That an employer may in an unfair dismissal case fail to succeed in an argument that the dismissal was a genuine redundancy and therefore a jurisdictional defence will not render the dismissal unfair if it is otherwise not harsh unjust or unreasonable; thus
“Other relevant matters – s.387(h)
[128] Section 387(h) calls for 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 of various matters under this category. As set out above, the Applicant’s dismissal arose from a restructure of the Respondent’s operations across several of its hospitals. Specifically, the AHM role in the Allied Health Department at Holmesglen Hospital was removed as part of a broader restructuring of the Holmesglen Hospital resulting in a reduction of 15 FTE.
[129] 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 9 of the Agreement. In this context I refer to the comments of Watson VP in Mr Jamil Maswan v Escada Textilvertrieb T/A ESCADA99 (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.”100 (my emphasis added)
[130] I agree with the Vice President’s comments to which I have added emphasis above. The Vice President in determining that the dismissal in Maswan 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. I have reached a similar conclusion in the matter before me for the reasons that follow.
[131] The failure of the Respondent to discuss the restructure of the Allied Health Department at the Holmesglen Hospital with VAPHA is in the circumstances of the matter not a significant failure. By the Applicant’s own admission, he contacted VAPHA seeking assistance after he was notified of his redundancy but as he was not a member, VAPHA declined to provide assistance. It is clear then that VAPHA were made aware of the restructure through the Applicant contacting them. That VAPHA declined to provide support to the Applicant is unsurprising given the Applicant was not a member and suggests that even had the Respondent’s General Manager Workplace Relations discussed the Holmesglen Hospital Allied Health Department restructure in his meeting with VAPHA on 8 September 2022, it is unlikely that the outcome for the Applicant would have been any different. Ms Hopkins and Ms Byers-Tymms also confirmed that the presence of a support person in the discussions with the Applicant, whether that was in the form of union or other appointed representatives would not have altered the decision to remove the AHM role.
[132] Turning to the Respondent’s failure to comply with the requirement of clause 9.3.2 of the Agreement to consider and offer any identified surplus positions, the failure to do so was not a minor matter. However, the fact that there were no comparable AHM roles available in Victoria and that the Applicant was not interested in a ‘lesser role’ or roles outside Victoria leads me to conclude that the Respondent’s omission did not materially impact the outcome. Nor does that failure undermine the sound operational reasons advanced by the Respondent for the removal of the AHM role.
[133] It follows from the above that the Respondent’s consultation failures do not weigh in favour of a finding that the dismissal was unfair. I now turn to other matters relevant to my consideration of s 387(h)
[134] The Applicant also submits that other factors weigh in favour of a finding that the dismissal was unfair. Those matters are set out above at [64]-[67] and include the advanced stage of his wife’s pregnancy and the paid and unpaid parental leave benefit he says was denied to him by reason of the timing of his dismissal. He also suggested that the impending birth of his second child at the end of March 2023 and his need to take time off to support his wife was likely to discourage prospective employers. The Applicant also referred to “thrown away” costs of his Clinical Masters course and the additional costs he will incur in the deferral of completion of the Titling Course he has commenced.
[135] Turning firstly to the parental leave entitlement the Applicant states has been lost, I agree that had the Applicant not been dismissed he would have been entitled to 2 weeks’ paid parental leave under the terms of the Agreement as he had been employed by the Respondent for approximately 15 months, thus meeting the 12 month qualifying period. I accept that this is a foregone benefit by reason of the timing of the dismissal and weighs in favour of a finding of harshness in the circumstances, albeit not heavily. I do not however accept the Applicant’s submission that the impending birth of his second child will act as a disincentive for employers to offer him employment as there is no evidence to support such a submission and is merely the Applicant’s subjective opinion.
[136] Turning to the ‘thrown away’ costs of the Clinical Masters course which the Applicant estimates in the order of $7,287.33, that being the cost of twenty-five study units he states he will lose if he exits early from the course and takes the lesser qualification of a Graduate Diploma of Rehabilitation Science. The following may be said in respect of this claimed cost of his redundancy. Firstly, the Applicant commenced the course in 2018 long before he commenced employment with the Respondent and his earlier decision to defer the course because of the birth of his first child was not a matter within the control of the Respondent. As to the claim that he will have thrown away several thousand dollars in costs for twenty-five study units he will lose the benefit of if he takes the lesser qualification of a Graduate Diploma of Rehabilitation Science, that is not certain. That is because of his ability to discuss his situation with the course coordinator and the options available to him including taking an early exit from the course, obtaining a credit for up to 5 years for completed units and then resuming the course. I am consequently not persuaded that the Clinical Masters Course completion is a matter that weighs in favour of a finding of harshness.
[137] With respect to the Titling Course costs I accept that the Course Information Booklet indicates that participants will bear the costs of the exam if it is not taken within the 12 month timeframe, that being by August 2023. I note that the course participation by the Applicant was voluntary and at no cost to him due to the course being a pilot. It is also apparent that the course commenced in August 2022 which was just prior to his dismissal in September 2022 which suggests the Applicant’s ‘investment’ in the course prior to his dismissal was limited. While it is regrettable for the Applicant that he may have foregone the benefit of a free personal development opportunity, I do not regard it as a matter to be weighed in circumstances where he has borne no cost (other than time) and where he is not compelled to complete the course.
[138] Other matters I regard as relevant to my consideration of s 387(h) is that the Applicant is young, highly qualified and while he has been unsuccessful in securing employment to date, the labour market is at an historically buoyant level. I also note from his termination payslip that the gross separation payment made to him on termination was that of $34,955 which included accrued leave entitlements, a redundancy payment, payment in lieu of notice and payment for claimed overtime. These factors weigh against a finding that the dismissal was harsh.
[139] While I have found that the foregone paid parental leave entitlement weighs in favour of a finding of harshness in the circumstances, no other factors weigh in favour of such a finding. Balanced against that factor are those matters weighing against a finding of harshness including the sound operational reasons for the dismissal of the Applicant. His dismissal formed part of a broader organisational restructure implemented by the Respondent both at the Holmesglen Hospital and other hospital within its business. The rational for the organisational restructure was not seriously challenged although the Applicant was aggrieved that other means of achieving cost savings in the Allied Health Department at the Holmesglen Hospital were not pursued. The operational reasons for the Applicant’s dismissal weigh heavily in favour of a finding that the dismissal was not harsh, unjust or unreasonable.
[140] As I have also found above, there were consultation failures on the part of the Respondent. They did not in all likelihood impact on the outcome, that being the redundancy of the Applicant in circumstances where the AHM role was removed, where there were no alternate roles available at a comparable level to the AHM role and where the Applicant did not wish to perform a ‘lesser role.’
Is the Commission satisfied that the dismissal of the Applicant was harsh, unjust, or unreasonable?
[141] 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.101
[142] 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 matters considered under s 387(h) weigh in favour of a finding that the dismissal was not unfair. Having considered each of the matters specified in s.387 of the Act, I am consequently satisfied that the dismissal was neither unjust, unreasonable nor harsh, and thereby was not unfair.
Conclusion
[143] The Applicant’s dismissal by the Respondent on 30 September 2022 was not a case of genuine redundancy within the meaning of s.389 of the Act. Having been satisfied in respect of the other initial matters, I have considered and determined that the Applicant’s dismissal was not unfair. Consequently, his application for an unfair dismissal remedy must therefore be dismissed.”
Passages from Zhang v Healthscope Operations Pty Ltd (2023) FWC 195 delivered – 24 January 2023 per Masson DP