| [2022] FWC 2870 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Nathan Spaull
v
Matthews Bronze Unit Trust
(U2022/4323)
DEPUTY PRESIDENT MASSON |
MELBOURNE, 26 OCTOBER 2022 |
Application for an unfair dismissal remedy – jurisdictional objection – genuine redundancy – whether covered by a modern award or enterprise agreement – whether consultation obligations met – whether reasonable in all the circumstances to redeploy – jurisdictional objection dismissed –dismissal unfair – compensation awarded.
[1] On 13 April 2022, Mr Nathan Spaull (the Applicant) lodged an application pursuant to s.394 of the Fair Work Act 2009 (the Act) in which he asserts that the termination of his employment with Matthews Bronze Unit Trust (the Respondent) on 24 March 2022 was unfair. The Respondent objects to the application on the basis that the dismissal was a case of genuine redundancy.
[2] Conciliation of the matter before the Commission failed to achieve a resolution and consequently the matter was listed for hearing/conference before me on 25 July 2022. After hearing from the parties, I determined to conduct a hearing pursuant to s.399 of the Act.
[3] At the hearing, the Applicant was represented by Ms Leanne Tacey of Anderson Gray Lawyers who was granted permission to appear on behalf of the Applicant pursuant to s.596(2) of the Act. Ms Tacey called the following witnesses;
• Nathan Spaull
• Wilhelmus Verbeek
[4] The Respondent was represented by Brett Pomroy of the Blax Group who was also granted permission to appear pursuant to s.596(2) of the Act. Mr Pomroy called the following witnesses for the Respondent to give evidence;
• Emma McGregor – National Sales & Customer Engagement Manager
• Hymie Jechilevsky – Managing Director
• Philip Moesbergen – Financial Controller
Applicant’s employment
[5] The Applicant states that he has been employed in the graphic/digital design industry for 14 years and holds the following qualifications;
• Bachelor of Design (Digital Media);
• Master of Design (Digital Design); and
• Diploma Business Development 1.
[6] On 16 May 2017, the Applicant commenced employment with the Respondent as a Graphic Designer in the graphics team. He was subsequently promoted to the position of Graphics Supervisor on 14 November 2018 (the 2018 Contract of Employment) in which role he reported to the Administration and Graphics Manager, Sylvia Jacobsen 2. The 2018 Contract of Employment stated that the employment contract was to be read in conjunction with the Graphic Arts, Printing and Publishing Award 2010 (the Award). He commenced in the role on an hourly rate of $39.00 for a 38 hour week which equates to an annual base salary of $77,064 and his responsibilities were set out in the 2018 Contract of Employment.
[7] The Applicant was subsequently offered and accepted promotion to the position of Graphics Manager in which role he commenced on 1 July 2020 3 (the 2020 Contract of Employment) reporting to the Customer Care Manager. The Contract of Employment set out the terms and conditions of the Applicant’s employment and provided for a base salary of $95,000 per annum. The Salary was stated to include payment for any overtime provision/entitlements that may be payable under any award which covered the Applicant. Unlike the 2018 Contract of Employment, the 2020 Contract of Employment did not expressly refer to the Award. In the Graphics Manager role, the Applicant was required to direct and co-ordinate the graphics department and in doing so he managed four staff consisting of three graphic designers and one proof reader4. The major actions or accountabilities of the Graphics Manager role were set out in a position description5 (Graphics Manager Position Description).
[8] The Applicant was cross-examined in relation to the duties and accountabilities of the Graphics Manager role and variously stated that;
• he organised and supervised the work of three graphic designers and one proof reader 6;
• he did production work (hands on) as well as managerial work and estimated that the spilt between the two was 60% production and 40% managerial 7;
• while he did not have a budget within which to manage expenditure within his department, he had limited authority to spend small sums on consumables such as supplies for the printer 8;
• he possessed a Masters in Digital Design, the skills and knowledge gained through which he states were exercised by him in the Graphics Manager role 9;
• he was responsible for performance management of staff reporting to him 10; and
• the role of Graphics Manager was little different in terms of responsibilities to the Graphics Supervisor role he previously held, with the main difference being the position title 11.
[9] Mr Jechilvesky was asked during cross-examination to describe the differences between the Graphics Supervisor and Graphics Manager roles. He agreed that the Applicant’s estimate of the Graphics Manager role comprising 60% production and 40% managerial duties was reasonable 12 and that the technical aspects of the Graphics Manager role, that of supervising the work of the team members were essentially the same as the Graphics Supervisor role. He distinguished the roles on the basis that the Graphics Manager role required the Applicant to assume HR responsibilities for the team members, that he had some expense control and could raise a capital expenditure request13.
Organisational restructure
[10] Immediately prior to the Applicant’s dismissal the organisational structure 14 (Prior Organisational Chart) was as follows. There were six Manager roles reporting directly to the Managing Director. One of those manager roles was that of the Customer Care Manager to which role the Applicant had reported. The six roles reporting to the Managing Director were;
• Customer Care Manager
• Business Improvement Manager
• Financial Controller
• National Sales Manager
• Morello/Ashcroft Manager
• Operations Manager
[11] According to Mr Jechilevsky, an external consultant was engaged in August 2019 to develop and implement a lean improvement plan for the Company, the plan initially commencing in the operations area with the intention that the program would move to the Customer Care department in which the graphics team sat 15. The lean improvement plan resulted in some restructuring in the operations area which was completed in late 202016. Following on from the lean program and also as a consequence of the COVID-19 pandemic the Respondent identified several key issues impacting the business including staff numbers and employment costs. On reviewing all areas of the Company, the Respondent concluded that it needed to implement cost savings17.
[12] With the resignations of a customer care consultant in December 2021 and the Customer Care Manager, Mr Jechilevsky says he took the opportunity of reviewing the entire Customer Care department structure which included the graphics team led by the Applicant who had reported to the Customer Care Manager 18. The Respondent decided to respond to the resignations by consolidating two roles, that of the National Sales Manager and Customer Care Manager into one role, that of a National Sales and Customer Engagement Manager. He further decided that within the new management structure, the Graphics Manager role would be made redundant, also resulting in the consolidation of that management role into the National Sales Manager and Customer Engagement Manager role19. Under the restructure the graphics team no longer reported to the Graphics Manager but reported to a new role of Customer Care Officer, which in turn reported to the National Sales & Customer Engagement Manager.
[13] Following the above described restructure a new organisational structure 20 (Organisational Charts – Structure Proposal) was put in place with five roles reporting to the Managing Director, those five roles being;
• Business Improvement Manager
• Financial Controller
• National Sales & Customer Engagement Manager
• Morello/Ashcroft Manager
• Operations Manager
[14] Relevantly, the structure put in place for the National Sales & Customer Engagement Manager’s area of responsibility involved three roles reporting to that position, that of Customer Care Officer, Business Development Manager and Customer & Sales Support. The graphics team which had previously reported to the Graphics Manager role report to the Customer Care Officer under the new structure 21.
[15] Mr Jechilevsky stated during cross examination that the duties formerly performed by the Applicant as Graphics Manager are now shared between himself as Managing Director, Mr Moesbergen as Financial Controller and Ms McGregor as the National Sales & Customer Engagement Manager. He went on to state that management responsibility of the former graphics team now rested with Ms McGregor 22. Mr Jechilevsky also confirmed that the production work previously undertaken by the Applicant was absorbed by the remaining graphic design team staff23, of which there were three graphic design positions and one proof-reader.
[16] Ms McGregor clarified the reporting relationship of the graphics team following the restructure. As per the Organisational Chart – Structure Proposal, the graphics team members along with Reception and four Customer Care Representative positions report to the Customer Care Officer position which in turn reports to her as the National Sales & Customer Engagement Manager. While filled shortly after the Applicant’s dismissal, the Customer Care Officer position is currently vacant due to the resignation of the staff member who was offered and accepted that role following the restructure 24.
[17] The Applicant readily accepted that his previous role of Graphics Manager no longer exists and that the various duties of that role are now discharged by other staff 25.
Applicant’s redundancy
[18] A meeting was arranged for 8.30am on 22 March 2022 by Ms McGregor to which staff in the Customer Care department were invited, including the Applicant. The Applicant described the meeting as the usual daily morning meeting 26. Mr Moesbergen disagreed that it was the usual morning meeting and stated that the specific purpose of the meeting was to announce the restructure of the Customer Care team, as evidenced by the subject of the meeting in the calendar invite which was titled ‘Customer Care Review’27. Unlike normal daily meetings of the Customer Care team, Mr Jechilevsky attended the meeting and advised staff that there was going to be a restructure of the Customer Care team and that affected staff would be spoken to individually28. Mr Jechilevsky prepared notes for use at the meeting29. Witnesses for the Respondent confirmed that the only role that was to be made redundant as a result of the restructure was that of the Graphics Manager role held by the Applicant.
[19] Immediately following the above-referred meeting, the Applicant was invited to a meeting at approximately 9.15am with Ms McGregor and Mr Moesbergen which went for approximately 5 minutes. Ms McGregor states that she commenced the meeting by advising the Applicant that the Respondent wanted to consult with the Applicant over the announced restructure and advised him that his role of Graphics Manager was to be made redundant30. The Applicant denies that either Ms McGregor or Ms Moesbergen used the word or stated that the Respondent wished to ‘consult’ over the restructure 31. Rather, he states that he was presented with a document showing the proposed structure by Ms McGregor who then said “As you can see, your position has now been made redundant”32. A printed copy of the Organisational Chart – Structure Proposal was presented to the Applicant during the meeting.
[20] According to Ms McGregor the Applicant stated “You’re joking” when told his role was to be made redundant following which Mr Moesbergen continued to outline the proposed organisation structure and options available to the Applicant including redeployment and a redundancy payment 33. Ms McGregor states that she then told the Applicant he could take a few days to consider the options available to him and that the Respondent was open to hearing from him regarding the redeployment opportunities. The Applicant then left the meeting fairly abruptly according to Ms McGregor and in doing so did not take any of the paperwork with him34. Ms McGregor agreed that the Applicant left the meeting upset but made no contact with him over the following two days to check on him35.
[21] While agreeing that Ms McGregor and Ms Moesbergen advised him that his role was to be made redundant and that there were two options available, that of redundancy and redeployment, the Applicant states that the focus of the discussions was on the redundancy of his position 36. He agreed that he was shown a printed copy of the Organisational Chart – Structure Proposal during the meeting and says that the following exchange took place when he asked about redeployment options;
“I asked Emma: “What are my options for redeployment?”
Emma said: “We could not find any suitable positions for you.” 37
[22] The Applicant further states that he was directed during the meeting by Ms McGregor to go home so that he could adjust to the situation and was also told not to attend work on 23 March 2022 38. Both Mr Moesbergen and Ms McGregor denied that the Applicant was directed to go home or that the 23 March 2022 was discussed. Rather, Ms McGregor says that she gave the Applicant an opportunity to take the rest of the day off39. When pressed in cross-examination on whether he was directed to go home the Applicant stated as follows;
“What else was said in that meeting?---Once I asked her what positions are available for redeployment and she said there were no suitable positions found, she said that I'm able to go home and have a think about it and come back to them on 24 March.” 40
[23] The Applicant states that as a consequence of his role no longer being required and there being no alternate roles based on advice he says Ms McGregor gave him during the 9.15am meeting on 22 March 2022, he was of the belief that he was redundant 41. Ms McGregor states her belief that arising from the 9.15am meeting the Applicant had been made aware of the options available to him including redeployment42. She did however concede that the only details of the proposed restructure provided to the Applicant on 22 March 2022 was the Applicant’s redundancy calculation and the Organisation Chart – Structure Proposal43. She further conceded that the organisational chart did not indicate which positions were available, which positions had already been filled and whether any persons had been offered those roles44. Ms McGregor also agreed that at the time of the Applicant’s dismissal there were at least three positions available and that the Respondent did not identify any particular position for him to consider45.
[24] While claiming there was no opportunity to provide details of the available roles in the 9.15am meeting with the Applicant on 22 March 2022, Ms McGregor conceded that no follow-up information was provided to him. Rather, she believed it was the Applicant’s responsibility to come back to the Respondent with suggested redeployment options based on the information provided to him on the restructure 46.
[25] Shortly after leaving the 9.15 am meeting, the Applicant returned to his office and after briefly speaking by phone to his former Manager Ms Sylvia Jacobsen, he returned to see Ms McGregor who provided him with a copy of his redundancy calculation 47. The Applicant then left the Respondent’s premises and travelled to Ms Jacobsen’s house.
[26] The Applicant states that Ms Jacobsen’s parents were also present at Ms Jacobsen’s house when he arrived. Shortly after arriving he called Mr Moesbergen at 10.06am with his mobile phone on speaker. The Applicant did not alert Mr Moesbergen to the fact that Mr Verbeek, who is Ms Jacobsen’s father, was listening to the conversation between the Applicant and Mr Moesbergen. Ms McGregor was also with Mr Moesbergen when the telephone conversation took place and similarly does not appear to have informed the Applicant that she was listening to the discussion 48.
[27] The Applicant states that he asked Mr Moesbergen during the telephone call for more information on how his redundancy was sound and why his skill set was not deemed important or relevant to other roles in the company. He further states that the following exchange, or words to the following effect, took place with Mr Moesbergen;
“I asked Phil: “Don’t you have to offer me a position for redeployment?”
Phil responded: “No, we are not obligated to offer you anything.”
I said: “That doesn’t sound right.” “Can you send me any documents to do with my redundancy.”
Phil said: “Yes I will send you what we have.” 49
[28] The Applicant was resolute during cross-examination that in response to his questions during the above-referred telephone call to Mr Moesbergen at 10.06 am on 22 March 2022, Mr Moesbergen stated that there were no positions available for him 50. Mr Verbeek, who overheard the conversation, supported the Applicant’s version of the discussion. He states he overheard an exchange between the Applicant and Mr Moesbergen to the following effect;
“Nathan: “Do you have any other job for me”
The accountant: “We’ve got nothing here for you. We don’t have to offer you another position” 51
[29] Mr Moesbergen rejects the Applicant’s version of the telephone conversation and states that there was no discussion regarding the Applicant’s skillset, nor was there any discussion regarding there being no other roles in the business. Mr Moesbergen states he specifically recalls discussing redeployment options hence the Applicant’s request for a copy of the organisational chart. According to Mr Moesbergen the discussion dealt with the proposed meeting on 24 March 2022, redeployment options and the Applicant’s desire to obtain a copy of the new organisational chart 52.
[30] Ms McGregor confirmed in her witness statement Mr Moesbergen’s version of the conversation including that the meeting scheduled for 24 March 2022 would enable any redeployment options identified by the Applicant to be discussed 53. While adamant that Mr Moesbergen had not stated to the Applicant during the telephone discussion that the Respondent did not have to offer a role to him, she was more equivocal as to whether the Applicant had asked for redeployment options when she stated she could not recall that being raised54.
[31] Following the telephone conversation, Mr Moesbergen sent an email at 11.15am on 22 March 2022 to the Applicant to which was attached a copy of the organisation chart. The email relevantly stated as follows;
“Hi Nathan
Please find attached the Org Chart that we spoke about to email to you.
As discussed there are two options on the table and remain on the table.
1. Redeployment
2. The redundancy package.
Come back to us by the 24th with a response.” 55
[32] The Applicant was pressed during cross-examination to reconcile the specific reference in the 22 March 2022 email to redeployment remaining an option with his evidence that Mr Moesbergen had said during the 10.06 am telephone discussion that there were no redeployment options available. The Applicant agreed that the email stated that redeployment was ‘on the table’ but maintained that the statement in the email did not reflect what was discussed and put to him by both Mr Moesbergen and Ms McGregor 56.
[33] On the evening of 23 March 2022, the Applicant sent a text message to Mr Moesbergen advising that he would return the work keys the following morning 57. He says he did this as he was aware he had to return company property on termination of his employment58. The Applicant denies that either Mr Moesbergen or Ms McGregor mentioned at any time that a meeting was to be held on 24 March 2022 and that they wished to have a further discussion with him59. After receiving the text message from the Applicant, Mr Moesbergen inferred from the text that the Applicant was accepting redundancy and proceeded to prepare a letter on the evening of 23 March 2022 confirming the redundancy and termination of the Applicant’s employment. He denied that he rushed to prepare the letter in order to give it to the Applicant on 24 March 202260.
[34] On the morning of the 24 March 2022, the Applicant drove to the Respondent’s premises to drop off the keys and on arrival sent a text to Mr Moesbergen who then came out to the carpark accompanied by Ms McGregor. The Applicant states that a brief exchange took place between himself and Mr Moesbergen to the following effect;
“Phil said words to the effect of: “So, you have made your decision.”
I said words to the effect “What choice do I have really?” 61
[35] Mr Moesbergen agreed in cross-examination that his collecting the keys from the Applicant in the carpark and passing him the redundancy letter did not constitute a formal meeting. He also agreed that despite his evidence that a meeting with the Applicant was planned for the 24 March 2022, no formal meeting invite had been sent nor had a time been proposed or agreed 62. Mr Moesbergen attempted to frame the Applicant’s text message on the evening of 23 March 2022 as a calendar invite63. While denying that all he wanted from the Applicant on 24 March 2022 was a decision regarding the proposed redundancy rather than a discussion, Mr Moesbergen agreed that when he met the Applicant in the carpark he did not invite the Applicant into the office to discuss his employment64.
[36] Both Mr Moesbergen and Ms McGregor state that they have no recollection of the Applicant stating words to the effect of “What choice do I have really” 65. Ms McGregor states that her recollection of the exchange that took place between Mr Moesbergen and the Applicant in the carpark was as follows;
“Phil said to Nathan “have you made a decision regarding the options presented to you”
Nathan replied to Phil, “I will take the package” 66
[37] The Applicant states that Mr Moesbergen then handed him his Redundancy Letter 67 (the Redundancy Letter) dated 24 March 2022 in the carpark, although Mr Moesbergen recalls he handed it to the Applicant when they subsequently went into the printing room in the office68 after Mr Moesbergen requested the Applicant to come into the office to provide him with the Applicant’s passwords, which the Applicant did69. The Redundancy Letter relevantly stated as follows;
“Dear Nathan
Re: Redundancy
As discussed in our consultation meeting on 22nd March 2022, Arrow Bronze has undertaken a review of our business, including the structure of roles and positions within the business.
During this review and discussions with yourself, it was identified that your position of Graphics Manager requires modification. The modifications that have been identified are sufficient to trigger your inherent position being made redundant.
As part of the consultation process no viable role for re-deployment has been identified. It is with regret that your position has been made redundant effective 24th March 2022.
You will be paid all accrued leave entitlements in the next pay week. In addition, you will be paid 8 weeks severance pay as well as 3 weeks in lieu of notice which you will not be required to work out.
……………………..”
[38] Ms McGregor agreed that, despite the Redundancy Letter stating that no viable roles for redeployment had been identified, there were in fact redeployment roles available 70. Mr Jechilevsky also agreed during cross-examination that at the time of the Applicant’s dismissal there were three positions available to which the Applicant could have been redeployed71. For his part Mr Moesbergen maintained that the provision of the organisational chart to the Applicant on 22 March 2022, the discussion during the 10.06 am telephone meeting on 22 March 2022 and the follow-up email sent by him at 11.15 am that same day clearly identified the redeployment options available to the Applicant72. Mr Moesbergen went on to state that he expected the Applicant to respond on 24 March 2022 on whether he was interested in any of the positions identified in the Organisation Chart – Structure Proposal73.
[39] On departure from the office the Applicant states that he asked to speak with Mr Moesbergen, who agreed but asked Ms McGregor to accompany them. In the ensuing brief conversation, the Applicant states that he asked Mr Moesbergen “So, what’s really going on? What’s the real story? Is this because I’m friends with Sylvia? I don’t work here anymore now, so you can tell me the truth.” The Applicant states that Mr Moesbergen only replied that it “was just a restructure” following which the Applicant sensed the conversation was over and left the Respondent’s premises 74.
[40] The Applicant states that he understood that the restructure involved the merging of the administration and graphics department under one manager, resulting in the creation of two new positions, Customer Care Officer and Customer Care Representative. The Applicant further states there were three positions in the revised structure which he would have been capable of filling, those being the graphics role, the Customer Care Representative and Customer Care Officer positions 75. He says he did not raise those roles with the Respondent at the time because Ms McGregor and Mr Moesbergen told him there were no roles available76.
[41] Ms McGregor was also questioned regarding the various roles in the new structure that reported directly and indirectly to her, those being the graphics design roles, the Customer Care Officer and Customer Care Representative roles. She variously stated as follows;
• The Customer Care Officer role, while a ‘lesser role’ than the Graphics Manager position in her mind, attracted a salary of approximately $95,000, which was only $3,000 less than the Applicant was on at the time of his dismissal 77.
• At the time of the Applicant’s dismissal the proposed Customer Care Officer role had not been filled, the role was filled briefly following the restructure although the person who took the role subsequently resigned and the role currently remains vacant 78;
• The Customer Care Representative roles attracted salaries of between $60,000 and $70,000, and while some graphic design experience may be useful to perform those roles, such experience was not essential as the roles essentially involved liaising with customers and administrative data entry 79.
[42] The Applicant received a gross separation payment of $37,008.78 which included a redundancy payment of 8 weeks ($15,198.24), payment in lieu of notice of 3 weeks ($5,699.34) and accrued annual leave ($16,111.20). His annual salary at the time of his dismissal was $98,788.56 80.
[43] A threshold issue to determine is whether the Applicant has been dismissed from his employment. Section 386(1) of the Act provides that the Applicant has been dismissed if:
(a) the Applicant’s employment with the Respondent has been terminated on the Respondent’s initiative; or
(b) the Applicant has resigned from their employment but was forced to do so because of conduct, or a course of conduct, engaged in by the Respondent.
[44] Section 386(2) of the Act sets out circumstances where an employee has not been dismissed, none of which are presently relevant. There was no dispute and I find that the Applicant’s employment with the Respondent terminated at the initiative of the Respondent.
Initial matters
[45] Under section 396 of the Act, the Commission is obliged to decide the following matters before considering the merits of the application:
(a) whether the application was made within the period required in subsection 394(2);
(b) whether the person was protected from unfair dismissal;
(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code; and
(d) whether the dismissal was a case of genuine redundancy.
[46] Relevant to the determination of the preliminary matters I am satisfied that;
• the Applicant was dismissed on 24 March 2022 and filed his unfair dismissal application on 13 April 2022, that latter date being within 21 days of the date of his dismissal;
• at the time of the Applicant’s dismissal the Respondent employed approximately 50 employees 81 and is therefore not a small business employer within the meaning of s.23 of the Act;
• the Applicant commenced employment with the Respondent on 16 May 2017 and at the time of his dismissal had been employed for a period of over 4 years, that period being in excess of the minimum employment period of 6 months; and
• the Applicant was on an annual salary of $98,788.56 at the time of his dismissal and was therefore under the high income threshold.
Was the dismissal a case of genuine redundancy?
[47] Section 389(1) of the Act sets out the meaning of genuine redundancy and relevantly states 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”
[48] Section 389(2) of the Act provides for an exclusion to that which would otherwise fall within the definition of genuine redundancy and relevantly states as follows:
“(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.”
Was the Applicant’s job no longer required – s.389(1)(a)?
[49] In determining whether the Applicant’s dismissal was a genuine redundancy I turn firstly to consider whether the Respondent no longer required the Applicant’s job to be performed by anyone because of the operational requirements of the Respondent.
[50] A Full bench considered the meaning of the term genuine redundancy in Ulan Coal Mines Limited v Henry John Howarth and others 82 (Ulan) and relevantly stated as follows:
“[17] It is noted that the reference in the statutory expression is to a person’s “job” no longer being required to be performed. As Ryan J observed in Jones v Department of Energy and Minerals (1995) 60 IR 304 a job involves “a collection of functions, duties and responsibilities entrusted, as part of the scheme of the employees’ organisation, to a particular employee” (at p. 308). His Honour in that case considered a set of circumstances where an employer might rearrange the organisational structure by breaking up the collection of functions, duties and responsibilities attached to a single position and distributing them among the holders of other positions, including newly created positions. In these circumstances, it was said that:
“What is critical for the purpose of identifying a redundancy is whether the holder of the former position has, after the re-organisation, any duties left to discharge. If there is no longer any function or duty to be performed by that person, his or her position becomes redundant…” (at p.308)
This does not mean that if any aspect of the employee’s duties is still to be performed by somebody, he or she cannot be redundant (see Dibb v Commissioner of Taxation (2004) FCR 388 at 404-405). The examples given in the Explanatory Memorandum illustrate circumstances where tasks and duties of a particular employee continue to be performed by other employees but nevertheless the “job” of that employee no longer exists.
[18] In Kekeris v A. Hartrodt Australia Pty Ltd Hamberger SDP considered whether a dismissal resulting from the restructure of a supervisory team was a case of genuine redundancy. As a result of the restructure, four supervisory team leader positions were replaced by three team leader positions. The Senior Deputy President said:
“When one looks at the specific duties performed by the applicant prior to her termination they have much in common with those of two of the new positions in the new structure. The test is not however whether the duties survive. Paragraph 1548 of the explanatory memorandum makes clear that it can still be a ‘genuine redundancy’ where the duties of a previous job persist but are redistributed to other positions. The test is whether the job previously performed by the applicant still exists.” 83 (references omitted)
[51] It follows from the Full Bench’s reasoning in Ulan and the summary of relevant cases cited in their decision that:
(i) A job is a collection of functions, duties and responsibilities assigned to a particular employee within an organisation;
(ii) The functions, duties and responsibilities may cease to be part of an employee’s job through a reorganisation or redistribution of duties;
(iii) Should there no longer be any functions or duties to be performed by a particular employee, then his or her job ceases to exist;
(iv) The fact that the tasks and duties previously performed by an employee may have survived and been reallocated to other employees through a restructure does not mean the job is still required; and
(v) An employee’s dismissal may be a genuine redundancy even though particular functions, duties and responsibilities previously performed by that employee are being performed by other employees.
[52] It is factually uncontroversial that the Graphics Manager role formerly held by the Applicant was removed as a consequence of the restructure initiated by the Respondent. The evidence of the Respondent’s witnesses confirmed that the former duties of the Graphics Manager role were absorbed into other roles including the Customer Care Officer, National Sales & Customer Engagement Manager, Financial Controller and the remaining graphics design roles. The restructure was not however confined to the removal of the Applicant’s role although he was the only staff member to be made redundant at the time of the removal of his role. The restructure also involved the consolidation of three management roles into one and the combining of two former departments, sales and customer care, into one department reporting to Ms McGregor as National Sales & Customer Engagement Manager.
[53] As earlier set out in the evidence above at [17], the Applicant readily agreed that the role of Graphics Manager no longer exists and the various duties of that role are now discharged by other staff. Consistent with the authorities I have set out above, the fact that the tasks and duties previously performed by the Applicant have survived and been reallocated to other staff does not mean the job is still required.
[54] It follows from the above, and I am satisfied that, the role of Graphics Manager previously held by the Applicant is no longer required by the Respondent due to changes in the Respondent’s operational requirements. I now turn to consider whether the Respondent complied with any consultation obligations that were required to be observed by it.
Did the Respondent comply with any consultation obligations - s 389(1)(b)?
[55] Whether the Respondent was required to comply with particular consultation obligations turns on whether the Applicant was covered in his employment by a modern award or an enterprise agreement and whether such applicable modern award and/or enterprise agreement contains consultation provisions. It is not in dispute that the Applicant was not covered by an enterprise agreement. There was however a contest between the parties over whether the Applicant was covered by a modern award. In any event, the subjective opinion of the parties as to whether a modern award covered the Applicant is irrelevant as the application of a modern award is a matter of fact to be determined by the Commission.
[56] As stated above, the issue of Award coverage is central to establishing any consultation obligations of the Respondent. That issue was however inadequately dealt with by both parties’ representatives in the initial material filed and at the hearing conducted on 25 July 2022. Further submissions were invited from the parties on that issue in closing written submission following completion of the hearing. Those further submissions of the parties contained a mixture of submissions and evidence. To the extent that the further material filed sought to introduce new evidence on the Award coverage point that was unable to be tested by way of cross-examination I have not had regard to that material.
[57] The Applicant contends that the Graphics Manager role aligns with the Level 8 classification in the Graphic Arts, Printing and Publishing Award 2020 Award 84 (the Award) and variously submits that;
• when the Applicant assumed the Graphics Supervisor role in 2018 it was stated that he was covered by the then Award;
• while the application of the Award was not referred to in the 2020 Contract of Employment when he was promoted to the Graphics Manager role, the role change was in name only and that the Graphics Manager role was essentially the same as the supervisor role;
• the evidence established that the Applicant in the Graphics Manager role had limited budget and expenditure responsibility/authority;
• the uncontested evidence was that the performance of production (hands on graphic design) work constituted 60% of the Applicant’s work while managerial/supervisor tasks comprised 40% of the role;
• the fact that the Applicant’s salary was significantly higher than the Award Level 8 classification rate was not relevant given the award rate of pay is merely a minimum rate;
• the Applicant’s tertiary qualifications do not exclude him from Award coverage and are not a significant factor; and
• a comparison of duties of the Graphics Manager role and Level 8 classification in the Award reveals significant overlap.
[58] The Respondent submits that the Graphics Manager role was not covered by the Award. In making that submission it relied on an analysis of the Graphics Manager role and the Level 8 classification definition which it says reveals that a majority of the tasks performed by the Applicant in the Graphics Manager role were above the Level 8 classification in the Award. The Respondent also pointed to the tertiary qualifications of the Applicant and the significantly higher salary paid to him compared to the Level 8 classification rate.
[59] Before turning to consider whether the Applicant is covered by the Award it is necessary to set out the task that is required, which unhelpfully the parties failed to articulate or address in their submissions. The authorities which were set out comprehensively in Lingli Zheng v Poten & Partners (Australia) Pty Ltd 85 (Zheng), confirm that where there is a question over award coverage, a “two step” process focussed on the coverage of the relevant award is required to resolve the matter.
[60] A necessary starting point in the present case is the coverage of the Award which states as follows;
“4.1 This industry and occupational award covers employers throughout Australia in the graphic arts, printing, publishing and associated industries and occupations and their employees in the classifications listed in clause 17—Minimum rates and classification structure and Schedule A—Classification Definitions to the exclusion of any other modern award.”
[61] In the circumstances of the present matter the first step requires an assessment of whether the Respondent is engaged in the “graphic arts, printing, publishing and associated industries” as defined in 4.2 of the Award. The second step which has been referred to as the “principal purpose” test involves two elements, the first being a question of fact to establish the principal purpose of the Graphics Manager role for which the Applicant was employed. The second element requires a comparison of the “principal purpose” of the Graphics Manager role with the asserted Level 8 classification in the Award to determine if it falls within that classification.
[62] It is not contested and I find that the Respondent is in the “graphic arts, printing, publishing and associated industries” as defined. It is therefore necessary for me to now turn to the second step, that of assessing the “principal purpose” of the Graphics Manager role and comparing that to classifications in the Award.
[63] Turning to the role of the Applicant, I accept on the evidence that in performing the Graphics Manager role, 60% of the Applicant’s time was spent on “production” work, that being “hands on” work ordinarily performed by the graphic designers. I note that the Applicant was initially engaged in a graphics design role when he commenced with the Respondent in 2017 before his 2018 promotion to a supervisory role. As regards the balance of his work as Graphics Manager, the Applicant was responsible for supervising and co-ordinating the work of the graphics team which consisted of three graphic designers and one proof reader. He had limited authority in respect of budgeting and expenditure.
[64] The relevant actions and accountabilities of the Graphics Manager role were set out in a position description under three headings of Health and Safety – Hazard and Risk Management, Graphics Management and New Systems and Equipment and provide as follows;
1. Health and Safety – Hazard and Risk Management
Ensure adherence to company OHS requirements
2. Graphics Management
Manage workflow and ensure orders are prioritised to meet deadlines.
Train New Employees in new technologies or systems that are introduced.
Leads, promotes harmony, and maintains excellent sound working relationships between departments and employees.
Supervising of staff and delegate job responsibilities among team members.
3. New Systems and Equipment
Undertake due diligence and collaborate with management, team members and outside organisations on researching, motivating and implementing new systems and capital equipment. 86
[65] The Applicant also gave unchallenged evidence that the Graphics Manager role was essentially the same as the Graphics Supervisor role. Mr Jechilevsky confirmed the Applicant’s estimate of the time he spent on production work of 60% and stated that the difference between the Graphics Manager role and Graphics Supervisor role was that the Graphics Manager role required the Applicant to assume HR responsibilities for the team members, that the role had some expense control and could raise a capital expenditure request. I am therefore satisfied on the evidence that the Graphics Manager role was essentially the same as the Graphics Supervisor role with some limited additional responsibilities.
[66] Having regard to the above it is also useful to set out the responsibilities of the Graphics Supervisor role which more helpfully and fulsomely stated the responsibilities as follows in the 2018 Contract of Employment;
“Your responsibilities will include but not be limited to.
- Supervise and lead the graphics team and manage the overall performance of staff
- Ensure that the delivered products or services adhere to the policies and standards of the company.
- Delegate the job responsibilities among team members and oversee that quality work is being completed within the deadline.
- Providing accurate information in relation to departments upon request.
- Administration enquiries require a quick turnaround to ensure customer satisfaction.
- Tackle and problem solve production enquiries quickly and effectively (updating templates, investigating production issues etc).
- Motivates staff to create an environment where employees thrive.
- Enforce company policy to cultivate an environment that makes employees accountable for their actions.
- Train employees if new technologies or systems are introduced.
- Take initiative – Managers do not always wait for their bosses to give them directions.
- Keeping your direct supervisor in the loop on all issues – cc in email etc to ensure I am aware of events.
- Ensure orders are prioritised without having to continually chase. Orders with urgency for same day will need to be completed by 2.30pm daily and handed to the person who requested these.” 87
[67] Turning now to ascertaining the “principal purpose” of the role, it is helpful to set out the comments of an AIRC Full Bench in Carpenter v Corona Manufacturing Pty Ltd 88 (Carpenter) which applied the “principal purpose” test, where they said as follows;
“[9] In our view, in determining whether or not a particular award applies to identified employment, more is required than a mere quantitative assessment of the time spent in carrying out various duties. An examination must be made of the nature of the work and the circumstances in which the employee is employed to do the work with a view to ascertaining the principal purpose for which the employee is employed. In this case, such an examination demonstrates that the principal purpose for which the appellant was employed was that of a manager. As such, he was not ‘employed in the process, trade, business or occupation of ... soliciting orders, obtaining sales leads or appointments or otherwise promoting sales for articles, wares, merchandise or materials’ and was not, therefore, covered by the Award.” (footnote omitted)
[68] The Full Bench in Zheng elaborated further on the “principal purpose” test and while finding that it was singularly unhelpful in the case before it because the classification descriptors in the Professional Employees Award 2020 89 were highly generic and lacked job function specificity 90, nonetheless went on to state as follows;
“[47] It remains necessary to consider what the application of the “principal purpose” test requires. As was stated in Carpenter, the test requires an examination of the nature of the work of the employee in question and the circumstances in which the employee is employed to do the work for the purpose of ascertaining the principal purpose for which the employee is employed. This is a question of fact. Once that is done, the principal purpose as identified must be compared to the classification descriptor in order to determine whether it falls within the scope of that descriptor…” 91
[69] Based on the authorities to which I have referred, I accept that ascertaining the “principal purpose” of the Graphics Manager role requires more than a simple quantitative assessment of the time spent performing the various duties. If it were based simply on the quantitative assessment I would have little trouble in concluding that the role was covered by the Award given the proportion of the time spent on “production” work which would clearly fall with the Level 8 classification description of the Award. It is however necessary to examine the nature of the work and the circumstances within which it is performed.
[70] While the evidence reveals that the Graphics Manager role was essentially the same as the Graphics Supervisor role, the Respondent contends that the role involved some human resource management which I inferred from the evidence was a reference to performance management although there was no evidence that this was a significant component of the role. I also note that the role had limited expenditure or budget authority. Such limited authority along with the evidence as to the role being essentially the same as the Graphics Supervisor role is indicative of a supervisory role rather than a management role. There is little to suggest that the title of Graphics Manager was much more than a name change from the previous role occupied by the Applicant.
[71] When considering the responsibilities set out in the two position descriptions and taking into account the unchallenged evidence of the Applicant, I have concluded that the “principal purpose” of the Graphics Manager role was that of the performance of graphics design production work, the scheduling of work, supervision, provision of technical support and co-ordination of the graphics design team. In reaching this conclusion I have taken into account that the graphics team is small in numbers which requires the Applicant to “pitch in,” that at the time of the Applicant’s dismissal he reported to the Customer Care Manager and that there was little evidence going to the “management” functions and duties of the Graphics Manager role.
[72] I now turn to the second element of “principal purpose” test, that being an assessment of the “principal purpose” of the role against the Award Level 8 classification description which is defined as follows;
“A.8 Level 8
Employees at this level perform work above the skills of an employee at level 7 to the level of their competence, skill and training. An employee at this level may have completed a trade certificate, AQF Certificate Level IV or equivalent training.
An employee at this level will be capable of:
• having a thorough knowledge of production processes and procedures in own area and general knowledge of downline processes;
• working under minimal supervision and demonstrating a high level of proficiency;
• undertaking routine production scheduling and materials handling within the scope of their area of work to maintain planned production requirements;
• monitoring, evaluating and reporting quality variations within a broad work area;
• having a knowledge of process, problem solving techniques and procedures and exercising initiative and judgment in solving day-to-day operational problems;
• exercising considerable discretion; work is guided by company precedents and policies; work procedures may be adopted to meet production requirements;
• operating a computer-controlled system as an integral aspect of routine work to their level of training and accredited skill;
• undertaking routine and preventative maintenance to the level of their training and accredited skill;
• removing and replacing assemblies/subassemblies to carry out cleaning and inspection of parts;
• participating in, developing and implementing appropriate work health and safety practices in the area of work; encouraging staff under their supervision to accept and enforce safety requirements;
• providing technical guidance and assistance to work, groups and teams;
• providing on-the-job training in conjunction with supervisors and/or trainers; and
• being responsible for the work of others under their supervision and has undertaken supervisory training.
Indicative tasks at this level may include:
• exercising high precision trade skills;
• exercising intermediate Computer-aided Design and Computer-aided manufacturing (CAD/CAM) skills in the performance of routine modifications to programs;
• creating or producing original design roughs or finished artwork from employer or clients’ instructions, either manually or by computer;
• liaising and advising internal customers and employees outside the work team;
• operating and/or co-ordinating a group of computers such as a small multi-user system or a large group of personal computers which may include operating a help desk; and
• participating in problem solving techniques and procedures and exercising initiative and judgment in solving day-to-day operational problems.”
[73] As stated above I have found that the “principal purpose” of the Graphics Manager role was that of the performance of graphics design production work, the scheduling of work, supervision, provision of technical support and co-ordination of the graphics design team. As can be seen, the “principal purpose” of the Graphics Manager role comprised both hands on production work and supervision/co-ordination of the graphics team and its production output. That mix of work sits comfortably within the Level 8 classification descriptor. There can be no doubt that the Applicant in performing production work required a thorough knowledge of production processes and procedures, worked under minimal supervision, undertook routine maintenance and exercised considerable discretion. As regards the supervisory/management component of his role, the Level 8 role provides for routine production scheduling, provision of technical guidance and assistance, provision of training and being responsible for work of others under supervision, all of which are features of the “principal purpose” of the Applicant’s role that I have found.
[74] It follows from the above that the Applicant was covered by the Award at the time of his dismissal by the Respondent. It also follows that in order for the dismissal to be a genuine redundancy as contended by the Respondent the consultation obligations in the Award were required to be observed. The consultation obligations set out in the Award at clause 37 relevantly requires the following;
37.1 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.
37.2 For the purposes of the discussion under clause 37.1(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.
[75] In determining whether the Respondent has complied with the above consultation obligations it is necessary for me to make findings as to what consultation took place and whether the steps taken by the Respondent meet the requirements of clause 37 of the Award. Based on the evidence, the consultation steps taken by the Respondent may be summarised as follows.
[76] A short meeting was conducted by the Respondent at 9.00 am on the morning of 22 March 2022 at which Mr Jechilevsky addressed the Customer Care team and announced an organisational restructure, the details of which he advised would be discussed with affected employees. No specific details of the restructure were provided in the meeting.
[77] Immediately following the 9.00 am meeting on 22 March 2022, the Applicant was called into a meeting at 9.15 am with Mr Moesbergen and Ms McGregor during which he was shown a copy of the proposed new organisation structure and was advised that his role was to be made redundant. A copy of the Applicant’s redundancy calculation was also available in the meeting. There was an evidentiary dispute over whether the Applicant was advised in the meeting that the Respondent wanted to “consult” with him over the changes. Little turns on that factual dispute because regardless of what was stated to the Applicant, it is the conduct of the Respondent that is to be assessed rather than a statement of intent.
[78] The Applicant gave evidence that he questioned Ms McGregor and Mr Moesbergen during the 9.15 am meeting about redeployment options to which the Applicant says Ms McGregor replied there were no roles available. Ms McGregor denies having made such statement. The 9.15 am meeting was a short meeting of approximately 5 mins in length at the conclusion of which the Applicant was offered the opportunity to take a few days off to consider the information that had been provided to him. The Applicant was upset at the conclusion of the meeting, at which point he left but returned shortly after to obtain a copy of his redundancy calculation before leaving the Respondent’s premises.
[79] Following the 9.15 am meeting the Applicant then travelled directly to the home of his former manager Sylvia Jacobsen where he placed a phone call to Mr Moesbergen at approximately 10.06 am. During the phone call the Applicant conducted the call on speaker in the presence of Mr Verbeek who is the father of his former manager. Mr Verbeek’s presence with the Applicant and his listening to the call was not disclosed by the Applicant to Mr Moesbergen. Neither does it appear that Ms McGregor alerted the Applicant to her presence with Mr Moesenberg. The conversation was again brief, lasting approximately 5 minutes. There was again conflicting evidence of what was discussed in the meeting with the Applicant claiming that Mr Moesbergen again stated that there were no alternate roles available for redeployment to. The Applicant’s version of the discussion was confirmed by Mr Verbeek’s evidence.
[80] Mr Spaull and Mr Verbeek both gave consistent evidence regarding the substance of the 10.06 am phone conversation, including that the Applicant asked whether there were any redeployment options available to which they say Mr Moesenberg replied there were no positions available. Mr Moesenberg’s recollection of the conversation was far less decisive when during cross-examination he could not recall various questions the Applicant claims to have put to him during the telephone call 92. Ms McGregor was similarly equivocal in cross-examination on whether the Applicant asked about redeployment options93.
[81] Following the 10.06 am phone call, Mr Moesbergen sent an email to the Applicant at 11.15 am to which he attached a copy of the Applicant’s redundancy package and the Organisational Chart – Structure Proposal. Relevantly, the email referred to two options remaining on the table, that of redeployment and redundancy.
[82] As can be seen, there is a significant conflict in the evidence on whether the Applicant pressed Mr Moesbergen and Ms McGregor in the 9.15 am meeting and then during the 10.06 am phone call on redeployment options. I regard it as significant that Mr Moesbergen sent an email at 11.15 am specifically referring to the option of redeployment remaining on the table “as discussed” earlier with the Applicant. It seems inherently unlikely that such a reference would have been included in the email if the issue of redeployment had not been discussed in the earlier 10.06 am telephone call. The Applicant sought to reconcile the reference to redeployment in the email with his evidence that he was told there were no redeployment options by claiming the email reference was disingenuous and not reflective of the actual statements made by Mr Moesbergen and Ms McGregor in the earlier discussions that day. I find that explanation unconvincing because if the statement on redeployment in the email was disingenuous and not reflective of earlier discussions, the Applicant did not query or challenge it at the time it was made.
[83] Balanced against the significance of the email from Mr Moesbergen at 11.15 am on 22 March 2022 are the following matters. The Applicant was credible and consistent in his responses during cross-examination whereas both Ms McGregor and Mr Moesbergen appeared at times to be evasive in their responses or had difficulty recalling what was variously said in discussions with the Applicant 94. Significantly, Ms McGregor conceded during cross-examination that no details whatsoever were provided to the Applicant regarding potential redeployment roles beyond a copy of the organisational chart. Ms McGregor also gave evidence that she believed it was the Applicant’s responsibility to identify alternate roles for redeployment. Finally, the Redundancy Letter clearly stated that no viable roles for redeployment had been identified.
[84] Having regard to the afore mentioned matters I am inclined to accept that the Applicant asked the Respondent what redeployment options were available to which he was advised that the Respondent had not identified any suitable roles but that it was open to the Applicant to identify roles he thought would be suitable based on the new organisational structure. Beyond the provision of the organisation chart by Mr Moesbergen in his 11.15 am email on 22 March 2022 no other information was provided to the Applicant such as which roles were unfilled, relevant position descriptions, qualification or experience requirements and remuneration details attaching to the roles in the organisational chart.
[85] The 11.15 am email stated that the Applicant was to come back to the Respondent on 24 March 2022 with a response. The email was not an invitation for further discussion or consultation. The Respondent strained to suggest that a further meeting with the Applicant was arranged for the 24 March 2022 at which further consultation was intended but the Applicant made a decision in the interim period rendering moot any further consultation. The submission that a meeting on 24 March 2022 was arranged is rejected. The simple facts are that the Applicant was asked to come back with a response by 24 March 2022 on the two options referred to in the email sent by Mr Moesbergen at 11.15 am on 22 March 2022. No meeting was arranged for further discussion with the Applicant.
[86] That the Applicant chose to accept redundancy is unsurprising in circumstances where the evidence reveals that the Respondent stated to him that it had not identified any redeployment options, where the Respondent believed the onus lay with the Applicant to identify redeployment options, where the entire time devoted to discussing the organisation restructure and its impact on the Applicant was approximately 10 minutes and where no information about the redeployment options was provided to the Applicant beyond a copy of the new organisational chart. It is also telling that despite the Applicant being upset when he left the 9.15am meeting on 22 March 2022 no subsequent contact was initiated by either Mr Moesbergen or Ms McGregor at any point to establish his welfare and whether he needed any additional information to assist his decision making.
[87] As regards the Applicant’s communication of his ‘decision’ via text on the evening of 23 March 2022 and Mr Moesbergen’s preparation of the Redundancy Letter that same evening, it all has the feel of undignified haste on the part of the Respondent. Despite the Applicant being acknowledged by both Mr Moesbergen and Ms McGregor as a good employee, no attempt was made by either on the morning of the 24 March 2022 when the Applicant arrived at the workplace to drop off the keys, to discuss his decision or further explore alternative options. The Respondent’s approach on the morning of the 24 March 2022 was merely ‘transactional’ paid little regard to the Applicant in my view and paid lip service to its Award consultation obligations, that due to it believing itself freed of further obligations following the Applicant’s decision to take the offered redundancy.
[88] The Respondent’s approach to meeting its consultation obligations under the Award can be distilled to a brief 5 minute meeting initiated by it on 22 March 2022 and the provision of a copy the new organisational structure that identified the removal of the Applicant’s role. No information was provided, let alone in writing as required under clause 37 of the Award, regarding the proposed date of the restructure and steps to mitigate the adverse effects on the Applicant. The steps taken by the Respondent fall well short of the requirements of clause 37 of the Award. It follows that the Respondent has failed to comply with its consultation obligations and as such the Applicant’s dismissal was not a genuine redundancy.
Would it have been reasonable to re-deploy the Applicant?
[89] Even if I am wrong in my finding that the Award covered the Applicant such that my conclusion that the Award consultation obligations applied and were not complied with was incorrect, I would still find that the dismissal of the Applicant was not a genuine redundancy. That is because, for the reasons set out below, I am also satisfied that it would have been reasonable for the Respondent to redeploy the Applicant.
[90] It is well established on the authorities that whether a redeployment of an employee is considered reasonable will depend on all of the circumstances that existed at the time of the dismissal 95. A number of matters may be relevant in determining whether redeployment was reasonable including;
• whether there exists a job or a position or other work to which the employee can be redeployed 96;
• the nature of any available position;
• the qualifications required to perform the job;
• the employee’s skills, qualifications and experience; and
• the location of the job in relation to the employee’s residence and the remuneration (pay and entitlements) which is offered 97.
[91] It is clear on the evidence of Mr Jechilevsky and Ms McGregor that there were three roles available that the Applicant could have been redeployed to at the time of his dismissal. That is despite the statement in the Redundancy Letter that no roles for redeployment had been identified. While it is unclear whether the Applicant had the skills and qualifications to perform the Customer Care Officer and Customer Care Representative roles in the new structure, it is unarguable that the Applicant had the skills and qualifications to perform the graphics team roles given he started in such a role in 2017. The graphics roles were also based at the same location. Significantly, there is no evidence before me that reveals what steps were taken by the Respondent to canvass whether there were alternate roles available for redeployment. In fact, based on the evidence, the Respondent believed the onus lay entirely with the Applicant to identify an alternate role.
[92] The only issue that weighs against a conclusion that it would have been reasonable to redeploy the Applicant to a graphics team role was the drop in remuneration that would have resulted, on which remuneration reduction there was no evidence before me. The only evidence on remuneration of the alternate roles in the new structure was in respect to the Customer Care Officer role which was at a slightly lower salary level to the former Graphics Manager role and the Customer Care Representative roles which Ms McGregor stated received a salary in the range of $60,000 - $70,000.
[93] It is of course appropriate to take into account the level of remuneration when considering whether redeployment to an alternate role with a lower level of remuneration would have been reasonable in the circumstances. Putting aside the fact that there was no evidence on the remuneration attaching to the graphics roles, the Applicant in his evidence stated that he would have been willing to undertake any of the three roles identified above. He also states that he did not indicate an interest in those roles at the time of his redundancy because he says he had been advised that there were no roles available. In the circumstances I accept the Applicant’s evidence that had he been offered one of the three roles he would have considered taking a role notwithstanding the lower remuneration, and that at least in respect of the graphics roles he would have been experienced and qualified to perform such role.
[94] Having regard to the above, I am satisfied that it would have been reasonable in the circumstances to redeploy the Applicant. The failure of the Respondent to do so means that the dismissal was not a genuine redundancy.
[95] For the forgoing reasons I am satisfied that the Applicant’s dismissal was not a case of genuine redundancy because as of 24 March 2022;
(i) while the Respondent no longer required the Applicant’s job to be performed by anyone because of changes in the operational requirements of its enterprise;
(ii) the Applicant was covered in his employment by a modern award or enterprise agreement and the consultation obligations under the Award were not complied with; and
(iii) it would have been reasonable in all the circumstances for the Applicant to have been redeployed within the Respondent’s enterprise.
[96] Having considered each of the initial matters, I am satisfied that the application was made within the required period in subsection 394(2), the Applicant was a person protected from unfair dismissal, the small business fair dismissal code does not apply, and the dismissal was not a genuine redundancy. I am now required to consider the merits of the application.
[97] Section 387 of the Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust, or unreasonable, the Commission must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person – whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.
Was there a valid reason for the dismissal related to the Applicant’s capacity or conduct – s.387(a)?
[98] In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded”98 and should not be “capricious, fanciful, spiteful or prejudiced99.” However, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it were in the position of the employer100.
[99] I am satisfied that the Applicant’s dismissals was due to redundancy, albeit I have already found that it was not a genuine redundancy. The Applicant was not dismissed for reasons related to his capacity or conduct. In the circumstances of the case before me the absence of a valid reason related to capacity or conduct is a neutral consideration.
Notification of the valid reason – s.387(b)
[100] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made to terminate their employment,101 and in explicit102, plain and clear terms103.
[101] While the Applicant was notified of the reasons for his dismissal, that of redundancy, it was not a “valid reason” related to his capacity or conduct. It follows that he was not notified of a “valid reason.” In the circumstances of the present case, however, where the dismissal was due to redundancy, it is a neutral consideration.
Opportunity to respond to any reason related to capacity or conduct – s.387(c)
[102] An employee protected from unfair dismissal should be provided with an opportunity to respond to any reason for their dismissal relating to their conduct or capacity. An opportunity to respond is to be provided before a decision is taken to terminate the employee’s employment.104
[103] The opportunity to respond does not require formality and the factor is to be applied in a common-sense way to ensure the employee is treated fairly.105 Where the employee is aware of the precise nature of the employer’s concern about his or her conduct or performance and has a full opportunity to respond to the concern, this is enough to satisfy the requirements.106
[104] The Applicant was self-evidently not given an opportunity to respond to the reasons for dismissal relating to conduct or capacity. In the circumstances of the present case, however, where the dismissal was due to redundancy, it is a neutral consideration.
Support person – s.387(d)
[105] 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. The Applicant was not offered, nor did he request to be accompanied by a support person in the meeting held on 22 March 2022. This criteria is a neutral consideration in the circumstances.
Warnings regarding unsatisfactory performance – s.387(e)
[106] The dismissal did not relate to unsatisfactory performance. This factor is therefore not relevant in the circumstances.
Impact of the size of the Respondent on procedures followed – s.387(f)
[107] The Respondent’s Form F3 - Employer Response indicates that at the time of the Applicant’s dismissal it employed 50 employees. There is no evidence before me, and nor did either party contend, that the Respondent organisation’s size impacted on the procedures followed by it in dismissing the Applicant. This factor weighs neutrally in my consideration.
Impact of absence of dedicated human resources management specialist/expertise on procedures followed – s.387(g)
[108] The evidence in this matter indicates that the Respondent did not have access to the services of an in-house human resources specialist. This factor weighs neutrally in my consideration.
Other relevant matters – s.387(h)
[109] Section 387(h) requires the Commission to take into account any other matters that the Commission considers relevant. The relevant factors going to unfairness of the dismissal in this case fall for consideration under this category. As set out above, the Applicant’s dismissal arose from a restructure of the organisation in which the customer care and sales departments were combined into one department reporting to the new position of National Sales & Customer Engagement Manager. The Applicant’s role of Graphics Manager was also removed as part of the restructure with the four remaining graphics team positions that had previously reported to the Applicant now reporting to a newly created position of Customer Care Officer which in turn reports to the National Sales & Customer Engagement Manager.
[110] It was not contested that the removal of the Applicant’s position arose from an operational decision of the Respondent. As I have earlier found however, the Respondent failed to consult the Applicant regarding his redundancy as it was required to under clause 37 of the Award. That failure was then compounded by the Respondent’s failure to redeploy the Applicant in circumstances where it would have been reasonable to do so. I refer to the comments of Watson VP in Mr Jamil Maswan v Escada Textilvertrieb T/A ESCADA 107 (Maswan) where in a case also involving consideration of whether the dismissal of an employee on the basis of a redundancy was unfair, the Vice President was considering s.387(h) of the Act when he stated as follows;
“[39] In my view a decision to dismiss on account of redundancy will only be harsh, unjust or unreasonable if the rationale for the decision is seriously undermined or if there is a serious error in procedure such that renders the termination unfair in the circumstances. Here the decision appears open to the employer to make. The failure to consult is not a trivial matter. But as it is clear that consultation was highly unlikely to have negated the operational reasons for the dismissal or lead to any other substantive change, I do not believe that the failure to consult prior to the date of termination rendered the dismissal unfair. Given the evidence in relation to the operational need to restructure, I am of the view that it is likely that Mr Maswan would have been dismissed in any event, even if timely consultation had occurred.” 108 (my emphasis added)
[111] I agree with the Vice President’s comments which I have added emphasis to above. The present case may however be distinguished from that of Maswan where the Vice President in determining that the dismissal was not unfair, found that while there were deficiencies in the consultation process, they were not so significant as to have been likely to alter the outcome for Mr Maswan of dismissal on the grounds of redundancy. In the present case, the Respondent’s failure to consult and consider redeployment are such that I am not satisfied that the outcome of dismissal on the grounds of redundancy would have been inevitable. In fact, for the reasons previously stated above, it is likely that had the Respondent properly consulted the Applicant and genuinely canvassed redeployment options for the Applicant, the redundancy could have been avoided. This weighs strongly in favour of a finding that the dismissal was unjust and unreasonable.
[112] The Applicant also submits that other factors weigh in favour of a finding that the dismissal was unfair. Those matters include the Applicant’s age (36 years), primary carer responsibilities, length of employment (4 years), his unblemished employment record and his unsuccessful attempts to find alternate employment.
[113] I am not persuaded that the additional matters raised by the Applicant weigh in favour of a finding of unfairness. The Applicant is young, highly qualified, experienced, well regarded by his former employer and has entered the labour market at a time of near record low levels of unemployment. While his dismissal was unexpected and upsetting for the Applicant, any potential harshness was mitigated in my view by his gross separation payment of $37,008.78 which included a redundancy payment of 8 weeks ($15,198.24), payment in lieu of notice of 3 weeks ($5,699.34) and accrued annual leave ($16,111.20).
Is the Commission satisfied that the dismissal of the Applicant was harsh, unjust, or unreasonable?
[114] I have made findings in relation to each matter specified in s.387 of the Act as relevant. I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust, or unreasonable.109
[115] While I have found that the ss.387(a)-(f) factors were either neutral or not relevant in my consideration, I have found that the Respondent’s failure to properly consult or consider redeployment in circumstances where it would have been reasonable to do so weighs strongly in favour of a finding that the dismissal was unfair. Having considered each of the matters specified in s.387 of the Act, I am consequently satisfied that the dismissal was unjust, unreasonable, and thereby unfair.
Remedy
[116] Being satisfied that the Applicant:
(i) made an application for an order granting a remedy under s.394;
(ii) was a person protected from unfair dismissal; and
(iii) was unfairly dismissed within the meaning of s.385 of the Act,
I may, subject to the Act, order the Applicant’s reinstatement, or the payment of compensation to the Applicant.
[117] Under s.390(3) of the Act, I must not order the payment of compensation to the Applicant unless:
(a) I am satisfied that reinstatement of the Applicant is inappropriate; and
(b) I consider an order for payment of compensation is appropriate in all the circumstances of the case.
Is reinstatement of the Applicant inappropriate?
[118] The Applicant does not seek reinstatement but seeks compensation. The Respondent opposes any remedy including reinstatement. Having regard to the views of the parties I consider that reinstatement is inappropriate. I will now consider whether a payment for compensation is appropriate in all the circumstances.
Is an order for payment of compensation appropriate in all the circumstances of the case?
[119] Having found that reinstatement is inappropriate, it does not automatically follow that a payment for compensation is appropriate. As noted by the Full Bench, “[t]he question whether to order a remedy in a case where a dismissal has been found to be unfair remains a discretionary one…”110.
[120] The Applicant submits that payment of compensation is appropriate because he had been unfairly dismissed and has only recently been able to secure alternate employment following his dismissal. The Respondent opposes any compensation or alternatively submits that in assessing compensation the Commission should take into account the Applicant’s contribution to his dismissal by his election to take a redundancy.
[121] Having found that the Applicant was unfairly dismissed and noting that the Applicant has been unemployed until recently, in these circumstances, I consider that an order for payment of compensation is appropriate. There is nothing in the material filed by the Respondent in the substantive proceedings, which was not tested in an evidentiary sense in any case, that persuades me that a payment of compensation would be inappropriate.
Compensation – what must be taken into account in determining an amount?
[122] Section 392(2) of the Act requires all of the circumstances of the case to be taken into account when determining an amount to be paid as compensation to the Applicant in lieu of reinstatement including:
(a) the effect of the order on the viability of the Respondent’s enterprise;
(b) the length of the Applicant’s service;
(c) the remuneration that the Applicant would have received, or would have been likely to receive, if the Applicant had not been dismissed;
(d) the efforts of the Applicant (if any) to mitigate the loss suffered by the Applicant because of the dismissal;
(e) the amount of any remuneration earned by the Applicant from employment or other work during the period between the dismissal and the making of the order for compensation;
(f) the amount of any income reasonably likely to be so earned by the Applicant during the period between the making of the order for compensation and the actual compensation; and
(g) any other matter that the Commission considers relevant.
[123] I consider all the circumstances of the case below.
Effect of the order on the viability of the Respondent’s enterprise
[124] While the Respondent submits that it is not a large employer, there was no material filed or evidence adduced by it that would support a finding that an order for compensation would have an effect on the viability of the employer’s enterprise. I consequently find that an order for compensation is unlikely to have an effect on the viability of the employer’s enterprise.
Length of the Applicant’s service
[125] The Applicant commenced employment with the Respondent on 16 May 2017 and was terminated on 24 March 2022 a period of 4 years, 9 months. I consider that the Applicant’s length of service is such that it does not favour an adjustment to the compensation otherwise calculated.
Remuneration that the Applicant would have received, or would have been likely to receive, if the Applicant had not been dismissed
[126] As stated by a majority of the Full Court of the Federal Court, “in determining the remuneration that the Applicant would have received, or would have been likely to receive… the Commission must address itself to the question whether, if the actual termination had not occurred, the employment would have been likely to continue, or would have been terminated at some time by another means. It is necessary for the Commission to make a finding of fact as to the likelihood of a further termination, in order to be able to assess the amount of remuneration the employee would have received, or would have been likely to receive, if there had not been the actual termination.”111
[127] The Applicant submits there is nothing to suggest he would not have remained in the Respondent’s employment for the foreseeable future. That submission ignores the simple fact that the Applicant’s role of Graphics Manager had been removed. Had he been redeployed as he argues should have occurred, it may have been to a role at a lower level of remuneration than he had been on in the position of Graphics Manager.
[128] In the above-referred circumstances I approach with great caution the submission that the Applicant would have remained in the Respondent’s employment for the foreseeable future. I would regard it as unusual if the Applicant had not sought to obtain alternate employment at a level commensurate with the salary he had been on in the Graphics Manager role. Nevertheless, I do accept that the Applicant had been a good employee for almost 5 years and there is nothing to suggest he would have ceased employment other than by his own decision to seek alternate employment. The latter scenario was however likely in my view in the circumstances of ‘demotion’ to a lesser role than the position he held up until 24 March 2022. Weighing these matters, I find that but for the Applicant’s dismissal, he would have remained employed by the Respondent for a period of 6 months.
[129] Prior to his dismissal, the Applicant was an annual base salary of $98,788.56 which he submits would be an appropriate basis for calculating his likely earnings but for the dismissal. I disagree with that approach as it would involve calculation of projected earnings for the 6 month period based on the salary for a role that ceased to exist under the organisational restructure. The Applicant’s case is largely premised on the Respondent’s failure to consult with him over his redundancy and redeploy him to an alternate role, which he says he would have been happy to perform had a role been made available to him. In these circumstances a more likely outcome is that had the Applicant remained employed it would have been in a role attracting less remuneration.
[130] It is difficult to assess what role the Applicant would have been employed in but for his dismissal. According to the evidence of Ms McGregor and Mr Jechilvesky, there were three roles available at the time of his dismissal. Two of those were the Customer Care Officer and Customer Care Representative roles which on Ms McGregor’s evidence attracted salaries of $95,000 for the former role and up to $70,000 for the latter role. There was regrettably no evidence led by the Respondent on the remuneration of the graphics role, which is the role that the Applicant appears most suited to based on the limited evidence before me.
[131] The Applicant made an alternate submission that I should base the calculation of anticipated earnings on the Customer Care Officer salary of $95,000. Beyond the Respondent making submissions unsupported by evidence that the Applicant was not suitable for the role, there is nothing before me to suggest the Applicant would not have been capable of performing that role. I note that at the time of the Applicant’s dismissal, that role was vacant and while subsequently filled briefly, remained vacant as at the date of the hearing. In these circumstances I intend to rely on the annual salary level for the Customer Care Officer role of $95,000 in estimating the Applicates likely earnings for the period of anticipated employment of 6 months.
[132] It follows from the above that the remuneration that the Applicant was likely to have received but for his dismissal would have been $47,500.
Efforts of the Applicant to mitigate the loss suffered by the Applicant because of the dismissal
[133] The Applicant must provide evidence that he has taken reasonable steps to minimise the impact of his dismissal.112 What is reasonable depends on the circumstances of the case.113
[134] The Applicant submits that he has taken reasonable steps to minimise the impact of the dismissal. He produced in evidence a list of 28 jobs that he had unsuccessfully applied for since his dismissal, which was not challenged by the Respondent 114.
[135] I am satisfied that the Applicant has taken reasonable steps to minimise the impact of his dismissal. As a consequence, no deduction is to be made.
Amount of remuneration earned by the Applicant from employment or other work during the period between the dismissal and the making of the order for compensation
[136] The Applicant submits that he has not earned income from any other source until he commenced new employment on 20 September 2022. That submission was not challenged by the Respondent.
[137] I am satisfied that the Applicant did not earn any income from any other source or employment following his dismissal on 24 March 2022 until 20 September 2022. He did however receive a gross severance payment (excluding annual leave) from the Respondent of $20,897.58 which comprised a redundancy payment of 8 weeks pay ($15,198.24) and payment in lieu of notice of 3 weeks pay ($5,699.34). This payment must be taken into account. As a consequence, a deduction of $20,897.58 is to be made in respect of earnings since dismissal.
Amount of income reasonably likely to be so earned by the Applicant during the period between the making of the order for compensation and the actual compensation
[138] While the Applicant is likely to earn income between the making of an order for compensation and the payment of the compensation, it is not appropriate to make any deduction in respect of likely earnings in that period. That is because of my finding above that the Applicant would have remained employed for a further period of 6 months, that period ending on 24 September 2022. Any income earned or likely to be earned after that date is not relevant to the calculation of compensation.
Other relevant matters
[139] No other relevant matters were raised by the parties going to an order for compensation.
Compensation – how is the amount to be calculated?
[140] As noted by the Full Bench, “[t]he well-established approach to the assessment of compensation under s.392 of the FW Act… is to apply the “Sprigg formula” derived from the Australian Industrial Relations Commission Full Bench decision in Sprigg v Paul’s Licensed Festival Supermarket (Sprigg).115 This approach was articulated in the context of the Act in Bowden v Ottrey Homes Cobram and District Retirement Villages116.”117
[141] The approach in Sprigg is as follows:
Step 1: Estimate the remuneration the Applicant would have received, or have been likely to have received, if the employer had not terminated the employment (remuneration lost).
Step 2: Deduct monies earned since termination.
Step 3: Discount the remaining amount for contingencies.
Step 4: Calculate the impact of taxation to ensure that the employee receives the actual amount he or she would have received if they had continued in their employment.
Step 1
[142] I have estimated the remuneration the Applicant would have received, or would have been likely to have received, if the Respondent had not terminated his employment to be $47,500 on the basis of my finding it is likely the Applicant would have remained in employment for a further period of 6 months. This estimate of how long the Applicant would have remained in employment is the “anticipated period of employment.”118
Step 2
[143] I have also found that the Applicant did not earn any remuneration from the date of his dismissal until 20 September 2022, that he received a severance payment of $20,897.58 and that any remuneration earned between the making of the order for compensation and the payment of compensation was not relevant. Only monies earned since termination for the anticipated period of employment are to be deducted.119 A deduction of $20,897.58 is to be made. This reduces the amount of compensation to $26,602.42.
Step 3
[144] I now need to consider the impact of contingencies on the amounts likely to be earned by the Applicant for the remainder of the anticipated period of employment.120
[145] I do not consider it appropriate to deduct an amount for contingencies.
Step 4
[146] I have considered the impact of taxation but have elected to settle a gross amount of $26,602.42 which is to be subject to normal taxation.
[147] Having applied the formula in Sprigg, I am nevertheless required to ensure that “the level of compensation is an amount that is considered appropriate having regard to all the circumstances of the case.”121
[148] I am satisfied that the amount of compensation that I have determined above takes into account all the circumstances of the case as required by s.392(2) of the Act.
Compensation – is the amount to be reduced on account of misconduct?
[149] If I am satisfied that misconduct of the Applicant contributed to the employer’s decision to dismiss, I am obliged by section 392(3) of the Act to reduce the amount I would otherwise order by an appropriate amount on account of the misconduct.
[150] I am satisfied that as there was no misconduct on the part of the Applicant, misconduct did not contribute to the employer’s decision to dismiss. Therefore, the amount of the order for compensation is not to be reduced on account of misconduct.
Compensation – how does the compensation cap apply?
[151] Section 392(5) of the Act provides that the amount of compensation ordered by the Commission must not exceed the lesser of:
(a) the amount worked out under section 392(6); and
(b) half the amount of the high income threshold immediately before the dismissal.
[152] The amount worked out under section 392(6) is the total of the following amounts:
(a) the total amount of the remuneration:
(i) received by the Applicant; or
(ii) to which the Applicant 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 Applicant 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 Applicant for the period of leave is in accordance with the regulations.
[153] Based on the Applicant’s salary at the date of his dismissal of $98,788.56, I find that the total amount of the remuneration received by the Applicant for the 6 month period prior to his dismissal was approximately $49,394.28.
[154] The high income threshold immediately before the dismissal on 24 March 2022 was $158,500. Half of that amount is $79,250.
[155] The amount of compensation ordered by the Commission must therefore not exceed $49,394.28. The amount of compensation I have determined above at [146] is less than $49,394.28.
[156] In light of the above, I will make an order that the Respondent pay $26,602.42 gross less taxation as required by law to the Applicant in lieu of reinstatement within 14 days of the date of this decision.
Conclusion
[157] I am satisfied that the Applicant was dismissed at the initiative of the Respondent and that the Applicant’s dismissal was not a genuine redundancy. Having been satisfied in respect of the other initial matters, I have considered and determined that the Applicant’s dismissal was unjust, unreasonable and thereby unfair. I am further satisfied that reinstatement would be inappropriate and that an award of compensation is appropriate.
[158] Finally, I have determined to make an order that the Respondent pay $26,602.42 gross less taxation as required by law to the Applicant in lieu of reinstatement within 14 days of the date of this decision. An order giving effect to this decision will be issued separately in conjunction with this decision.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
<PR747228>
Appearances:
L Tacey for the Applicant.
B Pomroy for the Respondent.
Hearing details:
2022.
Melbourne:
July 25.
1 Exhibit A1, Witness Statement of Nathan Spaull, dated 28 June 2022 at [2]-[3]
2 Exhibit R2 – Graphic Supervisor Role Contract of Employment, dated 8 November 2018
3 Exhibit A1 Graphics Manager Role Contract of Employment dated 1 July 2020
4 Exhibit A1 at [7]
5 Ibid, Attachment NS-1.2, Graphics Manager Position Description
6 Transcript at PN287-PN288
7 Ibid at PN291
8 Ibid at PN292-PN300
9 Ibid at PN301-PN303
10 Ibid at PN304-PN305
11 Ibid at PN316
12 Ibid at PN570-PN572
13 Transcript at PN578-PN579
14 Exhibit R11, Organisational Chart (Prior to CC Restructure)
15 Exhibit R12, Witness Statement of Hymie Jechilevsky, dated 8 June 2022 at [7]
16 Ibid at [10]
17 Ibid at [11]
18 Ibid at [12]-[15]
19 Ibid at [16]-[19], Transcript at PN557
20 Exhibit R6, Organisational Chart – Structure Proposal
21 Ibid
22 Transcript at PN567-PN568
23 Ibid at PN573
24 Transcript at PN1174-PN1185
25 Ibid at PN278-PN281
26 Exhibit A1 at [11]
27 Exhibit R1, Meeting invite to “Customer Care Review’ meeting, dated 22 March 2022
28 Exhibit A1 at [11]
29 Exhibit R12 at 21, Exhibit R9, Hymie Jechilevsky Meeting Notes for 22 March 2022 meeting
30 Exhibit R16, Witness Statement of Emma McGregor, dated 8 June 2022 at [12]-[13]
31 Exhibit A1 at [38]
32 Transcript at PN66
33 Exhibit R16 at [15]-[16]
34 Ibid at [17]-[18]
35 Transcript at PN1025-PN1034
36 Ibid at PN95-PN97
37 Exhibit A1 at [13]
38 Ibid
39 Exhibit R15, Second Witness Statement of Philip Moesbergen, dated 12 July 2022, at [6], Exhibit R17, Second Witness Statement of Emma McGregor, dated 12 July 2022, at [5]
40 Transcript at PN86
41 Exhibit A1 at [15]
42 Exhibit R17 at [5]
43 Transcript at PN1059
44 Ibid at PN1064 – PN 1068
45 Ibid at PN1076
46 Ibid at PN1084-PN1086
47 Exhibit R7, Redundancy Calculator, Transcript at PN130
48 Transcript at PN1011-PN1012
49 Exhibit A1 at [21]
50 Transcript at PN161-PN166
51 Exhibit A2, Witness Statement of Wilhelmus Verbeek, dated 29 June 2022, at [6]
52 Exhibit R17 at [8]-[9]
53 Exhibit R15 at [8]
54 Transcript at PN1013-PN1014
55 Exhibit R8, Email from Phil Moesbergen to Nathan Spaull, dated 22 March 2022
56 Transcript at PNPN331-PN335
57 Exhibit R3, Text message from Nathan Spaull to Philip Moesbergen at 6.59pm on 23 March 2022
58 Exhibit A1 at [26]
59 Ibid at [44]
60 Transcript at PN657-PN658
61 Exhibit A1 at [41]
62 Transcript at PN671
63 Ibid at PN668
64 Ibid at PN675-PN678
65 Exhibit R17 at [10], Exhibit R15 at [14]
66 Exhibit R16 at [27]-[28]
67 Exhibit R4, Redundancy Letter, dated 24 March 2022
68 Exhibit R15 at [16]
69 Exhibit A1 at [28]-[29]
70 Ibid at PN1137
71 Ibid at PN524
72 Ibid at PN703-PN716
73 Ibid at PN723-PN724
74 Exhibit A1 at [30]-[31]
75 Ibid at [23], Transcript at PN79, PN173-PN175
76 Ibid at PN77-PN86
77 Transcript at PN1194-PN1198
78 Ibid at PN1171-PN1183
79 Ibid at PN1202-PN1208
80 Exhibit R7
81 Exhibit R12 at [4]
83 Ibid at [17]-[18]
86 Exhibit A1, Attachment NS -1.2, Graphics Manager Position Description
87 Exhibit R2, 2018 Contract of Employment
88 [2002] AIRC 1562.
90 Zheng at [45].
91 Ibid at [47].
92 Transcript at PN785-PN807
93 Ibid at PN1012-PN1013
94 See for example transcript at PN713-PN722, PN784-PN807, PN1136-PN1142
95 Ulan Coal Mines Limited v Honeysett [2010] FWAFB 7578 (Giudice J, Hamberger SDP, Cambridge C,
12 November 2010) at para. 26, [(2010) 199 IR 363].
96 Technical and Further Education Commission T/A TAFE NSW v Pykett [2014] FWCFB 714 (Ross J, Booth DP, Bissett C, 29 January 2014) at para. 36, [(2014) 240 IR 130].
97 Ulan Coal Mines Limited v Honeysett [2010] FWAFB 7578 (Giudice J, Hamberger SDP, Cambridge C,
12 November 2010) at para. 28, [(2010) 199 IR 363].
98 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.
99 Ibid.
100 Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, 685.
101 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.
102 Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998).
103 Ibid.
104 Crozier v Palazzo Corporation Pty Ltd t/a Noble Park Storage and Transport Print S5897 (AIRCFB, Ross VP, Acton SDP, Cribb C, 11 May 2000), [75].
105 RMIT v Asher (2010) 194 IR 1, 14-15.
106 Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7.
108 Ibid at [47].
109 ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357, [51]. See also Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [92]; Edwards v Justice Giudice [1999] FCA 1836, [6]–[7].
110 Nguyen v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter [2014] FWCFB 7198, [9].
111 He v Lewin [2004] FCAFC 161, [58].
112 Biviano v Suji Kim Collection PR915963 (AIRCFB, Ross VP, O’Callaghan SDP, Foggo C, 28 March 2002), [34] citing Lockwood Security Products Pty Ltd v Sulocki and Ors PR908053 (AIRCFB, Giudice J, Lacy SDP, Blair C, 23 August 2001), [45].
113 Biviano v Suji Kim Collection PR915963 (AIRCFB, Ross VP, O’Callaghan SDP, Foggo C, 28 March 2002), [34] citing Payzu Ltd v Saunders [1919] 2 KB 581.
114 Exhibit A1, Attachment NS -1.6, List of jobs applied for
115 (1998) 88 IR 21.
117 Double N Equipment Hire Pty Ltd t/a A1 Distributions v Humphries [2016] FWCFB 7206, [16].
118 Ellawala v Australian Postal Corporation Print S5109 (AIRCFB, Ross VP, Williams SDP, Gay C, 17 April 2000), [34].
119 Ibid.
120 Enhance Systems Pty Ltd v Cox PR910779 (AIRCFB, Williams SDP, Acton SDP, Gay C, 31 October 2001), [39].
121 Double N Equipment Hire Pty Ltd t/a A1 Distributions v Humphries [2016] FWCFB 7206, [17].