The genuine redundancy defence to an unfair dismissal claim is not available to an employer if it would have been reasonable in all the circumstances for the person to be re-deployed within the employer’s enterprise or the enterprise of an associated entity of the employer. This is how the defence works.
“Consideration – redeployment
[39] Ms Shaw’s primary argument in response to Royal Taree’s jurisdictional objection is that it was reasonable for her to be redeployed to her previous position as a chef at the Manning River Hotel.
[40] In Helensburgh Coal, the plurality judgment stated the following concerning the reasonable redeployment exclusion, which appears in s.389(2) of the FW Act and has the potential to negate what would otherwise be a “genuine redundancy”:
“There can be little doubt that s 389 of the FW Act—and, more broadly, the significance of “genuine redundancy” to s 385(d)—was intended to narrow the circumstances in which an employee might be said to have been “unfairly dismissed”; and, thereby, to afford employers a defence in circumstances involving dismissals for operational reasons (as opposed to reasons of conduct or capacity). A dismissal that is a “case of genuine redundancy” is immune from relief under Pt 3-2. That is so even if it might unambiguously qualify as “harsh, unjust or unreasonable”.
There is, then, some force to the applicant’s contention. The proper construction of s 389(2) of the FW Act will be one that takes account of the facilitative character of the immunity that is inherent in s 385(d) of the FW Act.
That immunity, however, is not absolute. Indeed, s 389(2) serves unambiguously to qualify it and it is the scope of that qualification, rather than the immunity itself, that falls to be construed. That task begins and ends with an analysis of the words in which the qualification is expressed: Alcan at [47]; SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362, 374 at [37] (Gageler J). On any view, they contemplate a qualification of some width: specifically, redeployment that “in all [of] the circumstances” would have been “reasonable”.
Those words do not appear in s 389(1) of the FW Act. A case of genuine redundancy may arise if a dismissal is the consequence of changes in the operational requirements of an employer’s enterprise. The FW Act does not contemplate any inquiry into the reasonableness of such changes, neither “in all [of] the circumstances” or at all. Subject to s 389(1)(b) and 389(2), any change in operational requirements will suffice.
Section 389(2), by contrast, requires that the possibility of redeployment should be assessed according to what “would have been” reasonable. That necessarily envisages some analysis of the measures that an employer could have taken in order to redeploy an otherwise redundant employee. In its proper context, “redeployed” can only refer to the prospect that an otherwise redundant employee might be taken from a position no longer required and deployed to the discharge of other tasks. If, in a given case, there were measures that could have been taken and which, in all of the circumstances, could reasonably have led to redeployment, that will suffice to engage the exemption to the immunity.
Given the undeniable width of the text in which the exemption is couched, there is no reason to excise from “all [of] the circumstances” the possibility that an employer might free up work for its employees by reducing its reliance upon external providers. The existence of that possibility in any given case is a circumstance that is capable of informing whether redeployment “would have been reasonable”.”7
[41] Ms Shaw and Mr Leeder gave evidence that Mr Overvliet stated during a meeting on around 30 July 2023 that Ms Shaw’s move to the Royal Hotel Taree was temporary to help deal with the sacking of the previous head chef, and that Ms Shaw could subsequently return to the Manning River Hotel.8 Mr Overvliet denied stating this in his witness statement and during cross-examination.
[42] Ms Shaw also relied on a text message she received from Mr Overvliet on 24 November 2023, which was during a period that Ms Shaw was stood down due to equipment failure in the kitchen at the Royal Hotel Taree. Ms Shaw sent a message to Mr Overvliet asking: “Do I have a job when the Royal changes hands?” Mr Overvliet replied:
“You’ve just been stood down due to equipment failure in the kitchen and our obligation to WHS for our employees. This has nothing to do with your role at the Royal or in the future. I’ve stated before you’ll have a job when the Royal changes hands. We’ll have everything sorted by the 11th and hope to see you back then.”
Mr Overvliet gave evidence that his message was “focussed on issues concerning the closure of the kitchen” and that he “erred in providing the applicant any assurances of employment after
the sale of the business. Furthermore, he did not have the requisite authority to make such a decision.”9
[43] Given the competing evidence about what was said during the meeting between Ms Shaw, Mr Leeder and Mr Overvliet on around 30 July 2023, I consider Ms Shaw’s contract of employment with Royal Taree to be the most reliable evidence. The importance of approaching fact-finding based on the contemporaneous documentary record and objective circumstances was described by Lee J in Transport Workers’ Union v Qantas (No. 1).10 There is no indication in Ms Shaw’s contract of employment that her employment with Royal Taree was temporary. The contract clearly refers to full-time “ongoing” employment.11 There is no reference in the contract to Ms Shaw being entitled to return to the Manning River Hotel following the sale of the Royal Hotel Taree. There is also considerable doubt regarding whether Mr Overvliet could have made a binding verbal commitment during the meeting in circumstances where a detailed contract was subsequently agreed by the parties. The background section of the contract states it sets out the “current terms and conditions” of Ms Shaw’s employment. Mr Parley also provided evidence that he always understood Ms Shaw’s transfer to Royal Taree was permanent and he was managing the Royal Hotel Taree when Ms Shaw commenced employment with Royal Taree.
[44] Having considered all the evidence, I am not satisfied that Ms Shaw had a legal entitlement to return to employment with Manning River at the Manning River Hotel when her employment with Royal Taree ended based on her meeting with Mr Overvliet on around 30 July 2023. I am also not satisfied that a clear verbal commitment to that effect was provided by Mr Overvliet to Ms Shaw during the meeting, primarily because that is inconsistent with the terms of the employment contract that was subsequently signed by both parties.
[45] Mr Overvliet claims he made an error when he sent a message to Ms Shaw on 24 November 2023 which unequivocally stated: “you’ll have a job when the Royal changes hands.” Having considered all the evidence, I am not satisfied that Mr Overvliet’s message was referring to Ms Shaw returning to employment at the Manning River Hotel if her employment with Royal Taree ended. There is no reference to the Manning River Hotel in the message. Further, I accept Mr Quinn’s evidence that historically when the group have sold hotels, the new purchaser has offered employment to existing employees. I consider it is reasonable to read Mr Overvliet’s message as a reference to him assuming the sale would not result in Ms Shaw being unemployed because she would be engaged by the new owner.
[46] I do not consider Mr Overvliet’s message provides sufficient evidence to conclude Ms Shaw had a legal entitlement to return to employment with the Manning River Hotel if her employment with Royal Taree was to end. I am also not satisfied that Mr Overvliet’s message constitutes a clear commitment to that effect.
[47] Given my conclusions above, I do not need to determine whether Mr Overvliet had authority to decide that Ms Shaw could return to working at the Manning River Hotel after the sale of the Royal Taree Hotel. Mr Quinn was adamant that he was the only person to make that type of decision. That is consistent with Ms Shaw’s contract with Manning River, which was signed by Mr Quinn as the authorised representative of Manning River. However, Mr Parley was apparently authorised to sign Ms Shaw’s contract with Royal Taree and Mr Overvliet signed Ms Shaw’s termination letter. Ms Shaw also led evidence to show Mr Overvliet is a
director and shareholder of Manning River. If the evidence had been clearer about a commitment being provided to Ms Shaw by Mr Overvliet, it is unlikely I would have concluded it should be disregarded because of a lack of authority.
[48] Although I am not satisfied Ms Shaw had a legal entitlement to return to working at Manning River Hotel or that Ms Shaw received a clear commitment from Mr Overvliet to that effect, I do consider Mr Overvliet’s message is relevant to the overall assessment of whether it “would have been reasonable in all the circumstances” for Ms Shaw to be redeployed. Ms Shaw would have understood Mr Shaw’s message as a clear indication the group would find a role for her at one of its facilities. There was a logical basis for that position given Royal Taree and its associated entities operate the Manning River Hotel and the Old Bar Tavern, and both facilities have kitchens where Ms Shaw could potentially work. I consider Mr Overvliet’s message to be a factor that weighs in favour of finding it would have been reasonable for Ms Shaw to be redeployed.
[49] However, on the other hand, Mr Quinn presented as a credible witness, and he was adamant that there were no roles that Ms Shaw could have been redeployed to at the time of dismissal. Mr Quinn stated that Mr Hopton’s position as sous chef at the Manning River Hotel had not been replaced when Mr Hopton was appointed as the head chef at the Old Bar Tavern in December 2023. Mr Quinn stated there were no available roles at either facility when Ms Shaw was dismissed. Mr Overvliet also gave evidence that there were no available full-time chef roles in the region.12
[50] While Ms Shaw did lead evidence that Mr Bourke commenced working in the kitchen at the Manning River Hotel in late April or early May 2024,13 Mr Quinn and Mr Overvliet confirmed this was a casual role. Ms Shaw was offered casual employment with Everest Hospitality but declined the offer. I do not consider it would have been reasonable for Ms Shaw to be redeployed into a casual role and in any event consider that would constitute new casual employment as opposed to redeployment.
[51] Ms Shaw also relied upon a job advertisement dated 11 March 2024 for a Bar/Gaming Attendant role at the Manning River Hotel and a screenshot which refers to “Join our Team” content for the Old Bar Tavern as evidence that she could have reasonably been redeployed. I do not consider this evidence is sufficient to conclude it would have been reasonable for Ms Shaw to be redeployed to the Manning River Hotel or the Old Bar Tavern, given Mr Quinn and Mr Overvliet’s evidence to the contrary. Further, there is no evidence that there was a full-time role that Ms Shaw could have been redeployed into at either facility. As stated above, I do not consider commencing in a casual role would constitute redeployment from a full-time position.
[52] Having considered all the evidence and submissions, I am not satisfied it would have been reasonable for Ms Shaw to be redeployed within Royal Taree’s enterprise or an associated entity’s enterprise.
[53] As a result, the exclusion from the definition of a “genuine redundancy” that appears in s.389(2) of the FW Act is not applicable in this case.
Conclusion – genuine redundancy
[54] I have determined that Ms Shaw’s dismissal constitutes a “genuine redundancy” within the meaning of s.389(1) of the FW Act and that the exclusion regarding reasonable redeployment in s.389(2) of the FW Act is not applicable.
[55] It follows that Ms Shaw has not been “unfairly dismissed” within the meaning of s.385 of the FW Act and Royal Taree’s jurisdictional objection is upheld.
[56] I note that Mr Quinn admitted referring to “performance management” being an option that other businesses may have utilised to end Ms Shaw’s employment, as opposed to implementing a redundancy and making a severance payment, during the meeting on 22 February 2024. Ms Shaw and Mr Leeder stated Mr Quinn described “performance management” as what would occur if Ms Shaw contested the redundancy. On either of the accounts, what Mr Quinn stated was inappropriate and regrettable. That is particularly the case given Ms Shaw was pregnant at the time and broke down crying when she was told of the dismissal.14 Regardless of what Mr Quinn has experienced with other businesses, there is no basis to refer to performance management in a discussion about a job being made redundant through changes in operational requirements and through no fault of the employee. Mr Quinn is clearly a successful businessman, it would be reasonable for him to take some action to remedy what occurred, potentially having regard to a resolution Royal Taree previously proposed to Ms Shaw.
[57] Ms Shaw’s unfair dismissal application is dismissed.”
Shaw v Royal Taree Operations Pty Ltd [2024] FWC 1996 delivered 29 July 2024 per Crawford C