Fair Work Act 2009

s.394 - Unfair dismissal

[1] On 6 May 2020 Ms Amy Veronica Greene (Ms Greene) filed an application (Application) pursuant to section 394 of Fair Work Act 2009 (Cth) (FW Act) with the Fair Work Commission (FWC) alleging she was unfairly dismissed by Floreat Hotel - CEH Group trading as Floreat Hotel (Floreat Hotel).

[2] On 15 May 2020 Floreat Hotel filed a Form F3 - Employer Response to an Unfair Dismissal Application raising a jurisdictional objection to the Application, namely that the dismissal was a case of genuine redundancy.

[3] On 22 June 2020 the parties participated in a conciliation conference before me, at which Floreat Hotel raised an additional jurisdictional objection that Ms Greene had not served the minimum employment period for the purposes of section 383 of the FW Act.

[4] The jurisdictional objection that Ms Greene had not served the minimum employment period was heard on 12 August 2020, and a decision issued on 3 September 2020.[1] The Full Bench of the FWC has since held that Ms Greene has fulfilled the minimum employment period required by section 383 of the FW Act.[2]

[5] The Application has been remitted to me to determine the merits of the Application and the remaining jurisdictional objection, that the dismissal was a case of genuine redundancy (Jurisdictional Objection).

[6] Given that there were contested facts involved, I am obliged by section 397 of the FW Act to conduct a determinative conference or hold a hearing.

[7] In light of this, the Application was listed for a hearing in Perth at 10:00am on 11 February 2021 (Hearing).

[8] On 22 November 2020 my Chambers issued directions for the filing of materials in advance of the Hearing (Directions). The Directions required the parties to file and serve outlines of submissions, signed and dated witness statements, copies of authorities and any documentary evidence on which they rely. The Directions also required the parties to file submissions addressing section 596 of the FW Act if they wished to be represented at the Hearing and/or if they opposed the other party being granted leave to be represented at the Hearing.

[9] On 1 December 2020 Ms Greene wrote to Chambers seeking an extension to file her materials. She also sought that Mr Micheal Greene (Mr Greene) and Mr Dominic Carney (Mr Carney) be granted leave 'to assist' her at the Hearing.

[10] Mr Greene identified himself at the Conference held on 22 June 2020 as Ms Greene's father and as a lawyer in Ireland. Mr Carney is described in Ms Greene's materials variously as an associate of Mr Greene and a student. In later correspondence with the FWC it is stated that Mr Carney and Mr Greene have: "... some knowledge of the Irish legal system, they are not solicitors and do not practise in Australian law".

[11] On 2 December 2020 Floreat Hotel wrote to Chambers opposing Ms Greene's application to have Mr Greene and Mr Carney assist her at the Hearing. Floreat Hotel cited the Fair Work Commission Rules (FW Rules) at rule 12(4).

[12] Rule 12(4) provides that:

"12 Representation by lawyers and paid agents

(1) For the purposes of subsection 596(1) of the Act, in any matter before the Commission, a person:

• (a) must not, without the permission of the Commission, be represented in the matter by a lawyer or paid agent participating in a conference or hearing relating to the matter; but

• (b) may otherwise, without the permission of the Commission, be represented by a lawyer or paid agent in the matter.

Note: See subsection 596(4) of the Act for when a person is taken not to be represented by a lawyer or paid agent for the purposes of that section.

(2) Despite paragraph (1)(a), a person may, without the permission of the Commission, be represented in a matter by a lawyer or paid agent:

• (a) participating in a conference or hearing in relation to the following:

  • (i) a matter arising under Part 2-3 of the Act (modern awards);

  • (ii) a matter arising under Part 2-5 of the Act (workplace determinations);

  • (iii) a matter arising under Part 2-6 of the Act (minimum wages);

  • (iv) a matter arising under section 510 or 512 of the Act (entry permits); and

• (b) participating in a conference conducted by a member of the staff of the Commission, whether or not under delegation, in relation to the following:

  • (i) an application under section 394 of the Act for an unfair dismissal remedy;

  • (ii) an application under section 789FC of the Act for an order under section 789FF of the Act to stop bullying.

(3) Despite anything in this rule, the Commission may, in relation to a matter before the Commission, direct that a person is not to be represented in the matter by a lawyer or paid agent except with the permission of the Commission.

(4) To avoid doubt, nothing in paragraph (2)(b) is to be taken as permitting a person to be represented in a matter by a lawyer or paid agent participating in a conference before a Commission Member in relation to an application under section 394 or 789FC of the Act without the permission of the Commission."

[13] Floreat Hotel submitted that representation in a Hearing includes:

1. Appearing as an advocate or a person in the conference or hearing (or otherwise speaking on behalf of the person in the conference or hearing); and

2. Attending the conference or hearing and assisting a person to present their case without speaking on behalf of the person such as by taking notes, providing documents or cataloguing exhibits for an advocate or making suggestions to an advocate as how best to conduct the case: Fitzgerald v Woolworths Limited [2017] FWCFB 2797; Kolobius v Uniting Church in Australia Property Trust [2018] FWCFB 1057.

[14] Floreat Hotel objected to the FWC granting permission to Mr Greene and/or Mr Carney to represent or assist Ms Greene at the Hearing on the grounds that:

1. Neither gentlemen are paid agents or lawyers, as defined in section 12 of the FW Act.

2. It was prejudicial to Floreat Hotel for friends and family of Ms Greene in their capacity as support persons to represent Ms Greene and was a breach of Rules 11 and 12 of the FW Rules.

3. If Ms Greene sought to be represented it is incumbent upon her to engage such resources in accordance with the procedural and legislative requirements of the FW Act.

[15] On 3 December 2020 Floreat Hotel sought leave to be represented at the Hearing by Capital Legal. Capital Legal represented Floreat Hotel at the previous hearing of the jurisdictional objection that Ms Greene did not meet the minimum employment period and at the appeal proceedings before the Full Bench. Floreat Hotel sought leave to be represented on the grounds that Floreat Hotel is a family owned and operated business who does not have dedicated or specialist human resource staff. Floreat Hotel also submitted that given that the Hearing involves the determination of a jurisdictional objection that it would enable the matter to be deal with more efficiently, taking into account the complexity of the matter if it were represented at the Hearing.

[16] On 3 December 2020 Ms Greene filed an outline of submissions, which also contained further submissions in relation to her request that her Father and his associate represent her at the Hearing and submissions opposing leave being granted to Floreat Hotel. These submissions described her Father and his associate as 'bargaining representatives.'

[17] In those submissions Ms Greene conceded that neither her Father or his associate are not lawyers or paid agents for the purposes of the FW Act. She submitted that her Father and his associate should be able to represent her at the Hearing because she had no legal background.

[18] In the same submissions Ms Greene opposed leave being granted to Floreat Hotel on the ground that Capital Legal had not provided assistance to her and that Capital Legal had, according to Ms Greene, raised frivolous jurisdictional objections.

[19] On 8 December 2020 Ms Greene filed an additional outline of submissions in which she confirmed that she did not wish to make any further submissions opposing Floreat Hotel's application for leave to be granted to be represented.

[20] Notwithstanding this, on 10 December 2020 Ms Greene filed further submissions opposing Floreat Hotel's application for leave to be granted to be represented. In those submissions she opposed leave being granted to Floreat Hotel on the grounds that by raising various jurisdictional objections and by making or opposing various interlocutory applications that Capital Legal had demonstrated that their involvement would not enable the matter to be dealt with more efficiently. Ms Greene also submitted that the matter was not complex.

[21] On the same date Ms Greene filed further submissions with respect to her request to be represented at the Hearing by her Father and his associate. In those submissions she conceded that neither gentleman were a bargaining representative for the purposes of the FW Act and therefore did not seek leave to represent her on that basis. She submitted that as they were neither lawyers or paid agents for the purposes of the FW Act that neither required leave to represent her and could do so at will.

[22] Later on the 10 December 2020 Floreat Hotel filed submissions in response. In those submissions Floreat Hotel reiterated that Mr Greene and Mr Carney had no standing to make an application to represent Ms Greene at the Hearing and given their admitted lack of knowledge of the jurisdiction would not assist in the matter being dealt with more efficiently.

[23] On 9 February 2021 the parties were offered the opportunity to make further oral submissions in relation to the granting of leave to be represented.

[24] During this interlocutory hearing Ms Greene indicated that she was happy to represent herself in the event that Floreat Hotel were not granted leave to be represented.

[25] At the conclusion of the interlocutory hearing held on 9 February 2021 the parties were advised that leave to be represented had been refused for both parties and that I would provide my detailed reasons for doing so with my written reasons for my decision with respect to the substantive Application. My reasons for refusing leave are set out below.

[26] Whilst the FWC is not bound by the rules of evidence and procedure, it is subject to the common law principles of procedural fairness.

[27] Section 577 of the FW Act also provides that:

"577 Performance of functions etc. by the FWC

The FWC must perform its functions and exercise its powers in a manner that:

(a) is fair and just; and

(b) is quick, informal and avoids unnecessary technicalities; and

(c) is open and transparent; and

(d) promotes harmonious and cooperative workplace relations."

[28] As the Practice Note - Fair Hearings commencing 15 July 2016 points out:

"The provision of a fair hearing is at the very heart of the Commission's obligations to the parties who appear before it. A fair hearing involves the opportunity for all parties to put their case and to have that case determined impartially and according to law. Members of the Commission are bound to act "judicially" in the sense that they are obliged to provide procedural fairness and to determine matters impartially."

[29] Deciding whether parties are to be represented is a key aspect of ensuring that the manner in which proceedings are conducted is fair and just.[3]

[30] It is not necessary for a party to be represented by a lawyer or a paid agent in the FWC. In fact, section 596(1) of the FW Act provides that a party may be represented in a matter before the FWC by a lawyer or paid agent, only with the permission of the FWC.

[31] Section 596(2) provides that the FWC may grant permission for a person to be represented by a lawyer or paid agent in a matter before the FWC only if:

1. it would enable the matter to be deal with more efficiently, taking into account the complexity of the matter; or

2. it would be unfair not to allow the person to be represented because the person is unable to represent himself, herself or itself effectively; or

3. it would be unfair not to allow the person to be represented, taking into account fairness between the person and other persons in the same matter.

[32] One or all of the prescribed conditions outlined in section 596(2) of the FW Act, but no others, may give rise to the FWC's power to exercise its discretion to grant permission to a person to be represented by a lawyer or a paid agent in any given case.

[33] The decision to grant permission is a two-step process. First, it must be determined if one of the requirements in section 596(2) of the FW Act have been met. Secondly, if the requirement has been met, it is a discretionary decision as to whether permission is granted.[4] Once invoked, such discretion should be exercised appropriately, having regard to the intention of the legislature and the pursuit of justice.[5]

[34] Floreat Hotel submitted that granting leave would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter because the matter concerns a jurisdictional objection which is overlayed by COVID-19 directives and issues related to award compliance. Floreat Hotel also submitted that it is a family owned business with no internal human resource, industrial or legal expertise and as a result was unable to represent itself effectively.

[35] While the hearing involved the determination of a jurisdictional objection, the Jurisdictional Objection is not of a complex nature. Its elements are codified in section 389 of the FW Act. There is a large volume of decided case law in relation to jurisdictional objections of this nature. There is nothing novel about the facts or law in dispute. In any event any submissions in relation to legal principles could, and were, dealt with by way of written submissions, both in advance of the proceedings and in closing.

[36] The parties were informed that the Application would be heard by way of a Determinative Conference, therefore the parties would not be required to have a familiarity with FWC process, practices or the rules of cross-examination. In any event, these processes were explained to the parties at the commencement of the proceedings and the proceedings were conducted informally. The FWC also provides extensive resources on its website in both written and video format in relation to the conduct of proceedings. Both Floreat Hotel's representative, Mr Brennan, and Ms Greene have previously attended or appeared in earlier proceedings before me so are familiar with the process which was adopted to determine the Application.

[37] The evidence in chief was already given by way of witness statements filed in advance of the proceedings. Each party had only two witnesses who each provided relatively short statements. As the parties were made aware of my ruling with respect to leave in advance of the Hearing of the substantive application cross-examination questions could be prepared in advance of the proceedings.

[38] Floreat Hotel referred to and relied on my decision in Tracey v BP Refinery [2020] FWC 5787 which was upheld by the Full Bench in Tracey v BP Refinery [2020] FWCFB 6388.

[39] The two matters are very different. Mr Tracey has been involved in the conduct of proceedings in the FWC and the Federal Court arising out of his dismissal almost continually since February 2019. Mr Tracey has undertaken a considerable amount of personal research in relation to the legal issues he has sought to agitate and in the course of doing so acquired familiarity with legal principles, processes and procedures. The legal issues involved in his most recent proceedings are complicated and require consideration of recent developments in case law, at a Federal Court level. The legal and factual issues in dispute involved undertakings allegedly made by BP's representatives.

[40] Ms Greene was a self-represented litigant who was employed as a waitress. There was no evidence before me that she had any relevant skills, experience or qualifications relevant to the proceedings. In all the circumstances of this Application, I am of the view that refusal to grant leave to Floreat Hotel to be represented at the Hearing is fair and just and in accordance with the FW Act and will allow the proceedings to occur in a manner which is quick, informal and avoids unnecessary technicalities.

[41] Ms Greene asserts that as neither her father or his associate are lawyers or paid agents for the purposes of the FW Act that they have a right to assist her at the Hearing.

[42] In relation to Ms Greene's request that her father and his Associate assist her that they have is evidenced in various correspondence with Chambers, whereby she explained her late filing of responses or materials because of time delays between her and her father in Ireland who assisted her to prepare her materials. They also had the opportunity to assist her in the preparation of her written closing submissions.

[43] I do not accept that merely because a person is not a lawyer or a paid agent for the purposes of the FW Act that they have an automatic right to appear on behalf of a party at a Conference or Hearing. Ms Greene did not identify any statutory provision or authority which suggests otherwise.

[44] The Explanatory Memorandum to the Fair Work Bill 2008 (Cth) states:

"2291. FWA is intended to operate efficiently and informally and, where appropriate, in a non-adversarial manner. Persons dealing with FWA would generally represent themselves...

2296. In granting permission, FWA would have regard to considerations of efficiency and fairness rather than merely the convenience and preference of the parties."

[45] In addition, the Explanatory Memorandum contains the following commentary in its regulatory analysis section:

"r.335. FWA will move away from formal, adversarial processes, with legal representation and intervening parties. There will also be a higher bar set for representation. Permission for representation will only be granted to parties (including the Minister) where it would enable the matter to be dealt with more efficiently or fairly...It is envisaged that in most cases legal representation will not be necessary."

[46] In Warrell v Walton [2013] FCA 291 Justice Flick stated that:

"[24] A decision to grant or refuse "permission" for a party to be represented by "a lawyer" pursuant to s 596 cannot be properly characterised as a mere procedural decision. It is a decision which may fundamentally change the dynamics and manner in which a hearing is conducted. It is apparent from the very terms of s 596 that a party "in a matter before FWA" must normally appear on his own behalf. That normal position may only be departed from where an application for permission has been made and resolved in accordance with law, namely where only one or other of the requirements imposed by s 596(2) have been taken into account and considered. The constraints imposed by s 596(2) upon the discretionary power to grant permission reinforce the legislative intent that the granting of permission is far from a mere "formal" act to be acceded to upon the mere making of a request. Even if a request for representation is made, permission may be granted "only if" one or other of the requirements in s 596(2) is satisfied. Even if one or other of those requirements is satisfied, the satisfaction of any requirement is but the condition precedent to the subsequence exercise of the discretion conferred by s 596(2): i.e., "FWA may grant permission ...". The satisfaction of any of the requirements set forth in s 596(2)(a) to (c) thus need not of itself dictate that the discretion is automatically to be exercised in favour of granting "permission"."

[47] Both extracts make it clear that the primary position is that parties must normally appear on their own behalf. This was confirmed by the Full Bench in Fitzgerald v Woolworths [2017] FWCFB 2797:

"It should be noted that even in circumstances where s.596 does not apply, a party does not have a general right to determine who may attend a hearing on its behalf. The Commission under ss.589-593 of the FW Act is conferred with wide power to control the conduct of proceedings before it. This includes the power, in s.593(3)(b), to make orders as to who may be present at a hearing, whether "because of the confidential nature of the evidence, or for any other reason" (underlining added).

[48] If it were the case that anyone could appear for a party without leave as of right, provided that they were not currently a paid agent or lawyer for the purposes of the FW Act, it would create a mockery of the leave provisions.

[49] Ms Greene did not characterise Mr Greene or Mr Carney's involvement as such as of the nature of a McKenzie friend. However, for completeness I note the following.

[50] The role of a McKenzie friend was described in a decision of the Family Court (Lindenmayer J) in Watson v Watson (2001) 166 FLR 229, as follows:

"... that a litigant who appears before a Court in person is ordinarily entitled, if he or she so wishes, to have the assistance, in the Court, of a friend or assistant who may sit beside the litigant at the bar table for the purpose of taking notes, handling or cataloguing documents or exhibits, making quiet suggestions to the litigant as to how best to conduct the case, and generally being of assistance to the litigant in presenting his or her case to the Court, provided that that person does not disrupt the proper conduct of the proceedings. However, an important limitation upon the role and functions of a 'McKenzie friend' is that he or she may not (except, perhaps, in the most exceptional cases, and with the express leave of the Court) act as an advocate for the litigant in the proceedings..." cited in Collier v Hicks (1831) 2 B and Ad. 663 at 669_, and KT v KJ & TH_ (2000) 156 FLR 451 at 453 - 454.

[51] Neither Mr Greene or Mr Carney propose to attend in person to assist in the manner contemplated by way of a McKenzie Friend.

[52] I do not consider that there were exceptional circumstances which might have made advocacy appropriate. In fact Ms Greene indicated that she was happy to represent herself if Floreat Hotel were also not granted leave to be represented.

[53] In addition, there are reasons to suggest that to allow such involvement would have interfered with the efficient conduct of the proceedings. I note that the involvement of Mr Greene in the matter prior to the Hearing has not enabled the matter to be dealt with more efficiently. Mr Greene's approach in the conference conducted prior to the Hearing, not unsurprisingly coloured by his emotional attachment to his daughter, made mediation difficult. The tone of correspondence and submissions, which according to Ms Greene he had overseen has been unduly aggressive and lacking in courtesy. The submissions made to date indicate a lack of familiarity with FWC processes and the relevant legal principles and do not suggest that the participation of Mr Greene or Mr Carney would have assisted the efficient conduct of the Hearing.

[54] The Hearing was to be conducted in person. Mr Greene and Mr Carney did not intend to attend the Hearing in person but instead proposed to participate by video link from Ireland. Notwithstanding improvements in technology establishing and sustaining quality stable audio and visual links to international locations, using the Commission's current technology is challenging. Given the layout of the court room those on video links have restricted views of the witness, the bar table and the bench. Furthermore, any documents physically exchanged between the parties, witness or bench on the day of the Hearing are not readily accessible to those participating by a video link. While these matters may be less of an obstacle for short appeal hearings they bear greater significance to a longer first instance proceeding, particularly when witness credibility is an issue.

[55] Rule 12 of the FWRules provides that permission to be represented is not required for a representative to prepare and file written submissions and evidentiary material in accordance with directions in advance of a hearing date. As Ms Greene indicated on a number of occasions to Chambers. Ms Greene had the assistance of Mr Greene and Mr Carney to help her prepare an outline of submissions, witness statements and collate evidentiary materials.

[56] Having had the benefit of receiving the evidence in chief of the respondent's witnesses well in advance of the Hearing, Ms Greene had the opportunity to have assistance preparing cross examination questions in advance. The parties were provided the opportunity to make written closing submissions, with the benefit of transcript. Ms Greene was not therefore required to write her own submissions nor compelled to make any oral submissions during the Determinative Conference.

[57] The Application was heard by way of a Determinative Conference, therefore the parties did not require familiarity with FWC process, practices or the rules of cross-examination. These were explained to the parties during the proceedings and the proceedings were conducted informally. Ms Greene also had access to the resources on the FWC website in both written and video format in relation to the conduct of proceedings. Ms Greene demonstrated, in earlier proceedings, that she is an articulate and well organised young women who was more than capable of articulating her case, engaging in procedural discussions with the Bench and opposing party and vigorously cross-examining witnesses.

[58] In all the circumstances I am not satisfied that Ms Greene is unable to represent herself effectively or that it would be unfair if she were not granted representation.

[59] At the Determinative Conference, Ms Greene represented herself and gave written and oral evidence on her own behalf. A witness statement of Mr Jake Dalli, who was the former Venue Manager of Floreat Hotel, was filed. However, Mr Dalli did not attend the Determinative Conference and was not available for cross-examination.

[60] At the Determinative Conference, Floreat Hotel was represented by Mr Brian Brennan, the owner and managing Director of the company that owns the Floreat Hotel (Mr Brennan). Mr Brennan and Ms Donna Holmes, the Financial Controller of the Floreat Hotel (Ms Holmes) gave written and oral evidence on behalf of Floreat Hotel.

[61] In reaching my decision I have considered all the submissions made and the evidence tendered by the parties, even if not expressly referred to in these reasons for decision.

[62] Floreat Hotel is a bar and restaurant located in the western suburbs of Perth. Mr Brennan and his family own and operate a number of other venues via a separate legal entity, Capital Entertainment and Hospitality Group Pty Ltd (CEH Group). Mr Brennan's wife and his sons Matt and Anthony work in the family businesses. From time to time the CEH Group provide payroll and human resource services to the Floreat Hotel.[6]

[63] Ms Holmes is the financial controller for CEH Group and, consequently, the Floreat Hotel.[7]

[64] The Floreat Hotel is staffed by a mix of permanent and casual staff. There are a small number of permanent employees and a large pool of casuals drawn from a flexible workforce such as students and backpackers. The permanent staff give a degree of consistency to the operation of the hotel. Casuals are brought in for peak periods. The need for casuals is highly variable depending on seasons and events.[8]

[65] Ms Greene commenced employment as a casual food and beverage attendant at the Floreat Hotel on 24 February 2019. The parties did not enter into any written employment contract with respect to the casual employment. The evidence is that she was at least initially engaged on a 'zero hour' basis.[9]

[66] Throughout her employment with the Floreat Hotel the Hospitality Industry General Award 2010 covered Ms Greene's employment (Hospitality Award).

[67] Ms Greene says that her duties were limited to food and beverage attendant only for the first few weeks of her casual employment and that after this date she was allocated duties of an assistant manager including managing staff, staff training and banking.[10]

[68] Up until July 2019, Mr Dalli would prepare a roster for the week ahead. He was instructed by Mr Brenan to use as few casuals as possible, particularly on weekends or other times when penalty rates applied. In or around July 2019, Mr Brennan became concerned about increasing staffing costs. On further inquiry, he became aware that Mr Dalli was allocating work preferentially to a small group of casuals which included Ms Greene. This was substantially increasing staffing costs. Mr Brennan instructed Mr Dalli to reduce the use of casuals because it was financially unviable.[11]

[69] In August 2019, Mr Brennan says that he made it clear to Mr Dalli that Ms Greene should not expect ongoing casual employment because it was not financially viable for the business, but that the business would be happy to offer her permanent employment. Mr Brennan says that those discussions began in August 2019 but stalled during September and October while Ms Greene was on holiday and unavailable to work.[12]

[70] On 4 December 2020, Ms Greene met with Mr Brennan to discuss permanent employment. Mr Brennan agreed to this, and on 17 January 2020, offered Ms Greene full-time employment. On 20 January 2020, Ms Greene signed an employment contact accepting permanent full-time employment as a food and beverage attendant effective from 20 January 2020 (Contract).[13]

[71] Relevantly to the events which subsequently occurred, clause 7 of the Contract provides that:[14]

"The employer may stand down, without pay, the employee on any day the employee cannot be usefully employed because of any strike, lack of work, or any stoppage of work by any cause for which the employer cannot be held responsible (including inclement weather and circumstances where the employee is deemed to be not fit for work)."

[72] On 22 March 2020 by the directive of the State Emergency Coordinator and Commissioner of Police under the Emergency Management Act 2005 (WA), Floreat Hotel was directed to close except for take away beverage services (Directive).[15]

[73] Stage one social distancing directions were issued by the Western Australian Government on 23 March 2020.

[74] The Floreat Hotel closed immediately as did the other venues operated by the CEH Group with the exception of a bottle shop which operated on reduced hours with staff engaged in their roles prior to the Directive being issued.

[75] At that time of the closures the Floreat Hotel employed twenty-two casual employees and two permanent full-time employees (in addition to Ms Greene). The CEH Group as a whole employed ninety-three predominately casual employees.[16]

[76] As a consequence of the closure a large volume of stock was wasted and events cancelled causing significant losses to the business.[17]

[77] On 23 March 2020, Mr Brennan instructed Ms Holmes to email employees of the Floreat Hotel, including Ms Greene, to inform them that as a consequence of the Directive they had been stood down (Stand Down Letter).[18]

[78] The Stand Down Letter sent to Ms Greene explains that due to the Directive the Floreat Hotel had been closed and consequently the Floreat Hotel could not usefully employ her. The Stand Down Letter offers her the option of accessing her accrued annual leave. The Stand Down Letter encourages her to contact Centrelink and offers her assistance in seeking government assistance.[19]

[79] The Stand Down Letter stated as follows: [20]

"Upon the Federal Government's decision to enforce the closure of all licensed venues, Floreat Hotel Pty Ltd (ABN62622093878) is forced to Stand Down (without pay) your employment effective 23 March 2020.

This is not a notice of termination of employment; however, the enforced complete shutdown of all licensed venues has resulted in a stoppage of work outside our control where we can no longer usefully employ you.

Please note you do have the option of taking any unused annual leave during this period. Our records show you have 26 hours annual leave available. Should you elect to use your annual leave please email accounts@cehgroup.com.au clearly stating your request to use annual leave during the stand down period.

With the unprecedented impact the Covid-19 Pandemic is having globally we cannot predict an end date to the Stand Down period at this stage but shall endeavour to keep you informed of any foreseeable opportunity to usefully re-engage your service.

We are devastated to have had to make this decision and truly empathise with the impact it will have upon our employees and urge you to contact Centrelink as a priority. You can do this via your myGov ID.

If you require any supporting information to assist in applying for Government assistance please do not hesitate to contact Donna Holmes - Financial Controller, email: accounts@cehRroup.com.au OR mobile 0408 933 321.

Please stay healthy and we hope to be in touch with better news in the not too distant future."

[80] On 24 March 2020, Mr Brennan emailed all staff, including Ms Greene providing an update on their employment at the Floreat Hotel as a result of the Directive, stating the Floreat Hotel would go into care and maintenance mode until more is known about the Directive (Update Email). The Update Email also communicated that all venues of the CEH Group were also closed save for the Hale Road Bottle shop which would be operated by casual employees who continued in their pre-Covid casual positions.[21]

[81] On 29 March 2020, Ms Greene emailed Ms Holmes requesting her accrued annual leave be paid out to her.[22]

[82] On 2 April 2020 at 11.08am, Ms Greene emailed Mr Brennan and Ms Holmes asking how she could access Job-Keeper.[23]

[83] Ms Holmes responded by email several minutes later explaining that terms of the Job-Keeper subsidy were still unknown however the business was investigating all avenues to ensure the sustainability of the business and would update employees accordingly.[24]

[84] Later the same day Ms Greene responded to Ms Holmes stating that she thought the Job-Keeper could be accessed immediately.[25] Several minutes later Mr Brennan responded to Ms Greene by email clarifying that the Job-Keeper scheme was yet to be legislated and no-one could access Job-Keeper yet.[26]

[85] On or around 10 April 2020 Ms Holmes met with Mr Brennan to discuss the escalating operational and financial pressures facing the Floreat Hotel as a result of the pandemic and the Directive. She advised him that given that there was an urgent need to restructure the operations given that the business had no work to offer the full-time employees.[27]

[86] Mr Brennan's evidence is that as at 14 April 2020 the Floreat Hotel's cash flow had ceased and there was no certainty as to when, or even if, the Floreat Hotel would reopen. While the Floreat Hotel had no cashflow it continued to be liable for creditors including its landlord, creditors and suppliers.[28]

[87] By that time the terms of the Job-Keeper program had been made public. It became apparent to Mr Brennan that if the Floreat Hotel and/or the CEH Group intended to participate in the scheme the CEH Group would be required to bank roll the wages of ninety-three eligible employees for up to six weeks without any stream of business income before the CEH Group or the Floreat Hotel would be eligible for financial assistance from the government.[29]

[88] Even if the Floreat Hotel and the CEH Group did not participate in the Job-Keeper scheme both would have been required to continue to accrue liability for the leave entitlements of its permanent employees.

[89] Mr Brennan says that to order to preserve any opportunity for the Floreat Hotel to avoid permanent closure it was necessary to immediately take steps to restructure the business to minimise costs and maximise business flexibility. He says that he therefore made the difficult decision to make Ms Greene's position, along with all other staff at the Floreat Hotel and CEH Group (save for Ms Holmes, his wife and sons) redundant.[30]

[90] On 15 April 2020, Ms Greene was informed in writing that her position was redundant and that her employment would cease on 16 April 2020 (Termination Letter). The Termination Letter invites her to ensure the Floreat Hotel has her current contact details so that they could get in touch with her if any employment opportunities arose when the business reopened.[31]

[91] Ultimately the Floreat Hotel did not reopen for ten weeks. Upon reopening patron numbers were limited to 100 patrons despite its capacity for 650 patrons. The restricted patron numbers meant there were less roles to be performed and less staff required. As at 11 December 2020 the only permanent employee engaged by the Floreat Hotel was the executive head chef. To ensure busines flexibility all other staffing is provided by casual employees or family members.[32]

[92] Ms Greene submits she was unfairly dismissed and seeks an Order that she be compensated. In her submissions she also sought orders for one week pay in lieu of notice and four weeks severance payment.

[93] An order for reinstatement or compensation may only be issued if Ms Greene was unfairly dismissed and Ms Greene was protected from unfair dismissal at the time of her dismissal.

[94] Section 385 of the FW Act provides that a person has been unfairly dismissed if the FWC is satisfied that:

b. the dismissal was harsh, unjust or unreasonable;

1. the dismissal was not consistent with the Small Business Fair Dismissal Code (SBFD Code); and

d. the dismissal was not a case of genuine redundancy

[95] The Respondent submits that Ms Greene's dismissal was a case of genuine redundancy. Ms Greene disputes this.

Was Ms Greene's dismissal a case of genuine redundancy?

[96] Pursuant to section 389 of the FW Act, a person's dismissal was a case of genuine redundancy if:

1. the 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

2. the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.

[97] A person's dismissal is not a case of a genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within the employer's enterprise or the enterprise of an associated entity of the employer.

Was Ms Greene's job no longer required to be performed?

[98] To be satisfied the dismissal was a case of genuine redundancy, the FWC would need be satisfied the Ms Greene's role was no longer required to be performed by anyone because of changes to Floreat Hotel's operational requirements.

[99] The FW Act does not define the term "operational requirements". It is a broad term that permits consideration of many matters including the state of the market in which the business operates and the application of good management to the business.[33] Some examples of changes in operational requirements include a downturn in trade that reduces the number of employees required and the employer restructuring the business to improve efficiency including the redistribution of tasks done by a particular person between several other employees thus resulting in the person's job no longer existing.[34]

[100] A job involves "a collection of functions, duties and responsibilities entrusted, as part of the scheme of the employer's organisation, to a particular employee ". Where there has been a reorganisation or redistribution of duties, the question is whether the employee has any duties left to discharge. If there is no longer any function or duty to be performed by that person, his or her position becomes redundant.[35]

[101] An employee may still be genuinely made redundant when there are aspects of the employee's duties still being performed by other employees.[36] The test is whether the previous job has survived the restructure or downsizing, rather than a question as to whether the duties have survived in some form.[37]

[102] Floreat Hotel submits that Ms Greene's role was not required to be performed by anyone because the impact of COVID-19 and Government Directives led to the indefinite closure of the Floreat Hotel and uncertainty as to if and when it might reopen and on what basis.

[103] Ms Greene disputes that genuine operational requirement existed for her dismissal. She submits that the Floreat Hotel could have preserved her employment by continuing her stand down until the hotel reopened, applied for Job Keeper to subsidise her wages or utilised some of the flexibilities introduced into the Award in response to COVID.

[104] The Floreat Hotel shut down without certainty as to when, or even if, it might reopen. These operational changes occurred as a result of the pandemic and the ensuing Directives, causes outside of the Floreat Hotel's control. Sadly there are many hospitality venues that did not in fact reopen post the Directive. The evidence is that even when it did reopen its organisational structure has changed. With the exception of the Head Chef, the business is relying exclusively on the use of casual employees to fill its labour requirements.[38]

[105] There is no evidence to suggest that Ms Greene's permanent role currently exists or has existed since her dismissal.

[106] There is no evidence to suggest that Ms Greene was dismissed from her employment for any other reason other than that the Floreat Hotel no longer had an operational requirement for her role to be performed on a full-time permanent basis. In fact, the evidence is that prior to COVID Mr Brennan had pro-actively sought to retain Ms Greene in employment by encouraging her to accept permanent employment.

[107] Without any stream of income into the business, with losses associated with the shut down and with fixed costs continuing unabated the business faced a bleak and uncertain future. Mr Brennan ensured that his staff were kept informed of developments and given access to their accrued leave while stood down.

[108] The decision to make employees redundant was not a knee jerk reaction. It occurred more than three weeks after the Directive closed the Hotel indefinitely. It gave employees who had been stood down access to income by way of any payment lieu of notice, accrued entitlements or severance payments to which they were entitled. Importantly it also gave them the freedom to seek alternative employment or to access social welfare benefits.

[109] Retaining Ms Greene or other employees on standdown would have increased business liabilities in the form of service accruals. This may have been feasible for larger businesses with greater financial resources for a short period of time. However, there is no evidence to suggest that Floreat Hotel could sustain those costs any longer than it did or that it should have.[39]

[110] Mr Brennan gave evidence that the business could not bankroll the wages of employees for the six week period before it received government assistance via the Job Keeper scheme. His evidence in this regard is unchallenged.

[111] Relevantly both are short term measures (as were the temporary changes to the Hospitality Award). These measures are not sustainable in the long term for any business or government. Most importantly the evidence is that seven months later the business still had no need for her role as permanent employee. Therefore, even if Floreat Hotel undertook the measures suggested by Ms Greene the evidence is that these measures would have not secured her ongoing employment.

[112] I am therefore satisfied that the Floreat Hotel no longer required Ms Greene's role to be performed by anyone because of changes in the operational requirements of its enterprise.

Did Floreat Hotel comply with any consultation obligations?

[113] 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 to consult about redundancy.

[114] At the time of Ms Greene's dismissal the Hospitality Award applied to her employment with Floreat Hotel.

[115] The consultation provisions in the Hospitality Award appear at clause 38. Clause 38 provides as follows:

"38. Consultation about major workplace change

38.1 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.

38.2 For the purposes of the discussion under clause 38.1(b),the employer must give in writing to the affected employees and their representatives (if any) all relevant information about the changes including:

(c) any other matters likely to affect employees.

38.3 Clause 38.2 does not require an employer to disclose any confidential information if its disclosure would be contrary to the employer's interests.

38.4 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 38.1(b).

38.5 In clause 38 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

38.6 Where this award makes provision for alteration of any of the matters defined at clause 38.5, such alteration is taken not to have significant effect."

[116] Ms Greene submits that the Floreat Hotel did not engage in consultation in a meaningful way.

[117] The Stand Down Letter provided to Ms Greene on 23 March 2020 sets out in writing that a major change, being the closure of the Floreat Hotel, would occur as a result of the Directive. The letter explained that her duties would no longer be required to be performed while the hotel was closed. The letter encouraged her to mitigate the impact of the change by seeking Centre Link Assistance.

[118] Prior to making Ms Greene's position redundant Floreat Hotel consulted with Ms Greene via the Stand Down Letter, Update Email and other email correspondence as to the changes to her employment and reasons why. Floreat Hotel promptly responded to her queries with respect to her employment, her entitlements and the Job-Keeper scheme.[40] Ms Greene conceded this at the Determinative Conference.[41]

[119] Even if further consultation had taken place by way of skype or telephone (given that face to face meetings were not possible) there is no evidence that such consultation would have changed the outcome. Unavoidable, the business no longer required her permanent role.[42]

[120] Consequently, I am satisfied that Floreat Hotel complied with the requirement to consult with Ms Greene about the redundancy prior to dismissing her.

Was redeployment reasonable in all the circumstances?

[121] For the purposes of section 389(2) of the FW Act the FWC must consider whether there was a job or a position or other work within the employer's enterprise (or that of an associated entity) to which it would have been reasonable in all the circumstances to redeploy the dismissed employee. There must be an appropriate evidentiary basis for such a finding.[43]

[122] The question of whether redeployment of an employee is considered reasonable will depend on the circumstances that exist at the time of the dismissal.[44]

[123] The word redeployed in section 389(2) of the FW Act should be given its ordinary and natural meaning, which is to transfer to another job, task or function.[45]

[124] Floreat Hotel submits redeployment was not appropriate in the circumstances because the Floreat Hotel and all other CEH Group venues (with the exception of a drive through bottle shop staffed by long standing employees) were closed indefinitely at the time she was dismissed. Ms Greene conceded at the Determinative Conference that no job or roles existed for her at the time when she was dismissed and while the Floreat Hotel remained closed.[46]

[125] At the time of Ms Greene's dismissal it was not possible to determine if or when the Floreat Hotel or in fact any of the CEH Group venues would in fact reopen. Even if they did it was unclear what staff would be required either temporarily or in the long term.[47] The evidence supports the Floreat Hotel's assertion that it was not financially viable to retain Ms Greene either on stand down or via JobKeeper. Most relevantly the evidence reveals that by December 2020 her permanent role was still not required.

[126] In the circumstances, I am satisfied that it would not have been reasonable for Ms Greene to be redeployed within Floreat Hotel or in an associated entity.

[127] Consequently, I find that Ms Greene's dismissal was a case of genuine redundancy within the meaning of section 389 of the FW Act.

[128] The Application is therefore dismissed. An Order to this effect will issue with this decision.

[1] [2020] FWCFB 4245.

[2] [2020] FWCFB 6019.

[3] Warrell v Walton [2013] FCA 291; (2013) 233 IR 335, 341 [22].

[5] Chris Lekos v Zoological Parks and Gardens Board T/A Zoos Victoria [2011] FWA 1520 at [33].

[8] [2020] FWC 4245 at [14].

[33] Nettlefold v Kym Smoker Pty Ltd (1996) 69 IR 370, 373.

[34] Explanatory Memorandum, Fair Work Bill 2008, [1548].

[35] Jones v Department of Energy and Minerals (1995) 60 IR 304 at p. 308 cited in Ulan Coal Mines Limited v Howarth and others [2010] FWAFB 3488 at [17].

[36] Dibb v Commissioner of Taxation [2004] FCAFC 126 at [43]-[44].

[37] Kekeris v A. Hartrodt Australia Pty Ltd T/A a.hartrodt [2010] FWA 674 at [27].

[43] Technical and Further Education Commission T/A TAFE NSW v Pykett [2014] FWCFB 714.

[44] Ulan Coal Mines Limited v Honeysett [2010] FWAFB 7578 (Giudice J, Hamberger SDP, Cambridge C, 12 November 2010) at para. 26; [2010] FWAFB 7578; (2010) 199 IR 363.

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