Tracey Williams v Aurora Healthcare
[2023] FWC 3030
•6 DECEMBER 2023
| [2023] FWC 3030 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Tracey Williams
v
Aurora Healthcare
(U2023/7107)
| DEPUTY PRESIDENT LAKE | BRISBANE, 6 DECEMBER 2023 |
Application for an unfair dismissal remedy – jurisdictional objection raised – genuine redundancy – jurisdictional objection upheld – application dismissed.
Ms Tracey Williams (the Applicant) has made an application seeking a remedy for unfair dismissal from Aurora Healthcare (the Respondent) under s.394 of the Fair Work Act 2009 (the Act). The application was made on 2 August 2023.
The Applicant began her employment with the Respondent on 6 July 2021 as a Finance Manager and was made redundant on 28 July 2023. The Applicant states it was not a genuine redundancy as she was asked to train another employee who would be assuming her role.
The Respondent raised a jurisdictional objection that there was genuine redundancy. I issued Directions for filing of material and listed the matter for Hearing.
The Hearing was held on 2 November 2023 via Microsoft Teams.
I have considered all the evidence and submissions in determining whether the dismissal can be classified as a genuine redundancy within the meaning of the Act. I am satisfied that the Applicant’s dismissal had arisen from genuine redundancy and is not eligible to make a claim for unfair dismissal.
Legislation
Section 390(1) of the Act sets out the circumstances in which the Commission may grant a remedy by way of reinstatement or compensation for unfair dismissal. It provides:
“390 When the FWC may order remedy for unfair dismissal
(1)Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if:
(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and
(b) the person has been unfairly dismissed (see Division 3).”
Section 396 of the Act sets out a number of matters which the Commission must consider before turning to the merits of an unfair dismissal application. It provides:
“396 Initial matters to be considered before merits
The FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:
1.whether the application was made within the period required in subsection 394(2);
2.whether the person was protected from unfair dismissal;
3.whether the dismissal was consistent with the Small Business Fair Dismissal Code;
4.whether the dismissal was a case of genuine redundancy.”
As is made clear from the above provisions of the Act, I must determine whether the termination of the Applicant was a genuine redundancy before considering the merits of the application.
Section 389 of the Act defines genuine redundancy for the purposes of s.396 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.”
Consideration
Section 396(d) of the Act requires consideration of genuine redundancy. I consider the criteria under s.389 of the Act.
1. Did the Applicant’s employer no longer require the Applicant’s job to be performed by anyone because of operational requirements of the employer’s enterprise?
Where there is no longer any function or duty to be performed by an employee, his or her position becomes redundant even where aspects of that employee’s duties are still being performed by other employees.[1]
Hamberger SDP considered the issues arising from restructuring or downsizing when dealing with genuine redundancy in Kekeris v A. Hartrodt Australia Pty Ltd T/A a.hartrodt.[2] The test is whether the previous job has survived the restructure or downsizing, rather than a question as to whether the duties have survived in some form.
In Ulan Coal Mines Limited v Howarth and others [2010] FWAFB 3488, the Full Bench considered and applied the decision of Ryan J in Jones v Department of Energy and Minerals (1995) 60 IR 304 stating:
“[17] It is noted that the reference in the statutory expression is to a person’s “job” no longer being required to be performed. As Ryan J observed in Jones v Department of Energy and Minerals (1995) 60 IR 304 a job involves “a collection of functions, duties and responsibilities entrusted, as part of the scheme of the employees’ organisation, to a particular employee” (at p. 308). His Honour in that case considered a set of circumstances where an employer might rearrange the organisational structure by breaking up the collection of functions, duties and responsibilities attached to a single position and distributing them among the holders of other positions, including newly-created positions. In these circumstances, it was said that:
‘What is critical for the purpose of identifying a redundancy is whether the holder of the former position has, after the re-organisation, any duties left to discharge. If there is no longer any function or duty to be performed by that person, his or her position becomes redundant…’ (at p.308)”
This does not mean that if any aspect of the employee’s duties is still to be performed by somebody, he or she cannot be redundant (see Dibb v Commissioner of Taxation (2004) FCR 388 at 404-405). The examples given in the Explanatory Memorandum illustrate circumstances where tasks and duties of a particular employee continue to be performed by other employees but nevertheless the “job” of that employee no longer exists.
‘Operational requirements’ is a broad term which encompasses present performance of the business, the state of the market in which the business operates, steps to improve efficiency by installing new processes/equipment/skills, by arranging labour to be used more productively or the application of good management to the business.
The Applicant was employed as the Finance Manager for Eden Private Hospital and Mackay Private Hospital.
The Respondent submitted that it underwent an operational restructure in May 2023 in response to ‘economic pressures and rising costs’ following the COVID-19 pandemic. It was identified that two Finance Manager positions needed to be merged into a consolidated regional position.
Following the restructure, a consolidated Regional Finance Manager position was created with responsibility for the Eden Private Hospital, Mackay Private Hospital and Townsville Private Hospital. The Respondent submitted that as a result, it no longer neither the Applicant’s not Mr Guha’s position to be performed by anyone, notwithstanding that the duties of each position were still required to be performed.
The Respondent confirms that there was a standardised assessment against objective criteria in a selection matrix (Selection Process) that was undertaken for other employees whose positions were also identified for redundancy through the redundancy program. The selection process included an assessment and rating of each impacted employee against standardised criteria of skills, performance, demonstration of values, potential to develop and progress with Aurora (Selection Matrix Criteria), together with the requirements of the position and their qualifications.
As a result of the assessment and rating of the Applicant and Mr Guha against the Selection Matrix Criteria and the requirements of the new Regional Finance Manager position, the Respondent determined that Mr Guha was more suitable comparison to the Applicant because his skills and capabilities were to the requisite standard.
It was identified that Mr Guha was currently managing the Townsville Hospital to a higher standard and had multiple qualifications including a Bachelors and Masters degree in Commerce. Mr Guha had also expressed a willingness to manage more hospitals compared to the Applicant who was managing two hospitals, but wanted to only manage one hospital which was inconsistent with the Respondent’s operational requirements of needing a regional position with increased responsibilities.
The Applicant submitted that Mr Guha required training in her former position demonstrated that the position was not genuinely redundant stating that Mr Guha required access to many of her files and other resources she used to carry out her role, and that on one occasion following her dismissal, Mr Guha asked for her assistance with a particular task.
As outlined, the relevant test is not whether the duties continue to be performed following the operational restructure, but whether the job continues to be performed. It would be reasonable for Mr Guha to ask the Applicant her duties as they are now required to be performed by him alone.
The Respondent provided clear and unambiguous evidence that the Respondent had conducted a broad and thorough review to identify costs savings and that as a result of the review, 24 positions were deemed to be redundant. The Applicants role and that of the successful candidate were redundant roles. The Respondent determined that one new role would be created at a more senior level to replace the previous two roles and both the Applicant and Mr Guha were considered for the new larger more senior role.
I find that the Respondent no longer required the Applicant’s job to be performed because of operational requirements even though some of her duties existed in some form in the senior role. This supports a finding of genuine redundancy.
Did the Respondent comply with any obligations in a modern award or enterprise agreement that applied to the employment to consult about redundancy?
The obligation on an employer to consult about redundancy only arises when a modern award or enterprise agreement applies to an employee and that modern award or enterprise agreement contains requirements to consult about redundancy. There is no legislative requirement to consult about the redundancy before a decision is made to make an employee redundant.
There is no applicable enterprise agreement or modern award in this matter. The Applicant was consulted regarding her position becoming redundant and there were no redeployment opportunities available under an applicable Award which would require the Respondent to offer her a different position within the Company.
Was it 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?
In Helensburgh Coal Pty Ltd v Bartley[2021] FWCFB 2871 at [8], the Full Bench reaffirmed the rules of redeployment set out by Vice President Hatcher in Pettet and Ors v Mt Arthur Coal Pty Ltd[2015] FWC 2851 at [6] in relation to s.389(2) of the FW Act as follows:
“The principles concerning the interpretation and application of s.389(2) have been stated in two Full Bench decisions, Ulan Coal Mines Ltd v Honeysett and Technical and Further Education Commission t/a TAFE NSW v Pykett. Those principles were summarised in Huang v Forgacs Engineering Pty Limited as follows:
(1) The exclusion in s.389(2) poses a hypothetical question which must be answered by reference to all of the relevant circumstances.
(2) The question is concerned with circumstances which pertained at the time of the dismissal.
(3) In order to conclude that it would have been reasonable to redeploy the dismissed person, the Commission must find, on the balance of probabilities, that there was a job or a position or other work within the employer’s enterprise (or that of an associated entity) to which it would have been reasonable in all the circumstances to redeploy the dismissed employee.
(4) A number of matters are capable of being relevant in answering the question, including the nature of any available position, the qualifications required to perform the job, the employee’s skills, qualifications and experience, the location of the job and the remuneration which it offered.”
The Full Bench stated that the work to which an employee might be redeployed must, ultimately, be work over which the employer has control.[3]
The Respondent submitted that it attempted to explore redeployment with the Applicant, but the Applicant was not interested in redeployment. In any event, the Respondent stated that there were no suitable alternative roles available to the Applicant at the time of her redundancy. It was indicated that 23 out of 24 employees of the Respondent were unable to be redeployed indicating that redeployment was not a viable option.
The Applicant’s submissions support the Respondent’s position. The Applicant stated that the ‘possibility of redeployment was discussed’ but most job vacancies at the time were clinical in nature, and therefore unsuitable to her. The only suitable role available was the Sunshine Coast Finance Manager role where she stated that she was not prepared to relocate due to her family responsibilities.
I am satisfied that redeployment was not available in this instance and the employer had fulfilled their obligations under s.389(2).
Conclusion
I am satisfied that the dismissal of the Applicant was a genuine redundancy under s.389 of the Act and therefore the Applicant was not unfairly dismissed. The jurisdictional objection of genuine redundancy is upheld, and I order this Application to be dismissed.
DEPUTY PRESIDENT
Appearances:
T. Williams appearing self-represented as the Applicant.
J. McLean appearing as Counsel for the Respondent.
Hearing details:
2 November 2023.
Hearing via Microsoft Teams.
Brisbane
<PR768417>
[1] Jones v Department of Energy and Minerals [1995] IRCA 292 (16 June 1995), [(1995) 60 IR 304 at p. 308 (Ryan J)]; cited with approval in Ulan Coal Mines Limited v Howarth and others [2010] FWAFB 3488 (Boulton J, Drake SDP, McKenna C, 10 May 2010) at para. 17, [(2010) 196 IR 32].
[2] [2010] FWA 674.
[3] Helensburugh Coal Pty Ltd v Bartley and Anor [2021] FWCFB 2871 at [54].
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