What if a dismissal is not a genuine redundancy?

This portion of a recent Fair Work Commission appeal decision is an excellent summary of the legal issues involved when determining whether the dismissal of an employee was  genuine redundancy. It also deals with the consequences of a finding that it could not be due to a lack of reasonable consultation and then moves to whether it was capable in those circumstances of constituting an unfair Dismissal.

“The Decision Under Appeal

[2] The following is a summary of the salient aspects of the Deputy President’s findings relevant to the appeal.

[3] The Respondent operates a personal emergency response service called ‘Rosie’, which provides operator support for elderly clients who wear wireless alarm services. The service runs continuously and is staffed by employees called Rosie operators. Customers requiring help press a button on their alarm device, which connects them to a Rosie operator. Operators work from home and are managed remotely.

[4] The Appellant was employed as a full-time shift supervisor. Over the first half of 2022, the general manager of the Respondent commenced an operational review of the Rosie business. As a result of that review, the Respondent concluded, and the Deputy President accepted, that it no longer required a full-time shift supervisor.

[5] In May 2022, the Appellant was told by the Respondent’s general manager that her role was no longer required. The Deputy President found that that there were two available roles at that time: one role was a technical support role and the other a customer sales role. Both those roles were based in Sydney (whereas the Appellant was located in regional Victoria). In any case, neither role appeared suitable for the Appellant.

[6] In relation to the availability of ‘operator’ roles for potential redeployment, the Deputy President found that, at the time of her dismissal, the “fact is that there were no operator vacancies at that time.”

[7] As the availability of an ‘operator’ role was a matter of greater contention in the application for appeal, we set out a relevant finding of the Deputy President in full. The Deputy President made findings at [20] of the Decision as follows:

“Ms Quiah said that there was another operator who worked part-time for the company who also had a full-time job elsewhere, and that this proved that it was not necessary for an operator to work across shifts. Again, this is irrelevant, because there were no available operator roles. Ms Quiah said that there had been two part-time operator roles available prior to her dismissal. But these were filled. There were no available operator roles at the time of her dismissal, and she never told the company that she wanted such a role.”

[8] The Deputy President also considered the Appellant’s contention that a reason related to her dismissal was due to an allegation of bullying that had been made against her approximately two years earlier. That contention was rejected, with the Deputy President accepting the evidence from the Respondent’s witnesses in this respect.

[9] The Deputy President considered the Respondent’s contention that the dismissal was a case of ‘genuine redundancy’ for the purposes of s.389 of the Act. Section 389 of the Act provides:

“(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.”

[10] The Deputy President concluded that the requirements of s.389(1)(a) were satisfied. He stated, at [25]:

“[25] I consider that Vital no longer required Ms Quiah’s job to be performed by anyone because of changes in the operational requirements of its enterprise. The company did not need or want a full-time shift supervisor. The change in the company’s operational requirements was the realisation that the full-time supervisor position was not needed. Whereas previously it had been thought necessary to have such a position, this was no longer the case. Senior management could do without it and field any occasional queries from operators themselves. The requirement in s 389(1)(a) is met.”

[11] However, the Deputy President was not satisfied that the consultation requirements imposed by the applicable modern award had been complied with and, as a consequence, the dismissal was not a ‘genuine redundancy’ within the meaning of s.389 of the Act. 1

[12] Having made that conclusion, the Deputy President proceeded to consider whether the dismissal was harsh, unjust or unreasonable for the purposes of s.387 of the Act, taking into account the factors in subsections s.387(a) – (h). As the dismissal did not relate to the Appellant’s “capacity or conduct”, the Deputy President noted that sections 387(a) – (c) were not relevant and, similarly, nor was s.387(e) which concerned the Appellant’s “performance”. The Deputy President concluded there was no unreasonable refusal for a support person (s.387(d)) and the factors in s.387(f) and (g) were treated neutrally.

[13] Detailed consideration was given in relation to s.387(h). It is convenient to set them out in full:

“[32] This brings me to s 387(h). My conclusions in relation to the ‘genuine redundancy’ jurisdictional objection are relevant to the question of whether the dismissal was unfair. Vital did not need Ms Quiah’s role to be undertaken by anyone. The company’s decision to make her position redundant was a legitimate reason to dismiss her. This is not a case where the employer had an ulterior motive for the dismissal. Although the dismissal was not a ‘genuine redundancy’ for the purposes of s 389, it was nevertheless a real and bona fide redundancy. Ms Quiah’s dismissal for redundancy in the present circumstances occurred for a good reason. I take this into account in my consideration of s 387(h). It is a consideration that tells against a conclusion that her dismissal was unfair.

[33] Ms Quiah contended that it was unfair of the company not to consider her for an operator role. But there were no available operator roles at the time when her position was made redundant. Ms Quiah disputed this, but she produced no evidence to substantiate her belief. I accept Ms Masihpour’s clear evidence on this point. It would be unreasonable to expect Vital to have created a role for Ms Quiah. Vital was at pains to emphasise the various respects in which Ms Quiah lacked competencies or experience for other roles or types of work that might become available, but no such roles or work existed. There was no need for the company to explain why Ms Quiah might not be suitable for hypothetical roles.

[34] I take into account that Ms Quiah was content with the decision to make her position redundant and grateful for Ms Masihpour’s assistance in helping her to look for another job. Ms Quiah did not contend at the time, as she does now, that she ought to have been redeployed. Her focus was on finding her next job outside the company.

[35] Ms Quiah said that the company did not consult with her in any substantial way but simply told her that her position was redundant, and that this was unfair. But what consultation requires in a given case depends on the circumstances. Here, Ms Masihpour had made a decision that the position of supervisor was not needed. She had reflected on whether there were reasonable redeployment options and concluded that there were none. Had Ms Quiah disagreed with Ms Masihpour’s assessment and suggested an alternative approach, as she does now, this would have raised another matter likely to affect her (see clause 38.2(c)), namely a proposition that Ms Masihpour’s conclusion about redeployment was not correct. This would have required prompt consideration (clause 38.4) and a response from the company, although in my view the result would have been the same. But Ms Quiah did not raise any concerns or suggestions. At the time, she was content with the outcome.

[36] It is relevant to consider the manner in which Ms Quiah’s employment was terminated. She was entitled, pursuant to the Award, to receive information in writing about the effects of the decision, which included not just the fact that her position was redundant but that there were no apparent redeployment options. This did not occur. The process leading to Ms Quiah’s dismissal was deficient in this respect. But what was lacking was a brief written note confirming what Ms Masihpour had already told Ms Quiah over the phone. I do not consider that the absence of such a note rendered the dismissal harsh, unjust, or unreasonable, particularly given that Ms Quiah did not express any interest in redeployment.”

Grounds of Appeal

[14] The Appellant listed about twenty-one grounds of appeal in her Notice of Appeal. The grounds of appeal identified paragraphs from the Decision that the Appellant disagreed with. The Appellant extracted particular findings or statements made by the Deputy President and then she set out what she considered the correct finding or conclusion ought to have been. As the grounds of appeal run for slightly under eight pages in total, we will not set them out here.

[15] While the grounds of appeal are lengthy, there are some unifying themes that could be summarised as follows:

  • There was an ongoing need for a person to fill the Appellant’s previous role.
  • The Appellant was not informed about alternative roles she might consider.
  • The Respondent’s alleged consideration of alternative roles for the Appellant was a sham.
  • The Appellant’s failure to raise particular complaints or issues was explained by the fact that she felt pressured to maintain a smooth relationship so as to facilitate better CV references.
  • There were part-time roles recruited prior to and after her departure which the Appellant could have been redeployed to.
  • There was a full-time role provided to a different employee, which the Appellant says she was given no opportunity to express her interest in taking that role in place of the person who took it up.
  • Insufficient significance was placed on the absence of any written notice confirming what was told to her in a telephone conversation prior to her dismissal.

[16] The above summary is an over-simplification and there was overlap in a number of matters, as well as other matters raised which we have considered. While the grounds were all collectively set out under a heading “Significant Error of Fact”, a number of them concerned alleged failure to give sufficient weight to matters.

[17] In support of her application for appeal, the Appellant sought leave to file further evidence. The evidence comprised of screen shots of a recruitment website for job advertisements by the Respondent, dated 28 October 2022. The Appellant contended the advertised roles were “identical” to the role she had held “outside a change in name”.

Principles – Permission to Appeal

[18] An appeal under s.604 of the Act is an appeal by way of rehearing and the Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision maker. 2 There is no right to appeal and an appeal may only be made with the permission of the Commission.

[19] By s.400(1), despite s.604(2), the Commission must not grant permission to appeal from a decision made by the Commission “under this Part” unless the Commission considers that it is in the public interest to do so. The reference to “this Part” in s.400(1) is to Part 3-2 of the Act.

[20] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment. 3 The public interest is not satisfied simply by the identification of error,4 or a preference for a different result.5 In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of the Commission identified some of the considerations that may attract the public interest:

“… the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters…” 6

[21] It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of appealable error. 7 However, that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.

[22] An application for permission to appeal is not a de facto or preliminary hearing of the appeal. In determining whether permission to appeal should be granted, it is unnecessary and inappropriate for the Full Bench to conduct a detailed examination of the grounds of appeal. 8 However, it is necessary to engage with the appeal grounds to consider whether they raise an arguable case of appealable error.

Consideration

[23] In this case, we are not persuaded that it would be in the public interest to grant permission to appeal. We do not consider that any reasonably arguable case has been advanced that the Decision of the Deputy President was attended by appealable error. We are of the view that the Appellants’ grounds of appeal are misconceived and have already been addressed by the Deputy President at first instance.

[24] In substance, the Appellant’s grounds of appeal are an attempt to relitigate her claim before different decision makers for a different outcome. That is not the function of an appeal. However, for completeness, we address the Appellant’s core submissions as follows.

[25] The Appellant’s complaint there was an ongoing need for her prior role was expressly rejected by the Deputy President. As the extract from the Decision set out above makes clear, the Deputy President was satisfied there was a real and bona fide redundancy. He made that finding on the acceptance of the evidence of the Respondent’s witness. 9

[26] Moreover, as regards the prospect of alternative deployment, the Deputy President’s findings were that “there were no available operator roles at the time when her position was made redundant.” The Deputy President stated “Ms Quiah disputed this, but she produced no evidence to substantiate her belief.” There has been no material put to the Full Bench that indicates her beliefs ought to have been substantiated, let alone that the Deputy President made any appealable error in his factual findings.

[27] The Appellant’s submissions also rely heavily on evidence of what was said to have occurred regarding job positions and the allocation of duties at the Respondent after her dismissal. Again, the Deputy President considered (and rejected) 10 the Appellant’s contentions. There is again no basis to doubt that finding, let alone consider there exists appealable error. The “new” evidence the Appellant sought to rely upon fell well short of showing that an “identical” role was advertised (let alone what consequences might flow even if an advertisement some months after her dismissal was for an identical role). The screen shots contained only information about the role and the employer.

[28] In relation to the ground of appeal concerning the failure of consultation in accordance with the relevant award, that was a matter specifically considered by the Deputy President. It formed the basis as to why the Deputy President rejected the Respondent’s claim of “genuine redundancy” for the purpose of s.389 of the Act. The Deputy President again specifically considered the matter for the purpose of s.387, which we have in part extracted above.

[29] We have considered whether this appeal attracts the public interest, and we are not satisfied, for the purposes of s.400 that:

  • there is a diversity of decisions at first instance so that guidance from an appellate body is required of this kind;
  • the appeal raises issues of importance and/or general application;
  • the Decision manifests an injustice, or the result is counter intuitive; or
  • the legal principles applied by the Deputy President were disharmonious when compared with other decisions dealing with similar matters.

[30] In summary, the basis on which the Deputy President made his decision was through the application of an orthodox approach to factual findings and then by applying the correct legal principles to those findings.

Conclusion

[31] Permission to appeal is refused.”

Quiah v Vital Care Pty Ltd (2022) FWCFB 22 delivered 2 February 2023 per Catanzariti VP, Bell DP and Lee C