/performance plan for the role you are initially filling” and that this will be included at Appendix B if available at the time of appointment (cl.13.1). Appendix B is titled “APPENDIX B: INITIAL POSITION DESCRIPTION OR PERFORMANCE PLAN” and is otherwise blank.

(c) The Applicant “will initially report to the manager named in Appendix A in the position set out in Appendix A, and in such additional or alternative positions, offices or capacities as may from time to time be notified by the Company to you, at its discretion provided the changes are within your skills, competence and training. The parties agree that irrespective of such changes the terms and conditions set out in this Contract will continue to apply unless otherwise amended in writing by agreement between the parties” (cl.7). In addition: for the Applicant to be assigned to other duties, responsibilities and work (cl.13.2 to 13.4); for change of work location at the Respondent’s “complete discretion” (cl.14); and the Applicant’s agreement “that the nature of her position and level of responsibility may be significantly varied throughout her service with the Respondent and … irrespective of any such variations, the terms and conditions set out in the Employment Contract will continue to apply to her employment, unless otherwise varied in accordance with this Contract.” (cl.37).

(d) The Applicant’s performance may be reviewed on a regular basis during the year and formally on at least an annual basis with the intention being to optimise the Applicant’s contribution towards achieving business objectives and to proactively identify any development needs (cl.18).

(e) The Employment Contract may be terminated by (among other means): either party giving notice in writing of two weeks for not more than one year of continuous service and which may be paid in lieu at the Company’s discretion; and if by reason of redundancy then the terms of the National Employment Standards (NES) or the Respondent’s policy (whichever is more favourable) will apply (cl.33.1, 33.2 and 33.6).

(f) Except as provided in the Employment Contract, the terms and conditions of the Applicant’s employment cannot be varied unless such variation is in writing and signed by the Applicant and an authorised representative of the Company (cl.3.3); and the Respondent “..may from time to time determine that an offer of increased remuneration is conditional upon acceptance by you of other changes, such as terms of this contract. Any such increased remuneration will not be effective until such other changes are agreed in writing between the parties.” (cl.19.2).

[11] The Employment Contract also provides that the Applicant’s terms and conditions were “subject to” the provisions of the MA Security Guards Enterprise Agreement 2016 (Enterprise Agreement). The Enterprise Agreement is expressed to cover employees of the Respondent engaged in the classifications in Schedule 2 who undertake work covered by the Enterprise Agreement but does not apply to persons engaged in managerial positions or who undertake administrative functions for the Respondent (cl.5). Schedule 2 includes a summary of duties and indicative tasks for each classification (Level 1 – Security Guard to Level 5 – Security Guard). The Enterprise Agreement variously refers to the work as being in the security industry, for clients of the Respondent and that it “specialises in” security support services at corporate events, venues and within retail and construction industries (see, for example, cl.7). It has a nominal expiry date of 1 March 2021.The Enterprise Agreement also provides:

(a) That it constitutes the entire agreement between the employees so covered and the Respondent and supersedes all prior representations, agreements, statements, understandings and operates to the exclusion of the Award or any other modern award or industrial instrument that may otherwise apply (cl.6.1 and 6.2).

(b) That the NES apply to all employees as relevant unless otherwise referred to in the Enterprise Agreement by way of supplementary or ancillary variation - a “summary” of the NES is said to be at Schedule 3 (cl.6.5).

(c) Employees will be paid “at the rates of pay prescribed in Schedule 1 for the Classification under which they are employed”, except as specifically provided by the Enterprise Agreement (cl.16.1).

(d) For “hours of work flexibility” including that employees are appointed to a “Roster Cycle” (1-6, at Schedule 1) and can not move between roster cycles other than by agreement (cl.21.5).

(e) For termination and notice pay (cl.12).

(f) For redundancy and redundancy pay (cl.13).

(g) For employees to obtain security licenses and other checks if required subject to the nature of the work being undertaken by the employee, the contracts the Respondent obtains for security work and the location of the work (cl.31).

[12] The Employment Contract also provides that it should be read in conjunction with the Respondent’s policies and procedures and Employee Handbook as introduced and amended from time to time (cl.1.3) but that Respondent policies do not create legal rights and entitlements and do not form part of the contract (cl.20.2).

[13] The Applicant performed some initial site-specific training in April 2020 before commencing on 20 April 2020. The Applicant said that her initial training with the Respondent (in April 2020) was limited to security related tasks (access control, swipe cards and CCTV for the Mirvac Building, dealing with contractors, permits) with no training specific to the role of “Concierge”.

[14] The evidence was that, in the performance of her Concierge role, the Applicant performed some security tasks or duties which the Respondent said are an “integral part of the role”.

[15] The Applicant’s employment continued beyond the six month probation period in the Employment Contract and the Applicant’s unchallenged evidence was that no performance review was conducted and no performance concerns were raised during the course of her employment, by the Respondent or its Client.

[16] The Applicant’s evidence was that, in or around December 2020, a Ms Emma Brown (Assistant Facilities Manager of the Client) had informally raised with her the concept of ceasing her Concierge role and performing solely security duties, in a conversation that took place in the hallway. The Applicant said she responded to the effect that she had been doing a lot of security work anyway and would consider such a move if the money was not going to change. The Respondent opposed the evidence of this discussion on grounds of “hearsay”.

[17] In early February 2021, the Applicant noticed candidates being interviewed in the foyer of 367 Collins Street and subsequently decided to ask a Ms Ozlem Dallikavak (Manager, National Facilities Services of the Respondent) about her recent meeting with the Client. The Applicant recalled that Ms Dallikavak had responded to the effect of: “it’s all good Mirvac just stated to me what they were expecting of a Concierge”. The Respondent did not deny the fact of the interviews for the role of Concierge but opposed the evidence of this discussion on grounds of “hearsay”. Not being satisfied with Ms Dallikavak’s response, the Applicant decided to “confront Mirvac immediately” – that she did so is not in dispute. The Applicant then searched and discovered an online advertisement which she recognised as being for her role as Concierge at 367 Collins Street. The advertisement was dated 21 January 2021, posted by the Respondent on seek.com.au and included: “Our client is currently seeking a concierge who is experienced in providing an exceptional customer service experience and creating a community culture amongst local retailers, tenants and our client”. The advertisement was for a full time role of “Concierge”, “based in the lobby of an A Grade Premium Office Tower on Collins Street” and reporting to “the onsite Building Management Team & MA Client Delivery Manager”. At the determinative conference, Mr Lind accepted that this advertisement was for the Applicant’s role, and said this was because the Client had asked to see other candidates and the Respondent did not believe it had suitable alternative candidates within.

[18] In his filed evidence, Mr Lind described a conversation which he said took place between the Respondent and its Client, on about 23 February 2021, in which the Client said it wanted the Applicant removed from the Concierge role. Mr Lind was not present and did not present a witness to that conversation, but maintained that the Client was asked to confirm this in writing (which it subsequently did, by email of 25 February 2021).

[19] On 24 February 2021, there was a discussion between the Applicant and Mr Khan (to whom the Applicant directly reported). Mr Lind was not present but said that this was a discussion to notify the Applicant that the Client had requested her removal from the Concierge role and to canvass an alternative role as Loading Dock Guard, for the same client, at the same premises. The Applicant denied there having been any suggestion made in that discussion that her Concierge role was no longer available to her. Rather, her evidence of her 24 February 2021 discussion with Mr Khan was that he was “very persistent” in offering her the Loading Dock role on $72,000 per annum for 50 hours per week; and she responded that she would not agree to work an extra 10 hours per week for that amount of money and then went back to work. Mr Lind opposed the Applicant’s evidence of this conversation as “hearsay” but did not dispute the fact of a discussion in which the alternate role was discussed.

[20] The Applicant’s evidence was that it was not until 25 February 2021, whilst at work, that she reflected on her discussion with Ms Dallikavak, the advertisement she had found and Mr Khan’s persistence about taking the loading dock role and came to the realisation that “something was going on” with her job. That same day the Applicant sent a text message to Mr Khan in which she asked whether he required her to obtain a medical certificate for leaving work early that same day, “due to been stressed and upset and not knowinvg whats happening to me regarding my job” (sic.).

[21] Also on 25 February 2021, there was an email from a Mr Dev Dulai (Senior Facility Manager, Office and Industrial of the Client) addressed to a Mr Micky Ahuja and copying Mr Khan (both of the Respondent) with the subject line “Svet Meizhensuowa”. The email said:

Hi Micky, as you are aware we have been going back and forth to accommodate Svet into a role that would be suitable for her skill set and meet her salary expectations. We seem to be at an impasse and are not in a position to meet her expectations and given her lack of experience of being a concierge, I feel the only course of action is to find a suitable replacement who has concierge experience.

Please send over some CV’s of a suitable replacement.

Many thanks

[22] On 1 March 2021, Mr Khan had a discussion with the Applicant at her desk and asked whether she had given any thought to the Loading Dock Guard role. The Applicant’s evidence of this discussion was that she responded with her concerns about the conditions and Mr Khan said that the Respondent would be unable to increase the offer. She replied to the effect of “Well I guess I’ll just remain as Concierge” and Mr Khan then said words to the effect of “The position of Concierge is no longer available you” and, if she would like to remain employed, the Applicant should take the other role. The Applicant said she asked Mr Khan for the reason why her Concierge role was no longer available and was given no definitive answer. She also told him that she was “not looking to go backwards” in her career and considered what was being asked of her was very unreasonable. Mr Lind opposed the Applicant’s evidence of this conversation as “hearsay” but did not dispute the fact of a discussion in which the Applicant was advised that the Concierge role was no longer available to her.

[23] On 3 March 2021, Mr Khan emailed the Applicant. The Respondent accepts that this was the first written communication with the Applicant on the matter but Mr Lind said it was to formalise the conversations between Mr Khan and the Applicant of 24 February and 1 March 2021. The email said:

As you understand and have been advised, we can’t keep you at your current role of Concierge at 367 Collins St, as per client request.

Unfortunately at this point in time, we do not have a similar position which we can offer you, however we will be able to accommodate you in the Loading Dock position at 367 Collins St, which we can offer within the skillsets that have been advised by the client. This role will offer a salary of $72k, plus superannuation and leave/long service leave entitlements for 50 hours per week.

If you wish to accept or decline this offer, or if you have any other ideas in mind where we can accommodate you, please respond by COB Friday the 5^th of March, 2021.

The purpose of this correspondence is to provide you with an opportunity to consult with the Company prior to a final decision being implemented. As mentioned above, At this stage we have been unable to identify any suitable roles within the Company were you can be redeployed to, apart from loading dock position mentioned above.

We would like to invite you to put forward any comments, questions or alternatives that you may like us to consider in light of the current circumstances. These will be taken into account by way of consultation prior to any final decision being made.

If, having considered this information, we are unable to adopt any other options or alternatives proposed, your position will be made redundant.

We look forward to hearing from you.

[24] On Friday 5 March 2021, the Applicant emailed Mr Khan in response. The response commenced with thanking Mr Khan for “sending the email related to the discussion we had”. In this response, the Applicant asserts that she had been fulfilling her Concierge role as well as other duties directed by the clients, had never been told what to improve or given training and that no performance issues had been raised in relation to her work, whether by the Respondent or the Client. The response further acknowledged that the reason given in Mr Khan’s email is that it was the Client who wanted the Applicant to be moved from the Concierge role but also said “I do [not] understand about client needs as even client hasn’t mentioned any performance related issues it doesn’t feel right and very unjust to treat me like this without proper closure related to the reasons for moving me.” The Applicant’s email also responded to the offer of the alternative Loading Dock Guard role with a proposal to accept it on the basis that she retain payment at her (then) current contract rate with payment of overtime if the Respondent wanted her to work an extra 10 hours (at 1.5x for first 2 hours and 2x thereafter), noting her understanding that she was hired under the NES and believed her request was in line with the NES.

[25] On Saturday 6 March 2021, Mr Khan replied to schedule a meeting for Tuesday 9 March 2021. In this email, the Applicant was advised that she would be paid for the shift and invited to bring a support person. The meeting was ultimately rescheduled for Wednesday 10 March 2021 to facilitate the attendance of the Applicant’s nominated support person.

[26] In response to my questions at the determinative conference, Mr Lind described the searches for other suitable alternative roles within the Respondent’s business were made in advance of the 10 March 2021 meeting with the Applicant. Mr Lind said he had spoken with Ms Dallikavak (being in a senior operations role for the Respondent, who had other operations managers reporting to her) to see what if any vacant work was available to transfer the Applicant to and was informed there was no paying or billable work to assign, other than the Loading Dock Guard role at 367 Collins Street which had already been offered to the Applicant and was still available at that time.

[27] At around 10.00am on Wednesday 10 March 2021, the Applicant attended the meeting (by video using zoom) along with her nominated support person (of the United Workers’ Union). Mr Khan, Mr Lind and a Mr Paul Maroun attended for the Respondent. The meeting continued for approximately one hour and forty minutes and a recording of that meeting was in evidence before the Commission. The recording reflects that, in the meeting, Mr Lind said that the Client had formally requested the Applicant’s removal from the Concierge role, that the Client had sent an email to the Respondent to that effect and that there was “nothing disparaging” about her in that email - it was simply a case that she was “not the right fit for the role”. Mr Lind accepted that the Respondent had not properly managed the Client’s expectations in appointing a person with no concierge experience, which the Applicant argued against - having passed her probationary period and not had any issue taken in almost twelve months in the role. Also during the meeting, the Loading Dock Guard role was discussed. Mr Lind acknowledged that it was not the same as a concierge role but encouraged the Applicant to accept it, being the only alternative option to remain in employment with the Respondent, and that it might only be temporary pending other opportunities. He told the Applicant that it had been “run past the Client” and there was “no objection” to her taking on the Loading Dock Guard role. The Applicant and her representative also put alternate remuneration proposals on which the Applicant would accept the Loading Dock Guard role. Her personal drivers were explained as: wanting to retain the concierge title and not take a backwards step in her career particularly given she had left her previous job on the basis of career development with the Respondent, and that being a single mother she would need to arrange extra childcare to work the extra hours which would not be viable at this rate. She also questioned Mr Lind directly about her concern that she could not trust the Respondent given what had happened, but ultimately said that she would accept the Loading Dock Guard role if she were remunerated for the extra 10 hours per week. Mr Lind offered to bring forward the pay increase but clearly stated that the remuneration on offer was no more than $72,000 per annum for 50 hours per week or else it would not be “commercial” for the Respondent and that there was no other alternative. The meeting ended with an agreement that the Applicant had until close of business on the following day (11 March 2021) to consider what had been discussed and to formally respond. By the conclusion of the meeting, it was made plain to the Applicant that the terms of the alternate role on offer would not change except to bring forward the pay increase as discussed.

[28] Also in response to the Commission’s questions about redeployment efforts Mr Lind’s oral evidence was that, after the meeting with the Applicant on 10 March 2021, he logged into the Respondent’s roster management system to see if there were any other roles to which the Applicant could be redeployed, but did not identify any other paying or billable work to assign. He also gave evidence to the Commission that, during the COVID-19 pandemic, the Respondent’s contracted work fluctuated with some areas (ie. temperature testing) having a surge and other areas experiencing a decline. Also after the meeting of 10March 2021 concluded, Mr Lind drafted a termination letter which stated that, as the Applicant had rejected the Loading Dock role, her role was redundant. The draft letter was inadvertently filed by the Respondent in these proceedings although it was not given to the Applicant at the time. In response to the Applicant’s questions at the determinative conference, Mr Lind said that he had anticipated her rejection of the role by their discussion in the earlier meeting on 10 March 2021.

[29] At 3.15pm on 10 March 2021, Mr Dulai emailed Mr Ahuja with the subject line “Svet” which said: “Hi Micky, given what has transpired over the last few weeks, I feel that other guards would be more suited to the role as loading dock guard. Thanks”. At the determinative conference, Mr Lind said that, although initially the Client did not object to the Applicant performing the Loading Dock Guard role, Mr Dulai “changed his mind at the end of the whole process”, probably out of frustration. Mr Lind speculated that, had the role been accepted sooner, this would not have occurred.

[30] At 1.12pm on 11 March 2021, the Respondent emailed a formal letter of termination to the Applicant which provided, in part:

The purpose of this letter is to confirm the outcome of our consultation in relation to your employment by MA Services Group, and what this means for you.

As discussed [we] have recently been instructed by our client to replace you as Concierge at 367 Collins Street Melbourne. We have looked carefully elsewhere within the company and considered redeployment alternatives, a suitable position located at the same site was offered to you. The position provided you with the opportunity to continue your employment on a permanent full time basis. To confirm the position of Loading Dock Officer was offered to you on a Salary of $72,000 per annum with annual increases in line with the National Wage case as handed down by the Fair Work Commission. It is noted that his figure is higher than the applicable MA Enterprise Agreement would pay for the same position.

Regretfully we have since received further instructions from our client that we are to appoint someone else to the Loading Dock role, therefore we do not have a suitable vacancy.

As a result, your employment is terminated by reason of genuine redundancy. The Company is required to provide you with 2 weeks’ notice of the termination of your employment. Accordingly, the company has decided to pay out the notice period as a result the last day of your employment will be the 11^th March 2021.

Based on your length of service, your redundancy severance payment is 0 weeks. You will also be paid any outstanding accrued annual leave entitlements and any outstanding pay, including superannuation up to and including your last day of employment at the completion of your notice period.

[..]

[31] Although the final termination date was 11 March 2021, the Applicant did not attend to perform duties as Concierge at 367 Collins Street again after 5 March 2021. She was given the option to take annual leave on 9 March 2021 pending the final meeting but instead opted to attend the Respondent’s head office where she performed duties as directed. She was paid to attend the meeting on 10 March 2021 and took annual leave on 11 March 2021. According to the final payslip in evidence, final payment was made on 12 March 2021 for the period ending 11 March 2021. The final payslip reflects that the Applicant was paid two weeks’ notice in lieu and accrued but unused annual leave.

[32] Mr Lind said the Respondent initially covered the Concierge role at 367 Collins Street on an “ad hoc basis” until a “permanent” person was placed there which was “within a week or so”. The Applicant understood her replacement commenced on or about 22 March 2021.

[33] The Applicant told the Commission in evidence that, after her dismissal, she lost confidence, had anxiety and was not sleeping. She did not file medical evidence in support, but said this impacted her capacity to search for other employment and therefore she did not commence searching for around four weeks. She did not earn any income for thirteen weeks following the termination of her employment with the Respondent. At the time of the determinative conference, the Applicant had recently obtained alternative employment and was due to start the next day. In oral evidence, she described her efforts to find another job as involving online searches, contacting a previous employer and enrolling in a course to gain new skills in order to work in the construction industry.

[34] Were it not for the circumstances resulting in the Applicant’s termination, Mr Lind said he doubted that she would have remained employed with the Respondent for a long period in any event. He explained this was because of the Applicant’s decision to confront the Client directly (when she did not like the answer to a question asked of her manager) which gave him cause for concern that her attitude was not suited to work with a labour hire employer. Notwithstanding this incident was never raised with the Applicant during her employment, and was not the reason for her dismissal, he subsequently considered that this was “a misconduct”. Mr Lind also said that the Client had described this behaviour as “not cool” and, although this incident was said not to have been a big issue for the Client, Mr Lind considered that Mr Dulai’s correspondence reflected a certain frustration that things were not running the way the Client wanted them to, perhaps the Applicant was not fitting in as the Client hoped.

Findings

[35] As indicated above, there were objections raised to the Applicant’s evidence of discussions with others, yet both parties at times sought to rely on things alleged to have been said by or to persons who were not called to give evidence. I am satisfied that both parties were afforded reasonable opportunity to call any relevant witnesses in support of their respective cases and to respond to the evidence before the Commission. In considering the evidence before the Commission, I have had regard to direct evidence, documentary evidence and the fact of a discussion wherever possible in preference to words attributed to those not called to give evidence where disputed.

[36] I make the following findings of fact having regard to the evidence that is before the Commission. For completeness, any recitations of non-contentious evidence constitute findings I have made.

[37] The Respondent is a contracting entity which supplies labour on hire, relevantly services to the entity earlier defined as the Client including that of Concierge/Security Guard – Front of House and Loading Dock Guard to the Client pursuant to the Service Agreement. 2 I accept that the terms of the Service Agreement apply.

[38] On and from 20 April 2020, the Applicant was appointed to work for the Respondent in the role of Concierge based in the Client’s lobby at 367 Collins Street. The Employment Contract was signed by the Applicant in acceptance of the terms and conditions therein (including those at Appendix A) and I accept that its terms applied. The Applicant had some direct interactions with the Client but it was not disputed and I accept that, by the terms of the Employment Contract and in practice, the Applicant was employed by and reported to the Respondent.

[39] Although neither party contended that the Enterprise Agreement applied to the Applicant’s employment, the Employment Contract expressly provided that its terms were “subject to” the Enterprise Agreement. The uncontested evidence of the duties actually performed by the Applicant is consistent with the services required by the Client in the Concierge/Security Guard – Front of House position per Schedule 2 of the Service Agreement (eg. visitor inductions, report and record security incidents, CCTV monitoring and investigation, manage provision of keys and access passes, enforce non smoking policy) and within the scope of the classifications and the work covered by the Enterprise Agreement. I am satisfied that the Enterprise Agreement applied to the Applicant’s employment.

[40] For completeness, there were no policies, procedures or Employee Handbook filed with the Commission and no suggestion by either party that any such material existed and contained a relevant obligation (noting the Employment Contract purports that a policy does not create legal rights and entitlements and does not form part of the contract in any event).

[41] Although she brought experience and qualifications in security, I accept the Applicant’s evidence that the role of Concierge was new to her, she did not bring any prior concierge experience and that she did not receive any dedicated training beyond the site specific and security components of the role upon commencement or during the course of her employment with the Respondent. It was not contentious that the Applicant continued in employment after the probation period and there was no performance review or negative feedback given to the Applicant about her performance or experience during the course of the employment.

[42] Regardless of any promises made in the pre-employment process, there is no evidence that the Applicant was necessarily supported by the Respondent in order to succeed in the role. For example, she was not given a position description on appointment, there is no evidence of concierge training, counselling or development. However there is also nothing to suggest that the Respondent had any cause for concern in this respect prior to January 2021 when its Client asked it to present other personnel options, or that the Applicant had formally raised or agitated an issue in respect of her request for training.

[43] The evidence is that the Respondent had started advertising the Applicant’s role on 21 January 2021 and interviewing in early February 2021 but was not given formal direction by its Client to replace the Applicant as Concierge at 367 Collins Street until the discussion of 23 February 2021. There was no such formal direction, in writing, until the email from Mr Dulai of 25 February 2021 which was by reason of her “lack of experience of being a concierge” and because attempts to accommodate her into a role suitable for her skill set and salary expectations had reached an “impasse”.

[44] The Applicant was first notified, in writing, that the Respondent could not “keep her” as Concierge at the Client’s request on 3 March 2021. It is difficult to reconcile this as being the first such notification the Applicant received, particularly when regard is had to the SMS in evidence which establishes that the Applicant’s early departure from the workplace on 25 February 2021 (the day after the previous discussion with Mr Khan on 24 February 2021) was because she was stressed and upset due to uncertainty about her job. Also, on the Applicant’s own evidence: a move to the Loading Dock Guard role was countenanced with her as early as December 2020 and at the latest by discussion with Mr Khan on 24 February 2021; there was also a discussion with Mr Khan, informally at her desk and during working hours on 1 March 2021, by which the Applicant admits she understood that the Concierge role was no longer available to her and the only alternative if she wanted to keep her employment was to accept the placement to the Loading Dock Guard role. The Client’s email of 25 February 2021 also refers to prior “back and forth” to accommodate the Applicant into another role. Nonetheless, the email of 3 March 2021 was the first written notice of the Applicant’s definite removal from the Concierge role at the Client’s request, which also included a formal offer of the alternative Loading Dock Guard role, an invitation to respond by 5 March 2021 including to present other ideas and notice that the consequence of not being able to adopt any other options or alternatives would be that the Applicant would be “made redundant”. I accept that the Respondent’s recruitment or search process was commenced before any final decision was made in relation to the continuation of the Applicant’s placement in that role, perhaps in order to first identify and assess any alternative candidates. However, accepting that the Applicant learned of the advertisement and interviews for her role before any notification from the Respondent whatsoever, it is perhaps understandable that the Applicant was uncertain (even left with the mistaken impression she could insist on retaining her role) and as a result experienced some stress and upset in the period prior to 3 March 2021.

[45] The Applicant took the opportunity to respond to the formal notification by the designated time on 5 March 2021. By that written response, she did not challenge that the Client had directed the Respondent to remove her from the Concierge role or that the Respondent was obliged to follow that direction. She did seek to challenge the Client’s rationale for its position but also conveyed her willingness to accept the alternate Loading Dock Guard role on different (more generous) conditions. She did not propose any other ideas or other roles.

[46] The Applicant also availed of the opportunity to respond to her removal from the role of Concierge and proposed termination (subject to any suitable alternative roles with the Respondent being identified) in the meeting of 10 March 2021, with the assistance of her union representative. The evidence of the discussions in this meeting was presented to the Commission in an audio recording, summarised above, and is not contentious.

[47] I am satisfied on the evidence that there are a number of objective reasons why it would be desirable for the Respondent to have placed the Applicant in another role. I accept the oral evidence of Mr Lind that this was the Respondent’s preference and that it conducted at least two searches for other roles to which the Applicant could be deployed, including immediately prior to the final dismissal decision being made (after the conclusion of the 10 March 2021 meeting). Indeed the Respondent identified one vacancy in the Loading Dock Guard role at 367 Collins Street which it accepted was not the same as a concierge role and involved more hours each week, for overall less remuneration when those hours were taken into account, but was at the same work location and suited to the Applicant’s skills and experience. I consider the evidence points to a conclusion that the Respondent identified the Loading Dock Guard role as a suitable and available alternative, had initially obtained approval of the Client (as of its 3 March 2021 email, reiterated with the Applicant again in meeting of 10 March 2021) and focussed its efforts on seeking to persuade her to accept this role. Whilst I do not accept the Respondent’s repeated submission that it had an unfettered discretion to simply place the Applicant in another role at its discretion, on the evidence the Respondent did not seek to do so and instead only sought to vary the Applicant’s role and related conditions (remuneration and hours of work) with her agreement.

[48] The evidence gives rise to a real question as to whether the Applicant would have accepted the Loading Dock Guard role because the Applicant was consistent throughout the process (and continued to maintain, before the Commission in these proceedings) that, although she would ultimately have agreed to accept the Loading Dock Guard role, she believed that the conditions on offer were not suitable. Specifically, she would have accepted the role on the same salary as the Concierge role plus overtime rates for the additional 10 hours per week or on the same salary and same hours. The Applicant expressed in the 10 March 2021 meeting her legitimate reasons for taking this position including her personal and financial circumstances and concerns about not being able to trust the Respondent.

[49] At 3.15pm on 10 March 2021 the Client gave a further written instruction that the Applicant was not approved for the Loading Dock Guard role because, the Client said, it felt that other guards would be more suited given what had transpired over recent weeks. There is no evidence and it is understood that this information was not conveyed to the Applicant prior to the dismissal letter or that the Applicant submitted any final response after the conclusion of the 10 March 2021 meeting and before the dismissal letter was received the following day.

[50] At 1.12pm on 11 March 2021, the Respondent emailed the Applicant the dismissal letter. I accept that the Respondent’s reason for deciding to dismiss the Applicant was because the Client directed her removal from the Concierge role and, absent any other available, suitable alternative roles within the Respondent’s business (including the Loading Dock Guard role which was no longer available to her, on the Client’s further direction), it had no choice than to end the employment. The evidence before the Commission supports a finding that the Client’s only reason for requesting the Respondent to remove the Applicant from the role of Concierge was due to her lack of concierge experience. The Applicant accepts that she brought no prior experience and was not given training in concierge specific duties. As of 25 February 2021 (per the Client’s email), the same Client would have accepted her placement in a suitable alternative role at its same premises at 367 Collins Street. It is not contentious that there were multiple communications over the period 24 February to 10 March 2021 in which the Applicant repeatedly rejected the terms of the Loading Dock Guard role on offer and proposed alternate (more generous) conditions. In light of the frank admission of Mr Lind about his “subsequent” view of misconduct and concern about the suitability of the Applicant’s attitude, I have carefully considered the possibility that the Respondent’s real reason for the dismissal was because the Applicant had confronted the Client directly about the interviews in early February 2021. However, such proposition does not sit well with the evidence of the Concierge role by that time being already advertised (since 21 January 2021), interviews already taking place (prompting the confrontation in the first place), and the Applicant’s evidence that a move to another role was first countenanced with her by an employee of the Client in December 2020. Further the Respondent’s offer to the Applicant of an alternate role with the same Client post-dated that confrontation and the Respondent plainly encouraged her to accept this role. When regard is had to all of the evidence before the Commission and the particular circumstances of the case, there is no foundation for a finding of an alternate reason or other motive for the dismissal nor of any collusion between the Respondent and the Client.

[51] There is a dearth of evidence of what, if any effort, was made by the Respondent to persuade the Client to change its mind and allow the appointment of the Applicant to the Loading Dock Guard role in the event she chose to accept it by close of business on 11 March 2021. Indeed, on all of the evidence before the Commission, I consider it more likely that the Respondent sought to comply with rather than challenge the Client in its preferences. However, the Client’s further direction was issued after the conclusion of the 10 March 2021 meeting when the Loading Dock Guard role had been discussed. I accept that the tenor of those discussions caused Mr Lind to legitimately anticipate that the Applicant was not going to accept that role on the terms on offer. Both the meeting recording and the inadvertent filing of the draft dismissal letter (as undesirable as that may have been) are supportive of such conclusion.

[52] The dismissal was notified and took effect on 11 March 2021. Accordingly, the Applicant’s length of service was less than one year of continuous service. The evidence of payment of entitlements is summarised above and was not contentious.

[53] The Respondent continued to supply an employee in the Concierge role after the Applicant’s last shift on 5 March 2021 but a “permanent” replacement did not commence in the role for around a week following the Applicant’s dismissal on 11 March 2021.

[54] I accept the Applicant’s evidence of the personal impact of the dismissal, including adverse economic consequences and the related stress and upset that she experienced. In the absence of any medical evidence or other evidence demonstrating incapacity, I make no finding that the Applicant was unable to search for other employment in the four weeks following her dismissal. In the absence of any action being taken to address the matter with the Applicant, and given that the Respondent still proceeded to offer her a placement in a different role with the same Client, I decline to make any adverse finding as to the Applicant’s potential longevity of employment on account of her confrontation of the Client.

PART B

Initial matters to be considered

[55] Section 396 of the Act sets out four matters which I am required to determine before I consider the merits of the application.

[56] There is no dispute between the parties and I am satisfied on the evidence that:

(a) The application was made within the 21 day period after the dismissal took effect, as required by s.394(2) of the Act (s.396(a) of the Act);

(b) The Applicant is a person protected from unfair dismissal, as she had completed the minimum employment period and further, at the time of her dismissal, her annual rate of earnings was less than the high income threshold (s.396(b) of the Act);

(c) As to whether this matter involves a dismissal that was consistent with the Small Business Fair Dismissal Code (s.396(c) of the Act), it was not in dispute and I find that the Respondent is not a small business employer within the meaning of s.23 of the Act, having fifteen or more employees at the relevant time. As such, I am satisfied that the Small Business Fair Dismissal Code does not apply.

[57] The fourth matter to determine before dealing with the merits of any unfair dismissal remedy application is whether the dismissal was a case of genuine redundancy (s.396(d)). As the Respondent submits that the Applicant’s dismissal was a case of genuine redundancy, it is necessary to consider this objection as to jurisdiction.

Was the Applicant’s dismissal a case of “genuine redundancy”?

The respective contentions

[58] The Respondent contended that this was a case of genuine redundancy because, in summary: the Client instructed the Respondent to remove the Applicant from the role of Concierge; the Respondent made an effort to consult with the Applicant and offered to redeploy the Applicant to another role at the same site; the Applicant did not accept the redeployment; ultimately the Client instructed that the Applicant not be assigned to the alternate role at their site; the Respondent did not have any other suitable work available; and, therefore, the Applicant’s job with the Respondent was redundant. The Respondent argued that the job and the role are “not the same thing”. It said that the Employment Contract makes clear that the Applicant’s job was with the Respondent, which employs people with the option to place or assign them within the person’s skill set, at the Respondent’s absolute discretion; whereas the role of Concierge was with the Client, being the services which the Respondent is contracted to supply in accordance with the terms of such contract. It was also contended on behalf of the Respondent that it can and must comply with a Client request to change personnel “as and when such requests are made”. Regarding the subsequently produced Services Agreement, the Respondent accepted that it does not detail a “right to veto” but plainly empowers the Client.

[59] The Respondent submitted that, the Client having determined that it was not working out with the Applicant and directing the Respondent to change personnel assigned to the contracted roles, its operational requirements changed. The Respondent sought to rely on the discussions of 24 February 2021 and 1 March 2021, the email of 3 March 2021 and the final meeting of 10 March 2021 in support of its submission that it discharged its obligations in circumstances of a genuine redundancy. It further said that the Applicant was given “at least two clear weeks” to consider the Loading Dock Guard role and it was only because she did not take it when it was offered, coupled with no other vacancies, that she could not be redeployed and her role was redundant.

[60] For her part, the Applicant contended that her role of Concierge was still required and therefore this was not a case of genuine redundancy. In light of the documentary evidence, the Applicant accepted that the Client had in fact requested her removal from the Concierge role but strongly argued that the reason for her removal was unfair and untrue for reasons which are detailed later in this decision. She also contended that the Loading Dock Guard role was not a suitable alternative role given its different status, longer hours of work and overall lower remuneration.

Statutory context

[61] Section 389 of the Act defines “genuine redundancy” as follows:

(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.

[62] It is well established that the Commission’s consideration of whether the employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the enterprise does not involve a merits review of the employer’s decision. That is, whether it was objectively fair or justifiable to decide to abolish a position is of no consequence, as long as the employer acted as it did because of changes in its operational requirements. 3 This assessment requires findings of fact to be made as to whether the employer has made the decision that the relevant employee’s job is no longer required to be performed by anyone and then whether that decision was made because of changes in the operational requirements of the enterprise.

[63] The question of whether the person’s job is still required to be performed by anyone often arises in cases involving the elimination of a role and redistribution of tasks previously performed by that role. In that context, Full Benches of this Commission have endorsed the proposition that it does not matter if discrete duties or tasks survive the operational change or restructure and continue to be performed. The question to be determined, in actuality, is whether the former position itself survives. 4 It may be noted that the reference in the statutory expression is to a person’s “job” no longer being required to be performed and a job involves “a collection of functions, duties and responsibilities entrusted, as part of the scheme of the employees’ organisation, to a particular employee”.5

[64] The Act does not define the term “operational requirements”. The Explanatory Memorandum gives some examples: where 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. 6 A Full Bench has also considered that operational changes are changes that give effect to a change in the operational focus of a position to the benefit or advantage of the employer, for example to improve efficiency.7

[65] If the real reason for the decision did not genuinely relate to any change in operational requirements then it will not be possible to make the second finding of fact. Conversely, once these findings of fact are made, the element of the genuine redundancy criteria at s.389(1)(a) is satisfied and no further inquiry is necessary. 8

Consideration

[66] Having regard to the above findings, the Service Agreement applies. It terms include a contractual obligation on the Respondent to comply with all directions of the Client in executing, performing and supplying those services. 9 There is also a specific requirement for the Respondent to comply with the requirements of the Client relating to the employment or engagement of individuals.10

[67] I am satisfied that the Respondent was instructed by its Client to remove the Applicant from the full time role of Concierge, that the Client had an ongoing requirement for the full time role of Concierge and the Respondent remained contracted to supply that role as part of the agreed services set out at Schedule 2 of the Service Agreement. Indeed, after the Applicant’s last day working in the role at 367 Collins Street the Respondent continued to supply an employee to perform the role of Concierge on a full time basis at 367 Collins Street. There is no evidence of any change to the structure of the services supplied by the Respondent or the operational drivers of the Respondent’s organisation relevant to its ongoing supply of the role of Concierge at 367 Collins Street. The only evidence of any change was to the individual person appointed by the Respondent to supply those services, at the Client’s discretion and direction in accordance with the Service Agreement.

[68] On the approach outlined by the Full Bench in Christina Adams v Blamey Community Group, 11 I am not persuaded that the Respondent made the decision that the Applicant’s job of a full time Concierge at 367 Collins Street was no longer required to be performed by anyone. I am also not persuaded that the decision was made because of changes in the operational requirements of the Respondent.

[69] Accordingly, the requirement at s.389(1)(a) of the Act has not been satisfied in this case and it must be concluded that the Applicant’s dismissal was not a case of “genuine redundancy”. Having so concluded, it is then necessary for me to consider whether the Applicant was unfairly dismissed.

PART C

Was the Applicant unfairly dismissed?

[70] A dismissal is unfair if the Commission is satisfied that all of the circumstances set out at s.385 of the Act existed. Section 385 provides:

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

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

[71] On the basis of the material and evidence before the Commission, I am satisfied that the Applicant was dismissed (s.385(a)) and, as outlined above, that the Small Business Fair Dismissal Code does not apply (s.385(c)) and this was not a case of genuine redundancy (s.385(d)).

Was the Applicant’s dismissal harsh, unjust or unreasonable?

[72] It falls for the Commission to determine whether the dismissal was harsh, unjust or unreasonable (s.385(d)). In doing so, I must take into account the matters at s.387 of the Act:

387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.

Was there a valid reason for dismissal relating to the Applicant’s capacity or conduct? (s.387(a))

[73] To be a valid reason for dismissal the reason must be “… sound, defensible or well-founded.” A reason which is “… capricious, fanciful, spiteful or prejudiced …” cannot be a valid reason. 12 The reason for termination must be defensible or justifiable on an objective analysis of the relevant facts.13 The valid reason for termination is not to be judged by legal entitlement to terminate an employee, “… but [by] the existence of a reason for the exercise of that right” related to the facts of the matter.14

[74] A direction of a client to a labour hire company to remove a labour hire employee from a site has been considered in this context to be a matter that goes to the employee’s capacity to work and therefore requires consideration, to determine whether it was a valid reason for the termination of the employee’s employment, pursuant to s.387(a). 15 In Pettifer v MODEC, the Full Bench was satisfied that the terms of the commercial contract between the employer and the client were such that the labour hire company was contractually obliged to remove its employee from the client’s site, if instructed to do so. There was evidence of such instruction in that case.

[75] In light of the documentary evidence, the Applicant accepted that the Client had in fact requested her removal from the Concierge role but strongly argued that the reason for her removal was unfair and untrue because by referencing her experience it appeared to relate to concerns with her performance and she had received no adverse feedback on her performance from the Client or the Respondent at any time during the course of her employment.

[76] The Respondent did not argue that there was a valid reason, but did contend that the Client’s request was the only reason for the Applicant’s removal from the Concierge role. It said that the Applicant’s experience was the only issue expressed by the Client and denied that the reason for the Applicant’s removal from the role was performance related.

[77] Having regard to the earlier findings made, I consider the evidence to establish that, when the Client’s approval for the Applicant to perform the role of Concierge at 367 Collins Street was withdrawn, the Respondent had a valid reason to terminate the Applicant’s employment related to her capacity and it only exercised this reason because it was unable to find suitable alternative employment for her. I have also considered and found that there is no alternate reason or foundation on which to conclude any collusion between the Respondent and the Client in this matter. This of course does not relieve the Respondent of the obligation to comply with its obligations, noting it is also contractually obliged by the terms of the Service Agreement to comply with all laws – considered further in the following paragraphs. 16

[78] Even if this conclusion regarding the Applicant’s capacity were incorrect, I am satisfied that the Client’s withdrawal of approval for the Applicant to perform the role of Concierge and its refusal to approve her to perform the role of Loading Dock Guard at 367 Collins Street are matters relevant to the consideration at s.387(h) and are addressed further below.

Was the Applicant notified of “that reason” and given an opportunity to respond to any reason related to capacity or conduct? (s.387(b) and (c))

[79] In considering whether a dismissal was harsh, unjust or unreasonable, the Commission must take into account whether an employee has been notified of the valid reason for the dismissal (s.387(b)) and whether the person was afforded an opportunity to respond to any reason related to their capacity or conduct (s.387(c)).

[80] To tell against a conclusion that a dismissal was unfair, notification of the reason for dismissal should occur before the decision to dismiss is made, 17 and be made in explicit, plain and clear terms.18 The question of whether an employee had opportunity to respond to reasons relating to conduct or performance should be understood in a common sense way; the focus is on whether the employee is treated fairly rather than on any formality.19

[81] With regard to my findings above, the Applicant was notified of the reason for her termination in writing by termination letter of 11 March 2021. She was also aware of the reason for termination of her employment by the email of 3 March 2021.

[82] The email of 3 March 2021 elicited a response to the proposed termination of the Applicant’s employment (if another suitable alternative role could not be identified) and the Applicant was also afforded an opportunity to respond and provided a response prior to her termination in the meeting of 10 March 2021.

[83] That the Applicant might have been notified sooner, and the Client’s intervening decision regarding the alternate placement before the Applicant could finally respond to the offer, are matters I consider as relevant to s.387(h).

Was there any unreasonable refusal by the Respondent to allow a support person to assist in any discussions related to the dismissal? (s.387(d))

[84] On the evidence before the Commission, there was no unreasonable refusal by the Respondent to allow a support person at the formal meeting relating to the Applicant’s dismissal on 10 March 2021.

If the dismissal related to unsatisfactory performance, was the Applicant warned of the unsatisfactory performance before the dismissal? (s.387(e))

[85] Having regard to my findings above, as I am satisfied that the Respondent had not formed the view that the Applicant was performing in an unsatisfactory manner, the question of warnings about performance does not arise.

The degree to which the size of the Respondent’s enterprise, and the absence of dedicated human resources management specialists or expertise in the enterprise, would be likely to impact on the procedures followed in effecting the dismissal? (ss.387(f) and (g))

[86] I do not consider the size of the Respondent to have been a relevant factor in this case (s.387(f)) and, acknowledging Mr Lind’s role as General Manager – Human Resources, I do not understand it to have been submitted that there was an absence of dedicated human resources management specialist or expertise (s.387(g)).

Other relevant matters (s.387(h))

[87] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission is to take into account any other matters it considers relevant. It is well established that a dismissal may be harsh, unjust or unreasonable despite the existence of a valid reason for dismissal. There are a number of “other matters” which are relevant to my determination as to whether the Applicant’s dismissal was harsh, unjust or unreasonable. Each are dealt with in turn below.

[88] I have found that there was a valid reason for the Applicant’s dismissal cast in the Client’s direction that the Respondent must remove the Applicant from the role of Concierge which it only enacted because it was unable to find a suitable alternative role within the Respondent’s business. However, in the particular circumstances of this case, there remains a question as to whether the Respondent afforded all procedural fairness to the employee.

[89] In the context of an employer that supplies labour to clients, the commercial reality is typically such that the employer has little control over the client’s directions to remove labour from a site or a role. The employer should not be held responsible and liable for the actions of a third party which are beyond its control and nor can an employer override the right of a third party to control access to its site. 20 However, this is not a basis for an employer in the business of supplying labour to ignore its own obligations for treating employees fairly when removed from a role or a site.

[90] It is relevant to consider whether the Respondent has followed its own procedures in dismissing an employee. 21 Having earlier identified that the Employment Contract is applicable, I observe that it includes terms and conditions confirming the parties’ agreement that the work location was not fixed and that the Applicant may be placed in roles of varying level of responsibility and position. The Respondent insisted it had maximum discretion to change the Applicant’s placement. Nonetheless, I am satisfied on the evidence that the Respondent properly made the offer of the Loading Dock Guard role conditional upon acceptance by the Applicant of the other changes to her terms (namely, different albeit overall higher remuneration and increased hours of work) which is consistent with the terms and conditions of the Employment Contract and in particular clauses 3.3 and 19.2 thereof. There was also no dispute and I am satisfied that the contractual requirement to provide one weeks’ notice of termination (which was paid in lieu, in accordance with clauses 33.1 and 33.2 and Appendix A) plus accrued but unused annual leave (in accordance with the NES and clause 33.5) was also met. Even if the Enterprise Agreement applied to the Applicant’s employment, I do not discern any failure to comply with its terms having regard to my finding that this was not a case of genuine redundancy within the meaning of the Act. There is no other procedure before me or suggestion of another procedure that was not followed.

[91] The reason for dismissal I have found to be related to the Applicant’s capacity to perform the Concierge role, as distinct from her conduct or performance, and in the circumstances of this case I consider there was no obligation on the Respondent to conduct an investigation to validate the Client’s direction to remove her from the Concierge role nor could the Respondent have forced the Applicant upon the Client (whether in the Concierge role or the alternate role). However, there are two aspects of the Respondent’s procedure which were, in my view, lacking in fairness and unreasonable.

[92] The first relates to the timing of the Applicant’s notification of definite removal from the Concierge role. I have accepted that the Respondent commenced advertising and interviewing for the Applicant’s role prior to the Client formally directing her removal from it, and it is possible to discern objective and operational reasons for this. However the Respondent was undeniably aware that the Client was not satisfied with the Applicant and that the consequence of this process was that the Applicant would likely be removed from the Concierge role (on the evidence, it knew for at least four to five weeks prior to Mr Khan raising the alternate role informally with the Applicant on 24 February 2021). That the Respondent did not clearly notify the Applicant sooner, together with its conduct in publicly advertising and interviewing for her role without explaining what this meant for her employment, was unreasonable in my view.

[93] The second relates to the process regarding the identified suitable alternate role which was withdrawn before it could be finally rejected (or accepted, as the case may have been). This further Client direction followed around two weeks of discussion between the Respondent and the Applicant in which the Respondent sought to persuade her acceptance of, and on each occasion the Applicant rejected, the terms and conditions on offer. I have accepted that the Respondent was motivated to place the Applicant in the Loading Dock Guard role and the Client had approved her appointment to this role at an earlier stage in the process. I have also found there to be a real question as to whether the Applicant would have accepted the Loading Dock Guard role on the terms offered by the agreed time of 5pm on 11 March 2021. Nonetheless, in my view, the Respondent’s process was unreasonable because the final meeting of 10 March 2021 proceeded on the basis of, and the Applicant was left to consider, an alternate position which was not ultimately available to her. Then, when it received the notification the Respondent did not seek to persuade the Client to change its position (which was at least conceivably possible given it had previously not objected to her appointment). Finally, the Applicant was given the expectation that she had until 5pm on 11 March 2021 to confirm her response but was given a dismissal letter before that time had passed.

[94] For completeness, I note that there was no express obligation on the Respondent to conduct a performance review given the employment extended for less than twelve months. Also, whilst I do not consider the Applicant was necessarily supported to succeed in the Concierge role, there is no basis to conclude that the dismissal was harsh, unjust or unreasonable in this respect.

[95] In considering these other factors under s.387(h), I have had regard to the nature of the Respondent’s business and my earlier findings that, by the terms of its commercial contract with the Client, it must comply with Client directions regarding the employment and engagement of Respondent employees. I am satisfied that the commercial reality of the relationship between the Respondent and its Client is such that it is unlikely that any additional steps taken by the Respondent could have changed the outcome. Nonetheless, in my view, the Respondent’s process has fallen short of what was required and I am satisfied that the process and the lack of transparency in communication with the Applicant was unreasonable in all of the circumstances.

Conclusion

[96] I have made findings in relation to each matter specified in s.387 as relevant.

[97] I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable. 22

[98] Having considered each of the matters specified in section 387 of the Act, my evaluative judgment is that the Respondent’s dismissal of the Applicant on 11 March 2021 was unreasonable. I have concluded that there was no genuine redundancy. And, although the Respondent had a valid reason for its decision to dismiss the Applicant, the procedural deficiencies associated with the procedure followed leading up to the dismissal gave rise to unfairness for the Applicant.

[99] I am therefore satisfied that the Applicant was unfairly dismissed within the meaning of s.385 of the Act.

PART D

Remedy

[100] Having found that the Applicant was protected from unfair dismissal, and that her dismissal was harsh, unjust or unreasonable, it is necessary to consider what, if any, remedy should be granted to her. The Applicant asked the Commission to find that the remedy of reinstatement is inappropriate, and I am satisfied that it would be inappropriate to reinstate the Applicant in the particular circumstances of this case including with regard to the reason for the Applicant’s dismissal, the nature of the Respondent’s business and my assessment of the deterioration of the relationship between the Applicant and the Respondent. As a result, I need to consider whether compensation is appropriate.

[101] Section 390(3)(b) of the Act provides that the Commission may only issue an order for compensation if it is appropriate in all of the circumstances. A compensation remedy is designed to compensate an unfairly dismissed employee in lieu of reinstatement for losses reasonably attributable to the unfair dismissal within the bounds of the statutory cap on compensation that is to be applied. 23

[102] Having regard to all of the circumstances of the case, including the fact that the Applicant has suffered financial loss as a result of her unfair dismissal, I consider that an order for payment of compensation to her is appropriate.

[103] It is necessary therefore for me to assess the amount of compensation that should be ordered to be paid to the Applicant. In assessing compensation, I am required by s.392(2) of the Act to take into account all the circumstances of the case including the specific matters identified in paragraphs (a) to (g) of this subsection.

[104] In undertaking this task, I shall use the established methodology for assessing compensation in unfair dismissal cases which was set out in Sprigg v Paul Licensed Festival Supermarket and applied and elaborated upon in the context of the current Act by Full Benches of the Commission in a number of cases. 24 The approach to calculating compensation in accordance with these authorities is as follows:

Step 1: Estimate the remuneration the employee would have received, or have been likely to have received, if the employer had not terminated the employment (remuneration lost).

Step 2: Deduct monies earned since termination.

Step 3: Discount the remaining amount for contingencies.

Step 4: Calculate the impact of taxation to ensure that the employee receives the actual amount he or she would have received if they had continued in their employment.

Step 5: Apply the legislative cap on compensation.

Remuneration the Applicant would have received, or would have been likely to receive, if she had not been dismissed (s.392(2)(c))

[105] Like all calculations of damages or compensation, there is an element of speculation in determining an employee’s anticipated period of employment because the task involves an assessment of what would have been likely to happen in the future had the employee not been dismissed.

[106] On the unchallenged evidence including of the Applicant’s personal circumstances, age and also of her unblemished tenure with the Respondent, I accept that the Applicant intended to remain working for the Respondent for at least another few years. All other things being equal, there is nothing before the Commission to suggest that the Respondent would not have continued to employ the Applicant for at least another few years.

[107] However all other things were not equal. As earlier considered, the Applicant was dismissed due to the withdrawal of her capacity to perform the role of Concierge at the Client’s site and the absence of any suitable alternative roles within the Respondent’s business (including that of the Loading Dock Guard role which was not ultimately available to her).

[108] The Respondent’s process was mostly sound. Had the Respondent’s process not been infected by the deficiencies identified above, I consider it unlikely that the outcome would have differed and the Applicant’s employment would have continued for only a short period. A “permanent” placement (employed by the Respondent) did not commence in the role of Concierge for the Client until on or about 22 March 2021.

[109] In all the circumstances, I find that the Applicant would have remained in employment with the Respondent until and inclusive of 19 March 2021, but for the termination of her employment on 11 March 2021.

[110] In calculating the remuneration the Applicant would have earned had she not been dismissed, it is necessary to identify what her rate of payment would have been. The pay slip in evidence establishes that the Applicant’s hourly rate was $33.25 per hour for 40 hours per week as a full time employee with the Respondent.

[111] The Applicant would therefore have received $1,596 gross in remuneration had she not been dismissed on 11 March 2021 ($33.25 per hour x 8 hours per day x 6 days).

Remuneration earned (s.392(2)(e)) and income reasonably likely to be earned (s.392(2)(f))

[112] At the time of the determinative conference (9 June 2021), the Applicant had earned no alternative remuneration since her employment came to an end. I am satisfied that her searches for other work had been successful and she was due to commence new employment the following day. However there is no need to look at any income the Applicant might reasonably be likely to earn after the determinative conference on 9 June 2021, because that is beyond the period of anticipated employment (the period up to and inclusive of 19 March 2021).

Viability (s.392(2)(a))

[113] It was not contended and there is no evidence that any particular amount of compensation would affect the viability of the Respondent’s business.

Length of service (s.392(2)(b))

[114] The Applicant’s period of service is not a circumstance that warrants any diminution of the amount of compensation that might otherwise be determined as justified.

Mitigation efforts (s.392(2)(d))

[115] The evidence was that the Applicant has searched for, and after a period of thirteen weeks been successful in obtaining, alternative employment following her dismissal on 11 March 2021.

[116] In all of the circumstances, I do not consider it appropriate to reduce the compensation on this account.

Any other relevant matter (s.392(2)(g))

[117] It is necessary to consider whether to discount the remaining amount for “contingencies”. This step is a means of taking into account the possibility that the occurrence of contingencies to which the Applicant was subject might have brought about some change in earning capacity or earnings. 25 Positive considerations which might have resulted in advancement and increased earnings are also taken into account. The adjustment for contingencies should only be applied in respect to an “anticipated period of employment” that is not actually known, that is a period that is prospective to the date of the decision. Because I am looking in this matter at an anticipated period of employment which has already passed (up to and inclusive of 19 March 2021), there is no uncertainty about the Applicant’s earnings, capacity or any other matters during that period of time.

[118] For the reasons stated, I have found, on the balance of probabilities, that if the Applicant had not been unfairly dismissed on 11 March 2021, she would have remained in employment with the Respondent until the commencement of the permanent placement to the Concierge role. She was entitled to receive one weeks’ notice under the Employment Contract (per the prevailing notice period in Appendix A and the NES). However she was paid two weeks’ notice in lieu (which she was not required to work, but would have been owed had this been a case of genuine redundancy, as the Respondent contended, and having regard to my finding above that the Enterprise Agreement applied). The Applicant was also required to take a day of annual leave whilst she gave final consideration to the alternate role. In all of the circumstances I have decided that it is not appropriate to discount or increase the figure of $1,596 gross plus superannuation for contingencies.

[119] I also consider it appropriate to apply superannuation that would have been payable on these earnings at the then applicable rate pursuant to the Superannuation Guarantee (Administration) Act 1992 (Cth). This amount represents the gross sum the Applicant would likely have received (less tax) had she not been dismissed unfairly. This calculation is intended to put the Applicant in the position she would have been in but for his unfair dismissal on 11 March 2021. 26

[120] Save for the matters referred to in this decision, there are no other matters which I consider relevant to the task of determining an amount for the purposes of an order under s.392(1) of the Act.

[121] I have considered the impact of taxation, but I prefer to determine compensation as a gross amount and leave taxation for determination.

Misconduct (s.392(3))

[122] The Applicant did not commit any misconduct, so this has no relevance to the assessment of compensation.

Shock, distress or humiliation, or other analogous hurt (s.392(4))

[123] I note that in accordance with s.392(4) of the Act, the amount of compensation calculated does not include a component for shock, humiliation or distress.

Compensation cap (s.392(5)-(6))

[124] The amount of $1,596 gross plus applicable superannuation is less than half the amount of the high income threshold immediately before the dismissal. It is also less than the total amount of remuneration to which the Applicant was entitled in his employment with the Respondent during the 26 weeks immediately before her dismissal. In those circumstances, I am satisfied that there is no basis to reduce the amount of $1,596 gross plus applicable superannuation by reason of s.392(5) of the Act.

Instalments (s.393)

[125] No application was made by the Respondent for any amount of compensation awarded to be paid in the form of instalments.

Conclusion on compensation

[126] In my view, the application of the Sprigg formula does not, in this case, yield an amount that is clearly excessive or clearly inadequate. Accordingly, there is no basis for me to reassess the assumptions made in reaching the amount of $1,596 gross plus applicable superannuation. 27

[127] For the reasons I have given, I am satisfied that a remedy of compensation in the sum of $1,596 gross plus applicable superannuation (less taxation as required by law) in favour of the Applicant is appropriate in the circumstances of this case. I will issue an order [PR733337] to that effect.

DEPUTY PRESIDENT

Appearances:

S Meizhensuowa on her own behalf with F Panayides.
G Lind of the Respondent.

Hearing details:

2021.
Melbourne (by Video).
9 June.

Final written submissions:

Respondent, 3 August 2021.
Applicant, 5 August 2021.

Printed by authority of the Commonwealth Government Printer

1 Produced by direction of the Commission, subject to a Confidentiality Order issued on 3 August 2021.

2 Clause 3, definition of “Services” at clause 1 and item 1 of Schedule 2 of the Services Agreement.

3 Low v Menzies Property Services Pty Ltd[2014] FWC 7829 at [16].

4 Ulan Coal Mines Limited v Howarth and Others [2010] FWAFB 3488; Mackay Taxi Holdings Ltd T/A Mackay Whitsunday Taxis v Ms Kaye Wilson[2014] FWCFB 1043.

5 Jones v Department of Energy and Minerals (1995) 60 IR 304 at p. 308.

6 Explanatory Memorandum to the Fair Work Bill 2008 at 1548.

7 Mackay Taxi Holdings Ltd T/A Mackay Whitsunday Taxis v Ms Kaye Wilson [2014] FWCFB 1043 at [36].

8 Christina Adams v Blamey Community Group [2016] FWCFB 7202; see also Mark Anderson v Programmed Industrial Maintenance Pty Ltd [2021] FWC 4048.

9 Clause 3(b) of the Services Agreement.

10 Clause 6(a) of the Services Agreement.

11 [2016] FWCFB 7202.

12 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371.

13 Robe v Burwood Mitsubishi [Print R4471].

14 Miller v UNSW [2003] FCAFC 180 per Gray J at [13].

15 Donald Pettifer v MODEC Management Services Pty Ltd[2016] FWCFB 5243, subsequently adopted in Mark Anderson v Programmed Industrial Maintenance Pty Ltd[2021] FWC 4048.

16 Clause 6 of the Service Agreement.

17 Chubb Security Australia Pty Ltd v Thomas, Print S2679 at [41].

18 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 at 151 [73].

19 RMIT v Asher (2010) 194 IR 1 at 14-15.

20 Mark Anderson v Programmed Industry Maintenance Pty Ltd [2021] FWC 4048 at [71].

21 Tara Odgers v Central Queensland Services Pty Ltd [2019] FWC 7150.

22 ALH Group Pty Ltd trading as the Royal Exchange Hotel v Mulhall, (2002) 117 IR 357 at [51].

23 Kable v Bozelle [2015] FWCFB 3512 at [17].

24 (1998) 88 IR 21.

25 Ellawala v Australian Postal Corporation Print S5109 at [36].

26 Bowden v Ottrey Homes Cobram[2013] FWCFB 431at [24], citing Ellawala v Australian Postal Corporation Print S5109 at [35].

27 Smith v Moore Paragon Australia Ltd (2004) 130 IR 446 at [32].

Svetlana Meizhensuowa v Ma Services Group

[2021] FWC 5365

31 AUGUST 2021

DECISION