Yunjie Zhang v Life Care (Vic) Residential Care Pty Ltd - [2022] FWC 39

[2022] FWC 39

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Yunjie Zhang
v

Life Care (Vic) Residential Care Pty Ltd

(U2021/8754)

DEPUTY PRESIDENT MASSON

MELBOURNE, 13 JANUARY 2022

Application for an unfair dismissal remedy – jurisdictional objections – minimum employment period - genuine redundancy –Applicant met minimum employment period – dismissal found to be a genuine redundancy – application for an unfair dismissal remedy dismissed.

On 30 September 2021, Yunjie Zhang (the Applicant) lodged an application pursuant to s.394 of the Fair Work Act 2009 (the Act) in which he asserts that the termination of his employment with Life Care (Vic) Residential Care Pty Ltd (the Respondent) on 10 September 2021 was unfair.

The Respondent objects to the application on the basis that the Applicant’s period of service failed to meet the minimum employment period, and in the alternative, the dismissal was a case of genuine redundancy. Conciliation of the matter before the Commission was unsuccessful and the matter was listed for hearing/conference before me in respect of both the jurisdictional objections and merits on 10 December 2021. Both parties filed material in advance of the hearing/conference in accordance with the directions issued.

After hearing from the parties at a Mention/Directions Hearing conducted on 8 December 202, it was determined that the matter would be conducted by way of a hearing pursuant to s.399 of the Act having regard to the number of witnesses called to give evidence.

At the hearing the Applicant was self-represented, gave evidence himself and called the following witnesses;

·Xiaoyu Pan – Personal Care Assistant
·Haixia Huang – Personal Care Assistant
·Rui Zhou – Registered Nurse/Personal Support Coordinator

At the hearing, the Respondent was represented by Gabriel Tang and Yvonne Lin who are both Proprietors of the Respondent. The following witnesses were called by the Respondent;
·   Christopher Tang – Proprietor and Facility Manager
·   Gabriel Tang – Proprietor and Facility Manager
·   Yvonne Lin – Proprietor and Facility Manager
·   Yong Lan Chan – Administrator/Lifestyle Coordinator
·   Yi Ni – Personal Support Coordinator/Registered Nurse
·   Ru Chen - Personal Support Coordinator/Registered Nurse
·   Da Yi Chen – Resident/patient’s family member
·   Chun Hei Wong – Cleaning/laundry/maintenance contractor

Background and evidence

The Respondent owns and manages the Adare SRS aged care facility at 1405 High Street Road, Wantirna South. It acquired ownership of the facility when it transferred from the previous owner Proficient Health Care Pty Ltd (Proficient Health Care) on 1 June 2021. The Respondent is not an associated entity of the former owner of the Adare SRS facility. In purchasing the facility on 1 June 2021, the Respondent decided to employ all current employees at that date[1].

The Applicant commenced casual employment with Proficient Health Care on or about July 2018. He was offered and accepted a permanent part-time position as a Personal Support Co-ordinator with Proficient Health Care on 1 February 2019. He was then employed in a part-time role of Clinical Care Co-ordinator from April 2019 to November 2019 before accepting a temporary full-time role of Administration Manager from 1 November 2019 to 31 January 2020[2].

According to the Applicant he was appointed to the part-time role of Clinical Manager from February 2020 until October 2020 from which point, he says he was employed in a full-time Manager role. In support of his claim that that he was engaged in a full-time Manager role he supplied a Job Description statement dated 26 August 2021 which listed his responsibilities as follows;

“Job Description Statement

………………………
1.Overseeing daily operations of the facility.
2.Developing and implementing growth strategies to achieve company goals.
3.Manages staff members in clerical, administrative and clinical area
4.Manages staff recruitment, development and training.
5.Develops and implements policies, procedures and work standards
6.Formulates, monitors and enforces budgets.
7.Makes purchasing decisions.
8.Holds meetings and communicates with staff
9.Ensures that the entire medical operation at the healthcare facility is running a smoothly as possible.
10.Supervises staff in a number of departments.
11.Attends public meetings to publicize the healthcare facility.
12. Handles community outreach programs.
13.Strives to improve the overall quality of healthcare for each patient.
14.Assists with clinical assessments of patients.
15.Helps keep patient medical records updated with the most recent medical treatments.
16.Educates patients and their families on available treatment options.

………………”[3]

While there was no formal contract in place for the Manager role that the Applicant states he held immediately prior to the acquisition of the Adare SRS facility by the Respondent, evidence was led by the Respondent that appears to confirm that the Applicant held such a role[4]. According to payslips produced by the Applicant he was on an hourly rate of $33.00 prior to and after the Respondent’s acquisition of the Adare SRS facility[5].

Manager and General Manager Roles

On acquisition by the Respondent of the Adare SRS aged care facility from Proficient Health Care, the Applicant commenced employment with the Respondent on 1 June 2021. He says that Ms Lin asked the Applicant what role he held before the transfer of business to which the Applicant replied ‘Manager’. He says Ms Lin replied that he would be employed as the ‘General Manager’ and that his job would remain the same[6]. The Applicant was engaged on a permanent full-time basis in the position of General Manager for which he entered into an Employment Agreement (the Employment Agreement) on 9 June 2021[7].

The Employment Agreement also set out the roles and responsibilities of the General Manager position, which were in identical terms to those found in the Job Description statement (see above at [8]) that purportedly applied to the Manager role the Applicant held prior to the Respondent’s acquisition of the Adare SRS facility on 1 June 2021. The Employment Agreement provided for an hourly rate of pay of $33.00 per hour for Monday to Friday plus superannuation with higher penalty rates payable for work on weekends ($49.50 per hour) and public holidays ($66.00 per hour).

In explaining the identical duties set out in the Position Description (as set out above at [8]) when compared to the roles and responsibilities for the General Manager position listed in the Employment Agreement, the Applicant provided the following explanation. He says that following the Respondent’s acquisition of the Adare SRS facility, he spoke with Ms Lin on 2 June 2021 and outlined to her the responsibilities of his former role. The Applicant says Ms Lin then reflected those responsibilities in the Employment Agreement which he signed on 9 June 2021. The Applicant says that he subsequently needed to prepare a Job Description for the Manager role he held prior to 1 June 2021 because of advice he received from the Fair Work Ombudsman (FWO) regarding a complaint he had made in relation to whether his accrued personal leave entitlements with Proficient Health Care ought to have been transferred to the Respondent. He requested his former Director Jinson Thomas of Proficient Health Care sign the Position Description which he did on 28 August 2021. Jinson Thomas was not called by the Applicant to give evidence regarding the Applicant’s former duties and responsibilities with Proficient Health Care.

In support of his claim to have held the Manager role before the Respondent’s takeover of the Adare SRS facility, the Applicant points to the roster for the period from 24 May 2021 which identifies the Manager role he held immediately prior to the Respondent’s takeover of the facility[8]. He also refers to the increase in his hourly rate of pay he received for taking on the Manager role under Proficient Health Care. This can be seen by the increase in the hourly rate from $29.72[9] that he was on in March 2021 to $33.00[10] per hour he was in receipt of immediately prior to the Respondent’s takeover of the business. He also notes that he received the same hourly rate of pay of $33.00[11] immediately following the Respondent’s takeover.

The Applicant acknowledged that the Position Description for his former Manager role was in identical terms to the responsibilities set out in the Employment Agreement but attributed this to Ms Lin having faithfully detailed the responsibilities of the previous Manager role which he had outlined to her. He acknowledged that he had not provided a copy of the Position Description for his former Manager role to the Respondent prior to these proceedings.

Ms Lin rejected the Applicant’s version of events. She says that contrary to the Applicant’s evidence, he did not detail the duties of his former role to her despite repeated requests from her for such information. Nor did he provide at any time a copy of a position description for his former Manager role. She says that she prepared the responsibilities as listed in the Employment Agreement without input from the Applicant and contended that the Position Description provided by the Applicant for the former Manager Role was simply a copy prepared by the Applicant after the event and was designed to convey the impression that the roles and responsibilities of the positions held by the Applicant before and after 1 June 2021 were the same. She further states that in offering the Applicant the General Manager role, the intention of the Respondent was to establish a larger role for the Applicant in managing the facility.

When questioned while giving evidence, the Applicant maintained that the Position Description accurately described his duties and responsibilities as Manager prior to 1 June 2021 and that the Manager and General Manager roles were the same. It was however apparent from the Applicant’s evidence during cross examination that certain responsibilities set out in the Position Description for the previous Manager role were either not performed or were not well understood by the Applicant, as evident in the following;

·No evidence as to his development and/or implementation of growth strategies was led by the Applicant;

·He was uncertain as to whether he had been responsible for managing clerical and administrative staff as well clinical staff;

·The Applicant was only able to cite one example of policy or standard development, that relating to falls prevention;

·The Applicant was not responsible for formulation, monitoring and enforcement of budgets and simply monitored costs within his control;

·The Applicant led no evidence as to the incidence and content of meetings held with staff other than to state that he met one on one with them; and

·The Applicant was unable to explain what he understood was meant by the term ‘community outreach programs’.

The Applicant tendered various text messages exchanged between himself, Ms Lin and Gabriel Tang that showed that he was actively involved in a range of activities required in the management of the facility including; preparation of residential services agreements, manual handling practices, arranging care plans, rostering, recruitment, ordering groceries arranging tours for prospective residents, ordering medical equipment and consumables (e.g. incontinence pads and stoma bags) and council inspections[12]. He also led the following evidence regarding the duties he performed before and after 1 June 2021;

· Xiaoyu Pan, who was a Personal Care Attendant (PCA) with the Respondent and was also privately tutored by the Applicant, stated that the Applicant was responsible for recruitment, ordering groceries for the facility, ordering necessary equipment, arranging maintenance and liaising with resident families in the period prior to the acquisition of the Adare SRS facility by the Respondent[13]. She also stated that she observed no difference in the duties performed by the Applicant before and after 1 June 2021.

· Haixia Huang, who was also a PCA and was privately tutored by the Applicant, states that the Applicant managed staff recruitment, development and training, oversaw the daily operations of the facility, assisted with clinical assessments, managed staff rostering and held meetings with staff and students both before and after 1 June 2021[14]. It was put to Ms Huang during cross examination that the list of duties set out at paragraph [4] of her witness statement, which she claimed the Applicant performed, were largely identical to the duties set out in the Job Description furnished in evidence by the Applicant. She resisted the proposition that she had simply copied the relevant duties.
· Rui Zhou, who was previously a Personal Care Coordinator and Registered Nurse with the Respondent, acknowledged she was the Applicant’s partner and had resigned from her employment with the Respondent in December 2021. She states that the Applicant became the full-time manager of the facility after October 2020 and that after the transfer of business in June 2021 he continued to do the same job[15]. Ms Zhou further states that the duties undertaken by the Applicant included;

§ Managing and ordering groceries and medical essentials.
§ Generating and managing the staff roster.
§ Managing recruitment and allocating training for new employees.
§ Managing and organising the placement of Personal Care students.
§ Signing contracts with staff and residents' family.
§ Maintaining the contact and relationships with residents and resident’s families.
§ Managing the performance of all employees.
§ Maintaining the quality of care delivered.
§ Organising training and meetings with staff.
§ Managing food quality provided.[16]

The Respondent challenged the Applicant’s evidence regarding the roles of Manager (before 1 June 2021) and General Manager (after 1 June 2021) being the same. They referred to the evidence of the Applicant’s competence and his view of the General Manager role after 1 June 2021, which they contend indicates the Applicant could not possibly have understood or been doing the full General Manager role before 1 June 2021. They submitted that the Applicant;

· held the view that the care quality, cleanliness and presentation of the facility were not his responsibility[17];

· had little understanding of the operation of the facility to the extent that he did not know which of the facilities’ telephone numbers belonged to which handset[18];

· lacked the knowledge or skill to manage invoices, resulting in that responsibility transferring to Ms Lyn[19];

· requested that Ms Lyn purchase items when the facility ran out of essential items and requested Gabriel Tang to arrange for repair of equipment requiring maintenance[20];

· did not undertake marketing or recruitment[21];
· failed to take responsibility for a task within his remit, that of ensuring empty rooms were clean and able to be shown to prospective residents and their families as ‘showrooms’[22];

· lacked the skills to prepare a PowerPoint presentation for the purpose of marketing the business[23]; and
· did not have an appreciation of the financial position of the Respondent[24].

The Respondent also led evidence from various witnesses who had worked with the Applicant before and after the 1 June 2021.

Ms Lan Chan, who was the Administrator/Lifestyle Coordinator for the Respondent, states that when the former Proficient Health Care Manager of the Adare SRS facility resigned in 2020, it was assumed the Applicant, who had been the Clinical Manager at the time, was then made Manager. She also states that she assumed responsibility for ad-hoc duties she believed ought to have been undertaken by the Applicant, including handling disputes with families, making a police report and writing an incident report[25].

Ms Lan Chan further states that the Applicant delegated his Manager duties prior to 1 June 2021 to other staff, including leaving the Manager’s mobile phone with the nurses, instructing Ms Lan Chan to check and fill out Residential Services Agreements and delegating the Covid vaccination program after the 1^st round of vaccination doses[26]. She did however concede during cross examination that she thought the positions held by the Applicant before and after 1 June 2021 were the same.
Ms Yi Ni commenced working at the Adare SRS facility in December 2017 and has worked on night shift throughout her time at the facility. She states that while the former proprietor Jinson Thomas never announced to staff that the Applicant was the Manager of the facility, she had assumed that the Applicant became Manager when the previous Operational Manager, Chrystal Mak, resigned[27]. She also states that as Manager, the Applicant supervised new staff for their first shift and arranged some training for staff but that it was the nurses’ responsibility to provide clinical assessments for residents and update medical records[28]. While stating she believed the roles held by the Applicant before and after 1 June 2021 were the same, Ms Yi Ni conceded she didn’t really know the duties of the respective Manager and General Manager roles as she only worked on night shift.

Wong Chun Hei is a contractor to the Respondent and provides a range of services including cleaning, laundry and maintenance. He states that under the previous owner of the Adare SRS facility, he understood that the Applicant was a nurse but that after Chrystal Mac resigned, he was aware that the Applicant was using the Manager’s office although he had not been informed by Jinson Thomas that the Applicant was the Manager[29].

The Redundancy

Christopher Tang and Gabriel Tang gave evidence that following acquisition of the Adare SRS facility in June 2021 the Respondent was incurring a monthly deficit in June and July 2021 of approximately $20,000[30] which required the owners to inject cash into the business[31]. Gabriel Tang states that the Applicant was repeatedly advised that the business was struggling financially[32]. A combination of factors was claimed by Gabriel Tang to have adversely impacted on the Respondent’s revenue. Those factors included Melbourne’s sixth Covid lockdown which started on 5 August 2021 and the cessation of the practice (of the previous owner) of charging against the Commonwealth Health Care Package for a resident who was not in fact staying in the facility[33].

During the course of July and August 2021 Gabriel Tang states there had been discussions involving the Applicant during management meetings in respect of the poor financial position of the Respondent. According to Christopher Tang, the Proprietors of the Respondent considered the financial position and came to a joint decision that it could no longer maintain the General Manager position[34].

A meeting was conducted with the Applicant at around 5.00pm on 10 September 2021 at which the Applicant, Gabriel Tang, Christopher Tang and Ms Lin participated. The Applicant states that Gabriel Tang read out the letter of termination and advised that his employment would cease immediately and that he would be paid a week’s pay in lieu of notice. The Applicant states that he had not received any prior notice of the meeting or its purpose, was not offered a support person and left the meeting in a state of shock[35]. He conceded that he did not request a support person at the start or during the meeting.

The Respondents’ evidence as to the meeting on 10 September 2021 differed from that of the Applicant. Ms Lin states Gabriel Tang apologised to the Applicant at the start of the meeting and explained that due to the current financial position of the Respondent, it needed to restructure the business resulting in the Applicant’s position being made redundant. Ms Lin further states that Gabriel Tang asked the Applicant if he understood what he was saying and whether he had any questions, to which the Applicant responded “no”. The Applicant also requested a copy of the termination letter that Gabriel Tang had intended to send to him by email, to which request Gabriel Tang agreed and provided the letter to the Applicant during the meeting. After reading the documents the Applicant confirmed that he was content with the payment of one weeks’ notice according to Ms Lin[36].

A letter confirming the Applicant’s termination on the grounds of redundancy[37] (the Redundancy Letter) was issued on 10 September 2021. It relevantly stated as follows;

“………………
As you may be aware, Adare Supported Residential Service (" Adare SRS") has faced some significant challenges since we took over the business a few months ago. This includes the ongoing lockdown restrictions due to COVID-19, a few residents who sadly passed away and hence the ongoing vacancies of the facility. These challenges have affected Adare SRS significantly.
This letter is to advise you about the outcome of a recent review into Adare SRS current situation. As a result of this review, Adare SRS have to make some changes, which are going to affect you. Unfortunately, the consequence of this is that Adare SRS no longer requires someone to perform the job of General Manager. Regrettably, this means that we have to terminate your employment.
We want to make it clear that this termination is not a reflection of our satisfaction with your job performance.
You are entitled to a notice period, as set out in Sect 117 of the Fair Work Act 2009 (No. 28, 2009). Accordingly, you are entitled to 1 week of notice. However, in lieu of receiving this notice, you will be paid an amount of A$1,320.00. This means that your employment is terminated with immediate effect.
You will also be paid any relevant accrued entitlements, including unused annual leave of A$1,157.54. The final amounts will be paid into your nominated bank account on 24th September 2021. Final superannuation contributions will also be paid to your nominated superannuation fund by the end of October 2021, as per our normal legal obligations and business practice.
As you are aware, you have various post-employment obligations, including but not limited to:
(1)return all property belonging to Adare SRS, including but not limited to any monies belonging to Adare SRS, security key fob, keys, stationery and computer files; and
(2)ongoing confidentiality obligations.

We would like to take this opportunity to thank you for your contribution during your time with us. You have been a valuable member of our team and we wish you all the best with your future endeavours.
…………………”

Evidence was led by the Respondent that it has not replaced the position of General Manager. Rather, the duties of the General Manager position have been absorbed by the Proprietors and other staff such that the General Manager role is no longer required. According to the Respondent, the duties set out in the General Manager role and responsibilities have been reallocated in the following manner;

1.Overseeing daily operations of the facility – now carried out by Facility Managers Christopher Tang and Yvonne Lin.

2.Developing and implementing growth strategies to achieve company goals – now carried out by Facility Managers Gabrielle Tang, Christopher Tang and Yvonne Lin.

3.Manages staff members in clerical, administrative and clinical area – now carried out by Yvonne Lin
4.Manages staff recruitment, development and training - now carried out by Facility Managers Christopher Tang and Yvonne Lin.

4.Develops and implements policies, procedures and work standards - now carried out by Facility Managers Christopher Tang and Yvonne Lin.
5.Formulates, monitors and enforces budgets – now carried out by Gabrielle Tang.

7.Makes purchasing decisions – now carried out by Yvonne Lin.

6.Holds meetings and communicates with staff – now carried out by Yvonne Lin.
7.Ensures that the entire medical operation at the healthcare facility is running as smoothly as possible – carried out by nurses on duty and Administrator Yong Lan Chan.
10.Supervises staff in a number of departments - now carried out by Facility Managers Christopher Tang and Yvonne Lin.

8.Attends public meetings to publicize the healthcare facility – carried out by Lifestyle Co-ordinator Yong Lan Chan and Facility Manager Christopher Tang.
12. Handles community outreach programs – now carried out by Lifestyle Co-ordinator Yong Lan Chan.

9.Strives to improve the overall quality of healthcare for each patient – Carried out by Facility Manager Yvonne Lin and all staff.
10.Assists with clinical assessments of patients – now carried out by all nurses on duty.

15.Helps keep patient medical records updated with the most recent medical treatments – now carried out by Administrator Yong Lan Chan and nurses on duty.

16.Educates patients and their families on available treatment options – carried out by nurses on duty.

In considering alternate roles that the Applicant could have been reasonably redeployed into, the Respondent submits that the Applicant was not suitable for redeployment because of serious misconduct engaged in by him. Ms Lin also states that at the time of the Applicant’s dismissal there were in any event no vacant roles that were suitable for the Applicant. There were no qualified nurse positions available as three such positions had been filled during the Applicant’s absence on personal leave between 13 July and 5 August 2021[38]. She also states that the only position that was available and remains vacant was a food services assistant role in the kitchen. She also confirmed that the various roles the Applicant had previously held, that of Administration Manager and Clinical Manager were not available. The Applicant did not challenge Ms Lin’s evidence on vacant roles.

Ms Lyn in her second witness statement states that on taking over the Adare SRS facility the Respondent become aware of the Applicant’s ‘inappropriate behaviour and unethical professional (nursing) and business practices’[39]. Concerned at the potential for ‘workplace revenge’ from the Applicant the Responded decided it was necessary to safeguard vulnerable residents and decided to dismiss the Applicant on grounds of redundancy[40]. Ms Lin went on to state that dismissal was justified on both performance and redundancy grounds, but the Respondent decided to dismiss the Applicant on the grounds of redundancy out of compassion for him having regard to his age and future career prospects[41].

The Applicant’s conduct and performance

As stated above, the Respondent claimed that the Applicant had engaged in a range of misconduct that made redeployment inappropriate, the claimed misconduct being;

(1)   Falsification of documents;
(2)   Obtaining financial advantage by deception;
(3)   Unlawful destruction or removal of health records; and
(4)   Causing serious risk and imminent risk to the health and safety of another person or to the reputation or profits of the Respondent’s business.[42]

In respect of the claim that the Applicant had falsified documents, Ms Lyn states that Danny Chen, who is the son of two of the residents, complained to Ms Lyn that the Applicant and Rui Zhou had made a false document. Specifically, it was alleged that on-going support plans for Mr Chen’s parents were developed without required consultation with Mr Chen or the family doctor. Ms Lyn states that when the Applicant was confronted by her regarding the complaints on 27 June 2021 he replied, “but we always did like this” and that “before I was working here it acts like this”[43].

Mr Chen further states that the care plans had not been prepared or updated for over 2 years until he requested copies of the care plans in May 2021. The care plans were subsequently provided to him[44]. He states that he and the relevant treating medical practitioner were not consulted in relation to the care plans development or periodical review despite the care plans recording such consultation had occurred. Mr Chen also gave evidence of other alleged mistreatment of his parents while in the Adare SRS facility that stretched back over a period of 3 years.

Mr Chen made a formal complaint to the Victorian Government Department of Families, Fairness and Housing (DFFH) regarding his parents’ care. Following that complaint, a meeting was arranged for 30 June 2021 at the request of Grace West of Victorian Human Services Regulator Unit[45]. The meeting on the 30 June 2021 was attended by Ms West, her colleague Drago Dragojlovic, the Applicant, Christopher Tang, Gabriel Tang and Ms Lin. Mr Dragojlovic subsequently wrote to Gabriel Tang on 6 July 2021 proposing to allow the Respondent a period of time to address the concerns raised by Mr Chen. Mr Dragojlovic advised that the Department proposed to put on hold its further enquiries about the complaints and review the situation in approximately one month[46].

There was no evidence led as to the final resolution of the complaints raised regarding Mr Chen’s parents’ care. Mr Chen agreed that there had been no outcome arising from the complaint he had raised with the department. Ms Lyn and Gabriel Tang also confirmed during their evidence that the Respondent had not conducted its own investigation into Mr Chen’s complaints. Nor had they counselled or disciplined the Applicant in relation to any of the misconduct alleged by Mr Chen. I note that the care plans were not prepared by the Applicant but were prepared by “Nicky (nurse)”.

Turning to the second ground of alleged misconduct, that of obtaining financial advantage by deception, Ms Lyn gave evidence as to the Applicant generating invoices for services not provided by the Respondent. Specifically, she states that invoices were generated by the Applicant for a client named Su Yun Cheng claimed to be residing in Room 13 of the facility. Ms Lyn states the Applicant asked her to claim an amount of $121.50 per day for nursing care and personal care services from that resident’s My Aged Care Home Care Package in circumstances where the Respondent did not have a client by that name to whom services were being provided. She further states that the Applicant advised her that “we always did like this” and that “without us, the family cannot get any money from her Homecare Package”[47].

Ms Lyn further states that she warned the Applicant that invoicing for Su Yun Cheng constituted fraud, asked him to call the person’s family to ask that the client move into the facility and advise the client’s case manager. She says the Applicant refused to call the client’s case manager for fear he would get in trouble. Ms Lyn states she then took action the following day to cancel the invoice by requiring the Applicant to send an email to the client’s case manager, in response to which she states the Applicant said “it hurts to lose so much money”[48].

Regarding the claimed destruction or removal of health records, evidence was given by Ms Yi Ni that the Applicant had asked one of the previous nurses Jiajing Zhao, to photocopy some residents’ medical records which the Applicant then took home. She also states she was scared that the Applicant would ask her to do the same thing when she was told by Ms Zhao of the request[49]. Ms Yi Ni conceded during cross-examination that she did not herself witness the Applicant copying or removing medical records of residents.

Ms Lin also states that the Applicant was the subject of a range of complaints[50] received by her from both residents and families of residents, other than Mr Chen. Those complaints related to;

·Resident RM29 Baohua Wangs’s family had complained about arbitrary charges imposed by the Applicant.

·Resident Rm40 Ruijuan Lin’s daughter called the facility in September 2021 and complained about the Applicant’s negligent behaviour with respect to her mother.

·Konstantinos Talis, who is a resident and has also done volunteer work at the facility, complained that the Applicant forced him multiple times to do excessive manual handling of residents which he claimed had “destroyed” his back. A video of Mr Konstantinos detailing his complaints were filed in evidence in the proceedings[51].

·Danielle Waston who is a resident also made complaints regarding the Applicant and her care at the facility, which was also recorded on video and produced in evidence for the proceedings[52].

Ms Lin further states that she is also the Respondent’s Complaints Officer and says she has spoken to 80% of staff at the facility in relation to their satisfaction with the Applicant as General Manager. She says that no positive feedback was received on the Applicant. A range of other allegations and complaints were raised in evidence by the Respondent’s witnesses which the Respondent says demonstrated that the Applicant was unable to carry out the requirements of the General Manager role. It was variously claimed that the Applicant;

· held the view that the care quality, cleanliness and presentation of the facility were not his responsibility[53];

· had little understanding of the operation of the facility to the extent that he did not know which of the facilities’ telephone numbers belonged to which handset[54];

· lacked the knowledge or skill to manage invoices, resulting in that responsibility transferring to Ms Lyn[55];

· requested Ms Lyn to purchase items when the facility ran out of essential items and requested Gabriel Tang to arrange for repair of equipment requiring maintenance[56];

· did not undertake marketing or recruitment[57];
· had generated a lot of dissatisfaction among families of residents with the level of care provided when the facility was operated by Proficient Health Care[58];

· failed to take responsibility for a task within his remit, that of ensuring empty rooms were clean and able to be shown to prospective residents and their families as ‘showrooms’[59];

· lacked the skills to prepare a PowerPoint presentation for the purpose of marketing the business[60];

· failed to present in a professional manner at work, routinely turning up to work in a t-shirt and tracksuit pants and reluctantly wearing appropriate attire[61];

· was maintaining a personal relationship with one of the other staff, Rui Zhou, who he allowed to eat and sleep in his office[62];

· encouraged staff to stay away from work during an earlier Covid lockdown which impacted on the care of elderly residents[63];

· in his former manager role with Proficient Health Care, inappropriately delegated his responsibilities to the nurses[64];

· arrived late to work but signed in as if he had arrived at his rostered start time[65];

· engaged in favouritism towards certain staff in respect of rostering on public holidays which attracts a higher penalty payment[66];

· was unable to provide adequate clinical support to staff and was often not contactable[67].

The Applicant steadfastly denied the allegations set out above at [32]. In response to the first allegation that he had falsified documents in relation to Mr Chen’s parents, he notes that the complaints from her son Mr Chen originated in April 2020. Further, he states that the Department of Health and Human Services (DHHS) had made no adverse findings regarding the facility or him personally[68]. He also points to a text message from Gabriel Tang in which he stated that “DFFS says good things about you”[69].

In relation to the allegation that he obtained a financial benefit by deception, he states that he was only an employee and had no involvement in any financial issue with the resident’s home care package and was not responsible for preparing invoices as that was the responsibility of the employer and the accountant[70]. He acknowledged that he was aware that an invoice was being sent for the unoccupied room which he attributed to the relevant client wanting the room to be held for them to occupy once the Covid pandemic conditions had eased. He also states that the Facility Manager under Proficient Health Care had told him it was ok to send an invoice to ensure the room was held for the prospective resident. The Applicant did not appear to appreciate that the invoice charged against the individual’s My Aged Care Home Care Package was being paid for by the Federal Government. Nor could the Applicant say whether charging for a residential service not provided as the previous owner had apparently done, constituted a breach of the relevant legislation.

In response to the third allegation that he removed or copied residents’ health records he says that he did not work hours that crossed over with Ms Yi Ni, rarely saw her and denied taking any records home[71]. In response to the allegation that he encouraged staff to stay away from the facility during a Covid lockdown he states that he encouraged staff to attend work and took steps to secure staff coverage as evidenced by various text messages to staff[72].

In response to the various allegations made regarding his capability and performance, the Applicant states that the concerns now raised by the Respondent regarding his performance were never raised with him prior to his dismissal, he had received no warnings, and the allegations had only been raised following his application to the Commission for an unfair dismissal remedy. He denied the various allegations and pointed to the Redundancy Letter where it was stated by the Respondent that “this termination is not a reflection of our satisfaction with your job performance”.

Has the Applicant been dismissed?

A threshold issue to determine is whether the Applicant has been dismissed from his employment. Section 386(1) of the Act provides that the Applicant has been dismissed if:

(a) the Applicant’s employment with the Respondent has been terminated on the Respondent’s initiative; or

(b) the Applicant has resigned from their employment but was forced to do so because of conduct, or a course of conduct, engaged in by the Respondent.

Section 386(2) of the Act sets out circumstances where an employee has not been dismissed, none of which are presently relevant. There was no dispute and I find that the Applicant’s employment with the Respondent terminated at the initiative of the Respondent.

Initial matters

Under section 396 of the Act, the Commission is obliged to decide the following matters before considering the merits of the application:

(a)whether the application was made within the period required in subsection 394(2);
(b)whether the person was protected from unfair dismissal;
(c)whether the dismissal was consistent with the Small Business Fair Dismissal Code; and
(d)whether the dismissal was a case of genuine redundancy.

Was the application made within the period required?

Section 394(2) requires an application to be made within 21 days after the dismissal took effect. It is not contested that the Applicant was dismissed from his employment with effect from 10 September 2021 and made the application on 30 September 2021. I am therefore satisfied that the application was made within the period required in subsection 394(2).

Was the Applicant protected from unfair dismissal at the time of dismissal?

Section 382 of the Act provides that a person is protected from unfair dismissal if, at the time of being dismissed:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(b) one or more of the following apply:

(i)a modern award covers the person;
(ii)an enterprise agreement applies to the person in relation to the employment

(iii)the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.

Minimum employment period

It was not in dispute, and I find that the Respondent is not a small business employer, employing 26 staff at the time of the Applicant’s dismissal. It follows therefore that the Applicant must have served at least the minimum employment period of 6 months which applies. The Applicant commenced employment with the Respondent on 1 June 2021 however contends that his prior service with Proficient Health Care since July 2018, should be counted as service due to there having been a transfer of business from Proficient Health Care to the Respondent on 1 June 2021.

Section 384(1) of the Act defines the meaning of period of employment of an employee’s period of employment with an employer at a particular time as “the period of continuous service the employee has completed at that time as an employee”.

Section 22 of the Act defines service and continuous service. Relevantly, service with one employer may count towards service with another employer so long as the requirements of ss.22(5) and (7) are met. Those sections provide as follows;

“………………
(5) If there is a transfer of employment (see subsection (7)) in relation to a national system employee:
(a) any period of service of the employee with the first employer counts as service of the employee with the second employer; and
(b) the period between the termination of the employment with the first employer and the start of the employment with the second employer does not break the employee’s continuous service with the second employer (taking account of the effect of paragraph (a)),but does not count towards the length of the employee’s continuous service with the second employer.
……………….

(7) There is a transfer of employment of a national system employee from one national system employer (the first employer) to another national system employer (the second employer) if:
(a) the following conditions are satisfied:
(i)the employee becomes employed by the second employer not more than 3 months after the termination of the employee’s employment with the first employer;
(ii)the first employer and the second employer are associated entities when the employee becomes employed by the second employer; or

(b) the following conditions are satisfied:
(i)the employee is a transferring employee in relation to a transfer of business from the first employer to the second employer;
(ii) the first employer and the second employer are not associated entities when the employee becomes employed by the second employer.” (Emphasis added)

The Applicant’s service with Proficient Health Care will count towards his service with the Respondent if it is established that he was a transferring employee in relation to a transfer of business. In establishing whether the Applicant was a transferring employee in relation to a transfer of business between Proficient Health Care and the Respondent it is necessary for the requirements of s.311 to be met. Relevantly to the present matter, s.311 provides as follows;

“311 When does a transfer of business occur
Meanings of transfer of business, old employer, new employer and transferring work
(1)There is a transfer of business from an employer (the old employer) to another employer (the new employer) if the following requirements are satisfied:

(a) the employment of an employee of the old employer has terminated;
(b) within 3 months after the termination, the employee becomes employed by the new employer;
(c) the work (the transferring work) the employee performs for the new employer is the same, or substantially the same, as the work the employee performed for the old employer;
(d) there is a connection between the old employer and the new employer as described in any of subsections (3) to (6).

………………….

(4) There is a connection between the old employer and the new employer if, in accordance with an arrangement between:
(a) the old employer or an associated entity of the old employer; and
(b) the new employer or an associated entity of the new employer;

the new employer, or the associated entity of the new employer, owns or has the beneficial use of some or all of the assets (whether tangible or intangible):
(c) that the old employer, or the associated entity of the old employer, owned or had the beneficial use of; and
(d) that relate to, or are used in connection with, the transferring work.

……………………”

The Respondent states and I accept that it is not an associated entity of Proficient Health Care. Therefore, it follows from the above that the Applicant’s service with Proficient Health Care will count towards his period of employment with the Respondent subject to the following requirements being met;

(i)the Applicant’s service with Proficient Health Care was terminated;
(ii)he commenced employment with the Respondent within 3 months of the termination of his employment by Proficient Health Care;

(iii)he performed work for the Respondent that was the same or substantially the same as the work he performed for Proficient Health Care; and

(iv)the Respondent entered into an arrangement with Proficient Health Care and that it now owns or has the beneficial use of the assets formerly owned or used by Proficient Health Care that relates to the transferring work.

It is not in dispute that the Applicant’s employment with Proficient Health Care was terminated on 30 May 2021, that he commenced employment immediately with the Respondent on 1 June 2021 and that the Respondent purchased the Adare SRS facility from Proficient Health Care. Thus, the requirements of ss.311(a), (b) and (d) are met. However, the Respondent disputes that the Applicant was employed in the same or substantially the same role. I now turn to consider the nature of the role performed by the Applicant for the Respondent and whether it is the same or substantially the same as that performed by him for Proficient Health Care.

The Applicant says the Manager role he held prior to 1 June 2021 was the same or substantially the same as the General Manager role he held following the Respondent taking over the Adare SRS facility on 1 June 2021 whereas the Respondent submits the roles are very different with the General Manager role being a much bigger role.

While the Applicant’s case is not assisted by the absence of an employment contract or any other formal document that confirms that he was appointed to the Manager role by Proficient Health Care, there is however evidence that after the resignation of the former Manager, Chrystal Mak, the Applicant assumed the Manager role. This can be seen by the roster which identifies the Applicant as Manager, the increase in hourly rate from $29.72 to $33.00 that he received in assuming the Manager role and evidence from both the Applicant’s and Respondent’s witnesses which supports a conclusion that he held the Manager role.

As to the duties of the Manager role, the Applicant seeks to rely on the Position Description dated 26 August 2021 which purports to be the Position Description for the former Manager role. Significantly, it is identical to the duties and responsibilities found in the Employment Agreement for the General Manager role. It was however prepared after he had ceased to hold the Manager role and following his receipt of the General Manager Employment Agreement from Ms Lin. Tellingly, the signatory of the Manager Position Description, Jinson Thomas was not called by the Applicant to give evidence.

The Applicant’s evidence as to the Manager Position Description being an authentic document and an accurate reflection of his duties as Manager was unconvincing. It was prepared ‘after the event’ and was in identical terms to the responsibilities set out in the General Manager Employment Agreement he received from Ms Lin on 9 June 20211. His evidence that Ms Lin had merely reflected in the Employment Agreement his former Manager responsibilities as he had outlined to her, was also not credible. That was due to his unfamiliarity with significant aspects of the roles as set out in both the Manager Position Description and General Manager Employment Agreement.

I am compelled to conclude that the Manager Position Description was copied directly from the General Manager Employment Agreement long after the Applicant had ceased to hold the Manager position with Proficient Health Care. Furthermore, I am inclined to the view, that contrary to the Applicant’s evidence that the Position’s Description’s preparation arose from FWO advice, the Position Description was prepared by the Applicant for the singular purpose of supporting his case that the Manager and General Manager roles were the same.

In the light of the foregoing, I place no weight on the Position Description for the Manager role. It is consequently necessary to consider the substance of the two roles held by the Applicant before and after the 1 June 2021 takeover of Adare SRS by the Respondent.

The Respondent submits that in creating the General Manager position, it intended to establish a role of greater scope and responsibility for the Applicant than the previous Manager role. Beyond the responsibilities set out in the Employment Agreement there is no evidence that the Respondent made that clear to the Applicant. In fact, the evidence of the Applicant, which was not rebutted by Ms Lin, was that Ms Lin in their first meeting stated to the Applicant that his role would remain the same. Support for that position can be found in that the Applicant’s hourly rate of pay remained unchanged at $33.00 per hour. Had it been the intention of the Respondent to increase the size of the Applicant’s role, it certainly was not accompanied by recognition in the level of remuneration. It is also passing strange that the Respondent was prepared to offer the Applicant a much larger role without any apparent inquiries into the Applicant’s performance or competence. On the Respondent’s own evidence, it was only once they took over the facility that they became aware of the Applicant’s performance and conduct issues.

As to the specific duties undertaken by the Applicant as Manager for Proficient Health Care, the Respondent has proffered limited evidence beyond complaints that the Applicant delegated certain duties in the Manager role for Proficient Health Care and that he was not competent to perform the General Manager role or the Manager role before that. Competence, conduct and performance of the Applicant is not relevant to the assessment of whether the roles were the same or substantially the same.

I am satisfied on the evidence of the Applicant and other witnesses that the Applicant was responsible for the following as Manager for Proficient Health Care;

·     Managing daily operations of the facility;
·     Rostering of staff;
·     Recruitment and training;
·     Purchasing of food, groceries and medical supplies and equipment;
·     Supervision of staff across the facility;
·     Overseeing and assisting clinical assessments;
·     Attending public meetings to promote the facility;
·     Managing facility costs within specified expenditure constraints; and
·     Liaising with residents and families regarding facility services and treatment.

There was no evidence that the Applicant in the Manager role was responsible for formulating, monitoring and managing against budget, that being a specific requirement of the General Manager role. His lack of knowledge in the area of budgets was apparent from his failure to recognise that the facility was struggling financially in 2021. There was also no evidence that he had taken any action in ‘developing and implementing growth strategies’ or handled ‘community outreach programs’ when in the Manager role. He also revealed uncertainty as to whether he had been responsible for supervising clerical and administrative staff. These were all identified requirements of the General Manager role.

I accept that the General Manager role included additional responsibilities that had not been present in the Manager role. Specifically, the areas of budget formulation and management, marketing and community outreach. Those responsibilities were in addition to the core elements common to both the Manager and General Manager roles which are set out above at [65]. I am not persuaded that the additional responsibilities to which I have referred, fundamentally changed the role which was essentially one of running the facility. That the Respondent subsequently formed a view that the Applicant did not possess the skills and competence to perform the role effectively is beside the point. He was recruited by the Respondent to continue doing the ‘same job’ after 1 June 2021 with some additional duties. The Respondent did not increase his hourly rate of pay and did not explain to the Applicant that he was being recruited to fill a much larger substantive role.

While the Respondent seeks to characterise the General Manager role as substantially different to the Manager role, I do not accept that characterisation. The roles in my view, while not the same because of the additional duties and responsibilities, were substantially the same. I am consequently satisfied that;

(1)The Applicant’s employment with Proficient Health Care was terminated on 30 May 2021;
(2)The Applicant commenced employment with the Respondent on 1 June 2021;

(3)The Applicant undertook substantially the same role with the Respondent as he had undertaken for Proficient Health Care; and

(4)The Respondent entered into an arrangement with Proficient Health Care such that it now owns or has the beneficial use of the assets formerly owned or used by Proficient Health Care that relates to the transferring work.

It follows from the above that the Applicant’s period of service with the Respondent includes his prior service with Proficient Health Care. Taking into account both his prior service with Proficient Health Care of approximately 2 years and 11 months and his 3 months service with the Respondent, his total period of employment is approximately 3 years and 2 months. That period of employment comfortably exceeds the minimum employment period.

I am therefore satisfied that, at the time of dismissal, the Applicant was an employee who had completed a period of employment with the Respondent of at least the minimum employment period of 6 months which applies.

Applicant’s annual rate of earnings

It was not contested that the Applicant’s annual salary at the date of his dismissal based on an hourly rate of $33.00 was $65,000.00. It follows and I am satisfied that, at the time of dismissal, the sum of the Applicant’s annual rate of earnings (being $65,000.00) together with such other amounts worked out in accordance with regulation 3.05 of the Fair Work Regulations 2009, was less than the high income threshold, which, for a dismissal taking effect on or after 1 July 2021, is $ $158,500.

I am therefore satisfied that, at the time of dismissal, the Applicant was a person protected from unfair dismissal.

Did the Respondent comply with the Small Business Fair Dismissal Code in relation to the dismissal?

Section 388 of the Act provides that a person’s dismissal was consistent with the Small Business Fair Dismissal Code if:

(a) immediately before the time of the dismissal or at the time the person was given notice of the dismissal (whichever happened first), the person’s employer was a small business employer; and

(b) the employer complied with the Small Business Fair Dismissal Code in relation to the dismissal.

As mentioned above, I find that the Respondent was not a small business employer within the meaning of s.23 of the Act at the relevant time, having in excess of 14 employees (including casual employees employed on a regular and systematic basis). I am therefore satisfied that the Small Business Fair Dismissal Code does not apply, as the Respondent is not a small business employer within the meaning of the Act.

Was the dismissal a case of genuine redundancy?

Section.389 of the Act, defines a genuine redundancy in the following terms:

“(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.”

I turn first to consider whether the Respondent no longer required the Applicant’s job to be performed by anyone because of the operational requirements of the Respondent.

A Full bench considered the meaning of the term “genuine redundancy” in Ulan Coal Mines Limited v Henry John Howarth and others[73] (Ulan) and relevantly stated as follows:

“[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.
[18] In Kekeris v A. Hartrodt Australia Pty Ltd Hamberger SDP considered whether a dismissal resulting from the restructure of a supervisory team was a case of genuine redundancy. As a result of the restructure, four supervisory team leader positions were replaced by three team leader positions. The Senior Deputy President said:
“When one looks at the specific duties performed by the applicant prior to her termination they have much in common with those of two of the new positions in the new structure. The test is not however whether the duties survive. Paragraph 1548 of the explanatory memorandum makes clear that it can still be a ‘genuine redundancy’ where the duties of a previous job persist but are redistributed to other positions. The test is whether the job previously performed by the applicant still exists.” [74](References omitted)

It follows from the Full Bench’s reasoning in Ulan and the summary of relevant cases cited in their decision that:

(i)A job is a collection of functions, duties and responsibilities assigned to a particular employee within an organisation;

(ii)The functions, duties and responsibilities may cease to be part of an employee’s job through a reorganisation or redistribution of duties;

(iii)Should there no longer be any functions or duties to be performed by a particular employee, then his or her job ceases to exist;

(iv)The fact that the tasks and duties previously performed by an employee may have survived and been reallocated to other employees through a restructure does not mean the job is still required; and

(v)An employee’s dismissal may be a genuine redundancy even though particular functions, duties and responsibilities previously performed by that employee are being performed by other employees.

I am satisfied on the evidence that following a period of review which was driven by challenging financial circumstances, the Respondent reached a conclusion that it no longer required the General Manager position to be performed by anyone. The duties and responsibilities as set out above at [29], were redistributed to the Respondent’s Proprietors and other employees. Responsibility for the day-to-day supervision of staff and overseeing of the facilities’ operations transferred to Ms Lin and Christopher Tang, while managing the budget fell to Gabriel Tang. Other staff who have assumed additional responsibilities include the Administrator Ms Lan Chan and nursing staff.

What can also be discerned from the evidence is that the three Proprietors of the Respondent have the capacity, interest and need to spend more time actively managing the facility than was the case under the previous owners prior to 1 June 2021. The evidence of the Applicant and others is that the proprietors of the Adare SRS facility, when it was owned by Proficient Health Care, rarely attended the facility in the 12 months prior to the Respondent’s takeover. With a more hands on role being exercised by the Proprietors of the Respondent in respect of the management of the Adare SRS facility, the justification for the General Manager role unsurprisingly came under review, particularly given the financial position the Respondent confronted following it taking over the business.

I am satisfied that the changed operational circumstance was that of the Adare SRS facilities’ financial position, that being a negative cash flow of almost $30,000 in the June-August 2021 period. Added to this financial position was the capability and motivation of the Respondent’s Proprietors to take a more hands on role in managing the facility. The casualty of these changed operational circumstances was the General Manager role held by the Applicant. I am satisfied that the Respondent no longer required the General Manager role to be performed by anyone. The duties set out in the General Manager roles and responsibilities in the Employment Agreement were reallocated to the three Proprietors of the Respondent, Ms Lan Chan and nursing staff.

It is also the case however that the Respondent was dissatisfied with the Applicant’s conduct and performance and that this may have contributed to the redundancy decision as an alternative to pursuing the dismissal of the Applicant on performance grounds. So much is clear from Ms Lin’s evidence as to the alternative path of performance management of the Applicant having been considered. When pressed during her evidence, Ms Lin resisted the proposition that the Applicant’s dismissal was merely a performance and conduct based dismissal ‘dressed up’ as a redundancy. She said the fact that the Respondent had concerns over the Applicant’s performance and conduct did not alter the need to remove the General Manager role for operational and financial reasons. She was resolute that both avenues of dismissing the Applicant were open to the Respondent and equally valid. She also pointed to the fact that the position has not been replaced in the 5 months since the Applicant’s dismissal.

I am satisfied, largely on the evidence of Ms Lin who I found credible, that while the Respondent was certainly dissatisfied with the Applicant’s conduct and performance, it (the Applicant’s performance) was not the reason for his dismissal. The reason for his dismissal was the removal of the General Manager position due to redundancy. I am consequently satisfied that the Respondent no longer required the Applicant’s job to be performed by anyone because of the operational requirements of the Respondent.

Did the Respondent comply with any consultation obligations - s 389(1)(b)?

Whether the Respondent was required to comply with particular consultation obligations turns on whether the Applicant was covered in his employment by a modern award or an enterprise agreement and such applicable modern award and/or enterprise agreement contains consultation provisions. It is not in dispute that the Applicant was not covered by an enterprise agreement. Both parties contend that the Applicant was covered by the Aged Care Award 2010[75] (the Award). However, the subjective opinion of the parties as to whether a modern award covered the Applicant is irrelevant as the application of a modern award is a matter of fact to be determined by the Commission.

While the parties contended in their outlines of argument that the Applicant was covered by the Award, neither party advanced any submissions or evidence that supported that contention. For the purpose of the present matter, in order for the Applicant to be covered by the Award, there are two requirements that must be met. Firstly, the Respondent must be operating within the ‘aged care industry’ and secondly the Applicant must be engaged in a classification in the Award. I accept that the Respondent falls within clause 4.1 of the Award in that it operates in the ‘aged care industry’ as defined at clause 3.1 of the Award.

The role of General Manager and the duties set out in the Employment Agreement do not align with the most senior classification in the Award, that of Aged Care employee - Level 7. That is apparent from a review of the indicative tasks performed at that classification level of the Award which include clerical supervisor and general services supervisor. It is apparent that the General Manager role is at a more senior level and therefore not covered by the classification structure of the Award.

It follows from the above and I am satisfied that the Applicant was not covered by a modern award or enterprise agreement in his employment with the Respondent. Therefore s.389(1)(b) does not apply so as to give rise to consultation obligations under a modern award or enterprise agreement.

Would it have been reasonable to re-deploy the Applicant?

The Respondent contends that it would not have been reasonable to redeploy the Applicant for two reasons. Firstly, that the Applicant’s conduct and performance were such that it was inappropriate to retain him in the business and secondly there were no suitable alternate roles available at the time of the Applicant’s dismissal.

The first ground advanced by the Respondent relies on specific alleged conduct and performance of the Applicant including;

(1)Falsification of documents;
(2)Obtaining financial advantage by deception;
(3)Unlawful destruction or removal of health records; and
(4)Causing serious risk and imminent risk to the health and safety of another person or to the reputation or profits of the Respondent’s business.

The first allegation relates to Mr Chen’s complaints regarding the preparation of mandatory care plans for his parents, which he contends were prepared without consultation with either the family or medical practitioner. This was despite the care plans stating such consultation had occurred. Mr Chen’s complaint was the subject of a meeting between the Proprietors of the Respondent, the Applicant and representatives of the relevant Victorian government department on 30 June 2021. Both the Respondent and Mr Chen agreed that there had been no outcome flowing from the department’s investigation of the complaints and that no formal action had been initiated against either the Applicant or the former owners of the Adare SRS facility. It is also significant that the Respondent has not formally investigated the complaints made by Mr Chen against the Applicant. In these circumstances I am not satisfied there is a sound basis to conclude that the Applicant falsified care plans, particularly as the relevant care plans were not prepared by the Applicant.

The second allegation relates to charges being made by the Adare SRS facility under the former owners in respect of an unoccupied room. The Applicant concedes he was aware of invoices regularly issued in respect of an unoccupied room for a person named Su Yun Cheng. He says that the family of Su Yun Chen wanted to ‘hold’ the room pending the Covid pandemic easing. He further says that he did not authorise or prepare the relevant invoices, such responsibility resting with finance personnel, and that he had been assured by the previous proprietor Jinson Thomas that imposing such charges for holding the room was ok.

The Applicant displayed a singular lack of understanding of whether the practice of invoicing for residential aged care services not rendered was legitimate. For its part, the Respondent was clear in its view that such a practice, in circumstances where the charges were being levied against a commonwealth funded care package, was fraudulent. It ceased the practice on becoming aware of it. In the circumstances however I am unable to conclude that the Applicant had engaged in or was accountable for any alleged malfeasance by the former operator of the Adare SRS facility in circumstances where he was not responsible for authorising or preparing the relevant invoices.

Turning to the third allegation of misconduct, there was only hearsay evidence provided by Ms Yi Ni, that the Applicant had photocopied and removed medical records of residents. The Applicant flatly denied the allegation. I attribute little weight to the hearsay evidence and as such there is an insufficient basis to conclude that the Applicant destroyed or removed medical records.

The fourth allegation appears to relate to the Applicant’s conduct more generally and its impact on the residents of the Adare SRS facility and the Respondent. Numerous examples of the Applicant’s performance and conduct issues were led in evidence by the Respondent. This variously included inappropriate delegation of duties, favouritism towards certain staff, lack of clinical support to staff, lack of proper oversight of invoicing, unprofessional attire, lack of attention to the cleanliness and hygiene of the facility, routinely arriving late for work and failure to take responsibility for tasks within his remit. The respondent also claimed that the Applicant generated numerous complaints from residents and their families including Mr Chen, in further support of which they provided videos from two particular residents, Mr Talis and Ms Waston.

The evidence of Ms Lin was that, apart from the complaints raised by Mr Chen and the matter of invoicing for an empty room considered above, none of the other matters now raised in these proceedings were raised with the Applicant prior to his dismissal. That is not to say that the concerns they claimed to hold do not have merit. In fact, it would appear on the evidence of a number of witnesses, much of which the Applicant did not directly rebut, that the Applicant’s work performance left much to be desired. However, for the Respondent to now seek to rely on performance and conduct matters never raised with the Applicant, as a reason why it would not have been appropriate to redeploy the Applicant at the time of his redundancy, calls into question how seriously they viewed that conduct. The Respondent also made clear in the Redundancy Letter that the dismissal was “not a reflection of our satisfaction with your job performance”. Such an assurance now looks disingenuous in the circumstances.

Ms Lin gave evidence that at the time of the Applicant’s dismissal the Respondent was concerned at the impact a performance-based dismissal would have on his employment prospects. There was however no explanation offered by the Respondent as to why concerns it held regarding the Applicant’s performance in the 3 months prior to his dismissal were not properly investigated and put to the Applicant for response and/or action. That they failed to do so also calls into question the seriousness with which they viewed those matters. In any case, aside from Mr Chen’s complaints and the invoicing for an empty room, no other matters were raised with the Applicant. In these circumstances I am not persuaded that the conduct and performance concerns now raised by the Respondent in respect of the Applicant provides a basis to find that it would not have been reasonable to redeploy the Applicant.

I now turn to the second ground raised by the Respondent as a barrier to redeployment of the Applicant, that being there were no suitable roles available. Ms Lin gave evidence that at the time of the Applicant’s dismissal there were no roles available for which the Applicant was qualified and experienced. Specifically, there were no administration or clinical management roles available. Nor were there any nursing roles available following the recruitment of three nurses in the period of the Applicant’s absence on sick leave between 13 July and 5 August 2021. The only role that was available was that of a food services assistant. The Applicant did not challenge Ms Lin’s evidence as to alternate roles that were available.

Having regard to the Applicant’s skills and experience I am satisfied that at the time of the Applicant’s dismissal there were no suitable alternate roles available. Considering the Respondent’s size and financial position, it would not in my view have been appropriate for the Respondent to ‘carry’ the Applicant in a created role. It follows that it would not have been reasonable in the circumstances to redeploy the Applicant within the enterprise or an associated entity of the Respondent.

Summary

For all the reasons set out above I am comfortably satisfied that the Applicant’s dismissal was a case of genuine redundancy because as at 10 September 2021:

(i)the Respondent no longer required the Applicant’s job to be performed by anyone because of changes in the operational requirements of its enterprise;

(ii)the Applicant was not covered in his employment by a modern award or enterprise agreement therefore the obligation for the Respondent to have complied with particular consultation obligations does not arise; and

(iii)it would not have been reasonable in all the circumstances for the Applicant to have been redeployed within the Respondent’s enterprise or the enterprise of an associated entity of the Respondent.

Conclusion

The Applicant’s dismissal by the Respondent on 10 September 2021 was a case of genuine redundancy within the meaning of s.389 of the Act. Consequently, he has not been unfairly dismissed. His application for an unfair dismissal remedy must therefore be dismissed.

An order giving effect to the above will be separately issued.

DEPUTY PRESIDENT

Appearances:

Y Zhang, Applicant.

G Tang and Y Lin for the Respondent.

Hearing details:

2021.
Melbourne (By Microsoft Teams):
January 5, 6.

[1] Exhibit R35, Witness Statement of Gabriel Tang, date 30 October 2021 at [1].

[2] Exhibit R2, Administration Manager Position Description, dated 30 October 2019.

[3] Exhibit A4, Job Description, dated 26 August 2021.

[4] Exhibit R37, Witness Statement of Ms Yvonne Lin, dated 1 November 2021 at [3], Exhibit R41, Witness Statement of Ms Angie Yong Lan, dated 28 October 2021 at [4].

[5] Exhibit A2, Pay slips of Applicant for pay periods ending 31/5/21 and 13/6/21.

[6] Exhibit A1 Witness Statement of Yunjie Zhang dated 15 November 2021, at [3].

[7] Exhibit A15, Employment Agreement, dated 9 June 2021.

[8] Exhibit A3, Adare roster for period from 24 May 2021 – 13 June 2021.

[9] Exhibit A13, Proficient Health Care payslip for pay period ending 7 March 2021.

[10] Exhibit A2, Proficient Health Care payslip for pay period ending 31 May 2021.

[11] Ibid.

[12] Exhibit A6, Text messages.

[13] Exhibit A16, Witness Statement of Xiaoyu Pan, dated 16 November 2021 at [1]-[6].

[14] Exhibit A17, Witness Statement of Haixia Huang, dated 16 November 2021 at [4].

[15] Exhibit A18, Witness Statement of Rui Zhou, dated 15 November 2021 at [5].

[16] Ibid at [6].

[17] Exhibit R35 at [9].

[18] Ibid at [10].

[19] Ibid at [11].

[20] Ibid at [12]-[13].

[21] Ibid at [14].

[22] Ibid at [26].

[23] Ibid at [28].

[24] Ibid at [16].

[25] Exhibit R41, Witness Statement of Angie Yong Lan Chan, dated 28 October 2021 at [3].

[26] Ibid at [4].

[27] Exhibit R42, Witness Statement of Yi Ni, dated 27 October 2021 at [2].

[28] Ibid at [6].

[29] Exhibit R44, Witness Statement of Wong Chun Hei, dated 28 October 2021 at [1].

[30] Exhibit R34, Witness Statement of Christopher Tang, dated 29 October 2021 at [3], Exhibit R15, Cash Flow Statement for June-August 2021.

[31] Exhibit R35 at [21].

[32] Ibid at [16].

[33] Ibid at [18]-[19].

[34] Exhibit R34 at [3].

[35] Exhibit A1, at [4].

[36] Exhibit R37 at [13]-[14]

[37] Exhibit A5, Redundancy Letter, dated 10 September 2021

[38] Exhibit A12, Medical Certificates of Applicant.

[39] Exhibit R38, Witness Statement of Ms Yvonne Lin, dated 29 November 2021 at [4].

[40] Ibid.

[41] Ibid at [5].

[42] Respondent’s Outline of argument at 4g.

[43] Exhibit R37 at [8].

[44] Ibid, Attachments 7 & 8.

[45] Exhibit R6, Email from Grace West to Respondent, dated 29 June 2021.

[46] Exhibit R5, Email from Drago Dragojlovic to Respondent, dated 6 July 2021.

[47] Exhibit R37 at [7].

[48] Ibid.

[49] Exhibit R42 at [3].

[50] Exhibit R38 at [2].

[51] Exhibits R18, R19, R20, R21, R22, R23, Video of Konstantinos Talis.

[52] Exhibits R24, R25, Video of Danielle Watson.

[53] Exhibit R35 at [9].

[54] Ibid at [10].

[55] Ibid at [11].

[56] Ibid at [12]-[13].

[57] Ibid at [14].

[58] Ibid at [22].

[59] Ibid at [26].

[60] Ibid at [28].

[61] Ibid at [30].

[62] Exhibit R37 at [10].

[63] Ibid at [11].

[64] Exhibit R41, Witness Statement of Angie Yong Lan Chan, dated 28 October 2021 at [4].

[65] Ibid at [5].

[66] Ibid.

[67] Exhibit R45, Witness Statement of Ru Chen, dated 26 October 2021 at [4].

[68] Exhibit A1 at p.3.

[69] Exhibit A7, Text msg from Gabriel Tang to Applicant, dated 29 June 2021.

[70] Exhibit A1 at p.3.

[71] Ibid.

[72] Exhibit A8, Text messages from Applicant to various staff members, dated 30 June 2021, 1 July 2021, 6 July 2021.

[73] [2010] FWAFB 3488.

[74] Ibid at [17].

[75] MA000058

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