What happened

In Alisha Smilovitz v The Royal Society for the Prevention of Cruelty to Animals (Victoria) [2024] FWC 1361, Commissioner Tran dealt with an interim procedural question in an unfair dismissal matter. The decision was made on 23 May 2024. It did not resolve the unfair dismissal application or the Employer’s jurisdictional objection.

Ms Smilovitz had worked full-time as a Rescue Co-ordinator. On 14 March 2024, she applied under s 394 of the Fair Work Act 2009 (Cth) for an unfair dismissal remedy (at [1]). The RSPCA’s jurisdictional objection was that the dismissal was a genuine redundancy within s 389 (at [1]). The disagreement relevant to this decision concerned redeployment: the RSPCA said it had offered redeployment, including the Rescue Co-ordinator role on a part-time basis, and that Ms Smilovitz had rejected the offers. Ms Smilovitz said that discussions took place about the redeployment options, including how the part-time role could be structured, and that successful discussions might have resulted in reasonable redeployment (at [3]).

On 17 May 2024, Ms Smilovitz applied under s 590 for orders requiring Ms Carcano and Ms Gallimore to attend (at [4]). She said Ms Carcano could give evidence about the discussions concerning redeployment and the reasonableness of the parties’ conduct. She said Ms Gallimore, identified as the new part-time Rescue Co-ordinator, could give evidence about the proposed role, including the days and hours of work stated in a particular email (at [10]-[11]).

The RSPCA opposed both applications. It said the witnesses’ evidence would not be relevant to the principal issue because it had made offers that were clearly rejected. It also argued that negotiation about the terms of the redeployment role was irrelevant because redeployment was a matter for the employer to determine (at [12]).

The Commissioner granted both applications. The orders themselves were to issue separately from the written decision (at [16]). This was a ruling about evidence-gathering for the later determination of the matter, not a finding that redeployment was or was not reasonable.

Why the court decided this way

The decision identifies the statutory questions relevant to genuine redundancy under s 389. The employer must no longer require the job to be performed because of operational changes, must comply with any applicable obligation to consult, and the dismissal is not a genuine redundancy if reasonable redeployment within the employer or an associated entity would have been available (at [2], [13]).

Commissioner Tran recorded that the first two questions did not appear to be in dispute. The key area of contention was the third question: whether redeployment would have been reasonable in all the circumstances (at [14]). That framing mattered to the applications. The proposed evidence concerned conversations about the part-time role and what its terms and conditions ultimately looked like. The Commissioner considered that evidence relevant to the live redeployment question.

The RSPCA’s position was that it had made offers and that Ms Smilovitz had rejected them. The Commissioner did not decide whether that account was correct, nor whether negotiations over the role’s terms would affect the substantive s 389 analysis. Instead, the Commissioner decided that evidence concerning those matters was sufficiently relevant to warrant the witnesses’ attendance. The ruling allowed the issue to be examined at the later stage rather than deciding it on the parties’ competing submissions about what the witnesses might say.

The procedural power relied on was s 590. The Commissioner described it as giving broad discretion about how the Commission may inform itself. The examples in s 590(2) do not limit that discretion (at [15]). In applying that power, the Commissioner considered the issues in the matter and the material already filed. That material included a statement from Ms Smilovitz and two statements for the Employer, but neither of the two proposed witnesses. The Employer had not indicated that it intended to call either witness voluntarily (at [15]).

Those considerations supported ordering attendance: the evidence related to a central disputed issue, the witnesses’ statements were not already before the Commission, and voluntary attendance had not been indicated. The Commissioner therefore considered it appropriate to order both witnesses to attend (at [15]-[16]).

The Commissioner also permitted both parties to be represented at future conferences and hearings. The stated reasons were fairness between the parties and a degree of legal and factual complexity concerning whether redeployment was reasonable (at [7]). That issue formed part of the procedural context, but it was distinct from the orders to attend.

Before and after state of the law

The decision does not purport to change or develop the legal test for genuine redundancy. It recites the statutory framework in s 389 and identifies the redeployment question as the live issue in this matter (at [2], [13]-[14]). Its focus is the application of s 590 to a specific request for witness attendance.

Before this ruling, the parties disputed the relevance of Ms Carcano’s and Ms Gallimore’s evidence. The Employer said the offers had been rejected and that discussion about the role’s terms was not relevant. Ms Smilovitz said the witnesses could address the conversations and the details of the part-time role (at [10]-[12]). After the ruling, both witnesses were to be required to attend, subject to the separate orders referred to by the Commissioner (at [16]).

The decision therefore establishes no general proposition that every witness connected with redeployment must attend, or that negotiations over proposed duties, hours or days necessarily determine whether redeployment was reasonable. It records a case-specific assessment that these witnesses’ evidence was relevant to the contested question and that attendance was an appropriate way for the Commission to inform itself under s 590 (at [15]).

Nor does the decision determine what makes redeployment reasonable “in all the circumstances”. It does not make findings about the offers, the parties’ conversations, the available vacancies, the suitability of any role, or the outcome of the underlying unfair dismissal application. Those substantive matters remained for determination.

Key passages with plain-English translation

At [13], the Commissioner sets out the three questions under s 389: whether the employer no longer required the job because of operational changes; whether it complied with any consultation obligation; and whether reasonable redeployment was available. In plain English, a redundancy objection involves more than showing that a particular job has changed or disappeared. The statutory inquiry also includes consultation obligations and possible redeployment.

At [14], the Commissioner says, “The test is whether redeployment was reasonable in all the circumstances.” The passage identifies the issue requiring evidence in this case. It does not resolve what the test requires on different facts or decide whether Ms Smilovitz’s circumstances met it.

At [15], the Commissioner states that s 590 gives broad discretion over how the Commission may inform itself, and that the examples in s 590(2) do not limit that discretion. In practical terms, the Commission was not confined to the forms of information-gathering listed as examples in the provision. The Commissioner then connects that discretion to the particular evidence sought: the witnesses could provide relevant evidence about the part-time Rescue Co-ordinator role and the reasonableness of redeployment.

At [16], the Commissioner says the applications are granted and that the orders will be issued separately. This is the operative outcome. The written reasons decide the applications, while the formal orders were to follow.

At [17], the Commissioner notes being amenable to a request for a witness to give evidence by video, provided reasons were sent to Chambers before the listed determinative conference. This is a practical procedural observation, not a finding about the substantive redundancy issue. The decision text gives the conference date as Tuesday, 11 June 2023, although the decision itself is dated 23 May 2024. The supplied judgment does not resolve that apparent date inconsistency.

What fact patterns trigger this precedent

The decision is most directly relevant to a procedural setting with these features: an employer has raised a genuine redundancy objection; redeployment is a live and contested part of that objection; proposed witnesses have evidence about discussions or the terms of a possible redeployment role; and those witnesses’ evidence is not already before the Commission or otherwise expected to be called voluntarily.

The case specifically concerned a proposed part-time version of the Applicant’s Rescue Co-ordinator role. One proposed witness was said to have knowledge of discussions about the option, while the other was said to be the new part-time Rescue Co-ordinator and to have relevant evidence about the role’s days and hours (at [10]-[11]). The Commissioner treated the possible evidence as relevant because the circumstances surrounding the proposed role bore on the disputed redeployment question (at [14]-[15]).

The decision should not be read as establishing that a witness order follows whenever a party asks for one. The ruling turned on the Commissioner’s assessment of relevance in the particular matter and the broad information-gathering discretion under s 590. Nor does it decide that an employer must negotiate the details of a proposed role in a particular way. Those questions were not decided.

How later courts have treated it

The supplied judgment contains no later decisions, citations to subsequent cases, or discussion of how another court or tribunal has treated this ruling. No conclusion about subsequent treatment can therefore be drawn from the provided source.

The decision itself is a Fair Work Commission procedural ruling. Its stated effect is confined to the applications for orders requiring two witnesses to attend in Ms Smilovitz’s matter. It does not describe itself as determining the underlying genuine redundancy issue, and it contains no account of later proceedings or an appeal outcome. Any statement about later judicial treatment would require sources beyond the judgment provided.

Still-open questions

The central substantive question remained open: whether it would have been reasonable in all the circumstances for Ms Smilovitz to be redeployed within the RSPCA or an associated entity. The decision says the first two s 389 questions did not appear to be in dispute, but it makes no final findings on them either (at [13]-[14]).

The decision also does not determine what the Employer offered, whether those offers were clearly rejected, what the parties discussed about days or hours, whether the proposed terms were suitable, or whether other vacant positions were available. Those were matters identified in the parties’ competing accounts, not findings made by the Commissioner in this procedural ruling (at [3], [10]-[12]).

Other procedural matters also remained open in the reasons. The decision states that the attendance orders would be issued separately and notes the possibility of a request for video attendance (at [16]-[17]). It does not report whether such a request was made or what happened at the later determinative conference. It also records the conference date as 11 June 2023, a date that appears inconsistent with the 2024 chronology stated in the judgment; the supplied text does not explain the discrepancy.

This is general legal information, not legal advice. Zoe can make mistakes. Before acting on this, relying on it, or using any draft, have a qualified Australian lawyer check it.