Fair Work Act 2009
s.394—Unfair dismissal

Logan Graydon
v
Talent Konnects Pty Ltd T/A Talentko
(U2021/9742)

Application for an unfair dismissal remedy

[1] Ms Logan Graydon (the applicant) filed an unfair dismissal remedy under section 394 of the Fair Work Act 2009 on 31 October 2021. The respondent named in the application is Talentko Pty Ltd.

Background

[2] On 10 November 2021 Talent Konnects Pty Ltd trading as Talentko filed a detailed Form F3 employer response form. Talentko in its response raised two jurisdictional objections. Firstly, it asserted the applicant’s employment does not meet the minimum employment period and secondly, it asserted that her dismissal was a case of genuine redundancy.

[3] The Form F3, and evidence below confirms the applicant’s employer at the time of dismissal was in fact Talent Konnects Pty Ltd trading as Talentko. Consequently, of its own motion the Commission exercises its powers under the Act to correct the identity of the respondent employer to be Talent Konnects Pty Ltd trading as Talentko.

[4] A Commission staff member conciliation scheduled for 1 December 2021 did not proceed at the respondent’s request and the matter was referred for hearing and determination.

[5] A notice of listing for hearing was issued to the parties with attached directions on 24 December 2021.

[6] Those directions required the respondent to file their statements of evidence and outline of submissions by 21 January 2022. This was not complied with. Those directions expressly state that if the respondent does not comply the matter may be decided on the basis of the applicant’s materials only.

[7] Consequently, the Commission’s chambers on 24 January 2022 sent a follow-up email to the respondent noting the failure to comply and directing the respondent to urgently file its materials regarding its jurisdictional objections. The email again advised that failure to do so may result in the matter being determined on the applicant’s materials only.

[8] In response, on the same day the respondent’s contact Ms Nagel, who was the Commercial Director of Talentko, advised that she would have this actioned by 5:00 PM on January 25, 2022. The Commission’s chambers advised that the short extension sought was acceptable and issued amended directions to the parties accordingly.

[9] On 31 January 2022 the applicant emailed the Commission noting that the respondent had again failed to comply with the directions and had not filed any materials by 25 January 2022. The Commission responded the next day on 1 February 2022 stating it was aware of the respondent’s continued non-compliance, noting that as explained previously the respondent’s failure to comply may result in the matter being determined based on the applicant’s materials only. The Commission’s chambers advised the applicant she should prepare her materials and file those in accordance with the amended directions by 15 February 2022.

[10] Both the applicant’s email to the Commission and the Commission’s email in reply to the applicant were copied to the respondent representative Ms Nagel.

[11] Subsequently the applicant filed her materials as directed by the Commission on February 11 2022 and this email was copied to the respondent’s contact.

[12] Nothing was filed by the respondent nor was there any further contact with them to the Commission.

[13] On 9 March 2022, as a result of Covid-19 spread in the community, the listing was changed from an in-person hearing to a hearing by video using Microsoft Teams. The hearing date remained as previously notified, 16 March 2022. That notice of listing was of coures sent to the applicant and to the respondent’s representative Ms Nagel.

[14] At the hearing on 9 March 2022 the applicant participated by video. There was no appearance on behalf of the respondent.

[15] Noting the history of the matter, the hearing proceeded in the absence of the respondent. This application will be determined on the basis of the applicant’s witness statements and submissions. In addition, the Commission will accept the respondent’s Form F3 Employer response as its submissions in this matter and have regard to it accordingly noting however that there is no witness evidence in support of the respondent’s submissions.

[16] Since the date of hearing the respondent has not contacted the Commission regarding this application.

Evidence and factual findings

[17] In response to the respondent’s submission that the applicant had not completed the minimum employment period because her first four weeks was casual employment and she had not been offered a permanent role until 26 April 2021 the applicant’s evidence, which is not contested and which I accept, is that on 22 March 2021 she applied to an advertisement on Seek for a full-time “Junior Mobilisation Officer”.

[18] She commenced in this role on 29 March 2021. The respondent’s letter sets out that the contract period for this trial position was 29 March 2021 to 23 April 2021. 1

[19] I note the “Pay Rate” clause in this letter reads as follow: “$ 25.91 per hour, including any casual loading.” Otherwise, there is no reference in this letter to the employment being “casual”. Indeed, the working hours are stated to be “8.00am to 5.00pm with one hour lunch break.”

[20] The applicant says she was looking for a full-time role as she was living out of home and needed the security of a permanent position.

[21] The applicant was never told that the trial period she had to do was a casual contract. She was told that this was what everyone did when starting their position at Talentko.

[22] She was told that this was for four weeks to see if the role worked for both herself and Talentko, and then afterwards if they were both happy, she would secure the role.

[23] The applicant’s evidence is she had multiple check ins with her manager where they discussed how she was going and what the next few months would look like for her. They never discussed potentially finishing up soon. Even on the last day of her trial period they didn’t have a catch up or discussion about this ending. In fact, she says she finished work on the Friday and then went to work on the next Monday as usual.

[24] The respondent’s contract of employment letter confirming its offer of employment on a permanent basis is dated 22 April 2021. The contract says the commencement date is 26 April 2021. 2

[25] The applicant’s evidence is that her hours were 8 AM to 5 PM every day. These did not change when she rolled into her permanent role. She continued to perform the same tasks and had the same responsibilities.

[26] Her evidence was that if she had been told that she had been employed in a casual position, or that she could potentially have been finishing up after four weeks, she would not have taken the role as she had other opportunities at the time and needed the security of a permanent position. She was never told this information and nothing during these first four weeks indicated that she would not continue in the role she was performing at Talentko.

[27] With respect to her dismissal, the applicant’s evidence, which I accept, is that on 20 October 2021 she attended work as she usually would. At around lunchtime she received an email saying there was going to be a meeting shortly that day for all Mobilisation Officers. No one knew what this was about

[28] At this meeting they were told that there were going to be some redundancies due to operational changes and that they would be spoken to individually. Her evidence was they were told that there were alternative positions for some people, but not everyone.

[29] The applicant’s evidence was that she met with Dionne Auguste and Lezly D’Limi who told her that she was going to be made redundant and that there was no other position for her to move into. When she asked why she was being made redundant and not transferred into another position all they could tell her was that it was due to operational requirements.

[30] She packed up her things and left work around 1 PM on 20 October 2021. Other Mobilisation Officers went back to their desks and said that they were going into a Resourcer role.

[31] She said she was upset and very confused as to why she wasn’t given this option, as she had been there the longest out of everyone. She had no idea what had just happened and didn’t even know what redundancy meant.

[32] She was even more confused because she had been asked to move into the Mobilisation Officer role only a few months prior. It didn’t make sense to her why she was helping out the business by moving into that role to help with weekend coverage and then losing her employment only shortly afterwards.

[33] Her evidence was there was no indication this change was coming. Nobody was told anything prior to being told on the day it came as a shock to everyone.

[34] Her evidence was that she was even more shocked when she went to check the jobs advertisement website ‘Seek’ a few days later to start applying for new jobs and saw an advertisement for a Resourcer, which was posted on 21 October 2021, the day after she was made redundant. Her evidence was that she understands that other Mobilisation Officers moved into Resourcer roles so she was confused why she wasn’t given this opportunity. Her evidence was that the duties and responsibilities as listed in the advertisement were all tasks that she was doing or had done previously.

[35] The evidence is that on 20 May 2021 the respondent increased the applicant’s salary from $45,000 per annum to $50,000 per annum. 3

[36] The parties next signed a further contract entitled Salaried Staff (Permanent) Employment Agreement. This was signed by the respondent’s Managing Director Lezly D’Limi on 26 July 2021 and by the applicant on 6 August 2021. This provides for another remuneration increase to $55,000 per annum. 4

[37] I note, as is referred to in the respondent’s submissions, that in the Schedule to the Salaried Staff (Permanent) Employment Agreement at Item 6 there are Special Conditions, the first of which states that for the purposes of calculating the minimum employment period the applicant’s date of commencement remains 26 April 2021.

[38] The respondent also provided the applicant with a letter dated 20 October 2021 advising that due to the outcome of a recent review by Talentko of its operational requirements and business operations all positions as “Mobilisation Officers” on an 8/6 roster in the Perth office are no longer required by the business and so her employment will be terminated immediately. The applicant was paid one weeks’ notice in lieu of termination.

[39] The respondent has also provided what appears to be the most recent contract between the parties which is titled Salaried Staff (Permanent 8: 6) Employment Agreement which is between Talent Konnects Pty Ltd known as Talentko (ABN 91 651 264 989) and Logan Graydon which is signed, on behalf of Talent Konnects Pty Ltd, by Lezly D’Limi on 1 September 2021.

[40] I note the Schedule to this final employment agreement at Item 3 states that the commencement date for the purposes of the calculation of continuous service remains as the start date of 26 April 2021.

[41] I note there is no reference in this Schedule, as there was in the previous employment agreement, to the date of 26 April 2021 being relevant for the purposes of calculating the minimum employment period.

[42] Item 6 of the Schedule also refers to all accrued leave entitlements being transferred from Tailored Resources Pty Ltd to Talent Konnects Pty Limited.

[43] I am satisfied from the evidence that there has been a number of changes of ownerships of the business trading as Talentko.

[44] Considering all of the material before me I am satisfied that the true legal identity of the applicant’s employer at the time her employment ended was Talent Konnects Pty Ltd trading as Talentko (ABN 91 651 264 989), as is also reflected in the Form F3 Employer response filed by her employer.

[45] I accept the applicant’s duties and responsibilities were as she has provided in Attachment 7 to her materials, and I accept here evidence as to how those duties compared to the subsequently advertised role of “Resourcer”.

[46] The applicant has provided evidence to the Commission regarding the remuneration she has earned since her dismissal, and I am satisfied that this amount totals $21,961.54 gross.

Submissions

The respondent

[47] The respondent objects to the applicant’s initial four weeks of employment being counted in the calculation of her minimum employment for the purposes of section 384.

[48] The respondent submits that this period of four weeks was casual employment. Separately it submits that the applicant signed a contract which acknowledge that for the purposes of the minimum employment period her commencement date was 26 April 2021 and so her employment prior to this does not count towards the minimum employment period.

[49] The respondent goes on to note that the final contract is between the applicant and Talent Konnects Pty Ltd trading as Talentko. This includes the statement at Schedule 1 that for the purposes of continuous service the applicant’s commencement date remained 26 April 2021.

[50] I note the respondent appears not to have reflected on the fact that this most recent contract, unlike earlier contracts, is silent on the issue of the relevant date for the minimum employment period in section 384.

[51] The respondent’s submissions do not disagree with the factual background the applicant has set out in terms of the process of being notified of the respondent’s decision to make Mobilisation Officer positions redundant.

[52] The respondent says that whilst the applicant was not offered another role within Talentko it was made clear the respondent would assist the applicant with finding employment with any of its clients should she wish to do so.

[53] With respect to the advertisement on 21 October 2021, the respondent’s submission is that this was for the Mining team within Talentko, which requires specific industry knowledge the applicant does not hold. As a previous employee the applicant is aware that specialist knowledge is required in that team.

[54] The respondent submits that whilst the applicant may feel due process was not followed, the positions offered to other employees were to those who had significantly more experience than the applicant in the Hospitality Team.

The applicant

[55] The applicant’s submissions argue against both of the jurisdictional objections.

[56] The applicant also submits that her dismissal was not a case of genuine redundancy as there was a failure by Talentko to observe the consultation obligations imposed on it under the applicable modern Award and separately that it would have been reasonable in all the circumstances for the applicant to being redeployed within Talentko.

The legislation

[57] Sections of the Act relevant to this application are set out below:

“15A Meaning of casual employee

(1) A person is a casual employee of an employer if:

(a) an offer of employment made by the employer to the person is made on the basis that the employer makes no firm advance commitment to continuing and indefinite work according to an agreed pattern of work for the person; and

(b) the person accepts the offer on that basis; and

(c) the person is an employee as a result of that acceptance.

(2) For the purposes of subsection (1), in determining whether, at the time the offer is made, the employer makes no firm advance commitment to continuing and indefinite work according to an agreed pattern of work for the person, regard must be had only to the following considerations:

(a) whether the employer can elect to offer work and whether the person can elect to accept or reject work;

(b) whether the person will work as required according to the needs of the employer;

(c) whether the employment is described as casual employment;

(d) whether the person will be entitled to a casual loading or a specific rate of pay for casual employees under the terms of the offer or a fair work instrument.

Note: Under Division 4A of Part 2 2, a casual employee who has worked for an employer for at least 12 months and has, during at least the last 6 months of that time, worked a regular pattern of hours on an ongoing basis may be entitled to be offered, or request, conversion to full time employment or part time employment.

(3) To avoid doubt, a regular pattern of hours does not of itself indicate a firm advance commitment to continuing and indefinite work according to an agreed pattern of work.

(4) To avoid doubt, the question of whether a person is a casual employee of an employer is to be assessed on the basis of the offer of employment and the acceptance of that offer, not on the basis of any subsequent conduct of either party.

(5) A person who commences employment as a result of acceptance of an offer of employment in accordance with subsection (1) remains a casual employee of the employer until:

(a) the employee’s employment is converted to full time or part time employment under Division 4A of Part 2 2; or

(b) the employee accepts an alternative offer of employment (other than as a casual employee) by the employer and commences work on that basis.”

“382 When a person is protected from unfair dismissal

A person is protected from unfair dismissal at a time if, at that time:

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

(b) one or more of the following apply:

(i) a modern Award covers the person;

(ii) an enterprise agreement applies to the person in relation to the employment;

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

“383 Meaning of minimum employment period

The minimum employment period is:

(a) if the employer is not a small business employer—6 months ending at the earlier of the following times:

(i) the time when the person is given notice of the dismissal;

(ii) immediately before the dismissal; or

(b) if the employer is a small business employer—one year ending at that time.”

“384 Period of employment

(1) An employee’s period of employment with an employer at a particular time is the period of continuous service the employee has completed with the employer at that time as an employee.

(2) However:

(a) a period of service as a casual employee does not count towards the employee’s period of employment unless:

(i) the employment as a casual employee was as a regular casual employee; and

(ii) during the period of service as a casual employee, the employee had a reasonable expectation of continuing employment by the employer on a regular and systematic basis; and

(b) if:

(i) the employee is a transferring employee in relation to a transfer of business from an old employer to a new employer; and

(ii) the old employer and the new employer are not associated entities when the employee becomes employed by the new employer; and

(iii) the new employer informed the employee in writing before the new employment started that a period of service with the old employer would not be recognised;

the period of service with the old employer does not count towards the employee’s period of employment with the new employer.”

“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.”

“387 Criteria for considering harshness etc.

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

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

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

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

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

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

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

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

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

“391 Remedy—reinstatement etc.

Reinstatement

(1) An order for a person’s reinstatement must be an order that the person’s employer at the time of the dismissal reinstate the person by:

(a) reappointing the person to the position in which the person was employed immediately before the dismissal; or

(b) appointing the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.

(1A) If:

(a) the position in which the person was employed immediately before the dismissal is no longer a position with the person’s employer at the time of the dismissal; and

(b) that position, or an equivalent position, is a position with an associated entity of the employer;

the order under subsection (1) may be an order to the associated entity to:

(c) appoint the person to the position in which the person was employed immediately before the dismissal; or

(d) appoint the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.

Order to maintain continuity

(2) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to maintain the following:

(a) the continuity of the person’s employment;

(b) the period of the person’s continuous service with the employer, or (if subsection (1A) applies) the associated entity.

Order to restore lost pay

(3) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to cause the employer to pay to the person an amount for the remuneration lost, or likely to have been lost, by the person because of the dismissal.

(4) In determining an amount for the purposes of an order under subsection (3), the FWC must take into account:

(a) 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 reinstatement; and

(b) the amount of any remuneration reasonably likely to be so earned by the person during the period between the making of the order for reinstatement and the actual reinstatement.”

“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.”

Consideration

Minimum employment period objection

[58] Section 382 of the Act prescribes that a person is only protected from unfair dismissal if, amongst other things, the employee has completed a period of employment with their employer of at least the minimum employment period. Section 383 prescribes that the minimum employment period if the employer is not a small business is 6 months ending at the time the employee is given notice of dismissal.

[59] The respondent says at the time the applicant was dismissed it employed 208 employees. It was not a small business employer. Consequently 6 months is the applicable minimum employment.

[60] The evidence is the applicant’s employment began on 29 March 2021 and ended on 20 October 2021. This is a period of more than 6 months.

[61] However, as set out above, the respondent submits that the first 4 weeks, where the applicant was employed in a ‘trial position’ do not count as part of the minimum employment period.

[62] Firstly, the respondent argues that this is so because in various iterations of the contractual documents the respondent and the applicant signed there is a provision in a Schedule that states that either the minimum employment period and/or continuous service, for the applicant begins on 26 April 2021.

[63] The respondent's reliance on this contractual term ignores the fact that the parties are not able to contract out of the Act's provisions. The Act prescribes what continuous service means in section 22 and in section 384 prescribes what an employee's minimum employment period is and, relevantly in this case, when casual employment does and does not count towards that minimum period of employment. In short, the legislation overrides any contractual term. These particular terms in the various employment agreements are irrelevant to the Commission's determination.

[64] Section 15A ‘Meaning of casual employee’ prescribes when a person is a casual employee.

[65] In this case the applicant's evidence is that the offer of employment was a firm advance commitment to continuing and indefinite work according to an agreed pattern of work for her, after successfully completing the four-week trial period. She did not accept the employment understanding it was casual employment.

[66] During the trial period it was not the case that the respondent could elect when to offer the applicant work and that the applicant could elect to accept or reject that work when it was offered. Rather, the respondent’s trial position letter dated 26 March 2021 specifies the daily working hours for the contract period.

[67] The hours she was to work were decided by the respondent at the outset as being 8 AM to 5 PM with a one-hour lunch break. The applicant worked those hours through the four-week trial period and thereafter beyond the end of the trial period.

[68] The applicant says the employment was not described by the respondent to the applicant as being casual employment nor is that stated to be the case in the confirmation of trial position letter.

[69] The only consideration in favour of the Commission concluding that the applicant was a casual employee within the terms of section 15 A is that the pay rate may have included a casual loading on the face of the letter confirming the trial position. However that wording “…$ 25.91 per hour, including any casual loading. ” is somewhat ambiguous.

[70] Considering the various considerations in section 15A(2) of the Act, my conclusion is that the applicant was not, on the evidence before the Commission, a casual employee as defined in section 15A ‘Meaning of casual employee’.

[71] Therefore, I find that the applicant’s period of service between 29 March 2021 and 23 April 2022 was not as a casual employee. Consequently, this period of service does count towards the applicant's period of employment for the purposes of section 384.

[72] The applicant’s period of continuous service completed with the respondent was from 29 March 2021 through to 20 October 2021: a period that is greater than six months.

[73] Consequently, I reject the respondent’s first jurisdictional objection and am satisfied that within the meaning of section 382 the applicant is a person protected from unfair dismissal.

[74] For completeness, if I am wrong and the first four weeks of the applicant’s service was as a casual employee, then this four-week period of service clearly was employment on a regular and a systematic basis. During this four-week period of service the applicant had a reasonable expectation of continuing employment by the respondent on a regular and systematic basis.

[75] Consequently, even if this four-week period of service was as a casual employee I am satisfied that it meets the requirements of section 384 (2) and so counts towards the applicant’s period of employment.

[76] My decision is that this first four-week period is not to be excluded when determining the period of continuous service the applicant has completed.

[77] I dismiss the respondent’s first jurisdictional objection and find that the applicant has completed a minimum employment period of more than 6 months and so is protected from unfair dismissal under section 382.

Genuine redundancy objection

[78] Section 389(1) provides that a dismissal is a case of genuine redundancy if the employer no longer required the person’s job to be formed by anyone because of changes in the operational requirements of the enterprise and the employer complied with any obligations in a modern Award to consult about the redundancy.

[79] However, section 389(2) prescribes that a 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 the employer’s enterprise.

[80] In this case I accept that the respondent no longer required the applicant’s job to be performed by anyone because of changes in its operational requirements. This was explained to the applicant and others affected on 20 October 2021 and is reflected in the dismissal letter provided to the applicant.

[81] The applicant submits that the Clerks – Private Sector Award 2020 [MA000002] (the Award) applied to the applicant’s employment. This is consistent with the respondent’s Form F3 Employer response where the respondent stated that the employment was underpinned by the “Clerical Employees Award MA000002”.

[82] Considering Clause 4 ‘Coverage of the Award’ and that the respondent’s response identifies it as being in the Recruitment and Labour Hire Industry I am satisfied that the Award applies to the respondent. Also considering the key duties and responsibilities in the Mobilisation Officer role and the typical duties and skills for classifications covered by the Award as prescribed in Schedule A ‘Classification Structure and Definitions’ I am also satisfied that the Award applied to the applicant’s employment.

[83] Clause 38. Consultation about major workplace change of the Award is set out below:

38. Consultation about major workplace change

38.1 If an employer makes a definite decision to make major changes in production, program, organisation, structure or technology that are likely to have significant effects on employees, the employer must:

(a) give notice of the changes to all employees who may be affected by them and their representatives (if any); and

(b) discuss with affected employees and their representatives (if any):

(i) the introduction of the changes; and

(ii) their likely effect on employees; and

(iii) measures to avoid or reduce the adverse effects of the changes on employees; and

(c) commence discussions as soon as practicable after a definite decision has been made.

38.2 For the purposes of the discussion under clause 38.1(b), the employer must give in writing to the affected employees and their representatives (if any) all relevant information about the changes including:

(a) their nature; and

(b) their expected effect on employees; and

(c) any other matters likely to affect employees.

38.3 Clause 38.2 does not require an employer to disclose any confidential information if its disclosure would be contrary to the employer’s interests.

38.4 The employer must promptly consider any matters raised by the employees or their representatives about the changes in the course of the discussion under clause 38.1(b).

38.5 In clause 38 significant effects, on employees, includes any of the following:

(a) termination of employment; or

(b) major changes in the composition, operation or size of the employer’s workforce or in the skills required; or

(c) loss of, or reduction in, job or promotion opportunities; or

(d) loss of, or reduction in, job tenure; or

(e) alteration of hours of work; or

(f) the need for employees to be retrained or transferred to other work or locations; or

(g) job restructuring.

38.6 Where this Award makes provision for alteration of any of the matters defined at clause 38.5, such alteration is taken not to have significant effect.

[84] Considering the facts of what occurred here I am satisfied the respondent made a definite decision to make major changes to the organisation that were likely to have significant effects on employees including the termination of employment I find the applicant was an affected employee. Consequently, the Award obliged the respondent to take the prescribed steps and actions in the balance of clause 38 above.

[85] It is doubtful it could fairly be said that the respondent gave notice of the changes to the employees who may be affected and their representatives prior to any discussions. Rather it seems the respondent advised employees collectively. The employees had no opportunity to arrange representation: immediately after being informed of the changes there were individual discussions with employees including the applicant.

[86] Relevantly for this case, clause 38.2 required the respondent to give affected employees in writing all relevant information about the changes including their nature, expected effect on employees and any other matters likely to affect employees for the purposes of the discussions under 38.1(b). In other words, the obligation to provide information in writing must, quite unsurprisingly, be satisfied before any discussions were held with employees.

[87] In this case clearly the respondent did not provide all relevant information in writing about the changes and likely effect prior to the discussion with the applicant.

[88] Given the above I find the respondent did not comply with a number of its obligations in the Modern Award to Consult about the Redundancy.

[89] Considering section 389(1)(b), my decision is therefore that the applicant’s dismissal was not a case of genuine redundancy.

[90] Turning next for completeness to section 389(2): the evidence is that immediately after the day the applicant was dismissed the respondent advertised for a similar role of “Resourcer”. The applicant’s evidence, which is not contested and which I accept, is that there were significant similarities between the key duties and responsibility of that role and the role she had been working in which had the day before been made redundant. Consistent with this the evidence is that other employees who had been working in the same role as the applicant as a Mobilisation Officer whose positions were also made redundant were redeployed into Resourcer roles.

[91] The respondent’s submission however is that the advertised role was for the Mining team which requires specific industry knowledge it submits the applicant does not have.

[92] A Full Bench of the Commission in Ulan Coal Mines Limited v Honeysett [2010] FWAFB 7578 considered what is involved in demonstrating it would have been reasonable in all the circumstances to redeploy an employee as follows:

“[34] It may be appropriate to make some concluding remarks about the operation of s.389(2). 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. Where an employer decides that, rather than fill a vacancy by redeploying an employee into a suitable job in its own enterprise, it will advertise the vacancy and require the employee to compete with other applicants, it might subsequently be found that the resulting dismissal is not a case of genuine redundancy. This is because it would have been reasonable to redeploy the employee into the vacancy. In such a case the exception in s.385(d) would not apply and the dismissed employee would have the opportunity to have their application for a remedy heard. The outcome of that application would depend upon a number of other considerations.” (Underlining added)

[93] In this case Talentko did not undertake any consultation with the applicant to identify with her what, if any skill or experience gap there was that would prevent her from being redeployed into the vacant role of Resourcer Talentko advertised the very next day. Nor was there any discussion with the applicant about what training might, in a reasonable period, close that skill or experience gap to enable the applicant to fulfil this role.

[94] The evidence of course is that there were no discussions at all with the applicant as to whether she could be redeployed into this advertised role.

[95] Noting the similarities in the role the applicant was undertaking before she was dismissed and the Recruiter role advertised the next day I find that it would have been reasonable in all the circumstances for the applicant to be redeployed to the Recruiter role in the Mining team.

[96] Consequently, by virtue of section 389(2) the applicant’s dismissal was not a case of genuine redundancy.

[97] The respondent’s jurisdictional objection that the dismissal was a case of genuine redundancy is dismissed.

[98] Having rejected both jurisdictional objections the Commission will consequently proceed to consider whether the applicant’s dismissal was harsh, unjust or unreasonable.

Was the dismissal harsh unjust or unreasonable?

[99] Section 387 of the Act prescribes criteria the Commission must take into account when considering whether it is satisfied that the dismissal was harsh, unjust or unreasonable.

[100] In this case there was no valid reason for the applicant’s dismissal. The applicant should in all likelihood have been redeployed and should not have been dismissed as she was.

[101] In the absence of a valid reason for the dismissal none of sub- sections 387(b),(c),(d) or (e), are relevant.

[102] The respondent’s enterprise is medium-sized and given the nature of its business is likely to have human resource management specialists or at least expertise in house.

[103] Consequently, the two criteria 387(f) and (g) do not excuse Talentko’s failure to meet its consultation obligations under the Award and to have dismissed the applicant without a valid reason.

[104] Other matters relevant in this case are that the applicant had obviously been performing more than satisfactorily through her period of employment with Talentko as evidenced by the sequence of pay increases Awarded to her over a period of less than one year.

[105] If Talentko had properly complied with its obligations under the Award to consult it is possible that it would have recognised, or the applicant could have raised the possibility, of her being redeployed into the role advertised the day after she was dismissed. There is every reason to believe she would have remained in employment.

[106] The fact that the applicant had been employed for less than one year is also a matter relevant in this case.

Conclusion

[107] Considering there was no valid reason for the applicant’s dismissal and that there was a role she could have in all likelihood been redeployed to, the dismissal of the applicant was harsh, unjust and unreasonable.

[108] The applicant was unfairly dismissed by Talentko.

Remedy

[109] The failure of Talentko to attend the hearing of this matter denies the Commission the information it needs to be certain that reinstatement in the circumstances is appropriate. Consequently, my decision is that in this case it is inappropriate to reinstate the applicant.

[110] I am however satisfied that it is appropriate that an order of compensation be made by the Commission in all the circumstances.

[111] I will now turn to consider the criteria prescribed in s.392 which the Commission must take into account when deciding the amount of compensation.

[112] There is no evidence that an order of compensation would affect the viability of Talentko.

[113] The length of the applicant’s service with Talentko was approximately seven months.

[114] The evidence is that in the time she was employed with Talentko she received a number of promotions and pay increases. There is no suggestion that there was any deficiency at all in the applicant’s performance.

[115] On the limited information available my conclusion is that had Talentko properly consulted with the applicant she would have been redeployed to the position of Resourcer and her remuneration would have continued to be $55,000 per annum gross.

[116] As a relatively young employee, who presents as an entirely capable and sensible person, I have no doubt she would have remained employed with Talentko until in all likelihood she found, or was offered, a better opportunity and so resigned from Talentko to advance her career accordingly.

[117] Considering these matters, had the applicant not been dismissed by Talentko when she was my conclusion is that she would have remained in employment for a period of one year.

[118] Consequently, the remuneration the applicant would have received if she had not been unfairly dismissed when she was is the amount of $55,000 gross.

[119] After her dismissal the applicant did obtain alternative employment and has earned a significant amount and I am satisfied she has acted properly to mitigate her economic loss.

[120] The remuneration the applicant has earned from other employment since her dismissal is $21,961.54 gross. The applicant was paid 1 week’s wages in lieu of notice amounting to $1,057.69

[121] The dismissal in this case does not involve at all any suggestion of misconduct by the applicant.

[122] Accordingly, considering the above criteria in 392(2) the amount of compensation to be ordered would be $55,000 - $-21,961.54 - $1,057.69 = $ 31,980.50 gross.

[123] However, there is a cap on the amount of compensation that can be ordered to an unfairly dismissed employee.

[124] Section 392(5) prescribes that the amount of compensation ordered must not exceed the lesser of the total remuneration received by the applicant during the 26 weeks immediately before her dismissal ($27,500) and half the amount of the high-income threshold immediately before the dismissal ($79,250).

[125] Therefore, in the applicant’s case the maximum amount of compensation the Commission can order is $27,500.

[126] Consequently, as remedy for Talentko unfairly dismissing the applicant the Commission will issue an order that Talent Konnects Pty Ltd trading as Talentko pay to the applicant the amount of $27,500 gross within 21 days of the date of the order.

[127] An order to that effect will now be issued.

Printed by authority of the Commonwealth Government Printer

<PR743975>

 1   See attachment 2 to the applicant’s witness statement Confirmation of Trial position

 2   See attachment 3 to the applicant’s witness statement - Contract of Employment

 3   See attachment 4 to the applicant’s witness statement - Amendment to Your Contract of Employment.

 4   See attachment 5 to the applicant’s witness statement - Salaried Staff (Permanent) Employment Agreement.