Fair Work Act 2009
s.394—Unfair dismissal

Susan Jankovic
v
Logan Child Friendly Community Limited
(U2021/9948)

Application for an unfair dismissal remedy – jurisdictional objection on grounds of genuine redundancy – determination required as to whether employee was covered by a modern award – failure to consult – dismissal unfair – no award of compensation

[1] On 5 November 2021, Ms Susan Jankovic made an application to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (the Act) alleging that she had been dismissed from Logan Child Friendly Community Limited (the Respondent) and that her dismissal was harsh, unjust or unreasonable. The Respondent is a small, not-for-profit, community organisation based in Logan, Brisbane, and provides support through programs and initiatives to children and their families in the Logan area. The Respondent employed 12 employees at the time of Ms Jankovic’s dismissal.

[2] The Respondent raised a jurisdictional objection to Ms Jankovic’s application, that the termination of her employment was a case of genuine redundancy as defined in s.389 of the Act.

Relevant legislation

[3] Section 385 of the Act provides that a person has been unfairly dismissed if the Commission is satisfied that:

“385 What is an unfair dismissal

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

(a) the person has been dismissed; and

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

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

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

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

[4] Section 396 of the Act sets out the following:

“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:

(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;

(d) whether the dismissal was a case of genuine redundancy.”

[5] As set out above in s.396 of the Act, consideration as to whether the dismissal was harsh, unjust or unreasonable cannot occur if the dismissal was a case of genuine redundancy. If the Commission determines that the dismissal was a case of genuine redundancy, the application will be dismissed.

[6] Section 389 of the Act provides the meaning of genuine redundancy as follows:

“389 Meaning of genuine redundancy

(1) A person’s dismissal was a case of genuine redundancy if:

(a) the person’s employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; and

(b) the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.

(2) A person’s dismissal was not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within:

(a) the employer’s enterprise; or

(b) the enterprise of an associated entity of the employer.”

[7] The application was made within the 21-day period outlined in s.394(2) of the Act. Additionally, Ms Jankovic had completed the minimum twelve months of employment, having worked there for 2 years and 6 months. Ms Jankovic’s annual salary was $153,872.38 excluding superannuation.

[8] The Respondent employed 12 employees at the time of the dismissal of Ms Jankovic, and it is therefore a jurisdictional requirement for me to determine if the dismissal was in accordance with the Small Business Fair Dismissal Code (the Code). I am satisfied that the dismissal was not in accordance with the Code on account of the reason for the dismissal being a redundancy. The Code requires consideration only of serious misconduct or performance grounds; these are not the reasons for the dismissal.

[9] The Respondent’s jurisdictional objection is as follows:

•  The Respondent no longer required the role to be performed by anyone;

•  The Respondent was not required to consult with Ms Jankovic; and

•  There were no reasonable redeployment opportunities available.

Background

[10] Ms Jankovic commenced employment with the Respondent on 1 April 2019 as a full-time Deputy Director. Her employment ended on 15 October 2021.

[11] On 12 October 2021, Ms Jankovic met with the Respondent. In this meeting, the Respondent informed Ms Jankovic that due to the Respondent’s Board informally approving a new staffing structure, her role may be made redundant. The Respondent alleges that Ms Jankovic requested for her role to be made redundant immediately after consultation and requested a redundancy payment far in excess of her statutory entitlements. Ms Jankovic holds that she merely asked if she was being made redundant during a meeting discussing workplace concerns and was informed that she was, without the Respondent engaging in appropriate consultation.

[12] The Respondent submits that the job of Deputy Director was no longer required to be performed by anyone for the Respondent. This was due to a decrease in staffing levels and a transition to increased community participation in the work of the Respondent. This resulted in former functions of the Deputy Director role such as ‘team leadership’, ‘project and resource management’, and ‘executive planning’, being removed and redistributed into other positions. The Respondent additionally holds that the job no longer existed and was no longer required to be performed by anyone because of the operational restructure.

[13] The Respondent’s position is that Ms Jankovic was not covered by a modern award or industrial instrument, as she does not fall within the classification structure in the Social, Community, Home Care, and Disability Services Industry Award 2020 (the Award).

[14] If Ms Jankovic’s employment was not covered by an award, this would remove the Respondent’s requirement to consult with Ms Jankovic pursuant to s.389(1)(b) of the Act. Despite this, the Respondent holds that it did engage in ‘extensive and thorough consultation’ with Ms Jankovic, commencing discussions as early as 12 October 2021, seeking feedback on any adverse effects that the redundancy may have on her. In addition to this, the Respondent holds that it provided payment in lieu of notice and eight weeks’ redundancy pay, despite Ms Jankovic not being entitled to payment on redundancy on account of the Respondent employing less than 15 employees.

[15] Ms Jankovic submits that she was covered by the Award as her role was consistent with the classification of a Level 8 Employee in the classification structure. This means that consultation about the redundancy is required as part of the obligations of the Award. She also submits that the Respondent didn’t provide adequate consultation, presenting the ‘redeveloped organisational strategy’ prior to seeking her input, and failing to provide any information in writing, an obligation under the Award. Ms Jankovic contends the Respondent merely told her that the role of Deputy Director would be made redundant, at which point the decision was well beyond the formative stage, meaning that it cannot be described as consultation.

[16] The Respondent also holds that it offered redeployment to Ms Jankovic in a ‘Creative Communication and Community Mobilisation’ (CCCM) role. The Respondent contends that Ms Jankovic declined that role and stated that she no longer wanted to be part of the organisation. The Respondent additionally states that due to the downsizing of the organisation, there were no suitable alternative roles for Ms Jankovic to be redeployed to. Ms Jankovic contends that no redeployment opportunities were offered to her, despite the CCCM role being open.

Hearing

[17] The matter was listed for a video hearing by Teams before me on 14 February 2022. Ms Jankovic was represented by Mr Dan Chen of NB Lawyers. The Respondent was represented by Ms Peta Willoughby of Counsel, instructed by Ms Lindsay Carroll and Ms Sarah Morison of NRA Legal. The following witnesses gave evidence:

•  Ms Jankovic;

•  Dr Michelle Lucas, Executive Director of the Respondent;

•  Mr Matthew Cox, former Executive Director of the Respondent;

•  Ms Aunty Faith Green, Chair of Gunya Meta;

•  Ms Belinda Brown, former Project Lead of the Respondent; and

•  Ms Kathleen Dunning, Business Services Coordinator of the Respondent.

The Respondent’s evidence

Evidence of Dr Michelle Lucas

[18] Dr Lucas is employed by the Respondent as Executive Director, having commenced on 9 July 2021. Dr Lucas holds a Bachelor of Music, Bachelor of Music Education, Masters of Education and Doctorate of Education.

[19] Dr Lucas described the Respondent’s function as a public company and registered charity. It is a not-for-profit community ‘collective impact’ organisation focused on improving outcomes for Logan City’s children and their families through community development work and aligned stakeholder action and investment.

[20] Dr Lucas described the six founding principles required of the collective impact approach:

•  A nimble and adaptive Backbone Team (Respondent employees engaged to assist with operationally implementing the Respondent’s initiatives and projects);

•  Help build community and cross-sectoral governance;

•  Grow social capital;

•  Build a community movement for change;

•  Evaluate progress and impact through the application of data and evidence; and

•  Ensure sustainability of community effort through policy change, systems reform and long-term investment.

[21] The Respondent receives approximately 66% of its income from government grants, and the remainder from donations and bequests, and receives in-kind support from Griffith University. Dr Lucas described the Respondent attempting to, in the past 18 months, redirecting funding away from its paid professionals and moving the funds back into the community.

[22] Dr Lucas described Ms Jankovic’s role as managing the Backbone Team by holding meetings with individual team members, attending launches of projects and initiatives, reviewing briefing documents prepared by funded partners, attending monthly and quarterly meetings in the community, and managing the Respondent’s reporting to philanthropic and government funders.

[23] During the recruitment process to bring Dr Lucas on, she was advised by Ms Margaret Allison, Board Chairperson that the Board had provisionally approved a review of the strategic plan of the organisation. Dr Lucas was informed that she would be expected to develop recommendations for a new strategic approach and associated staffing structure within three months.

[24] Dr Lucas learned that three days prior to her commencement, members of the Board met with all of the Respondent’s staff, informing them that the role of the Backbone Team will shift to being an enabler of others, rather than doing things themselves. The script read to employees is below:

“NOTES FOR STAFF ON CULTURE REVIEW

6 July 2021

•  Wrote to you in May about the staff culture review, and wanted an opportunity to meet with you all before Matthew’s departure

•  Today is an opportunity for Lyn and I to listen to you as much as to speak to you, and of course, meetings like this are not the only opportunity you have to raise employment related issues

Recap of previous views

•  Just wanted to recap the thoughts of the Board on the culture review, although we acknowledge that much has changed over the past few months – not the least of which has been Matthew’s announcement of his departure.

•  Although there was a high level of commitment to the goals and vision of Logan Together, we were concerned that some staff experienced a lack of clarity about their roles and responsibilities.

•  We also wanted to understand and respond to some of the concerning feedback on workload management issues, internal team communication and the lack of a clear process to raise HR issues confidentially.

The changing role of the Backbone team

•  We also commented in our response to staff that we are now in a period of natural transition as we develop our Roadmap for the next (and possibly final) 5 years.

•  In this context, our primary commitment is to the development and empowerment of community leadership. The Backbone team role will shift to being an enabler of others, rather than doing things ourselves.

•  This transition is neither smooth nor easy. It is further complicated when we work directly with community members who are not obligated to abide by the same behavioural norms that bind us in the workplace. I have recently written to the cochairs of the Leadership Table, suggesting that they considering adopting Logan Together’s draft Code of Conduct which currently applies to staff, volunteers and Board members.

•  However, taking a broader view, my view is that we must be generous in any interpretation we make of people’s behaviour. Any new experience of community empowerment is likely to be expressed in a direct and often forceful way which may be uncomfortable for paid workers.

•  As for the structure of the Backbone team, I’m aware this may be an anxious time for some of you, both with a new Roadmap and a new incoming ED. These things will resolve themselves in due course, and I am not in a position to offer you any certainty on the issue of job security. It will clear though that many functions will continue to be needed in some capcity. What I can say is the Board is utterly committed to ensuring that we manage functional transitions (that is, what we do) well, and the fair treatment of staff in any change processes.”

[25] After Dr Lucas commenced in the role, she held a series of workshops and forums with stakeholders to assess whether the Respondent was meeting its collective impact social goals and whether philanthropically donated funds were being appropriately utilised to the maximum benefit of the community. In doing so, Dr Lucas held a range of workshops and meetings with the Backbone Team to assess the relevance and impact of their individual activities against collective impact principles.

[26] Dr Lucas considered that a number of duties performed by members of the Backbone Team were undertaken unnecessarily, with little impact on the community, and perpetuated an ongoing need for the Backbone Team, rather than allowing the community to build the capability and make their own decisions that would affect their futures.

[27] Between June 2021 and July 2021, the number of employees the Respondent employed reduced from 17 to 13.

[28] Dr Lucas held weekly meetings with Ms Jankovic to discuss the development of the new strategy and organisational structure, together with the development of new roles such as the First Nations Engagement Lead and the Community Movement Building/Creative Communications Lead.

[29] On 9 September 2021, Dr Lucas requested clarity from Ms Jankovic around her priority areas of work. In response, Ms Jankovic provided to her the workplan for the entire Backbone Team. Dr Lucas considered that it did not provide insight into Ms Jankovic’s specific areas of focus or responsibility.

[30] On 14 September 2021, Dr Lucas sent the following email to Ms Jankovic:

“Hi Sue,

I’ve now had a good look at your work plan – thank you for the detail you have included. It will be really good to sit with you on Thursday to explore your priorities and contributions. I’m just trying to look beyond the tasks to make sure the bigger picture of your role is visible as the team changes shape in line with the emerging strategy. What I would really love to understand is the end to end work you are leading right now and a guestimate of the weekly load for these pieces of work. I understand you are supervising team members and I’d also love to chat about that and where the needs lie for those individuals.”

[31] Later that day, Ms Jankovic responded by email as follows:

“Dear Michelle

I wanted to take the time to respond to your email as initially the tone was unsettling.

I understood from your feedback that you were unsure about what was occupying my time and you requested a few dot points. Unfortunately a few dot points was not possible due to the significant transition and change processes occurring. I attempted to take some initiative and not only provide you with an overview of current responsibilities but also actions/decisions that need to be made to support the emerging strategy.

Since your commencement I’ve attempted to manage the impact of 5 staff (Matthew, Vic, Georgie, Sam, Karen) leaving the organisation. In some instances, I am now taking direct responsibility of the work load and/or supporting the wellbeing of staff due to the major changes. My approach was also to consider the space you needed to be able to dive deep into your orientation so I attempted to maintain the work flow as we move from one operating frame to another.

My hope of providing the detail was to assist you to get some sense of the current day to day operational matters that are occupying my time. Most of which was emerging due to the constant and emerging changes (noting another 2 staff member will be leaving in 6 weeks). I also included a column titled “Effort” which attempted to address your query about how much time/focus the activity/task takes. More than happy to discuss this in more detail and get your direction on were we invest moving forward.

I appreciate that you are interested in the bigger picture. My attempt, periodically to check in was to ensure I was keeping abreast with future directions whilst balancing the strategic operational requirements (whether that’s contractual or HR items like PD development, etc). I maintained this pace with the understanding that you needed time to orientate and form up the new direction as you continued to meet with external partners. It’s also been challenging to grasp the emerging strategy fully (and how it may align with my role) as I’ve felt excluded from this processes. Again I’ve tried to be supportive and acknowledge the space you needed to connect and form relationships with partners but I feel what’s emerging is a bigger disconnect for the team and I as we continue to be omitted from partner engagement and critical meetings that set the foundations for the way forward.

I would value a discussion about team needs and what we focus on in our routine (fortnightly catch ups) and the support and advice provided in the course of their daily work. In part, there’s been quite a distinct focus with team members to change the mental models and approach so that they are aligned to your vision, expressed to date. There’s also a systems approach that I undertake in trying to connect the pieces within the team but more specifically externally however this is getting more difficult with the disconnect of late. Also, as I mentioned last week team members are feeling devalued and stressed/concerned so I spend time managing staff wellbeing as we navigate through an ambiguous work environment.

I’ve attached the Board approved accountabilities and performance criteria for my role so you are able to have some oversight of the strategic nature that was placed in my role, at the time of development. I totally understand this will significantly shift however I think it is very difficult to shape my role currently to the emerging strategy when we really haven’t had the space to work together on this and while there is still so many loose ends because of the significant changes we’ve experienced.

I hope that we can move forward to shape up my role in a way that better supports the current and emerging strategic vision as the current state is weighing very heavily on me at the moment and its not fulfilling or valuing space to be in.

Look forward to discussing more on Thursday

Regards Sue”

[32] On 16 September 2021, Dr Lucas and Ms Jankovic met. Dr Lucas asked Ms Jankovic to talk to how her duties contribute to the organisation. Ms Jankovic responded to the effect, “I don’t know..I keep looking for things to do and there’s nothing.” Dr Lucas stated that Ms Jankovic confirmed she felt dissatisfied in her role, and as though she was not contributing to organisational goals.

[33] In September 2021, Ms Jankovic offered to undertake data analysis work, for which she did not have the requisite specialist qualifications. Further, the Respondent already had a full-time data analyst and did not require further support in this area.

[34] Dr Lucas began to consider whether the Respondent required Ms Jankovic’s role to be performed by anyone. She considered which of the role’s duties could be redistributed within the organisation, or otherwise ceased altogether. Dr Lucas then concluded that the Deputy Director role was no longer required, and it would be more cost-effective to redistribute any remaining duties of the role to herself. Dr Lucas also concluded that the role of Project Lead was no longer required.

[35] On 11 October 2021, Dr Lucas presented the redeveloped organisational strategy to the Board. This included a staffing restructure which would make the Deputy Director role redundant. The Board provisionally approved the organisational restructure but required Dr Lucas to provide them with staffing cost projections before final approval would be given.

[36] On 12 October 2021, Dr Lucas met with Ms Jankovic to advise her of the potential redundancy of her role, subject to Board approval. She explained that after a review undertaken over September and October 2021, she had identified that it would be more cost-effective and align better with organisational goals for the majority of the Deputy Director’s duties to be discontinued in their entirety, and for the remainder of the role’s reporting duties to be redistributed to Dr Lucas.

[37] Dr Lucas’ evidence is that Ms Jankovic stated that she was unable to cope with the uncertainty and it was clear her role was to be made redundant. She asked for her role to be made redundant. She then said words to the effect, “Yes, I guess with the team diminishing in size, you don’t need a Deputy Director any longer.” Dr Lucas said that Ms Jankovic described the news as a “good development”.

[38] Dr Lucas’ evidence is that Ms Jankovic implored her to fast-track the endorsement by the Board. Ms Jankovic requested a generous redundancy payment beyond the National Employment Standards to meet her personal and family needs and enable her some space to get everything in order.

[39] Dr Lucas’ evidence is that Ms Jankovic was offered and rejected the opportunity to redeploy to the CCCM role, a role she herself had identified and designed on 1 September 2021. In response to this offer, Ms Jankovic stated words to the effect, “No….it is time to go.”

[40] Dr Lucas subsequently spent the balance of the day creating the required Board papers, working through projections and organising with the Board a time-limited but robust process which would enable final endorsement to be made.

[41] Later that morning, a member of the Board, Emeritus Professor Lesley Chenoweth AO emailed Dr Lucas as follows:

“I have just spoken with Lyn who I think will have already rung you.

We agree that you should proceed promptly with the process as discussed.

Could you prepare an letter offering an appropriate redundancy so we can offer this to Sue today.

We think that a week to tidy up will be sufficient but we can offer her an additional two weeks pay.”

[42] The Board papers prepared by Dr Lucas state the following:

“The Deputy Director role was originally established around 2.5 years ago at a time when the Backbone Team numbered 16 part and full-time staff. Since January 2021, the Backbone Team has diminished in size with two contractors leaving prior to June 30, 2021. Since July 2021, a further two contracts have ended and one staff member has accepted another role elsewhere. The need for a Deputy Director role managing the operations of a small team has therefore already become redundant.

The key areas which will need handover and reallocation will be:

•  Reporting

•  The Early Years Education Program

•  Eagleby Hub project support

•  Infrastructure proposals”

[43] Further commentary within the Board papers was made by Dr Lucas on 12 October 2021:

“Deputy Director role (the decision has been made by the Deputy Director and shared with the ED on 12 October, that she seeks a redundancy. The Deputy Director will now fulfil a final week completing work at home. The following plan aligns with that decision.

•  Details of redundancy prepared by the Business Services Coordinator

•  Letter of departure drafted by Deputy Director and agreed by Executive Director asap

•  Conversation with Backbone Team as soon as letter is received, and with the full knowledge of the Deputy Director. Follow up phone call for those BB Team members out of the office at that time

•  Conversation with the Leadership Table either in LTLT meeting (possible 14 October), or by separate memo

•  Email to Action Group at the same time as Leadership Table communication

•  Contact funders by phone to share information and identify any next steps required

•  Update in next newsletter”

[44] Dr Lucas sought the following action from the Board:

“Decision required from the Board:

The Board is requested to approve the proposed staff restructure and staff communication plan noting the mitigations to the identified risks of this activity.”

[45] Later that afternoon, Dr Lucas emailed Professor Chenoweth and Ms Lyn Hamill as follows:

“Attached, please find the Board Paper for further circulation amongst your members. I hope this meets your needs.

Kath has developed a draft letter for the Deputy Director which is in line with the recommendations and requirements of the Ombudsman, asking for her to complete her remaining few days (up to and including Friday 15 October) at home, and offering her 2 weeks’ pay additional to the redundancy pay stipulated by the National Employment Standards. I will work with Sue to draft an appropriate letter informing our colleagues of her departure.

Thank you for advice and support as we work to re-shape the Logan Together Backbone Team to best meet the needs of Logan’s children.”

[46] Dr Lucas telephoned Ms Jankovic to advise her that the Board had endorsed the new staffing model, as she had requested. Ms Jankovic acknowledged that her employment would be terminated.

[47] On 13 October 2021, Dr Lucas provided the following termination letter to Ms Jankovic:

“Termination of your employment by reason of redundancy

Dear Sue

The purpose of this letter is to confirm the outcome of a recent review by The Logan Together Child Friendly Ltd Board, of its operational requirements, and what this means for you.

As a result of the developed strategy and vision for the next phase for the Logan Together Movement, the position of Deputy Director is no longer needed. Regrettably this means your employment will terminate. This decision is not a reflection on your performance.

As per our previous discussion, you are aware that there is no alternative position for you within the Logan Together Backbone Team.

Your employment will end at close of business Friday 15 October 2021. Based on your length of service, your notice period is 3 weeks. Instead of receiving that notice, you will be paid $8,877.24, plus the redundancy entitlement set out below.

Due to your employment ending because of redundancy, you will also be paid redundancy pay of $23,672.64, which is above the minimum amount stipulated in the National Employment Standards. This amount represents six weeks’ pay which is based on your 2 years and 7 months of service, plus an additional 2 weeks’ redundancy pay, which is contingent upon confidentiality concerning your redundancy conditions and upon your commitment to work with me to develop appropriate communications regarding the cessation of your employment.

You will also be paid your accrued entitlements and any outstanding pay up to and including your last day of employment. This includes the balance of any time off instead of overtime paid accrued but not yet taken (paid at the overtime rate applicable when the overtime was worked), and superannuation.

If you have been paid annual leave in advance, any amount of annual leave still owing will be deducted from your final pay.

You may seek information about minimum terms and conditions of employment from the Fair Work Ombudsman. If you wish to contact them you can call 13 13 94 or visit their website at www.fairwork.gov.au

Redundancy and leave payments will usually give rise to waiting periods for Centrelink payments. You should contact Centrelink to find out how long you have to wait to receive any applicable benefits. The best way to do this is to lodge a claim for payment.

Affected employees and their partners have immediate access to jobactive prior to becoming eligible for income support. For information about jobactive eligibility and other support services available, you can access the Help for workers who have recently lost their jobs fact sheet. In addition, the ‘What’s Next’ website provides an online self-help resource for affected employees and employers.

For more information, visit www.whatsnext.dese.gov.au We thank you for your valuable contribution during your employment with us. Please contact me if you wish to obtain a reference in the future.

Yours sincerely,

Dr Michelle Lucas
Executive Director
Logan Together”

[48] In evidence given during the hearing, Dr Lucas stated that Ms Jankovic was an executive member of the Backbone Team, and deputised for Dr Lucas when she away from the business. She is aware that Ms Jankovic dismissed at least one employee in the time they worked together. Further, Ms Jankovic reported directly to the Respondent’s funders.

[49] Dr Lucas stated that at the 11 October 2021 Board meeting, she had proposed the restructure, but the Board had not endorsed the redundancies at that time. The Board asked her to come back to the next Board meeting with a series of different documentation to support her thinking and they would consider endorsing the redundancies and the strategic direction.

[50] Dr Lucas stated it was approximately 5:00pm on 12 October 2021 when the Board approved the redundancies. Dr Lucas stated she was aware that Ms Jankovic was anxious to learn of the Board’s decision to fast-track the redundancy of her position.

[51] Dr Lucas considered that there was not a suitable job to redeploy Ms Jankovic into. The only available roles were that of a First Nations Engagement Officer which Ms Jankovic was not eligible for, and the CCCM role. Dr Lucas stated the following during the hearing: 1

Dr Lucas: In the meeting of 12 October, the morning of 12 October, amongst other things Sue had asked me to fast-track these documents so that we could get them to the board.  And when I agreed to do that, Sue said that she hoped that I would do the right thing, and that I'd support her through the transition and consider she asked for a generous payout because she had family obligations and wanted time to – for the finances to settle.  And I said, 'Look, I will do anything in regards to supporting you through the transition.'  I said I would do anything.  And she was upset, Sue was upset, and so it was a huge moment.  So I said to Sue, 'I'll do anything I can to support you.  I will help you find work.  I will give you a reference, I'll a be referee.  What can I do?  And there's a community mobilisation job, what about' – and I stopped there because Sue was quietly and calmly shaking her head and she said, 'No, it's time to go.'  And we moved on from there.  She said, 'It's time to go.'  She remained with me for a period of time, quite some time after that.  She said she was leaving with full respect.  She said that she didn't want to harbour any ill-will and I sat with her for some time.  There were some tears.  I felt – it was awful.  And then the best I could do, because the time was – the clock was ticking, the best I could do, and we talked about it several times, I said, 'Sue, I don't want to leave you.  What can I do?  I just don't want to leave you.'  And I said, 'I'm going to go next door.  I'm going to get Kath', who was a friend of Sue's and a business services coordinator, and I said, 'When Kath comes in, I'll go.  I'll make the first phone call to the board and see if I can get this done as fast as possible for you.'

[52] In a supplementary witness statement filed by Dr Lucas, she stated that on 3 February 2022, Ms Dunning told her that in or around September 2021, Ms Jankovic enquired as to what her redundancy entitlements would be if her employment with the Respondent was terminated.

[53] Dr Lucas is aware that Ms Jankovic registered an ABN on 6 October 2021, prior to her being informed her role was being made redundant.

[54] In cross-examination, Dr Lucas was asked if she had offered Ms Jankovic the ability to apply for the CCCM role, or had actually offered to her the role. Dr Lucas answered as follows: 2

Dr Lucas: … I began by saying to Sue, 'And what about this role?'  I got as far as saying, you know, the role exists basically – didn't even get that far, and Sue was already shaking her head and saying, 'No, it's time for me to go.'

[55] In re-examination, Dr Lucas stated that she felt Ms Jankovic had some of the skills required for the CCCM role, but she considered that she did not possess all of the skills required; graphic, high-level artistic, graphic design skills and a deep understanding of collective impact. 3

[56] In answering questions from me, Dr Lucas stated that Ms Jankovic was paid an additional two weeks’ redundancy pay on top of the National Employment Standards redundancy pay. Dr Lucas did not learn until after the dismissal and the payment had been made that there was no obligation to pay to Ms Jankovic any redundancy pay on account of the Respondent being a small business.

[57] As to the viability of the Respondent, noting that Ms Jankovic sought in her application to be awarded $56,000, Dr Lucas stated that the Respondent’s primary focus is ensuring that by 2025, 5,000 children in Logan lead a better life. She considered the fact that the Respondent was involved in these proceedings and having to be represented was devastating and would have preferred the funds be used for the purposes they were intended when they were provided to the Respondent.

Evidence of Ms Kathleen Dunning

[58] On the day of the hearing, I requested that Ms Dunning give evidence on account of the contest of facts regarding Ms Jankovic’s demeanour and distress following her meeting with Dr Lucas on 12 October 2021. Ms Dunning set about preparing a brief witness statement and affirmed it during the hearing. The statement is produced below:

“I, Kathleen…….

1. I am employed by Logan Child Friendly Limited (Logan Together) as Business Services Coordinator.

2. I make this statement based on my own knowledge, information and belief unless otherwise stated. Where I make statements based on information provided to me, I identify the source of that information and otherwise believe it to be true and correct.

The Applicant’s awareness of the redundancy of her role in September 2021

3. In or around mid-September 2021, prior to her taking personal leave, I had a conversation with Susan Jankovic. She said words to the effect of, ‘I can’t see a role for me here. I can’t see my role anywhere in the new strategy. I’ll be gone’.

4. I told her at that time that I would have a look to see what her redundancy entitlements were.

5. Approximately one week later, I looked on what I understand to be the Fair Work Ombudsman’s website for that information. I walked over to Susan Jankovic and told her that she would be paid her annual leave entitlements, and 4 weeks’ redundancy pay if her employment was terminated. She might also be paid 2 weeks’ pay in lieu of notice.

My meeting with Susan Jankovic on 12 October 2021

6. On the morning of 12 October 2021, Michelle Lucas came to me, and asked me to sit with Susan Jankovic, because Susan was upset, and Michelle wanted me to provide some emotional support to her.

7. I sat with Susan Jankovic for approximately 15 minutes. I observed that Susan Jankovic was somewhat distressed and asked her what had happened.

8. Susan Jankovic told me that her role was redundant. She said to me words to the effect of, ‘I knew, I knew there wouldn’t be a job for me.’

Payment of Susan Jankovic’s entitlements

9. I instructed the bookkeeper to pay Susan her termination entitlements on 20 October 2021. I had understood that Susan was entitled to 4 weeks’ redundancy pay.

10. I was not aware that Logan Together did not have an obligation to pay redundancy pay.

11. However, I had forgotten to tell the bookkeeper to pay an additional two weeks’ pay to Susan. The Board of Logan Together had agreed to pay this additional 2 weeks’ pay because it wanted the termination of her employment to be amicable. This was paid to Susan on 27 October 2021.”

[59] I asked Ms Dunning if her statement was correct, as Ms Jankovic had in fact been paid eight weeks’ redundancy pay. Ms Dunning stated that she had read that a small business doesn’t need to make redundancy payment to redundant employees, but she wasn’t 100% sure it was correct.

[60] Ms Dunning became teary when giving evidence as to the comfort she provided to Ms Jankovic on 12 October 2021. Consequently, Ms Jankovic also became teary during the hearing. It is clear to the Commission that it was an emotional time for both women to reflect upon and Ms Dunning held appropriate empathy for Ms Jankovic’s plight. Ms Dunning said she had comforted Ms Jankovic for around 15 minutes. The following evidence was given: 4

Ms Willoughby: Thank you.  The last question that I asked you, was if you could tell us what Ms Jankovic said to you during the meeting that you had?

Ms Dunning: When I went in, I said how are you Sue.  She said that Michelle has just told her that her role was redundant and she said to me, I knew it. I knew there wouldn't be a job for me.

Ms Willoughby: Beyond that, was there more to the context of the discussion that you had, or perhaps there was more?

Ms Dunning: There was more, yes, yes.  Then Sue said, look, I'm going to go home and work from home because she had some things to finish off and she didn't want the team to see her upset.  So, she just got a couple of things.  Yes, so there was - it was more just a comforting role.

Ms Willoughby: Was there anything further that you discussed of any substance in that meeting, or that discussion?

Ms Dunning: No, no.  It was really just establishing that she knew the job was redundant, but it was what she was expecting as a strategy was worked, she could see that there wasn't going to be a role for her.

[61] Ms Dunning confirmed that she is across the finances of the Respondent and estimated that there was approximately $900,000 in the bank, and accordingly, an award of compensation would not affect the viability of the Respondent.

Submissions of the Respondent

Changes in operational requirements

[62] It was submitted that the role of Deputy Director was no longer required to be performed by anyone for the Respondent. This occurred because of an operational restructure resulting from a review of the Respondent’s operations conducted by the Board.

[63] The Respondent referred to the decision in Dale v Marky Industries Pty Ltd, 5 summarising the circumstances which most commonly result in a person’s job no longer being required to be performed by anyone, including:

“… it is necessary to draw a distinction between the employee’s job and the employee’s duties. A dismissal may be a redundancy within the meaning in s.389(1)(a) of the Fair Work Act in a number of circumstances including where:

•  the duties remain and operational changes result in fewer employees being required to perform those duties;

•  all or some aspects of an employee’s duties are performed by someone else as a result of operational change;

•  structural change has eliminated the need for specific duties or the employer has found another way to have those duties performed.”

[64] On 11 October 2021, the Board confirmed in concept a new strategic approach and endorsed the same by telephone and via email on 12 October 2021. This new strategic approach identified that a number of changes were required to enable the Respondent to achieve its organisational objectives. Specifically, the Respondent would:

•  move away from a model of service delivery;

•  increase community participation in the work of the Respondent; and

•  reduce its staffing levels to refocus its philanthropically donated funds back into the community.

[65] Over time, the Respondent had increased its involvement in the provision of service delivery. This caused an increase to the staffing levels of the Respondent that made it necessary for the role of Deputy Director to take responsibility for the ‘team leadership’ and ‘project and resource management’ functions. However, in accordance with the Board’s June to September 2021 review of operations, the Respondent’s staffing levels had decreased from 17 staff in March 2021 to 13 staff in July 2021 and down to 9 staff in October 2021.

[66] With the reduced staffing levels and the renewed focus upon achieving a more efficient structure, the executive planning tasks previously performed by the Deputy Director role could be absorbed into the Executive Director role. The Respondent referred to Dibb v Commissioner of Taxation, 6 a Full Court decision in the Federal Court where it was identified that an employee may still be terminated by way of genuine redundancy even if certain aspects of the employee’s duties are still being performed by other employees.7

[67] The Respondent referred to the decision of Senior Deputy President Hamberger in Kekeris v A. Hartrodt Australia Pty Ltd T/A a.hardrodt, 8 where the Senior Deputy President confirmed that the question to be answered is “… whether the job previously performed by the applicant still exists”.

[68] It was submitted that despite some of the duties of the Deputy Director role being redistributed throughout the organisation (in part to the Executive Director), the job itself, comprised of its component duties as a whole, no longer existed and was no longer required to be performed by anyone, as a direct result of the operational changes occurring within the organisation.

Compliance with consultation obligations

[69] The Respondent submitted that it was not required to consult with Ms Jankovic about the redundancy as she is not covered by a modern award or industrial instrument.

[70] The Respondent accepts that it is covered by the Award on account of operating within the social and community services sector.

[71] The “key accountabilities” of Ms Jankovic’s role as set out in the Position Description for the Deputy Director role include:

“Joint responsibility for direction and measurable achievements

Subject to the strategic direction of the Board and the guidance and endorsement of the Leadership Table, and in collaboration with the Director, develop and implement a data-informed roadmap to achieve Logan Together goals of measurable improvements in the health and wellbeing of Logan children 0 – 8 years.”

[72] The Award’s level 8 characteristics, responsibilities and requirements are detailed below:

“B.8 Social and community services employee level 8

B.8.1 Characteristics of this level

(a) A person employed as a Social and community services employee level 8 is subject to broad direction from senior officers and will exercise managerial responsibility for the organisation’s relevant activity. In addition, employees may operate as a senior specialist providing multi-functional advice to either various departments or directly to the organisation.

(b) A person employed as a Social and community services employee level 8 will be subject to broad direction from management/the employer and will exercise managerial responsibility for an organisation. In addition, employees may operate as a senior specialist providing multi-functional advice to other professional employees, the employer, Committee or Board of Management.

(c) General features of this level require the employee’s involvement in the initiation and formulation of extensive projects or programs which impact on the organisation’s goals and objectives. Employees are involved in the identification of current and future options and the development of strategies to achieve desired outcomes.

(d) Additional features include providing financial, specialised, technical, professional and/or administrative advice on policy matters within the organisation and/or about external organisations such as government policy.

(e) In addition, employees will be required to develop and implement techniques, work practices and procedures in all facets of the work area.

(f) Employees at this level require a high level of proficiency in the application of theoretical approaches in the search of optimal solutions to new problems and opportunities which may be outside of the original field of specialisation.

(g) Positions at this level will demand responsibility for decision-making within the constraints of organisational policy and require the employees to provide advice and support to all facets of the organisation. Employees will have significant impact upon policies and programs and will be required to provide initiative, and have the ability to formulate, implement, monitor and evaluate projects and programs.

(h) Positions at this level may be identified by the significant independence of action within the constraints of organisational policy.

B.8.2 Responsibilities

A position at this level may include some of or similar responsibilities to:

(a) undertake work of significant scope and complexity. A major portion of the work requires initiative;

(b) undertake duties of innovative, novel and/or critical nature with little or no professional direction;

(c) undertake functions across a range of administrative, specialist or operational areas which include specific programs or activities, management of services delivery and the provision of high level advice;

(d) provide authoritative specialist advice on policy matters and contribute to the development and review of policies, both internal and external;

(e) manage extensive programs or projects in accordance with organisational goals. This may require the development, implementation and evaluation of those goals;

(f) administer complex policy and program matters;

(g) may offer consultancy service;

(h) evaluate and develop/revise methodology techniques with the organisation. The application of high level analytical skills in the attainment and satisfying of organisational objectives;

(i) where the prime responsibility is in a specialised field, employees at this level would undertake at least some of the following:

(i) contribute to the development of operational policy;

(ii) assess and review the standards of work of other specialised personnel/external consultants;

(iii) initiate and formulate organisational programs;

(iv) implement organisational objectives within corporate goals;

(v) develop and recommend ongoing plans and programs.

B.8.3 Requirements of the position

Some or all of the following are needed to perform work at this level:

(a) Skills, knowledge, experience, qualification and/or training

(i) detailed knowledge of policy, programs, guidelines, procedures and practices of the organisation and external bodies;

(ii) detailed knowledge of statutory requirements.

(b) Prerequisites

(i) qualifications are generally beyond those normally acquired through a degree course and experience in the field of specialist expertise;

(ii) substantial post graduate experience;

(iii) lesser formal qualifications and the acquisition of considerable skills and extensive and diverse experience relative to an equivalent standard; or

(iv) attained through previous appointments, service and/or study with a combination of experience, expertise and competence sufficient to perform the duties of the position.”

[73] The Respondent submitted that the Deputy Director’s joint responsibility with the Board and the Executive Director for the formulation of the Respondent’s goals and objectives demonstrates a level of responsibility not contemplated in the Level 8 classification, and further, not traditionally contemplated within modern award coverage generally. A Level 8 employee is responsible for the “identification of current and future options and the development of strategies to achieve desired outcomes”. It was submitted that the Deputy Director role was responsible for the setting of desired outcomes and goals for the organisation in collaboration with the Board and Executive Director.

[74] Section 143(7) of the Act provides that a modern award must not be expressed to cover classes of employees who have traditionally not been covered by awards due to the seniority of their roles. It was submitted that the Deputy Director role is an executive-level type role involving duties which do not traditionally fall within the coverage of modern awards, and no classification levels within the Award contemplate the level of responsibility and executive duties of the Deputy Director role.

[75] An alternative position was put that in the event the Commission finds that Ms Jankovic was covered by the Award, the Respondent engaged in extensive consultation with her. The Respondent submitted that this included:

•  6 July 2021 when the Board commenced a group discussion with all employees of the Respondent in respect of the proposed operational restructure. The Respondent submitted that this put Ms Jankovic on notice regarding the significant operational changes occurring within the organisation from as early as July 2021.

•  Consultation on 12 October 2021, where Dr Lucas informed Ms Jankovic that the Board had approved a restructure that meant the job of Deputy Director would no longer be required to be performed by anyone.

•  At the same meeting, Ms Jankovic expressed a concern regarding her ongoing ability to provide for her family and requested that the redundancy of her role be expedited and her employment be terminated with immediate effect.

Redeployment

[76] The Respondent submitted that Ms Jankovic was offered a reasonable redeployment opportunity but declined the offer of alternative employment.

[77] In Ulan Coal Mines Limited v Honeysett and Others, 9 the Full Bench held that:

“…It is an essential part of the concept of redeployment under s.389(2)(a) that a redundant employee be placed in another job in the employer’s enterprise as an alternative to termination of employment. Of course, the job must be suitable, in the sense that the employee should have the skills and competence required to perform it to the required standard either immediately or with a reasonable period of retraining. Other considerations may be relevant such as the location of the job and the remuneration attaching to it.”

[78] In Technical and Further Education Commission T/A TAFE NSW v Pykett, 10 the Full Bench confirmed that the assessment of options for redeployment is to occur at the time when the employee is dismissed, and held:

“The use of the past tense in this expression directs attention to the circumstances which pertained at the time the person was dismissed.”

[79] It was submitted that Ms Jankovic had the necessary skills to perform the CCCM role. It is the Respondent’s contention that Dr Lucas offered Ms Jankovic the role on 12 October 2021 which she declined, stating, “no… it is time to go”. Given Ms Jankovic’s rejection of the role, it would not have been reasonable to redeploy her in the circumstances.

Ms Jankovic’s Evidence

[80] Ms Jankovic commenced with the Respondent on 1 April 2019 in the role of Deputy Director. She stated that the role was contemplated to be for a fixed term of five years. Ms Jankovic holds a Bachelor of Social Work and has held senior roles in large organisations.

[81] The role of Deputy Director reports directly to the Executive Director. Ms Jankovic described the duties as including:

•  Managing portfolios and projects to ensure they were delivering the Respondent’s objectives and working in synergy;

•  Playing a leading role in community engagement and engaging with key stakeholders to increase the reach of the Respondent’s organisation and meet community needs;

•  Managing contracts in accordance with relevant governance requirements and establishing relationships with funders and partners;

•  Developing work practices and procedures; and

•  Managing a team of employees with various accountabilities.

[82] Dr Lucas commenced in the Executive Director role in July 2021. Prior to this, Mr Matthew Cox had held the role until his resignation. Ms Jankovic considered that in the six months prior to Dr Lucas’ commencement, the Respondent was in a state of internal turmoil. She described a diabolical relationship between two Co-Chairs of the Leadership Table where they would frequently argue and have disagreement. One of the Co-Chairs of the Leadership Table shall be referred to in this decision as Mr E.

[83] Ms Jankovic considered this conflict had an impact on staff and on Mr Cox. Ms Jankovic noted that four employees resigned their employment, including Mr Cox.

[84] Ms Jankovic noted that in the 6 July 2021 briefing by the Board, the following was stated, “We work directly with community members who are not obligated to abide by the same behavioural norms that bind us.” She considered that no action was taken by the Respondent to address the behaviour of Mr E whom she considered was aggressive and rude.

[85] Ms Jankovic said it could not be said that the meeting of 6 July 2021 constituted consultation regarding the new strategic approach and restructure. She said that she was aware of changes being contemplated, however she was unaware of the extent of the restructure.

[86] Ms Jankovic stated that from July 2021 she temporarily absorbed several roles and gave direction and oversight to others in the business. Dr Lucas was new to the Respondent, and Ms Jankovic considered that it fell upon herself to provide staff with support as to the uncertainty of any restructure because Dr Lucas had not built up a working relationship with employees.

[87] Ms Jankovic denied that she had weekly meetings with Dr Lucas on account of Dr Lucas’ busy diary.

[88] Ms Jankovic considers that she recommended the roles of Communications Lead and Community Lead to be combined into the CCCM role. She considered that she was already delivering on the requirements of the two earlier roles prior to Dr Lucas commencing with the Respondent.

[89] In September 2021, Dr Lucas requested further information from her regarding her role. After providing the information, Dr Lucas suggested she was unclear about Ms Jankovic’s role or what was taking up her work time. Ms Jankovic provided to Dr Lucas a spreadsheet containing her responsibilities and priorities. Ms Jankovic was disappointed when Dr Lucas said to her that she only wanted a few dot points as she considered her role could not be explained or captured within a few dot points.

[90] Ms Jankovic sent the email at [31] as she considered that Dr Lucas was excluding her from strategic matters such as meetings with stakeholders, leaving Ms Jankovic with operational matters which were substantial. Ms Jankovic denies having said that she keeps on looking for things to do as she considers that she was stretched thin. Ms Jankovic considers the statement attributed to her to be ludicrous. She does recall saying, “I am used to far more strategic work and the operational work is not as fulfilling, but I understand they need to be done for the best of the organisation.”

[91] Ms Jankovic became upset and was then certified unfit for work from 15 September 2021 until 1 October 2021. On returning from leave, Ms Jankovic attempted to have a catch-up meeting with Dr Lucas. She reviewed her calendar and noticed a free timeslot on 12 October 2021. At this meeting, Ms Jankovic attempted to discuss the remaining matters within her 14 September 2021 email. She considered that Dr Lucas was disinterested in providing answers to her questions which upset Ms Jankovic.

[92] As a result of Dr Lucas’ indifference or disinterest, Ms Jankovic asked whether her attitude was because her role was going to be made redundant by the Respondent. Her evidence is that Dr Lucas confirmed that her role was redundant, however it was awaiting final approval from the Board. Ms Jankovic rejects Dr Lucas’ evidence that she had stated it was a mere proposal; her evidence is that Dr Lucas informed her it was a definite decision, and she was merely awaiting endorsement by the Board.

[93] Ms Jankovic denies that she said that she was unable to cope with the uncertainty and that it was clear her role was to be made redundant. She said she merely suggested that Dr Lucas was not engaging with her because her role was to be made redundant.

[94] Ms Jankovic denies that she explicitly requested her role be made redundant.

[95] After Dr Lucas informed her the role was to be made redundant, Ms Jankovic accepted the role may no longer be required because of the reduced size of the team. She considers that it was a mature comment based on her understanding of the Respondent’s requirements. Her evidence is that she did not mean that she considered that there were no roles of functions she could perform. She thought the broad scope of the Deputy Director role meant there would be residual duties she could still perform, regardless of whether they were strategic or operational in nature, allowing her to remain employed on an ongoing basis.

[96] She denies that she requested Dr Lucas to fast-track the Board’s endorsement. She denies that she asked for a generous redundancy payment.

[97] Ms Jankovic denies that Dr Lucas made any reference to the CCCM role on 12 October 2021. Her evidence is that she did not even know that Dr Lucas had decided to introduce the CCCM role until she read Dr Lucas’ email of 13 October 2021. Ms Jankovic denies that there was an offer of redeployment or even an opportunity to apply for the CCCM role.

[98] As a result of the stress of the conversation, Ms Jankovic agrees she said, “I need to go” or words to that effect as an indication she wanted to leave the office immediately in order to avoid causing a scene in front of other staff members in the office. She stated that she wanted to preserve her own dignity in emotional circumstances. She is perplexed how Dr Lucas has interpreted, “I need to go” to her not wanting to consider any redeployment opportunities. She repeated that redeployment was not offered to her.

[99] Ms Jankovic’s evidence is that she would have gladly accepted redeployment into the CCCM role if it had been offered to her.

[100] Since the dismissal, Ms Jankovic has attempted to find alternate work. She stated that there are few roles which are being advertised at the same level of seniority as her former role with the Respondent. Ms Jankovic has received feedback that for some of the roles she has interviewed for, she may be over-qualified.

[101] Ms Jankovic’s job description is summarised below:

“BACKGROUND

Logan Together is a transformative, whole-of-community initiative that uses the Collective Impact approach to make big, long term changes in rates of healthy child development. Logan Together will initially focus on families with children in the pre-birth to age eight cohort living in Logan City. It is one of the most ambitious social change programs in Australia.

…

POSITION OBJECTIVES

This position leads the main community delivery activities of the Logan Together movement and is the 2IC position to the Director, often assuming wider responsibilities on behalf of the Director. The role must work with organisational and community leaders from the most senior levels to the grass roots to faithfully implement projects that will deliver the Logan Together Roadmap. On-the-ground action is led through a portfolio of project groups, with 10-20 projects underway at any one time. The role is also responsible for the community engagement and community leadership functions essential to the work of the movement, liaising with and galvanising support and involvement from leaders and community members across the full spectrum of Logan’s very diverse community.

Working with the Community Engagement Coordinator, the role will also be responsible for mobilising and managing volunteers, including outplaced staff from other organisations, people undertaking community service, corporate volunteers, skilled project volunteers and regular community volunteering.

Typically, project groups work to create new service responses and community level solutions and to integrate and align existing social and community services across the community. The role has a wide mandate to facilitate the development of new service models, create shared service delivery platforms and create solutions to community challenges. Change management is an important focus for the role as locally designed reforms roll out, affecting local stakeholders.

The community engagement, leadership and movement building aspects of the role continue to evolve, but the creation and support of leadership groups, skill development, broadly based engagement techniques, co-design processes and participative decision making processes are all in scope.

Because of the reforming nature of the work and the very wide community exposure, the role required advanced skills in negotiation, engagement, political management, communication, planning and design and operational management. It is a very challenging role requiring a rare combination of skills.

The role leads a team of community engagement and project development specialists that support a wide professional and local community to design and deliver the reforms of the Logan Together movement.

Whilst the Director will also be heavily involved in community engagement and project delivery activity from time to time, the Deputy Director role has primary carriage of these areas of responsibility and will run the overall program of work. The Director, in contrast, will oversee the political and organisational leadership engagement, resourcing, communications, policy influencing, evaluation and business operations functions, creating a strong authorising environment in which the Deputy Director can execute the community delivery elements of the Logan Together program.

KEY ACCOUNTABILITIES

Joint responsibility for direction and measurable achievements

Subject to the strategic direction of the Board and the guidance and endorsement of the Leadership Table, and in collaboration with the Director, develop and implement a data-informed roadmap to achieve Logan Together goals of measurable improvements in the health and wellbeing of Logan children 0 - 8 years.

Building relationships and partnerships within the Logan community

Build collaborative and strategic relationships with government, non-government, university, service provider and philanthropic partners, to support and inform Logan Together initiatives, principally within the Logan community.

Team leadership

Lead and support a small but diverse team, providing clear team and individual performance expectations, managing within the available budget and in compliance with relevant WHS and antidiscrimination legislation.

Leadership of community engagement and support function

Lead the community engagement and support function, ensuring all projects reflect community aspirations and effectively mobilise local community expertise, leadership and resources, including volunteers.

Social investment and funding reforms

Work collaboratively with funding partners and service providers to shape social investment and funding reforms that better support integrated local action and initiatives for Logan children and their families, and their practical application in the Logan community

Project and resource management

Oversight progress of Logan Together projects, manage associated resources and provide advice as required to stakeholders and governance committees of progress of initiatives.

Communication

Actively contribute to Logan Together's communications strategy to promote community engagement and momentum.

SELECTION CRITERIA

Essential

•  Completion of relevant tertiary qualifications and substantial relevant leadership experience in policy development, program management, large scale project management, social change and innovation, social planning, public health, community development or other relevant discipline, or an equivalent combination of qualifications, skills and experience.

•  Proven track record in engaging proactively with the most senior internal and external stakeholders and exercising influence in order to affect positive change and outcomes across organisations and systems

•  Demonstrated high-level experience in the orderly delivery of complex projects and multi-party initiatives ideally across several sectors such as health services, education, housing, community services and related disciplines.

•  Experience in multi-strand program or policy design and management.

•  Experience working in high profile environments exposed to politics and community issues

•  Proven high level leadership attributes and the ability to thrive in ambiguous and contested environments

•  Ability to connect with community members and across cultures and from the grass roots to he most senior leaders in government and industry.

Desirable

•  Experience working with and a sound knowledge of collective impact theory and practice.

ABORIGINAL AND TORRES STRAIT ISLANDER PEOPLES

For Logan Together to achieve its aims we must, together with local leaders and the community, support the aspirations of Logan's First Nations communities. To this end we are focussed on several important commitments:

•  We encourage Aboriginal and Torres Strait Islander people to consider all job opportunities available with Logan Together, including this one.

•  We have developed and will continue to improve formal and informal leadership and decision making processes with the local community.

•  We will develop a formal Reconciliation Action Plan.

•  We support and advocate for the adoption into public policy of the Uluru Statement from the Heart and a wider set of commitments set out in the ChangeFest 2018 Statement.”

Evidence given during the hearing

[102] In evidence-in-chief, Ms Jankovic stated her role required her to work closely with the Executive Director to work with partners and governance members to set strategy and to translate that into achievable impacts for the community. She then had to translate that understanding to various team members. There was a range of team members responsible for projects, and a community engagement team who worked directly with engaging the community. She was responsible for contractual obligations and making sure the team delivered.

[103] When the Communication Lead resigned and Community Engagement Lead contract ended, Ms Jankovic and Dr Lucas considered combining the roles; Ms Jankovic then prepared the job description. Ms Jankovic considers that she was very suitable for the role. She has extensive experience in community engagements. For creative communications, she considers the Respondent could have contracted that out.

[104] Ms Jankovic accepts that she stated during the 12 October 2021 meeting, “It sounds like it’s time for me to go”, which she said in the context of the conflict with Mr E.

[105] Ms Jankovic said that she was quite distraught in the meeting, and Dr Lucas went and asked Ms Dunning to sit with her for emotional support.

[106] In cross-examination, Ms Jankovic confirmed that on 6 July 2021, just prior to Dr Lucas’ commencement, Ms Margaret Allison, Chair of the Board announced at a meeting of staff, “I am not in any position to offer you any certainty on the issue of job security.”

[107] When asked how long the 12 October 2021 meeting went for, Ms Jankovic suggested maybe 30 or 45 minutes. She accepts that she directly asked Dr Lucas if her role was going to be made redundant. She said to Dr Lucas, “Michelle, is it looking like my role is going to be made redundant?” to which Dr Lucas informed her that she had been recommending it to the Board. Ms Jankovic accepted in cross-examination that Dr Lucas had stated that she had put a proposal to the Board; she was confident it would be approved, but she still needed to get final approval. Ms Jankovic stated that she was 100% confident that Dr Lucas’ recommendation would be accepted by the Board.

[108] Ms Jankovic accepts that she was highly distressed on learning this news. She was asked if she had expressed that she didn’t want uncertainty anymore. After not understanding the question for some time, Ms Jankovic accepted that she could have expressed that remark.

[109] Ms Jankovic accepts that she told Dr Lucas that she was concerned about her family responsibilities, and Dr Lucas offered to support her in any way she could. Dr Lucas offered her a lift home because she knew that Ms Jankovic was distressed.

[110] Ms Jankovic accepted that Dr Lucas mentioned the new CCCM role in the meeting.

[111] Ms Jankovic accepted that she said during the meeting, “It’s time to go.”

[112] Ms Jankovic agreed that she wanted the redundancy to be brought forward. She answered as follows: 11

Ms Jankovic: Yes, I didn’t want to stay post – knowing that I’m made redundant, I didn’t want to continue with my work and be in the office space knowing that that was happening. Yes, I did ask if I could not be in the office, yes, I did.

[113] Ms Jankovic agreed that she said, “This is a good development for the organisation.”

[114] Ms Jankovic agreed that the email of 13 October 2021 to the team referred to the CCCM role and she was still employed at that time, working from home. She agreed that she did not reach out to see if she would be suitable for the role, considering she had helped draft the position description. The following oral evidence was given:

Ms Jankovic: I was under a significant amount of emotional distress so I would think that if I was suitable for the role that Michelle would have had that conversation with me. So, no, I had just been told that I was made redundant and feeling devalued so, no, I didn’t.

[115] Ms Jankovic was asked what the following sentence within the termination letter dated 13 October 2021 referred to:

“Per our previous discussion you are aware that there is no alternative position.”

[116] Ms Jankovic said she did not know, unless Dr Lucas was referring to the meeting held on 12 October 2021.

[117] Following cross-examination, I asked the following of Ms Jankovic:

Commissioner: Why didn't you, Ms Jankovic, in those last few days there say, 'Look, I drafted this PD, I know it pays a similar amount of money.  I don't want to be made redundant.  Please don't pay me redundancy pay.  I want that role'?

Ms Jankovic: Commissioner, to be honest, when I designed that role I imagined that I would still be in my role or a variation of it but those two functions, we amalgamated and I thought may report to me.  I mean, if I had known that my role would be made redundant and this was the opportunity that I had to stay on the realisation of, I would have accepted that.  And subsequent to when I was told – why I didn't call in the, you know, in the days afterwards, I think I was just heartbroken.  I don't know how to explain it.  I just was so emotionally impacted, to go from where we went to, to effectively being unemployed, I mean, and I do feel like that I – the way that Michelle was excluding me, that I wasn't seen and valued, so I didn't really think to explore with Michelle my possibilities so – yes.

[118] In answering questions from me, Ms Jankovic stated that following the dismissal she had issues with her mental health and withdrew from an interview with another organisation on account of her health concerns.

[119] With respect to mitigation, Ms Jankovic stated that she had performed three weeks of project work for Mr Cox as a contractor. I informed Ms Jankovic during the hearing that she held an obligation to inform the Commission of this remuneration in her primary material filed. She stated that she had provided this information to her legal representative and was unsure why it had not been included, but had made the statement in her primary material that she hadn’t found employment because she thought that only employment was relevant for consideration.

[120] Following the hearing, Ms Jankovic provided further detail in relation to her attempts to find employment. She applied for the following jobs:

•  three jobs in October 2021;

•  one job in November 2021;

•  one job in December 2021;

•  two jobs in January 2022;

•  two jobs in February 2022;

•  two jobs in March 2022.

[121] Following the hearing, Ms Jankovic provided invoices she had made to Mr Cox’s organisation, Cox and Collaborators Pty Ltd for work she had performed as a contractor in November and December 2021:

•  2 November 2021: $3,380 (all GST exclusive)

•  12 November 2021: $1,820

•  26 November 2021: $8,320

•  8 December 2021: $4,940

Total: $18,460

Evidence of Mr Matthew Cox

[122] Mr Cox was the founding Executive Director of the Respondent at the time of its conception in 2015. He provided a witness statement in these proceedings but was not required for cross-examination.

[123] Mr Cox gave six months' notice of his resignation in January 2021, with his final day of employment being 16 July 2021. He assisted with the induction of Dr Lucas.

[124] Mr Cox stated that he enjoyed his time as Executive Director of the Respondent, but felt it was time to step down and move on after investing approximately six years into the role. He stated that the Respondent was and is fully entitled to instigate changes of direction and organisational arrangements after his departure, however such changes needed to respect the industrial rights of employees and be implemented in a fair and reasonable manner.

[125] The collective impact model adopted by the Respondent is a principles-based framework that is broad and non-prohibitive. It principally requires focusing on high-leverage activities, bringing together partners and engaging with the community to foster leadership and serve their best interests. The collective impact model is not strictly codified and is evolving with practice and in response to local context and cannot be considered any form of statutory framework. It is a model which is open to interpretation.

[126] During his tenure as Executive Director, and under his leadership, the Respondent interpreted the collective impact as requiring a more 'hands on' approach by the Respondent's Backbone Team. The Respondent was a leading figure in its application of the collective impact model. Mr Cox considers that each member of the Backbone Team played a role in serving the Logan community, although he did make one role redundant.

[127] Mr Cox stated that the Respondent was in the process of developing a new long-term roadmap setting direction for the next five years. This was not complete when his employment ended. His advice to the Board at the time of his departure was to keep the Backbone Team together, as they were a good team. Whilst the team had slimmed down in the months prior to his departure, the remaining Backbone Team had been performing well in their functions. He was not informed by the Board there were proposed plans to restructure its staffing requirements, nor did he propose to restructure the Backbone Team.

[128] Mr Cox began to perceive that Mr E and a small number of other members of the community advisory committees began to hold feelings of enmity towards Ms Jankovic. Mr Cox received a voicemail message from Mr E saying, "those two little bitches better watch themselves" in reference to Ms Jankovic and another female employee, where other explicit language was used.

[129] Mr Cox also believes that comments were made by Mr E to the effect that the Backbone Team should be "cleaned out" and that Ms Jankovic should be the first one removed. When the Board Chair informed Mr Cox of Dr Lucas’ appointment, she raised with him that some members of the selection panel had voiced, including particularly pointed criticism of Ms Jankovic. A member of the selection panel rang Mr Cox to say how upset they were with the discussion that had occurred during the selection process and that it was unfair and very disrespectful to Ms Jankovic. This person also said elements of this inappropriate discussion - about cleaning out the team - were had with applicants present. These events confirmed to Mr Cox there was a small minority of individuals who wished to see Ms Jankovic removed from the organisation and were actively advocating to the Board Chair and other leaders involved with the organisation. Mr Cox viewed this as highly inappropriate.

[130] Mr Cox considers that Dr Lucas entered her role under considerable pressure to clean out the team, with Ms Jankovic’s departure a priority.

Evidence of Ms Aunty Faith Green

[131] Ms Green is a Waka Waka, Kabi Kabi woman with links to Koa Nation. She provided a witness statement in these proceedings but was not required for cross-examination. She is Chair of a non-profit Aboriginal and Torres Strait Islander organisation based in Logan which is named Gunya Meta. The Respondent provides support to Gunya Meta, and other organisations and programs which help First Nations people in the Logan community.

[132] Ms Green’s evidence went to the tremendous support she considered Ms Jankovic provided to Gunya Meta, including in assisting to obtain substantial funding and giving advice on foster and kinship care and funding. Ms Green considered Ms Jankovic’s assistance to be invaluable.

[133] Ms Green is very critical of Mr E, a member of the First Nations community in Logan with his own organisation. Ms Green was involved in the recruitment of Dr Lucas, and gave evidence that Mr E, Ms Hamill and Ms Allison all stated that they wanted Ms Jankovic “gone”. Ms Green reminded them that she was in the room. It is widely known how affectionally Ms Green thinks of Ms Jankovic.

[134] Ms Green learned from other people of Dr Lucas’ corporate history and it was suggested that she was used to dismissing people and apparently bringing her family in to replace them. Ms Green did not wish for Dr Lucas to be appointed into the role, however she was outvoted.

[135] Ms Green later informed Dr Lucas that she had not impressed her and she had not proven to her that she values First Nations people. Ms Green gave the following evidence, “Whenever we [First Nations people] meet people, our spirit tells us whether the person is good. There was nothing in [Dr Lucas].”

Evidence of Ms Belinda Brown

[136] Ms Brown is a former Project Lead of the Respondent. She provided a witness statement in these proceedings but was not required for cross-examination.

[137] Ms Brown’s employment was made redundant at the same time as Ms Jankovic’s. She states that she was not consulted about her role being made redundant, nor offered redeployment opportunities. She was simply told her role was redundant and that she could either work out her notice period or finish up on 15 October 2021 with her notice period paid upfront. She received a letter of redundancy on 15 October 2021 confirming her employment with the Respondent would end on that day.

[138] On 6 July 2021, Ms Brown and other staff attended a meeting held by Board members. She considers that it was an awkward meeting and the purpose was unclear and confusing. She said that she and the staff knew that the Respondent was entering into a new phase, but there were definitely no discussions of a restructure on 6 July 2021.

[139] Ms Brown stated that due to the lack of communication from Dr Lucas, she decided to request a meeting with her on 16 September 2021. Ms Brown raised her concerns with the number of staff leaving in such a short period of time. She informed Dr Lucas that people were feeling uncertain regarding their roles following the meeting on 6 July 2021 with the Board and that Dr Lucas needed to communicate with staff as to what was happening

[140] Ms Brown’s evidence is that Ms Jankovic is the most outstanding leader she has worked with in her career, and she does not understand how the Respondent can do without Ms Jankovic.

Submissions of Ms Jankovic

[141] Ms Jankovic contests the Respondent’s compliance of all three limbs of s.389 of the Act.

Changes in operational requirements

[142] It was submitted that the meaning of 'job' as it appears within section 389(1)(a) of the Act has a relatively well settled meaning in the context of industrial law. A 'job' is said to be a 'collection of functions, duties and responsibilities' as observed in Ulan Coals Mines Ltd v Howarth & Ors [2010] 3488 at paragraph 17:

“a job involves ‘a collection of functions, duties and responsibilities entrusted, as part of the scheme of the employees' organisation, to a particular employee’”

[143] Mr Cox’s evidence points to the Respondent’s operational activities to coordinate and build relationships between partners with a view on creating benefit for the Logan Community. This was to be achieved by way of engaging with partners, relevant stakeholders, and then building procedures and framework to support partners for the benefit of the Logan Community. This work is still required to be done.

[144] It was submitted that Mr E was hostile towards Ms Jankovic and wanted her removed from the Respondent. If the Respondent had acted on the instruction of Mr E, it would be inconsistent with section 389(1)(a) of the Act. A redundancy cannot involve the targeted removal of a specific person. It must involve demonstrating changes to operational requirements resulting in a person's job no longer being required to be performed by anyone.

[145] It was submitted that it remains unclear as to how the Respondent informed itself that the Deputy Director role was "superfluous and could be ceased altogether'' particularly in the absence of any final roadmap adopted by the Respondent. The role was responsible, inter alia, for engaging with partners which was fundamental to the collective impact model adopted by the Respondent and other important operational and strategic matters.

Compliance with consultation obligations

[146] Ms Jankovic contends she was a Social and Community Service employee Level 8 under the Award. It is immaterial as to whether her written employment contract says she was covered by the Award, as parties cannot contract out of award coverage. 12 Award coverage is by way of statutory operation of s.48(1) of the Act.

[147] It was submitted that the Award is somewhat different from other awards in the sense managerial positions are contemplated within the social and community services sector. Ms Jankovic notes the observations in Cubillo v North Australian Aboriginal Family Violence Legal Service [2011] FWA 6818 at [43] (noting the employee in that matter was the CEO):

“The history surrounding the making of the Modern Award indicates that it was intended to cover managerial positions in the social and community services sector of the type occupied by the Applicant.”

[148] In support of her contention the Deputy Director role was covered by the Award, Ms Jankovic relies on her statement and says:

“a) she was subject to broad direction from the Executive Director role, and by extension, the Leadership Table of the Respondent and other leadership organs. This is consistent with characteristics identified in clause B.8.1 (a) of the Award;

b) furthermore, whilst the Deputy Director role did have discretion in decision-making ability, this was within the constraints of agreed delegations by the Board. Ms Jankovic had significant involvement in initiatives and programs of the Respondent and exercised initiative in their formulation and implementation. These matters are consistent with characteristics identified in clause B.8.1 (h) of the Award;

c) Ms Jankovic assisted in building frameworks and models to best align with the Respondent's strategic objectives. These matters are consistent with characteristics identified in clause 8.8.1 of the Award; and

d) Ms Jankovic brought her knowledge of social work (together with knowledge of governance requirements) to assist her colleagues and other stakeholders relevant to the Respondent's organisation. It can be said she was a 'subject matter expert' during her involvement with projects and community engagement. These matters are consistent with characteristics identified in clause B.8.1 (a) of the Award.”

[149] Applying the 'principal purpose test', it is submitted that this leads to a conclusion that the Deputy Director role cannot be easily described as an “executive level type role involving duties which do not traditionally fall within the coverage of modern awards”. A person with mere managerial experience in an executive position would not be able to effectively discharge the Deputy Director role. Ms Jankovic submitted that the essential character of the Deputy Director role requires the incumbent employee to have an intimate understanding of social work in practice and applying that towards their duties. This formed part of her principal purpose of employment, placing her role within the ambit contemplated by the Award.

[150] On that basis, Ms Jankovic says her role should be appropriately classified as a social and community service employee Level 8 under the Award, therefore requiring the Respondent to consult with her in accordance with its obligations under s.389(1)(b) of the Act.

[151] Ms Jankovic submitted that at no time was she consulted with, and certainly not in writing as required by the Award.

Redeployment

[152] Ms Jankovic submitted that the Respondent initially asserted that it had offered her the opportunity to apply for the CCCM role, but by the time material was due to be filed, the Respondent now asserts that it had given Ms Jankovic the opportunity to redeploy into the role.

[153] Ms Jankovic submitted that she was suitable for the CCCM role, particularly as she had been temporarily performing relevant roles, and the predecessor roles to the CCCM role fell within her area of accountability. It is her position that she was never offered redeployment into the CCCM role. It is her position she would not have refused an offer of redeployment given her commitment to the Respondent's organisation, her personal circumstances and the difficulties in finding alternate employment opportunities.

Remedy

[154] Ms Jankovic submitted that she did not know if the CCCM role had been filled by the Respondent but considers that the necessary trust no longer exists between her and the Respondent to make reinstatement appropriate.

[155] Ms Jankovic considers she would have remained employed for six months and seeks the following compensation order:

a) six months pay' calculated at $159,663.63 ($79,831.81);

b) less redundancy pay paid by the Respondent ($23,672.64); and

c) no deductions for the notice period paid by the Respondent ($8,877.24), consistent with the approach in Ferrao v Peter MacCal/um Cancer Institute [2016] FWC 4953 at paragraph 82 where it was observed:

The notice period payment should also not be taken into account as I consider it likely to be payable at the conclusion of the six month period and I took this into account in determining the future expected period of employment.

d) no deductions for Ms Jankovic’s failure to mitigate losses, as she continued to apply for several roles following her dismissal.

[156] Ms Jankovic invited the Commission to award to her an amount of $56,159.17 less applicable taxation.

Written closing submissions

[157] The parties were provided with the transcript of the proceedings and provided an opportunity to provide written closing submissions.

Respondent’s closing submissions

[158] The Respondent submitted that Ms Jankovic knew that there would not be a role for her following the organisation’s review, and she stated this to Ms Dunning in mid-September 2021 and again on 12 October 2021.

[159] As to the application of the Award, the Respondent submitted that Ms Jankovic’s role was too senior to be covered by the Award.

[160] If consultation is required, it is submitted that when the discussion occurred between Dr Lucas and Ms Jankovic, a definite decision to make Ms Jankovic’s role had not been made. It was Ms Jankovic who initiated a meeting with Dr Lucas and straight out asked her if her role was being made redundant.

[161] The definite decision to make Ms Jankovic’s role redundant was not triggered until the Board approved it, which was after the meeting between the two women. The Respondent submitted that it had been decided between them that Ms Jankovic would be made redundant, and where Ms Jankovic had previously been aware of the need for organisational change, the provision of written notice pursuant to clause 8.2 of the Award was futile.

[162] Regarding the CCCM role, it is the Respondent’s submission that this was offered to Ms Jankovic at the meeting of 12 October 2021, however she refused it. The role was included in communication to the team in an email of 13 October 2021, and if Ms Jankovic did not read the email, it does not derogate from the fact that it was communicated to the team.

[163] In oral evidence, Dr Lucas noted some doubts she had relevant to Ms Jankovic’s graphic design skills, and Ms Jankovic also doubted her skills in the creative communications part of the role, suggesting it could be contracted out.

[164] The Respondent submitted that if the dismissal was not found to be a genuine redundancy, a valid reason existed for the dismissal on account of redundancy. Ms Jankovic was notified of that reason on 12 October 2021 and then in writing on 13 October 2021.

[165] It was submitted that Ms Jankovic had an opportunity to respond to the reason during the meeting of 12 October 2021, where she expressed her concerns regarding her family responsibilities.

[166] It was submitted that the Respondent is a small business with no specialised human resource capabilities, demonstrable by the Respondent’s error in calculating Ms Jankovic’s entitlement to redundancy pay. The Respondent has limited funding available to dedicate to human resources capacity.

[167] It was submitted that if the dismissal is found to be unfair, reinstatement is impracticable as there is a lack of a suitable role to return Ms Jankovic to.

[168] It was submitted that if Ms Jankovic’s redundancy had not been fast-tracked, she would have remained employed no longer than 1 - 1.5 weeks, taking into consideration she had refused redeployment and the Board was looking for organisation changes to be implemented within 12 weeks of Dr Lucas’ commencement.

[169] The Respondent noted that one weeks’ pay equates to $2,959.08 and submitted this should be offset against the overpayment to Ms Jankovic of $23,672.64 redundancy pay. Accordingly, it was submitted that no order for compensation should be made.

Ms Jankovic’s closing submissions

[170] Ms Jankovic submitted that it remains to her unclear whether her Deputy Director role was no longer required to be performed by anyone because of changes to operational requirements or other reasons. She considers that it is open to infer her role was made redundant for improper reasons, including the weight the Respondent gave to the views of Mr E. Ms Jankovic submitted that the behaviour of Mr E was corroborated by the evidence given by all of Ms Jankovic’s witnesses.

[171] Ms Jankovic submitted that some First Nations people influenced Dr Lucas’ and the Board’s decision. Ms Green, however, was extremely supportive of Ms Jankovic, and Ms Jankovic suggest that Dr Lucas preferred to engage with certain community members over others.

[172] Ms Jankovic was not informed prior to 12 October 2021 that her role would be made redundant, and she began to notice she was being excluded from strategic matters, also noted by Ms Brown.

[173] It was submitted that the principal purpose of Ms Jankovic’s employment fell within the ambit contemplated by the Award, and the Respondent failed to consult with her.

[174] As to redeployment, Ms Jankovic maintains that the role of CCCM was never discussed with her on 12 October 2021 and considers this is a factual dispute which must be determined by the Commission.

[175] Ms Jankovic submitted that if the Commission finds the dismissal was not a genuine redundancy, it is open to conclude there was a spiteful or prejudiced reason for her dismissal. In such circumstances, it is unlikely there would be a valid reason for her dismissal.

[176] In the alternative, Ms Jankovic argued that if the Commission finds there was a redundancy, but it was not a ‘genuine redundancy’ within the meaning of the Act, section 389(a) is a neutral consideration.

[177] Ms Jankovic submitted that the Respondent’s size or lack of dedicated human resources personnel do not weigh in its favour, and it is a matter of common decency for the Respondent to have kept Ms Jankovic updated on its decision making, and to have given her an opportunity to calm down prior to undertaking further discussion.

[178] It is submitted that Ms Jankovic has not been afforded a “fair go all round” by the Respondent. She had been struggling with uncertainty regarding her role and treated with indifference by Dr Lucas for some time prior to her dismissal. Strategic duties had been unilaterally taken from her without her input with no apparent explanation provided. Ms Jankovic had to make her own inquiries regarding her ongoing employment, like Ms Brown, and no proactive attempt had been made to communicate with her.

[179] Having revised the requested remedy, Ms Jankovic seeks the following order of compensation:

a) twenty six (26) weeks’ pay at the CCCM role salary;

b) less the equivalent weeks’ pay, having regard to the redundancy pay being made as a substantially tax free payment (only $167.87 was withheld as PAYG tax);

c) less amounts earned (as a contractor) of $18,460.00 (which is taxed differently);

d) no deductions for notice period; and

e) no deductions for failure to mitigate losses or for misconduct.

[180] As a rough estimate, Ms Jankovic submitted the following calculations as an appropriate remedy:

a) 26 weeks’ pay at a salary of $153,872.38, which equates to a net pay (after tax and salary sacrificing) of $1732.035 and gross pay of $2,959.08;

b) less 13.67 weeks’ pay, being the (substantially) tax free redundancy amount of $23,672.48 divided by $1,732.035 as the weekly net pay;

c) less 6.23 weeks’ pay, being the amount earned as a sole trader contractor (which is taxed at individual tax rates) of $18,460.00 divided by $2959.08 as the weekly gross pay;

d) leaving 6 weeks’ pay, being a gross amount of $17,754.48 or a net amount of $10,392.21, plus applicable superannuation.

Respondent’s reply closing submissions

[181] In its written reply submissions, the Respondent submitted that Ms Jankovic’s failure to disclose to the Commission remuneration earned by her soon after the dismissal was intentional. Ms Jankovic had, pursuant to the directions issued by me, been required to provide evidence of her attempts to mitigate her loss. She did not, until I asked questions during the hearing, disclose that she had worked as a contractor, and upon provision of the payments to her following the hearing, disclosed a substantial payment to her of $18,460.

[182] The Respondent submitted that it is open for the Commission to draw an adverse inference in relation to Ms Jankovic’s credibility arising from her failure to disclose significant earnings to the Commission. The Respondent submitted that the entirety of Ms Jankovic’s evidence should be held in the same regard, and to the to the extent that any factual dispute exists between the parties, the evidence of Dr Lucas and the Respondent should be preferred over the evidence of Ms Jankovic.

Consideration

[183] I turn now to a consideration of the criteria set out in s.389 of the Act. For Ms Jankovic’s dismissal to be a case of genuine redundancy, the Respondent must meet each of the criteria set out in s.389 of the Act.

s.389(1)(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

[184] The test to be considered where there has been a reorganisation or redistribution of duties is whether the employee has any duties left to discharge.¹³ 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.¹⁴

[185] The decision in Kekeris v A. Hartrodt Australia Pty Ltd T/A a.hartrodt¹⁵ considered this point and established that 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. The Full Bench in Ulan Coal Mines Limited v Howarth and others¹⁶ considered and applied the decision of Ryan J in Jones v Department of Energy and Minerals¹⁷ and said:

“[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.”

[186] The evidence before the Commission is that the Respondent, through Dr Lucas, conducted an analysis of its staffing requirements and decided that it could do without the Deputy Director role, together with one other role. Dr Lucas has taken on the supervisory responsibilities previously performed by the Deputy Director. There are, of course, less people to supervise given the reduction of staff in mid-2021.

[187] There is no serious contest that the role of Deputy Director is being performed by any person. The analysis undertaken by Dr Lucas and approved by the Board removed the role of Deputy Director and instead included the role of First Nations Engagement and a tentative Project Officer, with the Project Officer role at around 1/3 of the cost of the Deputy Director total cost.

[188] Dr Lucas’ proposal sought to reduce wages and contractor costs by approximately $400,000 per annum and to come under budget. It appears that if all of the changes had not been made, the Respondent would have been in deficit by approximately $200,000 per annum. 18

[189] It was clear that Dr Lucas was brought on by the Respondent to make changes to the organisation. She did what she was tasked to do. It is not necessary in consideration of s.389(1)(a) to determine if there was a stronger reason to dismiss on account of the role not being required, as against the reasons put by Ms Jankovic, that there was a campaign to have her exited from the business. Nor does it matter that Mr Cox, in his time with the Respondent would not be aligned with the restructure ultimately proposed by Dr Lucas to the Board.

[190] I am satisfied the Respondent no longer required the role of Deputy Director to be performed by anyone because of changes in the operational requirements of its enterprise.

[191] The criterion in s.389(1)(a) of the Act is satisfied.

s.389(1)(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

[192] There is a contest as to whether Ms Jankovic’s employment was covered by the Award. For Ms Jankovic to be covered by the Award, she would need to satisfy the matters of characteristics of the classification, responsibilities and requirements of the position.

[193] With respect to matters to determine in responsibilities, I am satisfied that Ms Jankovic met the Level 8 responsibilities, without being too senior for the responsibilities described within the Award. I consider that Ms Jankovic was subject to broad direction from the Executive Director and she exercised managerial responsibility for the Respondent. I consider she did operate as a senior specialist providing multi-functional advice to her colleagues, the Respondent and the Board.

[194] Ms Jankovic had considerable input into the Respondent’s projects, goals and objectives. I accept that Ms Jankovic had significant independence of action, only constrained by organisational policy, but otherwise was responsible for being an independent thinker and doer.

[195] With respect to responsibilities of the role, I accept that Ms Jankovic was required to undertake work of significant scope and complexity requiring initiative. She did not require very much professional direction. She supported many colleagues in their varied roles. Ms Jankovic certainly was required to implement organisational objectives within corporate goals and develop and recommend ongoing plans and programs.

[196] As for requirements of the position, Ms Jankovic has extensive post-graduate experience and detailed knowledge of policy, programs, guidelines, procedures and practices of the Respondent and external bodies.

[197] I am not satisfied that Ms Jankovic was too senior to be classified as a Level 8 employee covered by the Award. I consider the description of her role to be extremely compatible with the Level 8 employee described within the Award.

[198] I find that Ms Jankovic’s employment was covered by the Award. Accordingly, there was a requirement to consult with Ms Jankovic if the Respondent made a definite decision to make major changes in organisation or structure that are likely to have significant effects on employees including termination.

[199] What is clear is that Dr Lucas had formulated the view that the role of Deputy Director would be removed from the organisation on account of operational requirements. She had put a proposal to the Board on 11 October 2021, and the Board had given provisional approval to implement the restructure, subject to Dr Lucas providing financial information.

[200] I am not satisfied that the Respondent had, as of 11 October 2021, made a definite decision to make the major changes as contemplated by the consultation clause within the Award. I am satisfied the Respondent had provisionally agreed, but it had not made a definite decision. The definite decision was not made until 12 October 2021, and only after Dr Lucas had put the hurried proposal to the Board on that date on account of Ms Jankovic’s desire to have the redundancy implemented expeditiously.

[201] The Respondent certainly had not made a definite decision to make major changes in July 2021 or even in September 2021 when organisational change had been hinted at or suggested. The Respondent’s submission that because organisational change was being talked about amounted to consultation is not accepted. While employees, including Ms Jankovic and Ms Brown clearly had the jitters as to the security of their respective roles, evidenced by their respective discussions with Dr Lucas in September 2021, there was no formal plan until 11 October 2021, and no commitment by the Board until 12 October 2021. Ms Jankovic’s proposal could easily have been rejected by the Board on 11 October 2021 for whatever reason it might have chosen.

[202] At the conclusion of the 11 October 2021 Board meeting, Dr Lucas was not afforded any discretion or authority by the Board to terminate Ms Jankovic’s employment on account of redundancy.

[203] The Award obligation is prescriptive; once the definite decision is made, the employer must, in writing, give notice to the affected employees and discuss the introduction of the changes, their likely effect on them and measures to avoid or reduce the adverse effects of the changes on them.

[204] The definite decision to make Ms Jankovic redundant was not made until 12 October 2021. Accordingly, the obligations to consult arose from that time. The obligations were not met by the Respondent. I accept that this is because Ms Jankovic sought Dr Lucas out and directly asked her if her role was being contemplated for redundancy. Dr Lucas did not placate Ms Jankovic and inform her that a process was required before this could be formally discussed with her. Instead, Dr Lucas informed Ms Jankovic of the provisional view of the Board, causing Ms Jankovic considerable distress at the news.

[205] While the news was swirling in Ms Jankovic’s head, she was rapidly wanting to know if the redundancy could be fast-tracked. I accept that this was a difficult discussion for both parties, however Dr Lucas had a responsibility under the Award which I do not think she appreciated at the time.

[206] At no time was Ms Jankovic provided with the written communication required by the consultation clause within the Award. Accordingly, I cannot be satisfied that the Respondent complied with the obligation in the Award that applied to Ms Jankovic to consult about the redundancy.

[207] As I am not satisfied that s.389(1)(b) of the Act has been met, the dismissal cannot be a genuine redundancy. Having reached such a conclusion, it is not necessary for me to determine if it would have been reasonable in all the circumstances for Ms Jankovic to be redeployed in the Respondent’s enterprise, however I consider it appropriate to do so.

s.389(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.

[208] Whether redeployment of an employee is considered reasonable will depend on the circumstances that exist at the time of the dismissal.¹⁹ 

[209] In Hallam v Sodexo Remote Sites Australia Pty Ltd,²⁰ a Full Bench of the Commission stated the following:

“…..Subsection 389(2) states that 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. Subsection 389(2) places no obligation on an employer to redeploy, or to do everything possible to achieve a redeployment outcome. The exception is applied at the time of dismissal. It operates so that a dismissal that would otherwise be a case of genuine redundancy under subsection 389(1) will not be so if it would have been reasonable in all the circumstances for the person to be redeployed within the employer’s enterprise, or with an enterprise of an associated entity of the employer.”

[210] As the Full Bench observed in TAFE NSW v Pykett,²¹ to show that it would have been reasonable for the Respondent to redeploy Ms Jankovic, it is not necessary to identify a particular job or position in which Ms Jankovic could have been redeployed. However, the Commission must be satisfied on the balance of probabilities, and based on the evidence, that there was a “job or a position or other work” to which it would have been reasonable to redeploy Ms Jankovic.

[211] The CCCM role is the only role relevant for consideration. I have considered all of the evidence of the parties and submissions made by each of them. Where there is a contest of facts between the evidence of Dr Lucas and Ms Jankovic, I prefer the evidence of Dr Lucas. I do not say so on the basis of credit, as I have no reason to doubt the credit of Ms Jankovic. I do, however, consider that Dr Lucas had more objectivity and clarity of thought when the discussion was held on 12 October 2021.

[212] Ms Jankovic was, understandably in a state of distress during the conversation with Dr Lucas. She was processing a significant event in her life, and she accepts that she sought to expedite the redundancy on account of her distress, how she would feel working for the remainder of the week, and she accepts that during this conversation she concluded, “This is a good development for the organisation.” Further, I accept that she said, “Yes, I guess with the team diminishing in size, you don’t need a Deputy Director any longer.” Ms Jankovic has now had time to process the dismissal and in bringing her unfair dismissal application, and now does not think it was a good development for the organisation.

[213] I accept that because the news was very sudden, Ms Jankovic said things to Dr Lucas she may not have said had she been afforded the opportunity to be given the news, in writing, of a definite decision to make her role redundant, and allowed the necessary time to consult.

[214] I am satisfied that Dr Lucas did refer to the CCCM role to Ms Jankovic during the 12 October 2021 meeting, and Ms Jankovic responded, “No….it is time to go.” Ms Jankovic accepted during the hearing that this was said in the context of the conflict she had with Mr E.

[215] The meeting was not a quick, five-minute meeting. It was for an extended period of time, and Dr Lucas was concerned enough to obtain the support and comfort of Ms Dunning on account of Ms Jankovic’s distress. Ms Dunning attended upon Ms Jankovic for a period of approximately 15 minutes where Ms Jankovic stated that she knew her role would not survive Dr Lucas’ review.

[216] Ms Jankovic had helped create the position description of the CCCM role. An email was sent to the team on 13 October 2021, announcing the role. Ms Jankovic’s evidence is that she did not read the email. Ms Jankovic was still an employee on this date and for a few more days. If she had been interested in the CCCM role which I accept was put to her for her consideration during the meeting of 12 October 2021, it was within her domain to hold discussions with Dr Lucas about her suitability for the role.

[217] I accept Dr Lucas’ evidence that she put the role to Ms Jankovic for consideration during the 12 October 2021 meeting, and she accepted that Ms Jankovic was not interested in the role and preferred to have the redundancy fast-tracked. Accordingly, she did not raise the matter for discussion again and in the termination letter dated 13 October 2021, referred Ms Jankovic to their previous discussion (the day before), and stated that there was no alternative position available for her. Ms Jankovic did not, on receipt of the termination letter, challenge Dr Lucas as to the discussion they were supposed to have had, or that she would like to be considered for the CCCM role. Ms Jankovic’s challenge to those two matters only arose in her unfair dismissal application.

[218] As to Ms Jankovic’s suitability for the CCCM role, I was disturbed with Ms Jankovic’s evidence given during the hearing that she considered she had suitable communication skills, but some parts of the role might need to be contracted out. The CCCM role is a high paying role and would, I expect, be required to be performed in full. The whole purpose of the organisational restructure was to reduce costs paid to contractors, casuals, and to better align roles, including a First Nations engagement role.

[219] Had Ms Jankovic not refused the CCCM role, it would have been necessary for the Respondent to turn its mind to whether Ms Jankovic could, in fact, perform the requirements of the role. I consider it would have been a relevant consideration the Board may have become involved in, and if Ms Jankovic had continued to express concerns about her thinking it was time to leave the organisation, there is no guarantee she would have been suitable to have been offered the role. It appears that Ms Jankovic’s issues with Mr E were not a secret, and if Ms Jankovic’s immediate reaction to learning her role was being made redundant was to express understanding, agreement and resignation to the decision, to then turn that around to enthusiastically embrace a brand new role would have been very difficult to achieve.

[220] For the above reasons, I am not satisfied that it would have been reasonable in all the circumstances for Ms Jankovic to have been redeployed within the Respondent’s business or any of its associated entities.

Conclusion on the issue of genuine redundancy

[221] The jurisdictional objection that the dismissal was a case of genuine redundancy requires two affirmative elements and one negatory element which must be satisfied, so as to establish whether a dismissal was or was not a case of genuine redundancy.

[222] For all of the reasons set out above I am not satisfied that Ms Jankovic’s dismissal was a case of genuine redundancy because:

•  While the Respondent no longer required Mr Jankovic’s job to be performed by anyone because of changes in the operational requirements of its enterprise; and

•  It would not have been reasonable in all the circumstances for Ms Jankovic to be redeployed within the Respondent’s enterprise or the enterprise of an associated entity; and

•  The Respondent did not comply with its obligation in the Award that applied to the employment to consult about the redundancy.

[223] The Respondent’s jurisdictional objection is dismissed.

Was the dismissal harsh, unjust or unreasonable?

[224] A dismissal may be unfair, when examining if it is ‘harsh, unjust or unreasonable’ by having regard to the following reasoning of McHugh and Gummow JJ in Byrne v Australian Airlines Ltd:²²

“It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”

[225] I am duty-bound to consider each of the criteria set out in s.387 of the Act in determining this matter.²³

s.387(a) - whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees)

[226] When considering whether there is a valid reason for termination, the decision of North J in Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 at 373 provides guidance as to what the Commission must consider:

“In its context in s.170DE(1), the adjective “valid” should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s.170DE(1). At the same time the reasons must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must “be applied in a practical, common-sense way to ensure that the employer and employee are treated fairly.”

[227] However, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.²⁴

[228] I am satisfied that the Respondent no longer required Ms Jankovic’s job to be performed by anyone because of changes in the operational requirements of the enterprise. I am not satisfied that any part of the reason for the dismissal was to see Ms Jankovic removed in a ‘cleaning out’ as has been suggested. My view is if that had been the case, Ms Jankovic would have been instructed by the Board to find a way to end Ms Jankovic’s employment. On the evidence before the Commission, that has not been put to Ms Jankovic, and I consider the Board would not have hesitated when reviewing Dr Lucas’s proposal on 11 October 2021; instead it asked Dr Lucas to come back at a later time with more information around the proposal.

[229] Dr Lucas also formed the view that her discussions with Ms Jankovic in September 2021 produced a lacklustre response from Ms Jankovic, confirming her view that the role of Deputy Director was not required and duties performed by Ms Jankovic could be absorbed by others, including by Dr Lucas. I consider Dr Lucas’ assessment to be fair.

[230] The reason for Ms Jankovic’s dismissal was not related to her capacity or conduct. As such, this is a neutral factor with respect to whether Ms Jankovic’s dismissal was harsh, unjust or unreasonable.

s.387(b) - Whether the person was notified of that reason

[231] As Ms Jankovic’s dismissal did not relate to capacity or conduct, this is a neutral factor. I note, however, Ms Jankovic was notified of the reasons for the dismissal in the termination letter dated 13 October 2021.

s.387(c) - Whether there was an opportunity to respond to any reason related to the capacity or conduct of the person

[232] This criterion deals with procedural fairness in respect of a reason for dismissal related to an employee’s capacity or conduct. As Ms Jankovic’s employment ended by way of redundancy this is a neutral factor.

s.387(d) - Any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to the dismissal

[233] Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, an employer should not unreasonably refuse that person being present.

[234] There is no positive obligation on an employer to offer an employee the opportunity to have a support person. The Explanatory Memorandum, Fair Work Bill 2008 (Cth) at [1542] states the following:

“This factor will only be a relevant consideration when an employee asks to have a support person present in a discussion relating to dismissal and the employer unreasonably refuses. It does not impose a positive obligation on employers to offer an employee the opportunity to have a support person present when they are considering dismissing them.” 

[235] In the circumstances, I find that the Respondent did not unreasonably refuse to allow Ms Jankovic to have a support person present at discussions relating to the dismissal on 12 October 2021, however I note that the meeting spontaneously became a meeting about the proposed redundancy.

s.387(e) - Was there a warning of unsatisfactory work performance before dismissal

[236] Ms Jankovic’s dismissal did not relate to unsatisfactory performance. This is a neutral factor.

s.387(f) - Whether the respondent’s size impacted on the procedures followed and s.387(g) - Whether the absence of a dedicated human resource management specialist impacted on the procedures followed

[237] The Respondent became a small business shortly before Ms Jankovic’s dismissal, having months earlier had just in excess of 15 employees. It did not have any internal human resource management expertise. I consider that the size of the business and its lack of internal expertise impacted on the procedures followed.

s.387(h) Other matters

[238] I am satisfied that the Respondent had a valid reason to dismiss Ms Jankovic having regard to its operational requirements. The valid reason was not related to Ms Jankovic’s capacity or conduct; it was nonetheless a bona fide reason. It is a consideration that tells against a finding that the dismissal was unfair.

[239] Dr Lucas was not ready to discuss the issue of redundancy with Ms Jankovic on 12 October 2021, however Ms Jankovic initiated the conversation and asked Dr Lucas a direct question. Dr Lucas told Ms Jankovic the truth; that her role was being contemplated for redundancy and a proposal had been put to the Board. She could have chosen to not properly answer the question, however she could see that Ms Jankovic was pained and expected a truthful answer.

[240] Upon learning that truth, the expected course of events was altered by the fact that Ms Jankovic asked that the proposed redundancy be expedited and she declared that it was time for her to go, which I accept was her expressing her views that it was appropriate that she depart the organisation, not the meeting itself.

[241] Following the meeting, Dr Lucas put all other commitments aside and tasked herself with effecting approval of the redundancy. This was something she was not expecting to do that day.

[242] A more rational course of action might have been to allow Ms Jankovic to work from home for the rest of the week without having to be present in the office, while time was taken to properly put to Ms Jankovic, in writing, the concept of the redundancy, approved by the Board, and to offer to Ms Jankovic some breathing space to determine if she wished to be considered for the CCCM role. Instead, all of the decision making was compacted into a very short space of time while individuals were under emotional pressure. I do note, however, that Ms Jankovic did not, in the days thereafter, seek to be considered for the CCCM role.

[243] Regrettably, the Respondent was of the view that it did not hold an obligation to consult with Ms Jankovic with respect to the redundancy on account of her being award-free. I have concluded that her employment was covered by the Award.

[244] I have also had regard for the fact that the dismissal was conducted in breach of the consultation provisions of the Award and that issue weighs heavily for a finding that the dismissal was harsh, unjust or unreasonable. The Respondent’s submission that complying with the Award by informing Ms Jankovic in writing of the redundancy and inviting consultation was futile is utterly rejected. It is a lawful requirement of the Respondent.

Conclusion

[245] The jurisdictional objection that the dismissal was a case of genuine redundancy requires two affirmative elements and one negatory element which must be satisfied so as to establish whether a dismissal was or was not a case of genuine redundancy.

[246] I have determined that the second affirmative element was not satisfied in this case. Specifically, the Respondent has not complied with an obligation in the Award that applied to Ms Jankovic’s employment to consult about her redundancy. Therefore, the dismissal did not satisfy the meaning of genuine redundancy as contained within s.389(1)(b) of the Act.

[247] It is necessary for the Commission to determine if the dismissal was consistent with the Code. As stated, the Code does not provide any relevant application in the instance of dismissal for redundancy, where the dismissal is not connected with any conduct, capacity or performance issues but instead arose from a financial imperative.

[248] Consequently, the jurisdictional objection have been determined and rejected, and consideration has turned to the substantive merits of the application. Having appropriate regard for the various factors contained within s.387 of the Act, I determine that Ms Jankovic’s dismissal on 15 October 2021 was unjust and therefore she has been unfairly dismissed. The primary reason for this is the failure to consult with Ms Jankovic as required by the terms of the Award.

[249] I have formed a view that had the Respondent consulted with Ms Jankovic over a period of one week from the date the definite decision was made to dismiss her on the grounds of redundancy, in those circumstances the dismissal would not have been harsh, unjust or unreasonable, and therefore not unfair.

Remedy

[250] Section 390 of the Act reads as follows:

“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).

(2) The FWC may make the order only if the person has made an application under section 394.

(3) The FWC must not order the payment of compensation to the person unless:

(a) the FWC is satisfied that reinstatement of the person is inappropriate; and

(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.

Note: Division 5 deals with procedural matters such as applications for remedies.”

[251] Ms Jankovic is a person protected from unfair dismissal for the Act’s purposes and is a person who has been unfairly dismissed. Accordingly, I am empowered to exercise discretion as to whether she can be reinstated.

[252] I am satisfied that it is inappropriate to order reinstatement due to the size of the business, the roles available, Ms Jankovic’s incomplete skill-set for the CCCM role and her stated issues with Mr E.

[253] I now turn to consideration of compensation.

Compensation

[254] Section 392 of the Act provides:

“392 Remedy—compensation

Compensation

(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.

Criteria for deciding amounts

(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:

(a) the effect of the order on the viability of the employer’s enterprise; and

(b) the length of the person’s service with the employer; and

(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and

(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and

(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and

(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and

(g) any other matter that the FWC considers relevant.

Misconduct reduces amount

(3) If the FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.

Shock, distress etc. disregarded

(4) The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.

Compensation cap

(5) The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of:

(a) the amount worked out under subsection (6); and

(b) half the amount of the high income threshold immediately before the dismissal.

(6) The amount is the total of the following amounts:

(a) the total amount of remuneration:

(i) received by the person; or

(ii) to which the person was entitled;

(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and

(b) if the employee was on leave without pay or without full pay while so employed during any part of that period—the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.”

Authorities

[255] The approach to the calculation of compensation is set out in a decision of a Full Bench of the Australian Industrial Relations Commission in Sprigg v Paul’s Licensed Festival Supermarket.²⁵ That approach, with some refinement, has subsequently been endorsed and adopted by Full Benches of the Commission in Bowden v Ottrey Homes Cobram and District Retirement Villages inc T/A Ottrey;²⁶ Jetstar Airways Pty Ltd v Neeteson-Lemkes²⁷ and McCulloch v Calvary Health Care (McCulloch).²⁸

[256] I have had regard to the above authorities, and I have considered the submission of each party.

The effect of the order on the viability of the respondent

[257] Having regard to the assets of the Respondent, I am satisfied that an award of compensation would not affect the viability of the Respondent’s enterprise.

The length of Ms Jankovic’s service

[258] Ms Jankovic had approximately 2.5 years’ service. This is not a long period of time.

The remuneration that Ms Jankovic would have received, or would have been likely to receive, if she had not been dismissed

[259] I am satisfied that had the Respondent consulted with Ms Jankovic as required by the Award, it would have properly and fairly determined to dismiss Ms Jankovic. I am satisfied on the evidence before me that Ms Jankovic would not have been employed in the CCCM role and she had stated during the meeting of 12 October 2021 that it was time to leave the business. Ms Jankovic accepted during the hearing that she used this expression in the context of Mr E’s impact upon her. I cannot accept Ms Jankovic’s submissions that she would have been employed in the CCCM role for a period of at least six months.

[260] In all of the circumstances, I consider that it would have been appropriate to consult with Ms Jankovic over a period of one week, given the size of the Respondent and the matters for consideration.

The efforts of Ms Jankovic (if any) to mitigate the loss suffered because of the dismissal

[261] I accept the news of the redundancy came as a shock to Ms Jankovic and she was not in a position to immediately look for other work. She later did and also engaged in contracting work with Mr Cox, not long after the dismissal.

The amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation

[262] Ms Jankovic earned sizeable remuneration in November and December 2021. It is a not a relevant consideration given I am satisfied that Ms Jankovic’s employment would have only lasted one week on account of the obligation of consultation.

[263] If, however, I had found that the employment would have continued throughout November and December 2021, it would have been necessary to make an appropriate deduction for the sums earned by Ms Jankovic in her contracting work.

The amount of any income reasonably likely to be so earned by Ms Jankovic during the period between the making of the order for compensation and the actual compensation

[264] This factor is not relevant in the circumstances of this matter.

Other relevant matters

[265] I have had regard to the fact that the Respondent paid to Ms Jankovic an amount of eight weeks’ severance pay equalling $23,672.48. This was taxed as a bona fide redundancy, with only a minute amount taxed, and the majority falling under the Australian Taxation Office’s tax-free threshold.

[266] On account of the Respondent being a small business at the time of Ms Jankovic’s dismissal, Ms Jankovic was not entitled to any redundancy pay at all. On account of her length of service, if the Respondent had not been a small business, she would have been entitled to six weeks’ redundancy pay. The Respondent chose to pay an additional two-week gratuity, but it had no obligation to make any payment to Ms Jankovic at all, other than for notice and annual leave accrual.

[267] The gross sum of $23,672.48 is, on Ms Jankovic’s calculations, equal to approximately 13.67 weeks’ pay having regard to usual taxation of wages. While eight weeks’ (almost) tax-free payment was made to her, it represents what she would have earned in 13.67 weeks if she had been taxed.

[268] I consider this to be a very generous payment by the Respondent to Ms Jankovic in all of the circumstances. Even if Ms Jankovic had been entitled to six weeks’ redundancy pay, and her consultation period would have been for a period of one week, I would have declined to have awarded Ms Jankovic compensation on account of the additional two-week payment made to her by the Respondent.

Misconduct reduces amount

[269] Section 392(3) of the Act requires that if the Commission is satisfied that the misconduct of a person contributed to the employer’s decision to dismiss the person then the Commission must reduce the amount it would otherwise order by an appropriate amount on account of the misconduct.

[270] The section requires that consideration be given by the Commission, amongst other things, as to whether a person’s misconduct contributed to the decision to dismiss an employee even if the Commission has found that there was no valid reason for the person’s dismissal. However, if there was no valid reason for the dismissal that may be relevant to the Commission’s decision as to the appropriate amount by which the amount of compensation should be reduced.²⁹

[271] I do not find that Ms Jankovic engaged in any misconduct that would reduce the amount to be awarded to her.

Shock, distress etc. disregarded

[272] I confirm that any amount ordered does not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt caused to Ms Jankovic by the manner of the dismissal.

Compensation Cap

[273] As is evident below, the compensation cap is not in issue.

Payment by instalments

[274] This is not a relevant consideration.

No order of compensation

[275] I have determined that the generous payment by the Respondent to Ms Jankovic exceeds the amount of one weeks’ pay representing a period for consultation I would have ordered. Accordingly, I decline to make an order of compensation to Ms Jankovic.

COMMISSIONER

Appearances:

Mr Dan Chen appearing on behalf of the Applicant.
Ms Peta Willoughby appearing on behalf of the Respondent.

Printed by authority of the Commonwealth Government Printer

<PR741442>

 1   Transcript PN 171.

 2   Transcript PN 197.

 3   Transcript PN 416.

 4   Transcript PN 917.

 5   Dale v Marky Industries Pty Ltd [2019] FWC 8446.

 6   Dibb v Commissioner of Taxation [2004] FCAFC 126.

 7   Ibid at paras [43]-[44].

 8   Kekeris v A. Hartrodt Australia Pty Ltd T/A a.hardrodt [2010] FWA 674.

 9   Ulan Coal Mines Limited v Honeysett and Others [2010] FWAFB 7578 at [18].

 10   Technical and Further Education Commission T/A TAFE NSW v Pykett [2014] FWCFB 714.

 11   Transcript PN 674.

 12   McMillan v Northern Project Contracting [2012] FWA 7049 at [14].

13 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].

14 Ibid.

15 [2010] FWA 674.

16 [2010] FWAFB 3488.

17 (1995) 60 IR 304.

 18   Pages 168 and 169 of the Digital Court Book.

19 Ulan Coal Mines Limited v Honeysett (2010) 199 IR 363 at [28].

20 [2017] FWCFB 6847 at [20].

21 [2014] FWCFB 714, (2014) 240 IR 130 at [36].

22 (1995) 185 CLR 410, [465].

23 Sayer v Melsteel [2011] FWAFB 7498 at [20].

24 Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, 685.

25 (1998) 88 IR 21.

26 [2013] FWCFB 431.

27 [2014] FWCFB 8683.

28 [2015] FWCFB 2267.

29 Crawford v BHP Coal Pty Ltd [2017] FWC 154, [345] – [346]; Read v Gordon Square Child Care Centre Inc. [2013] FWCFB 762, [83].