[8] In relation to the matter the parties filed the following materials. In coming to this decision the Commission, as presently constituted, has had regard to the filed material, the oral evidence and other documents tendered during the determinative conference:

Respondent: Email (purported submissions) filed and served on 21 July 2020

Screenshot of Seek Job Advertisements included in email of 21 July 2020

NobleOak internal recruitment process for applicants (attached to job vacancy email of 2 June 2020)

NobleOak employee referral program (attached to job vacancy email of 2 June 2020)

Job description - Claims Team Leader (attached to job vacancy email of 2 June 2020)

Job description - Digital Performance Manager (attached to job vacancy email of 2 June 2020)

Job description - Genus Remediation Operations Manager (attached to job vacancy email of 2 June 2020)

Job description - Office and SLT Administrator (attached to job vacancy email of 2 June 2020)

Job description - Risk and Compliance Manager (attached to job vacancy email of 2 June 2020)

Job description - Sales Coach (attached to job vacancy email of 2 June 2020)

Job description - Head of IT (attached to job vacancy email of 3 June 2020)

Job description - EA to CEO and CFO (attached to job vacancy email of 3 June 2020)

Applicant: Witness Statement of Alana Fayad dated 7 August 2020

Annexure A to Statement of Alana Fayad - Employment Agreement

Annexure B to Statement of Alana Fayad - Email regarding 9M in Sales

Annexure C to Statement of Alana Fayad - Notice of structure review

Annexure D to Statement of Alana Fayad - Termination letter

Annexure E to Statement of Alana Fayad - Client Service Consultant job description

Annexure F to Statement of Alana Fayad - Jora job advertisements

Internal redundancy plan - referencing selection criteria

Redundancy selection process - email correspondence with Matt Minney, Head of Operations

Witness statement of Mr Matt Minney, Head of Operations and Claims dated 1 September 2020

Witness statement of Matt Wilson, Chief Risk Officer dated 1 September 2020

Email from Mr Minney to Applicant dated 4 June, 4.38 pm

[9] I make the following findings of fact:

1. Prior to her employment with the Respondent the Applicant was employed by the Freedom Insurance Group Limited (Freedom). The Applicant commenced her employment with Freedom on 23 June 2014.

2. In or around April 2019 the Respondent acquired parts of the business of Freedom.

3. The Applicant then commenced employment with NobleOak Aspire Pty Ltd. NobleOak recognised the Applicant's prior service with Freedom (i.e. back to 23 June 2014).

4. The Applicant was employed as a "Client Service and Retention Consultant". She mainly worked in Genus Life Insurance Services part of NobleOak (Genus Position).

5. The Genus Position was essentially a call centre role. The Applicant was responsible for answering calls, responding to queries and complaints, explaining policies and retaining customers.

6. At no time during the Applicant's employment did the Respondent raise issues with her about her conduct or performance.

7. However, the Applicant acknowledges that she had utilised "a large amount sick leave." She estimated that she had utilised 30 days of sick leave in the 12 months prior to the dismissal because she is suffering from a medical condition. The Respondent was aware of the condition. The Applicant provided medical certificates when she utilised sick leave.

8. At the time of the dismissal the Applicant was paid a salary of $65,974 per annum.

9. The Applicant's employment was covered by a modern award, namely the Banking, Finance and Insurance Award 2020 (BFI Award).

10. Clause 28 of the BFI Award provides as follows:

28.1 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):

(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.

28.2 For the purposes of the discussion under clause 28.1(b),the employer must give in writing to the affected employees and their representatives (if any) all relevant information about the changes including:

28.3 Clause 28.2 does not require an employer to disclose any confidential information if its disclosure would be contrary to the employer's interests.

28.4 The employer must promptly consider any matters raised by the employees or their representatives about the changes in the course of the discussion under clause 28.1(b).

28.5 In clause 28 significant effects, on employees, includes any of the following:

(b) major changes in the composition, operation or size of the employer's workforce or in the skills required; or

(c) loss of, or reduction in, job or promotion opportunities; or

(f) the need for employees to be retrained or transferred to other work or locations; or

28.6 Where this award makes provision for alteration of any of the matters defined at clause 28.5,such alteration is taken not to have significant effect.

1. In March 2020 a paper was submitted to the board of NobleOak about a restructure. The restructure was aimed at assisting NobleOak manage through the COVID-19 pandemic and reduce its cost base.

1. On 11 May 2020 Mr Minney was advised by the Respondent's CEO of the need to restructure the Respondent's operating model.At some stage after 11 May 2020 Mr Minney decided to amalgamate to business lines, namely Genus Life Services and NobleOak Life.

43 roles were impacted. 37 new roles were created in the amalgamated department.

Within the Client Services departments of each of the two previous business lines there were 20 redundant positions as follows:

1. 11 x Genus Client Service Consultants (of which one was the Applicant); and
2. 9 x NOL Client Service Specialists.

The amalgamation of roles resulted in 16 new roles as follows:

1. 8 x Back Office Client Services Consultants;
2. 8 x Front Office Client Services Consultants.

4 x client roles did not fit into the new structure (including that of the Applicant).

1. On 15 May 2020 there was a board update. The paper set out the next steps to refine the Respondent's operating model. It was resolved to establish a new Senior Leadership Team (SLT) and refine the management structure. Most of the savings were to come from the Genus business. The board paper noted that "we expect the new design to be a shock to some team members."
2. On 19 May 2020 Mr Minney made a decision about who would be allocated roles in the new structure. He did not include the Applicant.
3. On 1 and 2 June 2020 the Applicant was on personal leave.
4. On 3 June 2020,
   1. at the beginning of the work day Mr Minney sent an email inviting the Applicant to a meeting.
   2. later that morning the meeting occurred. In addition to Mr Minney and the Applicant, Mr Yusnanda, the Head of People and Culture of the Respondent was also present.
   3. the Applicant was informed that her position was redundant due to a company restructure.
   4. the meeting went for between 15 - 20 minutes.
   5. during the meeting the Applicant "broke down and cried".
   6. at the conclusion of the meeting, the Applicant was given a letter dated 2 June 2020. The letter stated as follows,

"The purpose of this letter is to confirm the outcome of a recent review of the overall NobleOak company structure, our operational requirements, and what this means for you.

As you know, the COVID-19 pandemic has had a significant impact on the economy and many businesses. Unfortunately, while NobleOak has managed through this extremely well, we are still impacted and are required to delay our planned IPO and associated capital raise. As we enter the next phase of this pandemic, we have had to refine our operating model to ensure it is highly effective, lean, and promotes high performance as access to capital is limited.

As a result, several positions will unfortunately no longer be required. This decision is in no way a reflection on any individual's performance, but rather it is driven from a business need to ensure that NobleOak can effectively manage our current position, as well as enable us to achieve our future business aim and strategy.

The impact of this to your employment is that your role will unfortunately be made redundant. We have considered options for redeployment and assessed your suitability based on a selection criteria consisting of skills, performance, behaviours, experience and qualifications but unfortunately we have been unable to identify a suitable alternative role to redeploy you to.

I encourage you to spend the next couple of days thinking about any other measures that we could consider to redeploy you or mitigate the effect of your position being made redundant.

Please also refer to the attached list of vacancies we currently have at NobleOak.

I am available to discuss options with you over the next couple of days if you require. Please let me know if you would like to meet. If so, feel free to bring along a support person and let me know a suitable time for us to meet.

The implementation of this change will be effective from 5 June 2020. If redundancy proceeds and you are not redeployed, you will be paid the estimated redundancy package in Appendix l.

I understand that this may be a difficult time for you, and I am committed to providing you with support and assisting you in any way that I can. Please be reminded that our Employee Assistance Program (EAP) is available through Access EAP for free confidential counselling on 1800 818 728."

i. the Applicant left the meeting and commenced authorised leave.[1]

1. As at 3 June 2020 (and in the weeks after dismissal) there were a number of "Sales and Service Consultant" positions vacant.
2. Between the time when the Applicant left the office and 4.38 pm on 4 June 2020 no representative of the Respondent made any contact with the Applicant.
3. Although the letter provided to the Applicant on 3 June 2020 stated that "this change will be effective from 5 June 2020," at 4.38 pm on 4 June 2020 (i.e. the next afternoon after the meeting) Mr Minney terminated Ms Fayad's employment. He sent an email attaching a redundancy confirmation letter. The letter read,

The purpose of this letter is to confirm the outcome of the consultation process that we have undertaken with you since our meeting on 2 June 2020, where we explained that we have reviewed the NobleOak operating model, our current capital position , and what this means for your position and you.

I confirm that during the consultation period we discussed the redundancy process with you and alternatives to termination of your position, including redeployment within NobleOak. We further discussed measures to mitigate the effect of the redundancy. Unfortunately, there are no alternative positions within NobleOak that you could reasonably be redeployed to at this time and no other steps can be taken to avoid termination of your employment by reason of redundancy.

Therefore, your position will be made redundant and your employment with NobleOak will end on 5 June 2020. As per your employment agreement, you will be paid four weeks in lieu of working your notice period (without being required to work during this period). You will also be paid your accrued annual leave and any outstanding remuneration owed, including superannuation up to and including your last day of employment. In addition, you will be paid your redundancy entitlement. A complete schedule of your final pay is attached to this letter in Appendix l. This payment will be deposited into your bank account by Friday 12th June 2020.

I would like to thank you for your valuable contribution during your employment' with us and wish you all ' the very best in your future."

Note: There was no meeting on 2 June 2020. The meeting occurred after 9.00 am on 3 June 2020. Clearly the redundancy confirmation letter was prepared in advance in anticipation of what was to happen on 2 June 2020 and in the days after. To this extent the redundancy confirmation letter bears very little resemblance to what happened in actuality. It is a work of fiction.

1. After the receipt of the redundancy confirmation letter the applicant sent an email with some questions about the quantum of the payment and payment arrangements. During the hearing before me the Respondent's witnesses complained that the Applicant was not interested in discussing redeployment and was only interested in confirming payment arrangements. I reject their account of events. It is very clear that the Applicant only raised these matters after she had already been sacked. The email train totally disproves the Respondent's witnesses' version of events.
2. The Applicant was paid the following,

[10] In the present matter it was common ground (and I am satisfied that):

a) The Applicant was protected from unfair dismissal.[2]

b) The Respondent dismissed the Applicant.[3]

c) The Respondent is not a small business with the consequence that the Small Business Fair Dismissal Code is not relevant.[4]

1. the application was made within the period required in subsection 394(2) of the FW Act.

[11] Section 389 of the FW Act defines the 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:

(b) the enterprise of an associated entity of the employer."

[12] In summary there are three aspects to the test for genuine redundancy:

1. First, the job must be no longer required,

2. Secondly, there must consultation (if, as in the present matter, a modern award applies), and

3. Thirdly, redeployment must not be reasonable in all the circumstances.

[13] I have set out my findings of fact above. Having regard to those findings I am satisfied that Ms Fayad's job (the Genus Position) was no longer required.

[14] The process for selecting employees for redundancy is not relevant to whether the dismissal was a genuine redundancy or whether there was a valid reason for dismissal based on capacity.[5]

Did NobleOak comply with its consultation obligations?

[15] The obligation on an employer to consult about redundancy only arises when a modern award or enterprise agreement applies to an employee and that modern award or enterprise agreement contains requirements (which they often do) to consult about redundancy. In the present matter the Respondent was obliged to consult under clause 28 of the BFI Award.

[16] If an employer was obliged to consult and fails to do so, there cannot be a genuine redundancy.[6]

[17] It is well established that:

a) Consultations should be meaningful and should be engaged in before an irreversible decision to terminate has been made.[7]

b) "Consultation is not perfunctory advice on what is about to happen ... [c]onsultation is providing the individual, or other relevant persons, with a bona fide opportunity to influence the decision maker."[8]

c) "The purpose of a consultation clause is to facilitate change where that is necessary, but to do that in a humane way which also takes into account and derives benefit from an interchange between worker and manager."[9]

[18] The following was observed by Sachs LJ in Sinfield v London Transport Executive:[10]

"Consultations can be of very real value in enabling points of view to be put forward which can be met by modifications of a scheme and sometimes even by its withdrawal. Any right to be consulted is something that is indeed valuable and should be implemented by giving those who have the right an opportunity to be heard at the formative stage of proposals - before the mind of the executive becomes unduly fixed."[11]

[19] I have set out my findings of fact above concerning the chronology of events. In summary, a definite decision was made to make Ms Fayad's position redundant in May 2020. The only meeting with Ms Fayad occurred at around 9 am on 3 June 2020. Ms Fayad then took authorised leave. At 4.36 pm the next day (i.e. 4 June 2020) NobleOak terminated Ms Fayad's employment.

[20] The evidence of the Respondent's witnesses was to the effect that the Applicant was consulted. Further, that the Applicant was asked about her interest in the Sales and Service Consultants role and that the Applicant was not interested in the same.

[21] Ms Fayad's evidence was as follows,

"32. I know that the letter says, "We have considered options for redeployment and assess your suitability based on a selection criteria consisting of skills, performance, behaviours, experience and qualifications but unfortunately we have been unable to identify a suitable alternative role to redeploy you to".

33. I agree that they said that they considered redeployment for me and that I was unsuitable.

34. I further note that the letter says, "I encourage you to spend the next couple of days thinking about any other measures that we could consider to redeploy you or mitigate the effect of your position being made redundant".

35. I do not recall this being discussed at the meeting although I acknowledge that I was very emotional, and it may had been said.

36. However, I remember reading this in this letter after the meeting and finding it somewhat insulting.

37. I did not believe that it was a genuine offer for me to consider making an approach to them after the position. As the preceding paragraph had indicated, they had said to me verbally they did not believe that I had the suitable skills to fulfil any other position in the company. This is why I had questioned them as to whether it was regarding me personally because I had left that meeting feeling quite convinced that I was not a suitable person to work in the company and it may have had some to do with my illness.

38. They had attached appropriate vacancies yet had made it clear to me that they did not believe that I was suitable for those jobs yet indicated in the letter that I should consider making an approach to them if I thought I had been suitable. I felt worthless after that meeting and quite vulnerable.

40. I note that the letter said that any redundancy would be effective from 5 June 2020.

41. Despite this I received my termination letter confirming that I had in fact been made redundant the next day on 4 June 2020 whilst exercising my rights to annual leave confirming that I was in fact redundant before I had even had time to properly consider whether I could apply for any of those jobs or in fact any other options such as considering upskilling or retraining.

[22] Noting that:

1. the meeting on 3 June 2020 went for no longer than 20 minutes;

2. the Applicant was distressed in the meeting;

3. the Applicant left the workplace on authorised leave after the meeting;

4. there was no contact made with the Applicant until 4:38 pm the following day when she was sacked,

it is an incredulous submission for the Respondent to make that it genuinely engaged in consultation with the Applicant. Nothing about the Respondent's conduct evidenced genuine consultation. The Respondent moved with indecent haste.

[23] I reject entirely the evidence of Messrs Minney and Yusnanda that the Sales and Service Consultant role was offered to the Applicant. It may have been mentioned in the meeting, but they did everything they could to dissuade the Applicant from considering the role. They had effectively told her she was not suited for any role. Mr Minney said "We did talk about the jobs that we had available, but we did say that we did not think Alana had the skillset for those."[12]

[24] The reality is that Messrs Minney and Yusnanda had no desire to redeploy the Applicant. Nothing about their conduct evidenced a genuine desire to consult with the Applicant or to find her an alternative position. The invitation to consider vacancies in the letter provided to the Applicant on 3 June 2020 was a hollow invitation. There was no follow up with an employee who had been distressed during the meeting and had to leave work. The next day she was sacked by a proforma letter prepared in advance. The statements about consultation in the redundancy confirmation letter were pure fiction.

[25] The Respondent did not comply with its consultation obligations under the BFI Award. Specifically, it did not discuss with Ms Fayad measures to avoid or reduce the adverse effects of the changes on her.

Would it have been reasonable in all the circumstances to redeploy Ms Fayad?

[26] Whether redeployment of an employee is considered reasonable will depend on the circumstances that exist at the time of the dismissal.[13]

[27] In determining whether the redeployment was reasonable a number of matters may be relevant including:

a) whether there exists a job or a position or other work to which the employee can be redeployed;[14]

1. the qualifications required to perform the job;

1. the employee's skills, qualifications and experience; and

e) the location of the job in relation to the employee's residence and the remuneration (pay and entitlements) which is offered.[15]

[28] The evidence is that:

1. on 4 June 2020 (the date of dismissal) there was a vacancy in a Sales and Service Consultant role (Job ID 50040324),

b) Mr Minney said "she knows the products and could sell the products, so she potentially could have filled this role."[16]

i. "in particular the sales role was one role which we thought that she could be suitable to do."[17]

ii. "Alana would have been able to fulfil [Sales and Service Consultant] roles".[18]

d) the Applicant believed she could perform the Sales and Service Consultant role "with more training and support".[19]

[29] Consequently, the evidence establishes that on 4 June 2020 it would have been reasonable in all the circumstances to redeploy the Applicant into a Sales and Service Consultant role.

[30] For the reasons set out above, the Commission, as presently constituted, is satisfied that:

1. the Applicant was protected from unfair dismissal,
2. the dismissal was not a case of genuine redundancy within the meaning of s.389 of the FW Act because:

   1. the Respondent failed to consult with the Applicant; and

   2. it would have been reasonable in all the circumstances to redeploy the Applicant.

[31] The jurisdictional objection raised by the Respondent is dismissed.

[32] Having determined that the termination of Ms Fayad's employment was not a case of genuine redundancy I must now consider whether I am satisfied the dismissal was harsh, unjust or unreasonable.

[33] The ambit of the conduct which may fall within the phrase 'harsh, unjust or unreasonable' was explained in Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 465 by McHugh and Gummow JJ as follows:

".... It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted."

[34] The criteria the Commission must take into account when assessing whether the dismissal was harsh, unjust or unreasonable are set out at s387 of the FW Act:

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."

[35] Ordinarily I would be under a duty to consider each of these criteria in reaching my conclusion.[20] However, because the dismissal was not a case of genuine redundancy the consideration of the matters specified in s.387(a), (b) and (c) are neutral, unless in the circumstances another valid reason is identified. No other valid reason was identified by the Respondent.

[36] Matters arising from the redundancy (e.g. if relevant, a failure to consult with an employee) fall within s.387(h).[21]

[37] Therefore, in relation to the dismissal of the Applicant I am satisfied that:

(a) The Respondent did not assert that the reason for the dismissal of the Applicant was related to her capacity or conduct. Accordingly, there cannot have been, and there was not, a valid reason for the dismissal related to her capacity or conduct.

(b) In all the circumstances of this case I regard this element of s.387 as a neutral consideration in respect of whether the dismissal of the Applicant was harsh, unjust or unreasonable.

Notification of the valid reason and opportunity to respond - s.387(b); (c)

(a) The matters in s.387(b) and (c) of the FW Act deal with whether there was procedural fairness in respect of a reason for dismissal related to capacity or conduct.

(b) The dismissal of the Applicant was not related to capacity or conduct.

(c) Consequently, in all the circumstances of this case I regard this element of s.387 as a neutral consideration in respect of whether the dismissal of the Applicant was harsh, unjust or unreasonable.

Unreasonable refusal by the employer to allow a support person - s.387(d)

1. Where an employee protected from unfair dismissal requests a support person be present to assist in discussions relating to the dismissal, the employer should not unreasonably refuse that person being present.

2. In the present matter this is not a relevant consideration.

1. In all the circumstances of this case I regard this element of s.387 as a neutral consideration in respect of whether the dismissal of the Applicant was harsh, unjust or unreasonable.

Warnings regarding unsatisfactory performance - s.387(e)

(a) The Respondent did not assert that the dismissal of the Applicant related to her unsatisfactory performance, so this matter is not relevant to my consideration as to whether the dismissal was harsh, unjust or unreasonable.

(b) In all the circumstances of this case I regard this element of s.387 as a neutral consideration in respect of whether the dismissal of the Applicant was harsh, unjust or unreasonable.

Impact of the size of the Respondent on procedures followed and Absence of dedicated human resources management specialist/expertise on procedures followed - s.387(f); (g)

(a) The size of a Respondent's enterprise may impact on the procedures followed by it in effecting a dismissal. Further, the presence of dedicated human resource management or expertise in a Respondent's enterprise should ensure a higher standard of management of human resources.

(b) In this matter the Respondent has an in-house human resource function. However, that function clearly has no influence over the cowboy behaviour of Mr Minney and Yusnanda.

(c) In all the circumstances of this case I regard this element of s.387 as a neutral consideration in respect of whether the dismissal of the Applicant was harsh, unjust or unreasonable.

Any other matters that the FWC considers relevant - s.387(h)

[38] Having considered each of ss.387(a)-(g) of the FW Act, it remains necessary to now consider subsection 387(h) in respect of the Applicant. Section 387(h) provides the Commission with a broad scope to consider any other matters it considers relevant.

[39] Once I have considered s.387(h) in combination with each of ss.387(a)- (g) of the FW Act, I must then decide (in respect of the Applicant) if, in all the circumstances, the termination of the Applicant's employment was harsh, unjust or unreasonable. Deciding whether the termination was ultimately unfair involves the exercise of discretion.

[40] Although s.387 includes matters that the Commission must take into account in deciding how to exercise its discretion, the discretion conferred is otherwise expressed in general, unqualified terms. Of course, the discretion conferred must be exercised judicially, that is to say not arbitrarily, capriciously or so as to frustrate the legislative purpose. Further, the discretion is also confined by the subject matter, legislative context and purpose.

[41] In exercising the discretion, guidance can be drawn from s.381 of the FW Act. It provides that:

(1) The object of this Part is:

• (a) To establish a framework for dealing with unfair dismissal that balances:

  1. The needs of business (including small business); and
  2. The needs of employees; and

• (b) To establish procedures for dealing with unfair dismissal that:

  1. Are quick, flexible and informal; and
  2. Address the needs of employers and employees; and

• (c) To provide remedies if a dismissal is found to be unfair, with an emphasis on reinstatement.

(2) The procedures and remedies referred to in paragraphs (1)(b) and (c), and the manner of deciding on and working out such remedies, are intended to ensure that a "fair go all round" is accorded to both the employer and employee concerned.

Note: the expression "fair go all round" was used by Heldon J in in re Loty and Holloway v Australian Workers' Union [1971] AR (NSW) 95."

[42] I consider the following matters to be relevant to the determination of whether the dismissal of Ms Fayad was harsh, unjust or unreasonable:

Matters that support a conclusion that the dismissal was harsh, unjust or unreasonable

1. Ms Fayad was not consulted about the termination of her employment.

b) The Respondent did put into evidence the process and selection criteria for employees identified for dismissal. It was a document prepared in June 2019.[22] That material reflected on Ms Fayad's performance. None of this was put to Ms Fayad.[23] She was not provided with an opportunity to respond to that material. That was inherently unfair.

1. The dismissal occurred when the Applicant was on authorised leave.

d) As Mr Yusnanda conceded the Respondent did not follow its own processes.[24]

e) The Applicant could have been redeployed into a Sales and Service Consultant role earning $55,000[25] per annum.

The Commissioner: So if she'd said, 'I'm interested in the sales role', what would have happened then?

Mr Yunanda: That - more than likely, what would have happened was that we would have just redeployed her into that role, because my opinion is that she would have the majority of the skills required.[26]

Matters telling against a conclusion that the dismissal was harsh, unjust or unreasonable

1. The Applicant was not the only person dismissed by reason of redundancy.

[43] Having considered each of the matters specified in s.387, the Commission, as presently constituted, is satisfied that, overall, and having regard to the obligation to afford a "fair go all round" the dismissal of the Applicant was unreasonable (because the Applicant could have been redeployed) and harsh (because of the impact on her of losing her employment during a pandemic).

[44] Accordingly, the Commission, as presently constituted, finds Ms Fayad's dismissal was unfair within the meaning of the FW Act.

[45] Section 390 of the FW Act sets out the circumstances in which I may make an order for reinstatement or compensation:

"390 When the FWC may order remedy for unfair dismissal

(1) Subject to subsection (3), the FWC may order a person's reinstatement, or the payment of compensation to a person, if:

(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and

(b) the person has been unfairly dismissed (see Division 3).

(2) The Commission may make the order only if the person has made an application under section 394.

(3) The Commission must not order the payment of compensation to the person unless:

(a) the FWC is satisfied that reinstatement of the person is inappropriate; and

(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.

Note: Division 5 deals with procedural matters such as applications for remedies."

[46] I have already dealt with the issues at s.390(1)(a)-(b) above. The Commission, as presently constituted, is satisfied the Applicant was protected from unfair dismissal pursuant to s.382 of the FW Act and the Applicant was dismissed unfairly. An order dismissing the jurisdictional objection will be issued with this decision.

[47] As a consequence of the above, the Commission is now required to determine whether to order:

1. the reinstatement of the Applicant or, in circumstances where reinstatement is inappropriate,

2. compensation if it is satisfied such an order is appropriate in all the circumstances.

[48] The Applicant seeks compensation as the primary remedy. Regardless of the remedy sought by the Applicant, s.390 of the FW Act requires I first determine whether reinstatement is appropriate before I may consider an order for compensation.

[49] The evidence was that, as at 22 September 2020 there were no vacancies in the business.[27] Further, the Applicant did not seek reinstatement. In the circumstances the Commission, as presently constituted, is satisfied that an order of reinstatement is inappropriate.

[50] Section 390(3)(b) provides the Commission may only issue an order for compensation to the Applicant if it is appropriate in all the circumstances.

[51] Noting the unfairness visited upon the Applicant, the Commission, as presently constituted, is satisfied that an order for compensation is appropriate in all the circumstances of this case.

[52] 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).[28] This approach was articulated in the context of the FW Act in Bowden v Ottrey Homes Cobram and District Retirement Villages[29]."[30]

[53] 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 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.

[54] Section 392 of the FW Act sets out the circumstances that must be taken into consideration when determining an amount of compensation, the effect of any findings of misconduct on that compensation amount and the upper limit of compensation that may be ordered:

(1) An order for the payment of compensation to a person must be an order that the person's employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.

(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:

(a) the effect of the order on the viability of the employer's enterprise; and

(b) the length of the person's service with the employer; and

(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and

(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and

(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and

(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and

(g) any other matter that the FWC considers relevant.

(3) If the FWC is satisfied that misconduct of a person contributed to the employer's decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.

(4) The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person's dismissal.

(5) The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of:

(a) the amount worked out under subsection (6); and

(b) half the amount of the high income threshold immediately before the dismissal.

(6) The amount is the total of the following amounts:

(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and

(b) if the employee 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 employee for the period of leave in accordance with the regulations."

[55] I will now consider each of the criteria in s.392 of the FW Act.

Remuneration that would have been received: s.392(2)(c)

[56] The Applicant's remuneration with the Respondent was $65,974 per annum.

[57] I should now determine the period of time the Applicant would have remained employed by the Respondent, or would have likely remained employed with the Respondent, had she not been dismissed.

[58] I am satisfied that, if the consultation was executed properly, Ms Fayad would have been redeployed into the position of Sales and Service Consultant. Noting her 6 years of service with NobleOak I am further satisfied that she would have been employed in the role of Sales and Service Consultant for at least 12 months. In that 12 month period the the Applicant would have earned $55,000.

[59] I should deduct from that amount the 4 weeks' notice payment paid to the Applicant in the amount of $5,075.00.

[60] I will not deduct the 10 weeks' redundancy payment paid to the Applicant. Redundancy payments are not remuneration. Redundancy payments serve a different purpose. The purpose of redundancy pay is to compensate an employee for matters such as the trauma associated with the termination of employment, the loss of non-transferable credits such as sick leave, the loss of security and seniority, lower job satisfaction and diminished social status and conditions.[31]

[61] Deducting the 4 weeks' notice leaves a compensation balance of $49,925.00.

[62] I find it is not appropriate in the circumstances that a contingency should be applied.

[63] I find an order for compensation in the amount proposed will not affect the viability of the Respondent's enterprise.

[64] I find that the Applicant's period of service with the Respondent, being 6 years, should not affect the amount of compensation to be ordered.

[65] Noting that the Applicant was paid 4 weeks' notice and 10 weeks' redundancy, the 14-week payment meant that between the date of dismissal on 4 June 2020 and 10 September 2020 the Applicant did not suffer any economic loss.

[66] In considering whether the Applicant has taken steps to mitigate the loss suffered as a result of the dismissal I should take into account whether the Applicant acted reasonably in the circumstances.[32]

[67] The Applicant's evidence was that,

"56. [The dismissal] has also affected my mentally and I have not at current put any great effort into finding a new job as I have found the experience extremely stressful and difficult and have focused on moving house first and for most and my health.

57. Then I will put further energy into trying to find another job."

[68] While I accept that the dismissal came out of the blue and no doubt distressed the Applicant, by the time of the hearing on 22 September 2020 I am not satisfied that she made reasonable attempts to mitigate her loss. However, I also note that the dismissal occurred during a pandemic and unemployment has increased. It is conceived that, had she tried, the Applicant would have found it difficult to secure a new job. Consequently, I have decided to reduce the amount of compensation I will order by 10% (i.e. by $4,992.50 to $44,932.50).

[69] I have not found any misconduct by the Applicant that contributed to the dismissal.

[70] I note that the amount of compensation calculated does not include a component for shock, humiliation or distress.

[71] I must reduce the amount of compensation to be ordered if it exceeds the lesser of the total amount of remuneration received by the Applicant, or to which the Applicant was entitled, for any period of employment with the employer during the 26 weeks immediately before the dismissal, or the high income threshold immediately prior to the dismissal.

[72] The high-income threshold immediately prior to the dismissal was $148,700.

[73] The amount the Applicant would have earned, or to which the Applicant was entitled, for the 26-week period immediately prior to the dismissal was $32,987.

[74] Because the amount of compensation I propose to order ($44,932.50) exceeds the compensation cap I must reduce the amount of compensation to equal the compensation cap of $32,987.00.

[75] The Respondent made no submission about the need to pay by instalments.

[76] The Commission, as presently constituted, is satisfied that the Applicant was protected from unfair dismissal, that the dismissal was unfair and a remedy of compensation in the amount of $32,987.00 is appropriate. The compensation must be paid within 21 days.

[77] An order will be issued with this decision.

J Vizzone of Vizzone, Ruggero, Twigg Lawyers for the Applicant.

[5] UES (Int'l) Pty Ltd v Harvey [2012] FWAFB 5241 (Acton SDP, Kaufman SDP, Bissett C, 14 August 2012) at paras 26-27, [(2012) 215 IR 263].

[6] See for example UES (Int'l) Pty Ltd v Harvey [2012] FWAFB 5241 (Acton SDP, Kaufman SDP, Bissett C, 14 August 2012), [(2012) 215 IR 263].

[7] Construction, Forestry, Mining and Energy Union v Newcastle Wallsend Coal Company, Print R0234 (AIRCFB, Ross VP, MacBean SDP, Deegan C, 21 December 1998) at paras 78-80, [(1998) 88 IR 202]; cited in Steele v Ennesty Energy Pty Ltd T/A Ennesty Energy [2012] FWA 4917 (Jones C, 21 June 2012) at para. 20.

[8] Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Vodafone Network Pty Ltd, PR911257 (AIRC, Smith C, 14 November 2001) at para. 25.

[9] Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v QR Ltd (No 2) [2010] FCA 652 (22 June 2010) at para. 49.

[10] Sinfield v London Transport Executive [1970] Ch 550.

[13] Ulan Coal Mines v Honeysett [2010] FWAFB 7578; (2010) 199 IR 363, 370 [26]

[14] Technical and Further Education Commission (t/a TAFE NSW) v Pykett [2014] FWCFB 714; (2014) 240 IR 130, [36]

[15] Ulan Coal Mines v Honeysett [2010] FWAFB 7578; (2010) 199 IR 363 [28]

[20] Sayer v Melsteel [2011] FWAFB 7498

[21] UES (Int'l) Pty Ltd v Harvey (2012) 215 IR 263

[28] (1998) 88 IR 21.

[29] [2013] FWCFB 431.

[30] Double N Equipment Hire Pty Ltd t/a A1 Distributions v Humphries [2016] FWCFB 7206, [16].

[31] The Redundancy Case [2004] AIRC 287; (2004) 129 IR 155

[32] Biviano v Suji Kim Collection PR915963 at [34].

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