| [2020] FWC 6238 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Maria Bakermans
v
Hargo Pty Ltd T/A Citywest Gastroenterology
(U2020/5780)
COMMISSIONER CAMBRIDGE |
SYDNEY, 20 NOVEMBER 2020 |
Application for relief from unfair dismissal - jurisdictional objection - ss. 385 and 396 of the Fair Work Act 2009 - whether dismissal was a case of genuine redundancy - s. 389 meaning of genuine redundancy - elements which constitute genuine redundancy - genuine redundancy not established - small business fair dismissal code considered - dismissal harsh, unjust and unreasonable - compensation Ordered.
[1] This matter involves an application for unfair dismissal remedy made pursuant to section 394 of the Fair Work Act 2009 (the Act). The application was made by Maria Bakermans (the applicant). The respondent employer is Hargo Pty Ltd T/A Citywest Gastroenterology ABN: 43 093 954 753 (the employer).
[2] The application was lodged at Sydney on 28 April 2020. The application indicated that the date that the applicant’s dismissal took effect was 7 April 2020. Consequently, the application was made within the 21 day time limit prescribed by subsection 394 (2) of the Act.
[3] The employer filed a Form F3 response document dated 13 May 2020. The Form F3 did not identify any jurisdictional objection(s) to the application. However, on 12 June 2020, following unsuccessful conciliation of the matter, the employer’s Medical Director, Dr Stephen J Williams, sent a communication to the Fair Work Commission (the Commission) which inter alia, advised that the employer was a small business with five employees, and that the dismissal of the applicant involved circumstances of redundancy.
[4] Subsequently, a Pre-Hearing Conference/Conciliation by telephone was held on 24 June 2020, at which time further attempts to resolve the matter were unsuccessful, and the jurisdictional objection of the employer regarding the dismissal of the applicant to be a case of genuine redundancy was identified. Consequently, the matter proceeded to arbitration which dealt with the determination of the jurisdictional objection raised by the employer, which involved the question of whether the dismissal of the applicant was a case of genuine redundancy, together with the substantive merits of the claim.
[5] The Hearing was conducted at Sydney on 18 September 2020. At the Hearing, the applicant represented herself, and she gave evidence as the only witness who was called in support of the unfair dismissal claim. The employer was represented by its Medical Director, Dr Stephen J Williams, who provided evidence as the only witness called on behalf of the employer.
[6] The application was identified to be the subject of a jurisdictional challenge made by the employer upon the assertion that the applicant’s dismissal was a case of genuine redundancy. Consequently, subsection 396 (d) of the Act requires that the Commission must decide whether the dismissal was a case of genuine redundancy before any consideration could be made of the merits of the application.
[7] The applicant commenced employment with the employer on 8 February 2012. The applicant was engaged in a position described as a medical transcriptionist, and she worked at the employer’s consulting rooms located at Hawkesbury Road, in the Sydney suburb of Westmead. The work of the applicant broadly involved transcribing lengthy letters and medical reports from audio recordings that had been made by the medical practitioners who operated at or from the employer’s practice. The applicant was engaged on a permanent part-time basis involving 40 hours of work per fortnight, and her employment was covered by the Health Professionals and Support Services Award 2020 (MA 000027) (the Award).
[8] The employer operates a medical consulting business involving five specialist medical practitioners who provide consulting services for the Citywest Specialist Day Hospital and Westmead Public Hospital where endoscopic procedures are provided. The five specialist medical practitioners are Directors of the employer, and Dr Williams is the employer’s Medical Practice Manager. At the time of the applicant’s dismissal the employer had five employees.
[9] The work performance and conduct of the applicant was without any recorded complaint. On 30 March 2020, the applicant received an email from Dr Williams which inter alia, advised that, as of the following day, 31 March 2020, the applicant was stood down from her employment and put on leave without pay. This email advised that the unpaid stand down of the applicant was caused by the significant downturn in the employer’s business as a result of restrictions associated with the Covid 19 pandemic.
[10] On the following day, 31 March 2020, the applicant had a telephone conversation with Dr Williams. During this conversation, Dr Williams explained the financial impact that the Covid 19 restrictions were having on the employer’s business operations and he indicated that the employer was assessing both short-term and long-term operational practices. The applicant asked Dr Williams whether the employer was intending to apply for Jobkeeper payments, and Dr Williams told her that the employer was still considering the issue of making application for Jobkeeper assistance.
[11] On 2 April 2020, the applicant telephoned Dr Williams after she had received a payslip that confirmed that payment of annual leave had been made to her which she had not requested. Dr Williams was unaware that the applicant had been paid out her annual leave and he advised her that he would have the employer’s accountant reverse the payment. There was apparently some further discussion between Dr Williams and the applicant about the impacts that the Covid 19 restrictions were having on the employer’s business operation. Dr Williams said that he indicated to the applicant that her ongoing position in the business could not be assured. However, the applicant disputed that there was any discussion about potential for the applicant’s loss of employment.
[12] On 7 April 2020, the employer held an urgent meeting of its Directors. At this meeting the employer’s Directors decided inter alia, to reduce staffing levels from five employees to three, and the applicant was one of two employees declared to be redundant. A letter advising the applicant of the termination of her employment effective from 7 April 2020, was apparently prepared. However, the letter advising the applicant of the termination of employment effective from 7 April 2020, was sent by email to the applicant on 10 April 2020, Good Friday.
[13] On 15 April 2020, the applicant received an email payslip advice which recorded that her annual leave had been paid. However, there was no associated payment made into the applicant’s bank account at that time. On 20 April 2020, the applicant sent a letter to Dr Williams requesting that she be provided with outstanding entitlements including payment in lieu of notice and long service leave. On 28 April 2020, the applicant filed her unfair dismissal application with the Commission. On or about 6 May 2020, the applicant received an email payslip advice that indicated payment had been made to her of her long service leave and an amount in lieu of notice of termination of employment.
[14] The applicant has unsuccessfully sought to obtain alternative employment since her dismissal.
[15] Dr Williams, the employer’s Medical Practice Manager appeared for the employer and he made oral submissions in support of written material that had been filed on behalf of the employer. In summary, Dr Williams submitted that the dismissal of the applicant was a case of genuine redundancy and therefore her application for unfair dismissal remedy should be dismissed. Dr Williams also made an alternative submission that asserted that in the event that the applicant was entitled to any remedy for unfair dismissal, any compensation would be confined to a limited period associated with the time anticipated to conduct any appropriate consultation regarding redundancy.
[16] Dr Williams submitted that the Covid 19 pandemic had brought into sharp focus that the employer’s business would not survive in the long term without exercising redundancies in respect of at least two positions. Dr Williams submitted that under the requirements of the Small Business Fair Dismissal Code, the applicant was dismissed due to changes in the operational requirements of the employer’s business. Further, Dr Williams submitted that consultation requirements had been complied with in the two telephone conferences that he had had with the applicant. Dr Williams stressed that the impact of the Covid 19 pandemic meant that consultation could not be as lengthy or extensive as might have been considered necessary in pre-pandemic circumstances.
[17] Dr Williams made further submissions about the technological advances that impacted on the work of the applicant and meant that a lot of reports and letters could be constructed in a manner which would negate or diminish the amount of letter writing and report generation that made up a substantial proportion of the applicant’s work. According to the submissions made by Dr Williams, these technological advances meant that the work that the applicant had previously performed was no longer required. Dr Williams submitted that because of the technological advances and the associated reduction in work and capacity for redistribution to other employees, the dismissal of the applicant was a case of genuine redundancy.
[18] Dr Williams also submitted that as a small business of only five employees, there was no opportunity for any redeployment of the applicant. Further, Dr Williams said that there was a level of consultation that provided the applicant with an opportunity to ask him questions during the phone calls that discussed the business situation as it was impacted by the Covid 19 restrictions. Dr Williams also stated that any further level of consultation would not have altered the outcome. Dr Williams submitted that the employer no longer required the job of the applicant to be performed by anyone because of changes in the operational requirements of the employer’s enterprise due to technological changes.
[19] Consequently, Dr Williams submitted that the applicant’s dismissal was a case of genuine redundancy. Dr Williams urged the Commission to find that the dismissal of the applicant was a case of genuine redundancy.
[20] The applicant submitted that her dismissal did not involve a case of genuine redundancy. The applicant provided documentary material which included a combination of assertions of fact and submissions. This material was introduced as evidence from the applicant as a witness, and respectively marked as Exhibits 1 and 2. Further, the applicant provided an outline of submissions document dated 23 July 2020.
[21] The applicant also made oral submissions during the Hearing. The submissions made by the applicant asserted that her dismissal was not a genuine redundancy because the employer had not complied with the Award obligations in terms of notification and consultation in respect of redundancy. The applicant submitted that there had been no consultation with her about her redundancy at all. The applicant submitted that the absence of any consultation or an opportunity to respond, meant that she had been unfairly dismissed.
[22] In further submissions, the applicant stated that her dismissal was unfair as the termination of her employment was conducted in a harsh and abrupt manner, and was not a genuine redundancy, because there was no prior consultation, which is a requirement under the Award. Further, the applicant submitted that she could have remained as an employee because she had been stood down without pay, and subsequently she would have qualified for Jobkeeper payments.
[23] The applicant also made submissions regarding any potential remedy for her alleged unfair dismissal. In this regard, the applicant requested that she be provided with 26 weeks compensation.
[24] In summary, the applicant submitted that her dismissal was not a case of genuine redundancy, and that as her dismissal was unfair, she should be provided with the compensation that she was seeking.
[25] This Decision has firstly required determination of a jurisdictional objection which was advanced by the employer.
[26] Relevantly, s. 396 of the Act requires that the Commission must decide a number of specified matters before any consideration is undertaken of the merits of any application made under s. 394. In this instance, the jurisdictional objection arises from the provisions of subsection 396 (d) of the Act. Section 396 of the Act is in the following terms:
“396 Initial matters to be considered before merits
The FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:
(a) whether the application was made within the period required in subsection 394 (2);
(b) whether the person was protected from unfair dismissal;
(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;
(d) whether the dismissal was a case of genuine redundancy.”
[27] It would seem that a person cannot be unfairly dismissed if inter alia, the dismissal was a case of genuine redundancy. This appears to be the clear corollary of subsection 385 (d) of the Act. Section 385 of the Act is in the following terms:
“385 What is an unfair dismissal
A person has been unfairly dismissed if the FWC is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.”
[28] Section 389 of the Act provides for a meaning of genuine redundancy:
“389 Meaning of genuine redundancy
(1) A person’s dismissal was a case of genuine redundancy if:
(a) the person’s employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; and
(b) the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.
(2) A person’s dismissal was not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within:
(a) the employer’s enterprise; or
(b) the enterprise of an associated entity of the employer.”
[29] An examination of the provisions of s. 389 of the Act identifies three specific elements which, if satisfied in combination, determine whether or not a dismissal was a case of genuine redundancy. Subsection 389 (1) contains two affirmative elements, both of which must be established, in order to allow for a finding that a dismissal was a case of genuine redundancy, and subsection 389 (2) contains one negatory element which, if established, renders the dismissal not to be a case of genuine redundancy.
[30] For convenience, the three elements identified within s. 389 can be abbreviated and given appropriate headings. The first affirmative element which is extracted from subsection 389 (1) (a) has been described as “job lost due to operational requirements”, the second affirmative element extracted from subsection 389 (1) (b) has been called “consultation obligations”, and the third negatory element found in subsection 389 (2) is abbreviated as “reasonable redeployment”.
[31] Consequently, the consideration of the question of whether the dismissal of the applicant was a case of genuine redundancy has involved examination of the three separate elements contained in s. 389 of the Act, such that, each of these three separate elements must, in combination, be satisfied in order to make any finding of genuine redundancy. This means that the two affirmative elements contained in subsection (1) must be established, and the negatory element found in subsection (2) must not be present in order to make a finding that a particular dismissal was a case of genuine redundancy.
Job Lost Due to Operational Requirements
[32] In this instance, the evidence has established that the part-time position that the applicant occupied as a medical transcriptionist was no longer required. There was evidence of certain technological and associated changes which enabled the work of the applicant to be reconfigured and redistributed, such that the employer had five support staff when it required only three. Although the changes to the employer’s staffing requirements were identified as a result of impacts of the Covid 19 pandemic restrictions, the operational requirements were of a long-term nature.
[33] Consequently, the first element of s. 389 of the Act has been established, that is, the employer no longer required the job of, inter alia, the applicant, who was one of two support staff made redundant, to be performed by anyone because of changes in the operational requirements of the employer's enterprise.
Consultation Obligations
[34] The second element contained in s. 389 of the Act requires a positive finding that the employer had complied with any Award or Agreement obligations to consult about the redundancy. In this instance, the relevant provisions are found in clause 33 of the Award, and in particular, clauses 33.1 and 33.2 are relevant to the applicant’s circumstances. Clauses 33.1 and 33.2 of the Award are in the following terms:
“33. Consultation about major workplace change
33.1 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.
33.2 For the purposes of the discussion under clause 33.1(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.”
[35] In this case, the employer has asserted that the consultation requirements of the Award were satisfied by virtue of discussions that occurred during two telephone conversations that Dr Williams had with the applicant on 31 March and 2 April 2020 respectively. This proposition patently fails the consultation obligations that are clearly evident from the terminology contained in clauses 33.1 and 33.2 of the Award.
[36] Firstly, clause 33.1 (c) of the Award states that the employer must commence discussions as soon practicable after a definite decision has been made. The two telephone calls that were relied upon by the employer as consultation discussions, occurred before the urgent Directors meeting on 7 April 2020, at which time the definite decision was made to make the applicant (and another) redundant. There was simply no discussion at all with the applicant after the decision had been made on 7 April 2020, and before the applicant was sent email notification of the termination of her employment on 10 April 2020.
[37] Secondly, clause 33.2 of the Award states that an employer must give in writing to affected employees all relevant information about the changes, which in this case would involve major workplace change having the significant effect of the termination of employment of inter alia, the applicant. In this case, there was no discussion and there was no information in writing provided to the applicant at any time before she received the email notification of the termination of her employment.
[38] Consequently, the employer did not comply with the obligations under the Award that required it to consult with the applicant about the redundancy. Therefore, the relevant consultation obligations have not been met, and this element of s. 389 of the Act has not been satisfied.
Reasonable Redeployment
[39] The third element of s. 389 of the Act is the negatory provision contained in subsection 389 (2). This element renders what may have been a genuine redundancy, which possessed the elements of subsection 389 (1), to not be a case of genuine redundancy if redeployment was reasonable in all the circumstances. Redeployment is contemplated to extend to any associated entities of the employer.
[40] The first and second affirmative elements extracted from subsection 389 (1) broadly involve an examination of the conduct of the employer, essentially what gave rise to the dismissal and whether there was compliance with any relevant consultation obligations. The third element concerning reasonable redeployment involves examination of both the employer’s actions and those of individual employees. The reasonableness or otherwise of any redeployment is a matter that would need to be assessed on a case by case basis, having regard for the approach to redeployment adopted by both the employer and the employee.
[41] Consequently, the consideration of the reasonable redeployment element of s. 389 of the Act has involved an examination of the actions which the employer undertook in the pursuit of redeployment for the applicant, and it has also involved careful scrutiny of the conduct and approach to redeployment demonstrated by the applicant.
[42] In this case, because the employer failed to comply with its obligations to consult as required by the Award, it is strictly unnecessary to further consider the question of the pursuit of reasonable redeployment. However, for completeness, the evidence has established that the employer took no steps whatsoever to properly consider redeployment of the applicant.
[43] Although the employer operates a small business, the prospect for some redeployment of the applicant would arise from proper discussion and consultation involving all of the five employees. In the absence of any consultation, no prospect involving the applicant and one or more of the other five employees job sharing or otherwise altering their work arrangements, so as to minimise the impact of the changes to the operational requirements of the employer’s business, was given even the remotest contemplation.
[44] The difficulties associated with restrictions arising from the Covid 19 pandemic cannot be used as attempted explanation or reason for failing to engage in proper consultation and exploration of potential redeployment. The applicant had been stood down without pay and there was no explanation or justification for the employer’s urgency to terminate her employment without some proper engagement and contemplation aimed at exploring measures to minimise or avoid the impact of the circumstances that had arisen.
[45] Therefore, in this instance the conduct of the employer did not involve proper consideration of reasonable redeployment opportunities, and thus the requirements of subsection 389 (2) of the Act, as confirmed in the Full Bench Decision in Ulan Coal Mines v Honeysett and Ors 1, have not been satisfied.
[46] In summary, in this instance the evidence has established that the employer did not comply with the consultation obligations of the Award, nor did it discharge the requirement for it to properly explore redeployment of the applicant. Consequently, the Commission is satisfied that the dismissal of the applicant on 7 April 2020, was not a case of genuine redundancy in satisfaction of the meaning of genuine redundancy provided in s. 389 of the Act.
[47] There was no dispute that the employer was a small business employer as comprehended by the meaning of small business employer stipulated by the terms of s. 23 of the Act. Therefore, the provisions of subsection 385 (c) of the Act require consideration. Specifically, by way of operation of s. 388 of the Act, it is necessary to determine whether the dismissal of the applicant was or was not consistent with the Small Business Fair Dismissal Code (referred to as “the SBFD Code”).
[48] Logically a determination of any application of the SBFD Code should precede any more general contemplation of whether the dismissal could have been considered to have been harsh, unjust or unreasonable. Further, in the event that the dismissal of the applicant is found to have been consistent with the SBFD Code, any further consideration as to whether the dismissal was harsh, unjust or unreasonable would become unnecessary.
[49] The SBFD Code is in the following terms:
“Small Business Fair Dismissal Code
Summary Dismissal
It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal. Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair it is sufficient, though not essential, that an allegation of theft, fraud or violence be reported to the police. Of course, the employer must have reasonable grounds for making the report.
Other Dismissal
In other cases, the small business employer must give the employee a reason why he or she is at risk of being dismissed. The reason must be a valid reason based on the employee’s conduct or capacity to do the job.
The employee must be warned verbally or preferably in writing, that he or she risks being dismissed if there is no improvement.
The small business employer must provide the employee with an opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem, having regard to the employee’s response. Rectifying the problem might involve the employer providing additional training and ensuring the employee knows the employer’s job expectations.
Procedural Matters
In discussions with an employee in circumstances where dismissal is possible, the employee can have another person present to assist. However, the other person cannot be a lawyer acting in a professional capacity.
A small business employer will be required to provide evidence of compliance with the Code if the employee makes a claim for unfair dismissal to Fair Work Australia, including evidence that a warning has been given (except in cases of summary dismissal). Evidence may include a completed checklist, copies of written warning(s), a statement of termination or signed witness statements.”
[50] In this case, the applicant was dismissed without notice or warning when on 10 April 2020, she received email advice from Dr Williams that, effective from 7 April 2020, the employer was not able to offer her ongoing employment. At a later time, the applicant was paid an amount in lieu of notice in respect of her dismissal arising in circumstances of alleged genuine redundancy. Consequently, neither the Summary Dismissal nor the Other Dismissal provisions of the SBFD Code have application to the circumstances of the termination of the employment of the applicant.
[51] The dismissal of the applicant was not a case of genuine redundancy nor could it be considered to have been consistent with the SBFD Code. Therefore, the matter has required further consideration in respect to that element contained in subsection 385 (b) of the Act, being whether the dismissal of the applicant was harsh, unjust or unreasonable. Section 387 of the Act contains criteria that the Commission must take into account in any determination of whether a dismissal is harsh, unjust or unreasonable. Section 387 of the Act is in the following terms:
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.”
[52] The reason for the applicant’s dismissal was that she occupied one of the two support staff positions which the employer had identified as being no longer required. The staff that were selected for retention by the employer were apparently chosen because they had direct patient related responsibilities. However, there was no suggestion that the applicant lacked capacity or could not otherwise be engaged in any reconfigured work arrangements that involved a mix of different tasks and duties. Consequently, there was not a valid reason for the dismissal of the applicant that related to her capacity or conduct.
[53] The employer provided notification of dismissal by way of an email dated 7 April 2020, which was sent to the applicant on 10 April 2020. The notification of dismissal in this manner was extraordinarily callous, and particularly disturbing in circumstances where those involved operate as health professionals, a vocation usually associated with acts of care, compassion and kindness.
[54] Communication of the advice of dismissal by electronic means such as email or text message, should generally be avoided. Unless there is some compelling reason like extensive distance or genuine safety concern, advice of dismissal from employment is a matter of such significance that it should be conveyed in person. To do otherwise is unnecessarily callous. Even in circumstances where email or electronic communications are ordinarily used, the advice of termination of employment is a matter of such significance that basic human dignity requires that dismissal be conveyed personally with arrangements for the presence of a support person and documentary confirmation.
[55] The dismissal of the applicant was not for reason that related to her capacity, conduct or performance.
[56] The applicant was not provided with an opportunity to have a support person present because there was no discussion about her redundancy.
[57] The applicant was not dismissed for unsatisfactory performance and therefore this factor is not relevant in this case.
[58] The employer is a small business employer and appropriate recognition for a degree of informality and flexibility in respect to employment related procedures has been provided.
[59] There was no evidence that the employer had dedicated human resource management specialists. The absence of human resource management specialists and the level of informality that would understandably exist in a small business enterprise, could not justify the adoption of the unnecessarily abrupt and perfunctory manner in which the applicant was advised of the termination of her employment.
[60] The failure to pay all due entitlements arising in respect to the termination of employment at the time of termination or shortly thereafter, would likely render the dismissal to have been unlawful. Although these entitlements have subsequently been paid, the delay with these payments may have established an unlawful element of the dismissal at the time of dismissal, and this may result in the dismissal being unjust and unreasonable.
[61] This unfair dismissal claim has involved consideration of firstly, whether the dismissal of the applicant was a case of genuine redundancy and secondly, whether the dismissal was consistent with the SBFD Code and finally, whether the dismissal of the applicant on 7 April 2020, was harsh, unjust or unreasonable.
[62] Upon careful examination of all of the evidence and submissions, the dismissal of the applicant on 7 April 2020, was not a case of genuine redundancy nor could it be considered to have been consistent with the SBFD Code.
[63] Further, in this case, the reason for the dismissal of the applicant did not relate to her capacity, performance or conduct. The reason for the applicant’s dismissal was that she occupied one of two positions in circumstances where the employer no longer required those positions. In the absence of any consultation or contemplation of measures that might mitigate or avoid the termination of the applicant’s employment, her selection for redundancy was not properly founded. Therefore, the reason for the dismissal of the applicant was not sound, defensible or well-founded. There was not a valid reason for the dismissal of the applicant related to her capacity or conduct.
[64] The employer adopted an unnecessarily abrupt and perfunctory procedure to notify and implement the dismissal of the applicant. The dismissal of the applicant was without valid reason and implemented improperly. The applicant was entitled to some level of consultation prior to the employer implementing the decision to dismiss. The dismissal of the applicant was a callous act, implemented with undue haste and further exacerbated by the failure of the employer to pay all due entitlements to the applicant at the time of dismissal or shortly thereafter. The dismissal of the applicant was unjust, unreasonable, and unnecessarily harsh.
[65] In summary, the dismissal of the applicant was not a case of genuine redundancy nor could it be considered to have been consistent with the SBFD Code. Further, upon analysis of the various factors that are identified in s. 387 of the Act, an objective and balanced evaluation of all of the relevant circumstances has provided compelling basis to establish that the dismissal of the applicant was harsh, unjust and unreasonable.
[66] Therefore, the applicant’s claim for unfair dismissal remedy in respect to her dismissal on 7 April 2020, has been established. The applicant was a person protected from unfair dismissal, she was unfairly dismissed, and she is entitled to a remedy for her unfair dismissal.
[67] The applicant has not sought reinstatement as a remedy for her unfair dismissal. In the circumstances of this case, particularly as the employment of the applicant was irreparably damaged by the unfortunate circumstances surrounding the perfunctory dismissal on 10 April 2020, to apply retrospectively from 7 April 2020, reinstatement would not be an appropriate remedy.
[68] I have decided that compensation would be an appropriate remedy for the applicant’s unfair dismissal, and I turn to the factors which involve the quantification of any amount of compensation.
[69] Section 392 of the Act prescribes certain matters that deal with compensation as a remedy for unfair dismissal. I have approached the question of compensation having regard for the guidance that can be identified in the Full Bench Decisions of, inter alia; Sprigg v Paul’s Licensed Festival Supermarket 2 (Sprigg); Smith and Ors v Moore Paragon Australia Ltd 3 and more recently, the cases of; McCulloch v Calvary Health Care Adelaide4; Balaclava Pastoral Co Pty Ltd v Nurcombe;5 and Hanson Construction Materials v Pericich6 (Pericich).
[70] Firstly, I confirm that an Order for payment of compensation to the applicant will be made against the respondent employer in lieu of the reinstatement of the applicant.
[71] Secondly, in determining the amount of compensation that I Order, I have taken into account all of the circumstances of the matter including the factors set out in paragraphs (a) to (g) of subsection 392 (2) of the Act.
[72] There was no evidence provided which established that an Order of compensation would impact on the viability of the employer’s enterprise.
[73] The applicant had been employed for a period of eight years and one month. The applicant would have been likely to have received remuneration of approximately $588.00 per week if she had not been dismissed.
[74] There was evidence upon which to conclude that the employment of the applicant may have finalised in accordance with a genuine redundancy that involved proper consultation and exploration of redeployment opportunities. Alternatively, if proper procedure and consultation had been adopted by the employer, the applicant may have been able to persuade the employer to adopt some alternative course of action which did not involve her dismissal from employment. For example, a job sharing arrangement with one of the other retained staff members.
[75] Further, in this instance there was a prospect that if the employer had not acted with unnecessary haste, the applicant may have still been engaged when it obtained Jobkeeper payments about one month after the dismissal of the applicant. In these circumstances, the applicant would have obtained a pay benefit from her Jobkeeper payments which would have exceeded her weekly wage of $588.00. In considering all of these issues, I have determined that the employment of the applicant would have been likely to have concluded within an 18 week period after her unfair dismissal.
[76] For the purposes of calculation of remuneration that the applicant would have received or would have been likely to receive if she had not been dismissed, I have considered that the employment of the applicant would have continued for a further 18 weeks. Therefore, the total remuneration that the applicant would have received in the notional period of 18 weeks following dismissal amounted to a figure of $10,584.00.
[77] The total amount of remuneration received in alternative employment, as identified, and that which may be reasonably likely to be earned between dismissal and the making of the Order for compensation, has been calculated to be $0.
[78] Thirdly, in this instance there was no established misconduct of the applicant, and consequently I have decided to make no reduction to the amount of compensation to be provided to the applicant on account of any established misconduct.
[79] Fourthly, I confirm that any amount Ordered does not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt caused to the applicant by the manner of the dismissal.
[80] Fifthly, the amount Ordered does not exceed the compensation cap as prescribed by s. 392 (5) of the Act.
[81] Consequently, for the reasons outlined above, taking into account all of the circumstances of the case, and having cognisance so as not to apply the approach taken in the Decision in Sprigg in a rigid, determinative manner, as was cautioned in the Decision in Pericich, I have decided that the amount of compensation to be provided to the applicant should be a gross figure of $10,584.00.
[82] Accordingly, separate Orders [PR724736] providing for unfair dismissal remedy in these terms will be issued.
COMMISSIONER
Appearances:
Ms M Bakermans appeared unrepresented.
Dr S J Williams, Medical Director appeared for the employer.
Hearing details:
2020.
Sydney:
September, 18.
Printed by authority of the Commonwealth Government Printer
<PR724735>
1 Ulan Coal Mines Limited v A. Honeysett and Ors and R. Murray and Ors v Ulan Coal Mines Limited [2010] FWAFB 7578.
2 Sprigg v Paul’s Licensed Festival Supermarket, (Munro J, Duncan DP and Jones C), (1998) 88IR 21.
3 Smith and Ors v Moore Paragon Australia Ltd, (Lawler VP, Kaufman SDP and Mansfield C), (2004) PR942856.
4 John McCulloch v Calvary Health Care Adelaide, (Ross P, Hatcher VP and Gostencnik DP), [2015] FWCFB 873.
5 Balaclava Pastoral Co Pty Ltd t/a Australian Hotel Cowra v Darren Nurcombe, (Hatcher VP, Gostencnik DP and Cribb C) [2017] FWCFB 429.
6 Hanson Construction Materials Pty Ltd v Darren Pericich, (Ross P, Masson DP and Lee C), [2018] FWCFB 5960.